BY MARCO MARINARO
The versatility of the Italian system of civil justice that emerges from the analysis of the regulatory and jurisprudential evolution of the last decade is the result of a path not always aware of the potential achievement of a virtuous balance between mediation and judicial proceedings (in light of what established by article 1.1 of Directive 2008/52/CE).
The progressive consolidation of an integrated system of dispute resolution methods has freed mediation from a vision ancillary to the process, helping to enhance the amicable settlement of civil disputes, in addition to the physiological rebalancing of litigation rates, while restoring efficiency and effectiveness to jurisdiction.
In this context, the emergency situation presented by Covid-19 has led to the temporary suspension of ordinary procedural activity and, therefore, a substantial blockage of civil justice. The problem would remain unsolved in case of further extensions of blockage and even in the intermediate phase of resumption of activities with the use of remote communication systems for the conduct of hearings (the organization of which has been transferred to the heads of the individual judicial offices).
Undoubtedly, the gridlock determined by at least two months of suspension will be unavoidable, as will the further delays and deferrals related to the intermediate phase. Furthermore, continued interruptions provide difficulties while managing recovery (considering the summer holiday suspension in August), the start of new processes (which are now on stand-by), and also the emergence of new litigation arising from contractual and non-contractual matters stemming from the emergency situation. As a result, a funneling effect will be created before judges, and cases will be distributed over time with delays stretching to a period of at least two years.
Nonetheless, the risk of a real “litigation explosion” is not solely a judicial problem to be faced with organizational tools within the administration of justice but underlies the deep economic and social crisis the country will face in the coming months whose dimensions cannot be properly estimated yet.
Innovative solutions that look at the problem in its complexity, offering prompt answers in a perspective of coexistence are obviously vital. In this critical phase, the country is becoming aware of the need for responses that draw on the so-called complementary justice, and in particular on mediation and negotiation tools. To this purpose, the “Manifesto of Complementary Justice to the Jurisdiction” aims to give “a concrete response to the economic and social emergency”, without forgetting the dimension of potential post-emergency structural profiles for efficient, effective and sustainable civil justice.
The proposal of the Manifesto was born from the group of experts part of the “Technical Panel on extrajudicial procedures in civil and commercial matters” (of which the author is a member) established with the ministerial decree of December 23, 2019, by the Italian Ministry of Justice. The ministerial initiative arose from the need for a thorough systematic recognition of existing out-of-court procedures and their possible increase in order to contribute to the deflation of judicial litigation and to the improvement of access to justice for all citizens. The aim of the Manifesto is to encourage reflection and discussion in a structural perspective, but also to coagulate ideas, proposals, and initiatives to be submitted to the Technical Panel of the Ministry to offer potentially useful solutions to the Government during this particularly critical phase.
Hence, we have been assisting the development of awareness that it is appropriate to support and promote the implementation of out-of-court methods, either preventive or subsequent to judicial proceedings, necessary for social pacification. It is essential, at this stage, to promptly adopt agile, rapid, flexible, effective, incentivized instruments that can enable us to deal adequately with the accumulation of pending cases and the threat of an exponential increase in the demand for justice. Above all, it is essential to set up systems that strengthen social cohesion at a time when fragmentation of the social fabric imposes consensual, and not adversarial systems. Moreover, mediation and negotiation (negotiation by lawyers before trial, ed.) have not stalled, but continue, thanks to video conferencing systems, to ensure the settlement of disputes without disruption.
Now is the time for mediation because now is the time for cohesion. This is the time when each person has a duty to make a fair, responsible, and co-existential contribution in terms of competence and participation.
Every person is therefore called to cooperate and collaborate for the rebirth of the country, especially at a time of inevitable crisis, when conflicts are likely to be exacerbated in the critical moment of social and personal relationships, in a perspective of solidarity that draws on the constitutional values that most deeply permeate our country.
In 1931, Albert Einstein wrote “Let’s not pretend that things will change if we keep doing the same things. A crisis can be a real blessing to any person, to any nation. For all crises bring progress. Creativity is born from anguish, just like the day is born form the dark night. It’s in crisis that inventiveness is born, as well as discoveries made and big strategies. He who overcomes crisis, overcomes himself, without getting overcome”.
We should work in these times of crisis not only to overcome the emergency phase, but to improve our world by the time this crisis becomes only a dramatic memory.
Ministerial Panel on Extrajudicial Proceedings
in Civil and Commercial Matters
The Panel Experts
The Manifesto of Complementary Justice to the Jurisdictional System
A Concrete Answer to the Social and Economic Emergency
In the critical situation our country is experiencing, the politics of justice cannot help, but consider that there is a way to address the serious problems affecting citizens, companies, associations, and the public administration as a result of the judicial system’s dramatic slowdown.
The best method is to rely on the crucial function of alternative, extrajudicial resolution mechanisms that are complementary to the jurisdictional system. Negotiation and mediation are well-known practices throughout our legal system and conflict resolution professionals have long been the recipients of incentives at the European level. Such practices help those citizens and companies under the pressing need to find prompt and effective resolution to the management of conflicts and disputes in which they are involved and that, if left pending, risk remaining unaddressed for extended periods of time.
Negotiation and mediation have the potential, now more than ever, to offer swift and cost-effective solutions for both parties of the dispute.
The renegotiation of a contract with conditions of excessive burden supervening or the occurrence of a cause for resolution of dispute of any type or nature that is linked to cash sums, the struggling social and commercial relationships in which a timely solution would have been the best action, the crucial relationships between banks and clients, which require particular care regarding the conditions relating to reorganizing, the claims against public administration by citizens and companies still going unanswered, are only a fraction of the circumstances which lack the prompt and appropriate intervention and ultimately will contribute to the unsustainability of this country’s judicial system.
It should be noted that, at a time such as what collectively we are experiencing, we have powerful means at our disposal for the efficient management of change.
- Lawyers to consider the extent of litigation caseload, to work with dedication and commitment within the frameworks of negotiation in the best interest of citizens and the companies who are their clients.
- Judges to grant parties with pending cases the same amount of time generated by the inevitable postponement of the hearings so they may find solutions that are suitable to their interests, with a sense of responsibility and spirit of collaboration.
- Mediators to work effectively and efficiently, providing parties in conflict, with their competent assistance, electronically for as long as necessary and as soon as possible.
- Citizens to be open to dialogue by exercising their right to express their unease, but also propose solutions, relying on their consultants and professionals to competently guide them towards the peaceful research of solutions and agreements.
- Companies to act with confidence and commitment towards the resolution of critical issues within commercial relations, to use all of their strategic capacity and vision of the future to face in a constructive way the difficulties of the moment and the post emergency situation.
- The Academia to make further efforts to provide professionals of conflict-resolution with high-level training adequate to their needs of acquiring the most qualified and up-to-date mediation and negotiation technical skills.
- The Public Administration to adopt instruments and practices fostering effective communication and, in particular, the acquisition of confidence from citizens.
- The Government to be receptive and open minded, and to adopt disciplines, practices and values to benefit citizens, professionals, companies and public policy.
The current historical moment, beyond revolutionizing our daily habits, has made widespread use of emergency legislation.
The emergency regulations issued during the current period have expressly dealt, for the first time, with all sectors of the judicial system simultaneously: civil, criminal, administrative, accounting, tributary, penitentiary, and extrajudicial.
It is necessary to highlight the measures contained in articles 88 and 91 of the law decree 18/2020 envisaging, respectively, hypotheses of termination with regard to contracts related to the purchase of tourist stays, concert or museum tickets caused by supervening impossibility of performance, as well as the exclusion of the debtor’s liability for delays or contractual breaches resulting from the implementation of containment measures.
Both measures will present a steep increase in the number of litigations or lead to different management of litigations already in place.
In order to avoid further slowdown of the judicial system due to emergency-generated litigation, it is certainly useful and appropriate to entrust their management, as soon as possible and in compliance with the law, to autonomous, private practitioners and conflict mediators, that is, in the fora where the constructive confrontation of positions and interests and the pursuit of strategic solutions for the benefit of all parties is possible.
In this respect, civil and commercial mediation and negotiation (negotiation by lawyers before trial, ed.) that, in the recent years, although with difficulty, have helped to improve the management of pathological phases of legal relationships, as well as to reduce judicial litigation, may evolve into a powerful tool in the current regulatory process.
Furthermore, one should not underestimate the unquestioned effectiveness of mediation as a social glue, not only as the reactivation of interrupted communication between the parties in conflict, but also in relation to the dissemination of positive values such as autonomy, awareness and responsibility. Mediation is a driving force towards the rebirth of social relations.
Given that, social cohesion is the typical outcome of mediation, the great challenge of our commitment and also the prerequisite for the economic rebirth of the country.
The practice of mediation may be the antidote to defuse the inevitable exacerbation of conflicts in the context of a deeply torn social fabric.
March 28, 2020
Prof.ssa Paola Lucarelli (Coordinator)
Prof. Mauro Bove
Dott.ssa Luciana Breggia
Dott.ssa Mirella Delia
Avv. Donato Di Campli
Prof. Vincenzo Di Cataldo
Prof.ssa Chiara Giovannucci Orlandi
Prof. Carlo Alberto Giusti
Prof. Avv. Marco Marinaro
Avv. Rossana Rovere
Prof. Alberto Maria Tedoldi