Mark England

‘Justice is for everybody. Not just for the privileged and

powerful, the worthy and respected, but for everybody,

including, like those for whom John Masefield

consecrated his verse, “the dirt and the dross, the dust

and scum of the earth”’.

Hal Wooten Memorial Lecture, 13 March 2014, University

of NSW Law School

The European Parliament and the

Council of the European Union

On 15/16 October 1999 the European Parliament and the

Council of the European Union moved to facilitate access to

justice by calling for ‘alternative extra judicial procedures to

be created by the Member States’.

On 21 May 2008 the European Parliament and Council issued

directive 2008/52/EC on certain aspects of mediation in civil

and commercial matters.

The directive was to encourage cross boarder resolution of

civil and commercial matters throughout the European Union.

The Global Financial Crisis was raging in Europe.

Current Account Balance of Payments as

a Percentage of GDP

Romance

Language

Countries

2004 2005 2006 2007 2008 2009 2010 2011

Spain -5.2 -7.3 -8.9 -10.0 -9.6 -4.8 -4.5 -3.5

Italy -0.9 -1.6 -2.6 -2.4 -2.9 -2.0 -3.5 -3.2

France 0.5 -0.5 -0.6 -1.0 -1.7 -1.3 -1.6 -2.0

Portugal -8.2 -10.5 -10.8 -9.9 -12.6 -10.7 -10.0 -6.7

Greece -5.8 -7.5 -11.3 -14.3 -14.7 -11.0 -10.0 -9.8

Mexico -0.7 -0.7 -0.5 -0.9 -1.5 -0.6 -0.3 -0.8

Source: OECD Library of Key Trade Data

Italy ‘Seizes the Day’

Italy ‘seizes the day’ Italia ‘afferra il giorno’

Stemming from the directive, EU member states were

free to apply similar mediation based provisions

domestically. (Sturini; A. 12/05/11. ‘New Mediation

Law in Italy’.)

By successive decrees Italy quickly introduced and

promulgated mediation practices. This was a significant

reform of the legal system promoting greater justice for

all.

Under mandate (Law No 69/2009) the Italian government

introduced civil and commercial mediation via legislative

decree 28/2010.

The legislative decree 28/2010 introduced a mandatory

requirement for for pre-trial mediation of cases within

civil and commercial jurisdictions. This was to come

into effect 21st March 2011.

Italian lawyers, backed by their association (the

Organisation Advocacy Unit Italian), called a one week

strike in the week leading up to this change.

Selfishness and self preservation ruled the day for the

legal profession. Lawyers considered the mandatory

change a threat to their personal livelihood.

Government was indeed aiming at reducing costs.

JUDGES REVOLTED TOO, IN THEIR

OWN JUDICIAL FASHION

Fifteen judges of the Italian Constitutional Court ruled

that the government had acted unconstitutionally. It

had exceeded its consitutional authority to introduce

the compulsory pre-trial system of mediation.

This led to a freezing of the compulsory mediation

program until agreement was reached regards a revised

approach.

For Government, mediation was a means to

repair the crumbling legal system

The Italian government was resolved to act due to:

Delays in the civil justice system. The Italian legal system

and society at large was suffering from a 5.4 million

backlog of cases. (Rushton, M; 12/10/11. ‘Mandatory

Mediation Under Threat in Italy’.)

Associated costs of doing business in Italy

An ongoing economic savaging of Italy by the 2008 global

financial crisis. Italy was still reeling from its effects.

A mediated approach to

mediation

The revised approach introduced certain restrictions

including the right of litigants to withdraw from

mediation. The right to withdraw arguably reinforces

the notion of good will and good intention to reach a

resolution between disputing parties.

Despite the changes made, Italy currently stands as one

of the more progressive countries within and outside the

European Union in terms of providing justice through

mediation.

The backlog of cases was overcome through

effective and efficient mediation

Mediation Measures Prove

Successful

The huge backlog of cases was effectively addressed

through efficiencies afforded by mediation.

A review of the process showed that from March 2011 to

October 2012 half of the compulsory mediation settled.

In addition, 12% were successfully mediated. (Morek, R;

Gates, K&L. 09/10/13. ‘Mandatory Mediation in Italy’.)

Concluding Comments and

Questions

mailto:mark.england100@gmail.com