Developing Mediation Culture in Civil Law Systems: A Tale of Two Countries – Italy & Georgia (Part 2)

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Georgia adopted its first mediation law much more recently than Italy.

Previously, Georgia had only limited provisions in its Code of Civil Procedure. In 2012, as a response to judiciary’s request to help with various strategies to reduce court backlogs, the Tbilisi City Court launched a pilot project on court-annexed mediation.

The high success this achieved (60-70% settlement rates) showed it was worth to expand the use of mediation beyond a legal framework limited to referral of cases by judges and the  need to establish protection for private mediations too, by providing regulation of crucial aspects such as confidentiality, suspension of limitation periods and, importantly, enforcement of settlement agreements reached in mediations conducted without a court referral.

Furthermore, as part of its effort to eventually join the European Union, Georgia committed in 2014 to harmonize Georgian legislation with EU standards,[1] which included the enhancement of commercial justice and the development of ADR mechanisms.

Thus, Georgia’s law of 2019 and Italian Legislative Decree 28/2010 share many of the same features, as each seeks to implement EU Directive 52/2008 on civil and commercial mediation: confidentiality, voluntariness of the process, suspension of limitation periods, enforceability of settlement agreements, and regulation of court-ordered mediation.

While Georgia and Italy are both civil law countries, their legal cultures arise out of the vastly different circumstances, the one a former Soviet country in central Asia and the other a firmly Western country in the south of Europe. So how is Georgia facing the challenges of introducing mediation?

First, it has adopted a very modern law. The Georgian Law on Mediation builds on lessons learned from the country’s 2012 court-annexed pilot project, as well as other countries’ experiences. At the same time, it incorporates the 2018 UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation. And for international disputes, Georgia was one of the first countries to ratify the United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation)

Second, Georgia is supporting parties in appreciating the potential of mediation instead of provoking a backlash from the legal community. In Georgia, mediation is mandatory only when it is court-ordered.  And in those cases, court-annexed mediation is free to the parties, as it is financed by the government. This brings the double advantage of i) building confidence in parties since they incur no additional mediator or court fees by participating in the process, and ii) avoiding the legal and ethical concerns of “access to justice” faced, for example, by Italy with the challenge of the Law before the Constitutional Court.

Third, Georgia’s mediation statute helps defined guides stakeholders in setting the roles in the mediation process, by allowing mediators to require parties’ participation, when deemed appropriate. This reinforces that mediation belongs to the parties and that the role of lawyers is to support, rather than substitute, them.

Fourth, Georgia has emphasized the value of mediators and the importance of quality.  Georgia’s mediation law enhances the professional skills and reputation of those who act as mediators, for example by:

• establishing the Georgian Association of Mediator (MAG), an official governing body that regulates the conduct of mediators. MAG is a Legal Entity of Public Law created to develop accreditation processes, set requirements for the training programs, and adopt a code of ethics and policies for mediators.

• Providing a framework for mediator remuneration that balances the need to ensure access to justice with the possibility of developing a financially-remunerative practice. While mediators’ fees are set very low for court- ordered mediations, mediators and parties are free to negotiate compensation for so-called “private” (i.e., voluntary) mediation.

By taking an approach that combines modern mediation law with efforts to address potential concerns arising from its national legal community, Georgia has sought to overcome the various problems encountered by Italy during the implementation of its mediation law in 2010.[2]

Italy’s most recent updates to its mediation law and regulations

Italy’s most recent reforms have similarly been designed to address concerns arising from the background legal culture.  The Italian Parliament has recently approved an amendment bill (so-called “Riforma Cartabia”) to the country’s mediation law, Legislative Decree 28/2010. The reform will enter into force in the course of 2023 and incorporates many of the lessons learned over the previous 12 years, including:

• Obligatory attendance of parties at mediation. No longer can parties send their lawyers to a mediation in order to simply check a box that mediation was attempted. The reform not only requires parties to attend, but also states that in cases of delegation or where the party is a legal entity, the representative at the mediation must be someone who is “aware of the facts”. This, together with parties’ obligation to be assisted by counsel in mandatory proceedings, implicitly formalizes the duty for lawyers to participate in the mediation meeting in support of their clients and not instead of them.

• Judicial training.  The reform requires judges to attend certain programs and seminars designed to develop their understanding of the mediation process. This, further, to enhance judges’ capacity to refer parties to mediation with good reason and knowledge, officially includes the figure of the judge among the process’ key actors.

• Educational initiatives on the value of mediation.  Finally, the reform gives courts the ability to liaise with universities, bar associations, mediation providers, training organizations and other professional associations.

Unlike Georgia, however, the Riforma Cartabia does not totally address the issue of quality, in the sense that it does not contemplate incentives or mechanisms for mediators to invest in improving their skills and knowledge.  For mediation to be successful, prepared, high-quality mediators are essential. Given the size of Italy’s court backlog, the lack of investment in mediator preparation may lead to party frustration when there are insufficient numbers to provide parties with choices in terms of independence, style, and specialization of mediators.

Further, Italy’s current system of remunerating is unlikely to incentivize increasing one’s mediation skills.  In Italy, mediators’ fees are paid by the administering institution in each case. A ministerial decree establishes the criteria, which are kept low. This ultimately means that mediators who do invest in their professional development tend to do so out of a deep spirit of service and trust in mediation and as a side activity to their primary legal, accounting, or notary career, rather than as a primary profession.

Concluding observations on Italy and Georgia’s efforts to develop mediation:  two paths that converge and diverge

If there any deep lesson to comparing efforts to introduce mediation in Italy and Georgia, it is the absence of a one-size-fits-all method even for civil-law countries. Both have found that building mediation into their existing legal cultures is not just an issue of establishing appropriate standards of practice or legal norms, but due regard for the social and cultural environments.  Fortunately, the versatility of mediation permits it to be shaped to fit the country and communities it will serve.

The author expresses her gratitude to 1) Sophie Tkemaladze for the immensely helpful insights on the Georgian framework, 2) Maura Alessandri for her tremendously effective idea of presenting lawyers’ opportunities in helping parties to settle disputes through the comparative chart 2) Michael Mcilwrath for the valuable editorial and content guidance.

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[1] “Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part”  https://eur-lex.europa.eu/legal-content/en/TXT/PDF/?uri=CELEX:22014A0830(02)

[2]                See Part I.