Mediation scenario in the UIA World Forum, London 2024

Mediation scenario in the UIA World Forum, London 2024

 

Sharing experiences and insights in the World Forum of Mediation Centres

Attending the UIA (Union Internationale des Avocats) World Forum of Mediation Centres is always something to look forward to and this year was no exception. Speakers from five continents – mediation practitioners and officers from mediation centres such as CEDR, IRDC, IMI, AMIFID, as well as lawyers, business managers, academics – bring different perspectives and experiences on mediation is their countries.

One remarkable point was made in describing the ideal scenario where mediation can be practised and bring the best possible outcome to the community.

In this scenario, all the following parties must act in synch:

• the judges, by ordering the parties to a claim to attempt resolving their dispute through mediation;
• the lawyers, by advising their client that mediation can provide the best solution to their dispute;
• the government, by funding and integrating mediation not only in the justice system but also as a public service offered to the community.

We can see now how this multi-parties setting works in practice by making reference to some mediation frameworks around the world.

 

Landscape of mediation in UK

In UK mediation is one important tool among the alternative dispute resolution methods (ADR) – some of them are court-annexed, i.e. they are offered within the courts before or during litigation as an alternative to trial in order to settle the parties’ claim. Alternative dispute resolution has been a well-established and integrated practice in the UK civil justice system for the last 30 years. Many thousands of cases are mediated every year, mainly family, community (e.g. neighbour conflict and social issues) and commercial disputes.

The UK judges are now allowed to order the parties to pursue mediation, as a recent development brought by a new precedent established in November 2023 in the case Churchill vs Merthyr Tydfil County Borough Council, overturning the 2004 Halsey ruling. The latter provided that compelling parties to mediate would breach their right to a fair trial under Article 6 of the European Convention on Human Rights, where in Churchill it was established that there is no such violation and that mediation could in fact be made compulsory by the courts in certain circumstances.

Traditionally, the role of the government in the justice system was to be present through the court system. Track records and figures – £17.5 billion/year is the value of disputes resolved through mediation - triggered a government investigation about how to integrate mediation into the system. Funding by the government changed everything and opened to a wider range of free services to the community which include mediation.

In 2023 the UK government announced integration of commercial mediation claims under £10,000 in the court of first instance trials in England and Wales, meaning that the parties to such claims will have to go through mediation mandatorily before starting litigation. Next steps will consist in bringing the above threshold to £100,000 and in experimenting pilot procedures to offer free mediation for small claims through trained mediators recruited by the state councils.

Finally, in UK 997 over 1000 successful mediations - i.e. ending with a settlement agreement – did NOT need enforcement through courts. This is something to consider for those who believe that mediation “weakness” consists in not having a binding outcome, as arbitration or court trials.

 

Mediation in US and other countries

Speakers from US, India, China, South Africa, Greece, Belgium, Australia, Luxembourg, Switzerland, Poland shared their respective countries’ approach and experience in mediation at the London Forum. Notwithstanding their differences, all of them highlighted the advantages of the mediation process and the positive outcomes that mediation brought along through the years, while it was becoming more and more an integral part of the justice systems.

Techniques, tools and structures used in mediation and presented by the speakers were also different. For instance, in some countries such as Poland, private meetings (sometimes called “caucuses”) between the mediator and the parties are rarely used. In Switzerland mediation is mainly facilitative and they generally appoint panels of three mediators. In France co-mediation with two or more mediators - mediating simultaneously - is quite common. In Australia family and community disputes were the “forces” that triggered the set up and rising of mediation.

In US some law faculty literally make their students available for work at the clinics, which are pro bono organisations offering free advice on small claims. This is a great opportunity for the students to be learning by doing and also safe for the clients/parties in dispute since there is always supervision by the professors of the law faculty. This pattern is also socially commendable as legal representation is provided free of charge.

Mediation is an extremely flexible process and allows to adapt to the circumstances of the case. No such thing as one-fits-all attitude, because countries and justice systems are all different and the various techniques and processes should be taught and learned.

 

Mediation in Italy: how to move forward

Mediation in Italy is in a moment of great evolution also due to the Cartabia Reform (end of 2023), which introduced a series of incentives and rules that make the procedure not only alternative to ordinary justice but even complementary to it.

However, a major obstacle to the use of mediation in Italy remains the lack of culture which has been spreading into Universities’ classrooms (and not even all of them) only for a few years now.

What would be required of Italian lawyers today is a real paradigm shift which, however, does not yet seem realistic. However, it must be confirmed that, from 2010 to date, many Italian lawyers changed their approach towards mediation, realizing the great potential that this tool brings to their clients with a very high rate of client satisfaction (if used well).

What is certain is that the successful outcome of mediation depends on various factors, first and foremost the right approach by the Parties and their lawyers and, last but not least, the preparation and training of the mediator.

Not surprisingly, the latest reform also insisted on the training of mediators, bringing the "qualification course” from 50 hours to 80 hours and eliminating the concept "lawyer = mediator by operation of law" which we believe did not really make sense!

Going back to what said above, if Italian lawyers never studied mediation at university, this also applies to mediators who, even more than the former, must not only train adequately but must take an active part in spreading the word of mediation.

Again, the Italian mediation training is rather "basic" and those who really want to delve deeper into the topic can only go abroad to get high-level in-depth studies from those who have actually been practising mediation for decades.

These courses, however, are quite expensive and since today making a living from mediation is almost impossible, only those who truly believe in this sector invest their money and time in this field.

However, it is very likely that in 5 years from now there will be a real revolution and, also thanks to the advent of young lawyers who are more oriented towards a negotiating approach rather than an adjudicative one, they will bring their clients into mediation with greater awareness and level of professionalism in mediation. Although there is no reason not to be optimistic about the evolution of mediation in Italy, it will nonetheless take time and people believing in and promoting the mediation process.

Conclusions

 

Mediation must be supported, fostered, encouraged.

Sadly, Italy was not present at the London World Forum on mediation through any speakers. This is something that hopefully will change in the future, as long as mediation is not considered a tick-box exercise but rather a smart tool to make the Italian justice system more efficient and effective for everyone.