– FPP

And there you have an answer to your question as to why an Italian court has treated mandatory mediation as a violation of human rights: because it is perceived as a threat to those with an interest in the legal system’s existing inefficiencies. It remains to be seen whether the new law that Alessandro describes will ultimately represent a bold step forward, or if those with vested interests will find a way to diminish it to a small step that preserves the status quo inefficiencies. Italy invented the concept of avoiding change by changing just a bit. (Tommasi di Lampedusa’s famous words in The Leopard.)

By definition, mediation is a voluntary process; to me mandatory mediation is an oxymoron and a delay in the process. Parties must buy into the procedure and not see it as a way to get free discovery for it to be successful.

Paul S. McDonough

Thanks for your informative reply. Among my many questions is this: The Human Rights Convention applies everywhere, not just Italy. Why is it that only in Italy is the claim made that mandatory mediation violates the Convention?

(Best personal wishes, and I hope to see you soon!)

– Peter

the problem if ADR clause violates Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ensuring access to the courts, is old like the world.
In Italy we are discussing wheter mandatory (by law) mediation is against the Constitution or not!
Some lawyer and SOME civil procedure professor say that if a law provides for mandatory attempt of mediation this must be considered as violation of article 24 of Italian Constitution that says that: “Everyone can take legal action to protect their legitimate rights and interests. The defense is inviolable at every stage and level of the proceedings”.
In nuce, they say that nobody can be forced for a prior attempt of mediation because mediation has to be only on voluntary basis and if the contrary happens it is not constitutional.
This problem has now to be considered with major attention because of the new mediation law.
On 20 March 2010 was enacted the new Italian legislative decree No. 28
The above mentioned Decree contains rules regulating and promoting the use of mediation in civil and commercial disputes in Italy.
What is most novel and noteworthy about the Decree is its introduction of mandatory mediation to the Italian legal system and also, depending on the results of the mandatory mediation, the arrangements for judicial expenses.
The Decree has established that disputes in the following categories are subject to mandatory mediation:
condominium and real rights;
division proceedings;
hereditary succession;
family agreements;
lease; gratuitous bail;
business leasing;
compensation for damages deriving from medical liability and defamation through the press or other means of publicity;
insurance, banking and financial agreements.
We are waiting for the implementing decrees… which are expected for release in September !!!
CROSS OUR FINGERS!!B