Italian Mediators in Action: The Impact of Style and Attitude

Published date01 December 2017
Date01 December 2017
C R Q, vol. 35, no. 2, Winter 2017 223
© 2017 Association for Con ict Resolution and Wiley Periodicals, Inc.
Published online in Wiley Online Library ( • DOI: 10.1002/crq.21206
Italian Mediators in Action:
The Impact of Style and Attitude
Luigi Cominelli
Claudio Lucchiari
We analyzed a questionnaire sent to Italian mediators. We sought to
investigate three areas: style of mediation, personal attitude toward the
con ict, and e ectiveness in leading the parties to a negotiated agree-
ment in mediation. We found no signi cant correlations between the
style of mediation and the attitude of the respondents to the con ict.
Respondents with postgraduate training in economics or accounting
achieved higher rates of settlement.  e style of the mediator may be of
some use as a paradigm of orientation, but has no su cient predictive
value to be con rmed as a key to the functioning of the mediation.
I n recent years, mediation has been at center stage of legislative initiatives
at the international level and at the European level (De Palo and Trevor
2012 ; Schonewille and Schonewille 2014 ). With two EU directives on
civil and commercial mediation (2008/52/EU) and on alternative reso-
lution for consumer disputes (2013/11/EU), the few member states that
had not yet considered encouraging alternative methods to adjudication
were faced with an EU law requirement to do so. In some countries and
in countries with a “legalistic” tradition in particular, the obligation to
introduce rules on mediation in cross-border disputes between EU subjects
has been interpreted as an invitation to promote mediation based on a
e authors wish to thank Nicola Giudice and Rinaldo Sali of the Chamber of Arbitration of
Milan for their feedback on the draft questionnaire and for access to the lists of mediators of
the Italian Chambers of Commerce.
C R Q • DOI: 10.1002/crq
“formal legislative approach” (Alexander 2008 , 4), and above all as a means
to de ate traditional court justice.
Italy has long been criticized for the excessive length of its civil proceed-
ings.  e European Court of Human Rights has repeatedly condemned
the Italian government for the violation of right to fair trial—the  rst
court instance averaging about three years (European Commission for the
E ciency of Justice 2011 , 2012 )—and its over ve million pending civil
cases.  e Italian judicial system is swamped and ine cient (Cassese 2001 ;
De Palo and Keller 2012 ) because all disputes are directed to adjudication.
Aptly, the Italian approach to disputes has been called “the worst example
of legal constructivism” (Resta 1999 ). A debate was launched in the coun-
try several years ago regarding the virtues and usefulness of mediation,
producing re ned doctrinal contributions (Cuomo Ulloa 2008 ; De Palo
and Harley 2005 ), though the underuse of mediation has not changed
(Bonsignore 2011 ; Luiso 2010 ). Legislative Decree no. 28/2010 intro-
duced a comprehensive regulation of mediation in civil and commercial
matters,  rst to allow enforcement of mediation agreements concluded in
other European countries as required by the European directive, but above
all to encourage the creation of mediation providers, to protect con den-
tiality, to allow enforceability including for domestic mediation, and to
grant tax exemption for mediation settlement within a certain value. Even
more important was that, starting from March 2011, mediation conducted
with one of the accredited alternative dispute resolution (ADR) providers
became mandatory for many disputes, estimated at about 8 percent of all
litigation in Italian civil courts (Italian Ministry of Justice 2016 ).
ough results in terms of settlements are still considered below expec-
tations (De Palo et al. 2014 ), the introduction of these new rules has led
to an initial substantial number of mediation procedures to be actually
processed, and therefore to the “ eld training” of a large group of media-
tion practitioners. Although data on the  ow of mediation proceedings
is based partly on projections, since communication to the Ministry of
Justice of the number of mediation cases by ADR providers is voluntary,
we can conservatively estimate that a few thousand civil and commercial
mediations currently take place in Italy each year; according to Ministry of
Justice projections based on data disclosed by the ADR providers, 65,000
applications to initiate a mediation process may have been submitted in
the last quarter of 2016 (Italian Ministry of Justice 2016 ). However, this
estimate should be revised downward, since we assume that providers who
did not disclose their data (about half) are likely to be those not handling

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