BY LEONARDO D’URSO
The author is co-founder of ADR Center, a European ADR provider based in Rome. He is a scientific-expert member of the mediation working group of the Council of Europe’s European Commission for the Efficiency of Justice, best known as the CEPEJ (seehttp://bit.ly/2D0UAhi). He discussed that work in his recentAlternativesfeature, “A New European Parliament Mediation Resolution Calls on Member States and the EC to Promote More Use,” 36Alternatives19 (February 2018) (available athttp://bit.ly/2F1Se1Z).
Since the mid-1990s, an animated debate has been carried out among practitioners, academics and lawmakers about the most effective approach to increase the embrace of mediation in a given jurisdiction, especially outside the United States.
This debate usually has been polarized between two alternatives: First, develop the culture of mediation by promoting the process’s advantages, and training mediators and lawyers, in order to create a spontaneous demand for mediations. Alternatively, other moves seek to introduce various legislative reforms to incentivize the reliance on mediation for litigants, and regulate the market in order to decrease the number of cases filed in court.
The debate soon evolved to the pros and cons of voluntary versus mandatory mediation. The vast majority of academics and practitioners objected that mandatory mediation was a contradiction in terms, and above all, a barrier to access to justice and against most nation’s constitutions.
Hundreds of conferences and articles have been dedicated to find the “magic formula” to increase the number of mediations.
As a result, most European jurisdictions have introduced new laws in the past two decades based mainly on the voluntary recourse to mediation, with some incentives for litigants, and an accreditation scheme for mediators to ensure high-quality mediation services standards.
Millions of dollars and Euros have been spent by governments, international donors and private institutions on projects and awareness campaigns to “achieve the balanced relationship between judicial proceedings and mediation” as stated in Article 1 of the 2008 EU Mediation Directive, known formally as the Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (available at http://bit.ly/2ovxA4G).
With few exceptions, however, this approach failed; all available statistics in Europe report that mediation on average is used in less than one percent of the cases in court. This means out of 100 court cases, on average only one litigation is resolved by a third neutral mediator.
Four years ago, a pilot provision was introduced in Italy within a wider legislative reform of a previous law on mediation for civil and commercial disputes. This provision–limited in time and scope and contained in just one paragraph–was able to generate alone more mediations than judicial proceedings in the disputes in which the process was applied. See “European Union Urged to Refocus Its Mediation Efforts on a Different Kind of Mandatory ADR,” 33 Alternatives 70 (May 2015)(available at http://bit.ly/2Cqx5AG).
Despite the complexity of the entire law (Legislative Decree Nr. 28 of 2010 reformed in 2013), this article aims to explain in simple terms the so-called Italian Mediation Model, the different results after four years of application, and the lessons learned.
We have noticed most commentators and mediator colleagues wrongfully refer to the Italian model as “mandatory mediation.” It is not. Under the Italian Mediation Model, there are three main ways for recourse to mediation:
Four years after this law was introduced, in 2017 the combination of all three types of recourses produced about 200,000 total mediations. To better understand the approaches that worked, we need to break down that number of mediations and closely analyze it with the three types of recourses described, which shows three different sets of results—and three different levels of success.
With all due respect to the opinions and theories on the right approach to substantially increasing the number of mediations in a jurisdiction after many years of trial and errors, it is time to analyze objectively the verified results of different approaches in order to evaluate what worked and what failed.
The Italian statistics from the past four years give a clear illustration of drastically different results from the three different types of recourse to mediation currently in place. The contrasting results occur within the same jurisdiction–with the same citizens, lawyers, judges–and prove the number of mediations is not dependent on the “culture” or quality of mediators, but the most effective legislative mediation in place.
Statistics show that currently, the Type 3 model, “Recourse by Voluntary Agreement during a Required Initial Mediation Session” is the only effective model that can generate enough mediations in a period of two or three years for an entire jurisdiction.
This first meeting works well with five important conditions:
After witnessing thousands of first mandatory mediations, this author can attest to the effectiveness of having all decision makers in the dispute together in order to decide if they want to opt-out and go to court or continue with the full mediation process.
After talking with the parties and their lawyers about the advantages of mediation for their case, in a joint or separate meetings, in more than 50% of the cases I am able to convince the parties to give mediation a chance.
Without having all parties in front of the mediator, present at the same time, and around the same table, it would be impossible to reach so many agreements to initiate a mediation process, as the statistics prove.
In conclusion, the Required Initial Mediation Session, with an easy opt-out, has been proven to generate a substantial number of mediations in a given jurisdiction in two or three years, providing the best advantages of mandatory and voluntary mediation without their disadvantages.
The Required Initial Mediation Session can be introduced step-by-step, within a legislative reform or in court-connected mediation program, with the relevant adaptations to local needs, in different jurisdictions as Greece and Turkey have recently done with a great success. See Leonardo D’Urso, “How Turkey Went from Virtually Zero to 30,828 Mediations in Just One Month,” Mediate.com (Feb. 22) (available at http://bit.ly/2GRW2DB).
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