EJTN CIVIL LAW PROJECT Alternative Dispute Resolution

Firenze23 ottobre 2019

The Impact of ADR on Judicial Proceedings in terms of Effectiveness of Justice

Voluntary versus Compulsory Mediation

Paola Lucarelli Università degli Studi di Firenze

paola.lucarelli@unifi.it

the European Directive 52/2008

was aimed to solve:1) the overburdened courts problem

2) the costs and the duration of the judicial proceedings3) the difficult and strenuous access to justice

Article 1 Objective and scope 1. The objective of this Directive is to facilitate access to alternative

dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a

balanced relationship between mediation and judicial proceedings.

HOW COULD THE EU ACHIEVE THOSE PURPOSES?

• a strong choice: mandatory mediation all over the European Members States

• a light choice: voluntary mediation all over the European Member States

• a medium choice: incentives and sanctions

3

Art. 3. Definition

‘Mediation’ means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an

agreement on the settlement of their dispute with the assistance of a mediator

Article 5. Recourse to mediation

1. A court before which an action is brought may, when appropriate and having regard to all the

circumstances of the case, invite the parties to use mediation in order to settle the dispute. The court

may also invite the parties to attend an information session on the use of mediation if such sessions are

held and are easily available.2. This Directive is without prejudice to national

legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that

such legislation does not prevent the parties from exercising their right of access to the judicial system.

HOW DID THE EU STATES APPLY?VOLUNTARY vs MANDATORY MODEL?

• In a paper, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs upon request by the JURI Committee, two Italian lawyers and mediators (De Palo/D’Urso) said that

• “the goals stated in Article 1 of the Directive, towards encouraging the use of mediation and especially achieving a “balanced relationship between mediation and judicial proceedings” have clearly not been realized”

6

• 1 mediation /100 cases to court

• “The EU legislator should consider revising Article 5.2 of the Directive”

7

THE MODELS? Look at the De Palo/D’Urso Analysis

Commercial and civil law disputes

FULL VOLUTARY: Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Latvia, Lithuania, Luxembourg, Netherlands Portugal, Romania, Spain, Sweden, United Kingdom

VOLUTARY WITH INCENTIVES AND SANCTIONS: Croatia, Estonia, Greece, Hungary, Ireland, Italy (in 92% of civil and commercial dispute matters), Malta, Poland Slovakia, Slovenia

INITIAL MEDIATION SECTION: Czech Republic, Italy (in 8% of civil and commercial dispute matters)

FULL MANDATORY MEDIATION: None

8

Family Law Disputes

9

FULL VOLUTARY: Austria, Belgium, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Malta, Netherlands, Poland, Portugal, Romania, Spain, SwedenVOLUTARY WITH INCENTIVES AND SANCTIONS: Slovakia, SloveniaINITIAL MEDIATION SECTION: Lithuania, Luxembourg, United KingdomFULL MANDATORY MEDIATION: Croatia, Hungary

Labour Law Disputes

10

FULL VOLUTARY: Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Luxembourg, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United KingdomVOLUTARY WITH INCENTIVES AND SANCTIONS: GreeceINITIAL MEDIATION SECTION: NoneFULL MANDATORY MEDIATION: Austria, Croatia, Lithuania, Malta

European Commission for the Efficiency of Justice (CEPEJ) 2010 : a Justice in serious difficulty

11

• Number of cases in civil and commercial matters (for every100 inhabitants):

media EU 1,6 ITA 4

• Number of days to settle in civil and commercial matters(first grade):

media EU 102 days ITA 500

• Pending cases in civil and commercial matters (first grade):media EU 0,5 ITA 6,2

What role can the mediaton have?

- Loss of protection for citizens (second-quality justice)

- Loss of codified roles (judges, lawyers)

- Loss of job opportunities

-- Prevention of disputes

- Court proceedings reduction

- Trial acceleration

- Cost reduction

+

12

13

The Italian Case

UE Directive 52/2008

Facilitate the adoption of

alternative cross-border dispute

resolution methods, guaranteeing more rapid and less costly

access to justice

L.69/2009

implementation of EU Directive

52/2008

Legislative Decree 28/2010 on Civil and commercial

mediation

ConstitutionalCourt judgement

272/2012

constitutional illegitimacy due

to excessive delegation of d.28/2010 in

point of compulsory mediation attempt

D.l 69/2013

Reform of the d.28/2010: new

mandatory mediation and mediation by order of the

judge (double mandatory)

14

Essential features of the discipline: what kind of mediation?

Model

MediationProceeding

Accreditationsystem

• Voluntary

• Mandatory by law

• Mandatory by judge’s order

• Mandatory by contract

• Mandatory lawyerspartecipation

• Information and start up

• Duration < 3 months

• Services providers

• Training providers

• Lawyers Mediators by law

Neither judicial …

The judge is not a mediator, even if he is able to favor the agreement:

• Conciliation attempt (rarely used)

• Conciliation proposal

• Mediation ordered by the judge

15

Nor really private …

The law provides for civil and commercial mediation to be governed by mediation bodies accredited by the Ministry of Justice

Professional bars may create mediation bodies in matters within their competence, with the Justice Ministry authorization

16

The paradox of compulsion

conflict mediation is a private affair aimed at reaching an agreement, it has to be the result of the

will of the parties; however, the law provides that the parties are obliged to attempt mediation

The paradox between coercion of the attempt and the exercise of the will has been emphasized both

by those who did not want the mediation and also by the most convinced supporters who perceived the norm as a limit to the freedom of individuals

17

The paradox of compulsionThe paradox of compulsion

18

mandatory mediation:

faults virtues

European Commission for the Efficiency of Justice (CEPEJ) 2018 : something is changing

19

• Number of cases in civil and commercial matters(for every 100 inhabitants):

From 4 to 2,5

• Number of days to settle in civil and commercial matters (first grade):

Invariato

• Pending cases in civil and commercial matters(first grade):

From 6,2 to 4

Applications

20

60,810

154,879

41,222

179,585

196,247183,977

166,989

151,923

2011 2012 2013 2014 2015 2016 2017 2018

21

A virtuos effect?Dati Ministero della Giustizia 2018

1.3 3.5 1.04.8 5.8 5.8 5.6 5.2

99.9

93.1

85.2

78.1

71.466.9

63.3 61.5

0.0

10.0

20.0

30.0

40.0

50.0

60.0

70.0

80.0

90.0

100.0

2011 2012 2013 2014 2015 2016 2017 2018

Incidenza mediazioni Contenzioso soggetto a mediabilità

YesDati Ministero della Giustizia 2018

22

1.3 3.5 1.04.8 5.8 5.8 5.6 5.2

99.9

93.1

85.2

78.1

71.466.9

63.3 61.5

102.4 103.298.9 101.4

87.590.3 88.7

82.0

0.0

10.0

20.0

30.0

40.0

50.0

60.0

70.0

80.0

90.0

100.0

2011 2012 2013 2014 2015 2016 2017 2018

Incidenza mediazioni Contenzioso soggetto a mediabilità

Contenzioso non soggetto a mediabilità

Weakness

Sabotage: opt-out model, i.e. the faculty of each party not to start mediation and complying with the participation at the first informative meeting

Lack of skills: an inefficient accreditation system, a seriously deficient and inadequate training system

23

SIMPLE JUSTICEMEDIATION ORDERED BY THE JUDGE WITH THE YOUNG SCHOLARS’ SUPPORT

FIRST INSTANCE COURT: 3° SECTION AND BUSINESS COURT

The Partners

Laboratorio Un Altro Modo (LUAM) of the Department of Legal Sciences of the University of FlorenceTribunal of FlorenceMetropolitan City of FlorenceChamber of CommerceFondazione CROCF Organismo Conciliazione FirenzeOther Professional Bodies

10 youngresearchfellowsaside

23 judges

What do they do?

• files study• trial summary• referring to mediation proposal• conversation with the judge the day before the

hearing• judicial hearing assistance• monitoring• data collecting

MISSION

promotion and spread the culture of extrajudicial conflict

management

METHODOLOGICAL ASPECTS

The academic Guide Lines:- training for scholars (what kind of skills)- training for Judges, lawyers, scholars, administrative staff- sharing with them the guidelines on- the docket study- the files study, the exclusion criteria- the mediability potential indicators- the data sheets for each case file (that is very useful for

the judge)- the monitoring rules• the social impact analysis (lawyers, mediators, judges,

parties)

27

How to improve the cultural changing?

The Simple Justice pilot programme in the Tribunal of Florence

The scholars have proposed to the judges the mediation in 3720 cases (they havestudied 6.480 pending cases)

The judges have ordered to the parties to try to agree in mediation in 1.296 cases

73% the parties have started the mediations ordered by the judges

They have agreed in 296 cases (43%; the national avarage is 32%)

But other 200 trials have been closed after the judicial order

In total: 496 trials have been closed in only 10 months working aside the judges

28

29

0

100

200

300

400

500

600

2011 2012 2013 2014 2015 2016 2017 2018

Also the voluntary mediation is growing

Mediation volontaire

30

Disposal Index

31

THANKS FOR YOUR ATTENTION

32

Suggestions:https://www.ted.com/talks/william_ury.htmlUsing/discussion#t-1105875https://www.youtube.com/watch?v=AAe4F6zXj7M