Nuova pagina 2
ADR AND MEDIATION IN CIVIL MATTERS
di Luca De Matteis Movimento per la Giustizia - Italy (Bruxelles, 21.01.2005)
Nuova pagina 1
1. - A reflection on the "why" and "how" of incentivating and structuring of ADR in civil matters today can usefully start from an historic perspective.
In modern times ADR procedures and the study thereof began in the 1970's in the United States as reaction towards a quasi-paralysis of civil justice ascribed to what came to be referred to as "litigation explosion". Indeed, between 1970 and 1985 the number of civil suits filed with Federal courts had more than quadrupled; not only did this bring an exponential rise in litigation expenses: also, wherever possible in an radically liberal market economy, those subjects that had the possibility to do so (economic enterprises, professionals) downloaded the burden of these expenses on the final consumer.
Among the many causes for this degeneration, the main ones have been identified as follows:
1) a large increase in positive legislation in a system traditionally based on contractual self-determination between parties;
2) the unpredictability of verdicts passed by popular juries;
3) an exponential rise in the number of legal and paralegal professionals, working on the principle of "contingent fee" which, quite evidently, incentivates litigation.
2. - It is not difficult to trace a parallelism to the Italian situation nowadays (and, although to a lesser extent, to the European situation in general). Hypertrophic legislation shows the impotence of the traditional State institutions to take into account the manifold interests of a profoundly diversified social body; jurisprudence is vastly unpredictable on account of the enormous mass of legal suits that are decided in a system topped by a Supreme Court which does not have, because of its composition and functioning, any real power to impose (or even propose) uniformity in the interpretation of law; a legal profession with virtually no entrance barrier and many ways of providing, if not economic success for all, at least a decent living, has brought, in a time of uncertain employment, to an enormous rise in the number of lawyers.
3. - Such being the social framework in which ADR rose and also our perspective today, it is easy to spot a utilitaristic motive in their growing success: the various options summarized by the expression "ADR" have the first and foremost intention to resolve controversies in an: a) quicker; b) cheaper; and c) more predictable manner.
We think however that this perspective is reductive, and will try to demonstrate this by an initial assumption: that all ADR methods can be roughly divided into two great categories, namely arbitration and mediation.
3.1. - Arbitration procedures have in common the agreement of parties to a controversy to demand its resolution to a third, impartial, subject, whether single or collective, producing a decision (more or less) binding upon them.
With respect to "official" jurisdiction these procedures offer several advantages:
Â· the procedure is simpler and less formal or formalistic;
Â· the deciding subject is on the average more competent on the matter of controversy than a professional "public" judge, since it has been expressly chosen on behalf of such competence;
Â· as a consequence of the above, the duration of the procedure is fractional in comparison to common jurisdiction.
Such benefits are not without consequences, being arbitration on the average much more costly than ordinary judgment: a reason why these procedures are generally reserved to controversies among entrepreneurial or professional operators.
The characteristics outlined above take to an obvious conclusion: that arbitration is in no way different in scope than ordinary jurisdiction: it only eliminates some of its (inherent?) defects, but offers no different perspective for the resolution of a controversy than that provided for by the forceful implementation of a decision taken in the framework of previously established rules, which constitutes the essence of a professional judge's work. Furthermore, it is a sound acquisition of organizational sciences that the externalization of functions does not in itself resolve the problems of the subject originally vested in them, as it imposes a system of controls over the result of the activity or implies the abandoning of sectors of activity.
3.2. - Mediation, on the other hand, offers a different approach to conflict solving. Mediation can be defined as the procedure by which a third, neutral subject, extraneous to the controversy, assists parties in finding a solution acceptable by both; unlike an arbitrator, a mediator by definition does not have the power to impose its judgment on the parties in any way.
In addition to the advantages of arbitration outlined above, mediation presents further incentives:
Â· it directly involves and makes parties responsible for the achievement of a settlement;
Â· the mediator, if correctly trained, is capable of guiding parties in their own solution-finding process;
Â· it is open to innovative solutions which reflect the real composition of interests among parties;
Â· it is the procedure that best serves the scope of conserving relationships among the parties beyond the rising and settlement of the controversy.
In its ideal form, mediation presents thus a substantial difference from judicial and arbitration procedures: it does not merely resolve a controversy, but instead eliminates it.
This "consensual approach" enhances the possibilities for parties to maintain a working relationship once the "crisis" is resolved and is therefore especially useful in such situations where relationships are by nature stable or continuing: in the civil sector, this is especially the case for controversies within families, for conflicts arising with organized social bodies (e.g. companies; associations), as well as all "collective conflicts", such as those among workers and employers that transcend an individual case, or those among consumers and producers/providers of services.
4. - In the European perspective: Recommendation Rec (2002)10 of the Committee of Ministers of the CoE encourages the governments of member States to facilitate mediation in civil matters whenever appropriate and sets the following guiding principles:
Â· mediation is defined (I.) as the "dispute resolution process whereby parties negotiate over the issues in dispute in order to reach an agreement with the assistance of one or more mediators", who (IV. par. 2) "should act independently and impartially" and have "no power to impose a solution on the parties";
Â· mediation is not alternative but complementary to access to court, which should always be granted as it is defined as "ultimate guarantee for the protection of the rights of the parties" (III par. 3);
Â· mediation can take place "through the public or the private sector" (III. par.1), "within or outside court procedures" (III par. 2);
Â· mediation is recommended as alternative to judicial procedures for reasons of cost, formality, or "where there is the need to maintain dialogue or contacts between the parties" (III par. 6);
Â· States should, when possible, set up free mediation or provide legal aid, and in any event contain the costs of mediation in proportion "to the importance of the issue at stake and to the amount of work carried out by the mediator" (III parr. 7 and 8);
Â· mediation, if successful, should end with the drafting of a document to be handed over to the parties for subscription; such agreement can be thereafter, if necessary, enforced upon the other party (VI.).
5. - Civil mediation in Italy today:
5.1. - In Italy, one of the most widespread existing cases of mediation is provided by labor law: by law (art. 410 civil procedure code), all controversies, before being filed in court, must be the object of a (compulsory) mediation held by a public office ("conciliation commission") or by a different organ provided for in collective labor agreements.
The results, however, are largely discouraging: with few exceptions, this attempt at extrajudicial settlement is viewed as an inconvenience and delay before the beginning of a "real" trial, and percentages of cases resolved are very low.
5.2. - The same fate strikes another general provision: art. 183 of the civil procedure code prescribes that in the first hearing of a civil suit the judge, if the nature of the controversy allows it, should try to reconcile the parties.
This provision is widely unapplied (very few judges seriously pursue and agreement between the litigants) and in any event is structurally handicapped by two factors: first, even if an attempt is made, the impending judgement weighs heavily on the determination of the parties (who, having already met the decision to litigate, are moreover not in disposition to mediate between their opposing claims); second, judges carry the cultural burden of a "deciding" mentality and are not trained in the skills necessary for mediation in its highest sense.
Hence the substantial failure of this provision, at least on a general scale.
5.3. - A general legislative act on mediation lies at the exam of the Italian Parliament. Indeed, on March 5th 2002 a Project of Law n. 2463 on "Professional extrajudicial conciliation" has been presented in the Chamber of Deputies; as of today, the project has not been approved and is still under review by the Senate (Justice Commission).
Art. 2 of the project defines Professional extrajudicial conciliation as a procedure in which a third, neutral subject, other than the competent judicial authority, facilitates communication and negotiation among parties to a controversy to promote its consensual resolution through an agreement. The conciliator (art. 3 par. 3) does not have the power to take binding decisions with regard to the controversy.
Organisms of conciliation are of two types:
Â· "Private conciliation organisms" (art. 7) are public companies with at least 50 % ownership by lawyers and financial/tax advisors; they must be enrolled in a national register with the Ministry of Justice; these bodies set up their own rules of procedure which must be approved in writing by the parties which refer to it (art. 8);
Â· "Chambers of conciliation": these are in turn provided for in two forms: the first (art. 9) set up by the bar associations of each court, are operated by lawyers enrolled in the bar and have general competence in the field of disposable civil rights; the second (art. 10) are set up within each Chamber of Commerce and have competence over all issues arising among consumers or their associations and enterprises not exceeding the value of â‚¬ 25.000. The procedure of these Chambers of conciliation is roughly outlined by art. 11, which also provides for possible overlapping of conciliatory procedures with ordinary judgement.
As general principles of procedure, art. 3 states that the guidelines are informality, concentration and orality, that the procedure is strictly voluntary, and that parties may participate without the assistance of a lawyer.
The document containing the agreement eventually met through the conciliation procedure is binding upon the parties and can be enforced in court (art. 12).
With a provision of clear "promotional" scope, art. 13 (titled "Incentives") states that all acts of the procedure are tax-free, expenses met during conciliation are tax-deductible, and that court fees are diminished by 50 % if the plaintiff proves that it has previously attempted to resolve the controversy through one of the options outlined above.
5.4. - While this project has yet to find a favorable moment for its approval, for a specific sector a provision of similar scope has been recently approved. Art. 38 of Decree 17th Jan. 2003, n. 5 (amended by Decree 28th December 2004 n. 310), which deeply reforms Italian corporate law, establishes "Conciliation organisms". These are public or private subjects which "provide guarantees of seriousness and efficiency", which can be invested by the parties to a controversy on corporate matters to try an amiable settlement. These organisms must enroll in a national register with the Ministry of Justice; this has been delegated by the same provision to adopt a decree establishing specific requisites for enrollment, revision, and exclusion of registered organisms.
The vagueness of the text hinders a more detailed review of this provision, which evidently awaits further specification; it can be however noted that the criteria outlined ("seriousness and efficiency") is indeed a very opaque one.
6. - What the future of these and similar projects in our systems will be depends not only on the quality of procedures or on the prestige of those institutions which are or will be involved in their application. First and foremost, a cultural obstacle has to be abated.
Regardless of their being "common" or "civil" law, all our legal systems have long since abandoned a substantialistic perspective in favor of a formalistic one: not wanting (or not knowing how) to tell what is substantially "right" they are based on complex procedures aimed at producing a "procedural truth". As such, they have produced a division between the idea of "what is right" and that of "what one has the right to do", ideas which are in constant conflict even within ourselves. The focus, then, is shifted from the protection and pursuit of "interests" to that of "legal rights". These, as boundaries among different countries, at the same time unite and divide: they do indeed regulate egoisms, acting as deterrents towards reciprocal invasions and promoters of order: as such, they can operate as minimal guarantees (and as such they must be protected by the State) but are often unsuitable to determine an optimal settlement of concurring interests.
This can be reached only by negotiation among their carriers. A negotiation is a process that must begin by reciprocal recognition of the other's status as "adversary" and not "enemy": much too often our darwinistic, competitive approach towards coexistence implies that there is no possible outcome to a dispute other than victory or defeat. It is this victory that becomes the main goal of settlement procedures, regardless of the fact that this victory may not correspond to the most desirable solution.
A change in this perspective is a primary cultural stepping stone towards a responsible management of conflicts in a mature society and the key to a correct implementation of ADR methods which really improve the quality of our Justice.
Â· GILARDI - MATTONE - VIAZZI, Il futuro della magistratura onoraria: appunti e proposte per una discussione, Questione giustizia, 2003, 747
Â· COSI - FODDAI, Lo spazio della mediazione, www.dirittoestoria.it/lavori2/Contributi/Cosi-Foddai-Mediazione.htm
Â· Project of law n. 2463 in www.camera.it/_dati/leg14/lavori/stampati/sk2500/articola/ 2463.htm