by Michael McIlwrath
A new law requiring mediation to be used in commercial cases comes into effect in Italy on March 21. It’s been heralded as a significant potential change and, you would think for a country with a famously overburdened court system, heartily welcomed as a caseload-reducing initiative. Proactive local chambers of commerce have been sponsoring initiatives to promote the introduction of mediation, and mediation providers have been gearing up to meet the demand in training and services. In other words, the ground is being prepared for positive change.
But this is Italy, where change if often introduced so that things will stay the same, as Tommasi di Lampedusa famously wrote in The Leopard. Italy’s national union of lawyers, the Organismo Unitario dell’Avvocatura, has called for a national strike from March 16 to March 21. As a means of calling for changes in the law, lawyers across the country are being asked to abstain from attending hearings in any civil, criminal, tax, or administrative proceedings, presumably including arbitration hearings, and to send clients letters urging them to sign a form letter of protest. The strike period coincidentally covers a national holiday (March 17-18), so that it effectively extends a long weekend during prime skiing season.
Italy’s lawyers may be afraid that ADR really stands for “Alarming Drop in Revenues” (as the old saw goes), as the law imposes a simple procedure by which disputants can try to settle without the use of lawyers, although they are also not prevented from using counsel. But lawyers here also know that there is an inexorable trend towards more efficient dispute resolution procedures, especially mediation. So in order to avoid the drop in revenue, they are not calling for the law to be overturned, but for changes that would substantially cripple it. For example, they are asking for a change that would make mediation optional for litigants rather than obligatory, and another change that would require “technical” (read that “lawyer”) assistance at the mediations.
While this might sound like an “only in Italy” story, it’s actually illustrative of the deep hostility towards mediation that we users often face when crossing borders.
Yet the strike is hardly bad news for mediation. In fact, it may actually be a sign of health, and the growing uptake of mediation as an alternative to remaining stuck in the courts for years. This fierce reaction – a call for a week-long national strike, even if conveniently extending an existing holiday – shows that mediation is not being ignored. On the contrary, it is being treated as a serious a threat by a constituency with a stake in judicial inefficiencies. In other words, the strike may be itself confirmation of the need for a law requiring mediation.
It will be interesting to see the reaction of national bar associations in other countries as mediation gets increasingly introduced in various ways to reduce the caseloads of overloaded legal systems.
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MICHAEL MCILWRATH is Senior Counsel, Litigation, for the GE Oil & Gas Division in Florence, Italy. His experience in international arbitration includes representing the company in disputes under the rules of various international and regional arbitration institutions and under ad hoc procedures around the world, and in coordinating the activities of outside counsel in domestic court and arbitral proceedings. He has published numerous articles in the fields of international arbitration, mediation, and negotiation, and is co-author, with John Savage, of International Arbitration and Mediation: A Practical Guide (Kluwer Law International).
Michael is a member of the European Advisory Committee of CPR, and acted as an industry representative to the European Commission (Justice) in the creation of a European ADR Code of Conduct. He was Chair of the International Mediation Institute (IMI), in 2009. In addition, he was the co-vice chair with mediator Judith Meyer (and chair, Singapore ambassador at large Tommy Koh) of the IMI Independent Standards Committee. He is also a member of the board of directors of the National Center for Science Education, in Oakland, California.