Italian Mediators in Action: The Impact of Style and Attitude

• DOI: http://doi.org/10.1002/crq.21206
• Published date: 01 December 2017
• Date: 01 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 (wileyonlinelibrary.com) • 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.

Objectives

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.

224 COMINELLI, LUCCHIARI

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