Mandatory Mediation Strikes Back

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The question of mandatory mediation is an interesting issue per se. According to some, the fundamental principles are at stake once discussing the forced attendance of parties in mediation procedure. The Italian legislator is obviously of different opinion having reintroduced the “mandatory mediation” to its legal system. One has to add – for the second time.

To Force or Not to Force – This is the Question

The mandatory mediation is often discussed as a hot topic that touches one of the main principles of mediation. Not by hazard, it was said the mandatory mediation to be an oxymoron since ADR in general emphasizes self-determination and collaboration as a main qualities helping with resolution of disputes.1

The question is basically whether or not the parties should attend the mediation session only voluntarily. In other words, is it pertinent that there is a special mediation that is obligatory because of a decision of court or legislator in addition to the “normal mediation”?

Beside all the practical issues, one has to tackle the problem of completely different nature of involuntary mediation comparing to voluntary one. Indeed, some of the well known advantages of mediation are crucially tied to free willing acceptance of mediation proceedings. The good will and win-win approach should be put first in this regard.

Furthermore, as mediation can be inappropriate for certain dispute; there is a peril of harming one of the parties by ordering a mediation procedure in such specific case. This can be the case when the parties’ relationship has involved violence or when one of the parties is using mediation as a merely delaying tactics. Yet one can expect that experienced well skilled mediator should recognize such cases and stop the procedure with no harm to respective party.

From the other point of view, one can blame the mandatory mediation of being a denial of justice. Once party wish to approach the judge, he or she is forced to go before a mediator instead. At the same time, the free approach to justice is one of the fundamental rights granted by both numerous international conventions and national constitutions and such a denial can pose a serious threat to civil justice.

On the other hand, a couple of counter-arguments should be mentioned too. For instance, involuntary mediation can be useful especially in the countries that have not had a lot of experience with mediation yet. Or, even the public discussion that accompanies the introduction of mandatory mediation can be a great milieu for mediation promotion.

Hence, there are a couple of reasons not to introduce this institution and a couple of reasons supporting this approach. The purpose of this contribution is not to judge the advantages and disadvantages, but rather to sum up the recent very interesting development in this field.

The Italian Way

Apparently the Italian legislator is of favourable opinion towards the mandatory mediation and although it has caused a lot of problems till now, it was recently reintroduced in Italy again.

The first attempt dates back in 2010. That time the legislative decree no. 25/2010 was passed in order to decrease the caseload of Italian courts that was and still is deemed to be overloaded. It introduced the obligatory mediation attempt as a preliminary condition to access to the court. However this obligation touched only several kinds of disputes as for instance compensation for medical liability damages and public defamation. Mediation became mandatory for these disputes in March 2011.

Since the mediators had to be members of mediation centres, the mandatory mediation caused an increase of these institutions. So whereas there were 37 mediation centres in Italy in 2008, the number grown to 843 by in the end of April 2012. Consequently the number of mediation proceedings experienced an unprecedented boom too. There were more than 90,000 requests for mediation between March 2011 and March 2012. However, since there was no obligation of prospective defendant to attend the mediation, the number of mediation proceedings was much lesser. In the cases both the claimant and respondent met, mediation had a positive outcome in 48% of the cases. 2

Said law was an object of a passionate discussion both between the public and the lawyers.  Reactions from business circles were very positive.  On 30th September 2011, the Italian Banking Association, the National Insurance Companies Association and other business entities jointly issued "A Project by Business for Italy” which document summarized that "it is necessary to continue to rely on civil and commercial mediation as an indispensable instrument to reduce court litigation". 3

The Constitutional Court Annulled the Law

However, mandatory mediation was not appreciated by all and the legislative decree no. 25/2010 was brought before the Italian Constitutional court that annulled concerned provision of law as unconstitutional. In its decisions, the constitutional court held that it is not the mandatory mediation what is in conflict with the Italian constitution. The rather procedural reason was described as follows: The legislative decree having introduced the mandatory mediation was a delegated act and as such it did not respect the indication and guidelines of the delegation law. According to the judges, the delegation law had provided the delegated legislator with neither explicit nor implicit reference to the mediation as a preliminary condition to access courts for a series of exclusive determined matters. 4 Concerning the mandatory mediation in general, the Constitutional court refrained from an evaluation of this issue. It just held that the European Union’s directive on mediation did not impose nor exclude said choice. Yet it is not up to the delegated legislator to decide and the obligatory mediation had to found the necessary grounds in the law. And this really happened.

A Return to the Charge

The Italian legislator has acted in a rush and reintroduced the mandatory mediation as soon as possible, this time by the Law Decree no. 69/2013 entitled on “Urgent measures to economy stimulation” 5 that includes a numerous measures to support the Italian economy. This time, the mandatory mediation is framed by the time limit of four experimental years designated to evaluation of the results by the appropriate Ministry.

The decree entered in effectiveness as from the 21st of September 2013 and it concerns all disputes that arise in relation to the by the law specified matters.

Hence, today in Italy, you have to go before mediator once having dispute concerning real property, division of assets, inheritance, family estates, leases of real property and of going concerns, gratuitous loans for use, medical liability, defamation in the press and other media, insurance, banking and certain other financial agreements. Comparing to previous legislation, there is (among others) no mandatory mediation in disputes concerning compensation for road and shipping accidents.

The Icing on the Cake

Finally, one has to mention an interesting power belonging to the mediator. When the attempt to reach an agreement fails mediator may propose a solution that seems to be appropriate according to him or she. Parties are of course free to refuse such proposal. Once doing so, parties can commence a lawsuit. However, such a refusal may later influence the allocation of the costs’ and expanses’ compensation in the case the winning party had previously refused the mediator’s proposal that was in accordance in later court decision. In that event, the court may even order the winning party to compensate the losing party.

The Italian approach does not answer all the questions related to mandatory mediation. At least it is an interesting topic to launch the discussion concerning this principle of voluntary attendance in the ADR proceedings.