At the same time, the new EU Directive on conciliation appears in the Official Gazette, and the mediation returns in Italy. It is not an accidental timing, the return to mandatory mediation was inevitable. The Wise of Napolitano, the Governor of the Bank of Italy, the European Commission (on the occasion of the notification of the spill from the infringement procedure), Confindustria, of course, and over 900 mediation bodies, lawyers and judges such as Santacroce and other, asked for it.
The "Decree of doing" took note of the need to return to valorize alternative dispute resolution tools: convenience, in the context of the decree, is the need to remove some of the many obstacles to economic recovery.
Four million pendants civil cases (in varying degrees) are certainly not an indicator of growth and development. Something had to be "invented", at least, in the package and justice find space in addition to the old solution, 400 lay judges for the disposal of the dispute pending before the Court of Appeal, attempts to innovation starting from what was already there: mediation.
Maybe, not so out of conviction, but out of necessity, they return to mediation with the attractive "concessions" to the legal profession. Even citizens / users of judicial services were made to assist during the consultation at the Green Paper on the quality of mediation bodies. The request for an informative preliminary meeting for the verification of actual trading spaces, for example, was among the proposals of Cittadinanzattiva; however, when the meeting performs the obligatory attempt, the nature changes and no longer need to measure spaces possible trading, as previously hoped. Instead, if the meeting was only of actual programming and information, perhaps it would facilitate the path of meeting between the parties.
Among the adjustments to the mediation there is also a mitigation of costs and better appreciation of mediation delegated by the judge and the further reduction of time for the conduct of mediation which increased from four to three months in line with the expected timing of the new European directive.
But the question now is another: beyond the finishing touches on the evaluations of mediation is clear that at this point a second failure would not be sustainable not only for mediation bodies but for the justice system and for the country.
The text of the decree could be revised in the process of conversion, the important thing is not to fall into the spiral of the battles already seen that now we just cannot afford. The compass seems to be this time, for the entire decree, the text of the letter with which Europe has issued last May, the exit from the infringement procedure ..... provided, however, to implement six recommendations including precisely the reform for an important reduction of legal disputes.
And the joint conciliations?
It is desirable that the reintroduction of mediation of provided economic and technical "remedial" find a more favorable environment today. In the meantime, 2015 will come, a year by which we will be obliged to implement a new Community Directive published today in the Official Journal of the European http://eur-lex.europa.eu about consumer disputes, and maybe we'll all be a little more mature and aware of the "stakes".
The protection of consumers for over 20 years centered around the trial of conciliations and maybe this is just one of the fields with respect to which consumer associations have played a pioneering role which, however, must now find a new impetus precisely from that ADR Directive Article 6 dedicated to the description of the principle of independence and impartiality clarifies that "This paragraph shall not apply where the natural persons concerned are part of a collegial body composed of an equal number of representatives of the professional organization and association of undertakings from which they are incurred or remunerated and consumer organizations". It is therefore a confirmation that the requirement of independence is respected by the model of joint conciliations where the parties' interests are precisely represented by individuals employees of companies and / or consumer groups. It is collegiality and equal representation of the interests company / consumer to ensure independence and impartiality.
In a context where the proliferation of forms and models of ADR (eg the referee banking and financial service sector conciliation energy), even the established pattern of joint conciliations might find a "coded" role in the direction of access to alternative justice of First Instance by providing an anchor to ADR institutions managed by sectorial authorities that could play a second instance in case of failure of the joint mediation and thus become the organisms described by the new directive. Working on this assumption we could transpose the new EU directive in a systematic and coherent way with the experience gained from years in Italy in the field of consumer disputes.
National Directorate Cittadinanzattiva
General counsel and conciliation Office