ADR AND CIVIL PROCEEDING IN ITALY 2021, POTENTIAL DEVELOPMENTS COMMISSIONE LUISO MEIOS ALTERNATIVOS DE RESOLUÇÃO DE CONFLITOS E PROCESSO CIVIL NA ITÁLIA NO ANO DE 2021: POTENCIAIS DESENVOLVIMENTOS PELA COMISSÃO LUISO

Italy aims to reduce the length of civil trials. In 2021 the government has appointed the Commissione Luiso, which -with regard to out-of-court methods of dispute resolutionrecommends tax incentives, increase of matters subject to mandatory mediation, enhancement of court-appointed-mediation, clarification of the mediation proceeding requirements to make it more effective, involvement of the public administration, quality of training.

Commission's report, it is necessary to ensure that the arbitrators are more neutral and reliable. They should therefore disclose any possible links or common interests with the parties and their lawyers (duty of disclosure). In addition, in ritual arbitrations, the possibility of issuing provisional measures should be recognised, following the will of the parties, as provided for in other European Legal systems.
Assisted negotiation is used almost exclusively for consensual solutions of legal separations of married people, end of civil effects of marriage, modification of the conditions of separation or divorce. The Luiso Commission suggests to extend the use of assisted negotiation also to agreements relating to underage children born out of the marriage.
The main attention paid by the Luiso Commission's report to ADRs is focused on mediation, with a wide range of proposals, some of which, if accepted, would have positive disruptive effect: -. tax incentives -. increase of the subjects covered by mandatory mediation; -. more effectiveness of mediation ordered by the judge; -. clarification of the mediation proceeding to make it more effective; -involvement of the public administration; -quality of training. provider, up to a maximum of euro 500.00 in case of agreement, halved in case of failure.
However this provision has always been subject to the availability in a Justice Fund, as set out by the Minister of Justice. Such availability has never occurred.
The Luiso Commission recommends -. to extend this tax credit to cover the costs of the assisting lawyer in mediation; -. to recognize the legal aid for the costs of legal assistance in mediation for those entitled, a provision particularly welcomed by the lawyers; -. to return to the parties the fee paid at the beginning of the judicial proceedings, following an agreement in mediation related to that dispute (implicit aid to the mediation requested by the judge); -. to provide a small compensation for the management of the first mediation meeting (up to now the lawyer is paid, the mediator works for free), tax credit for the parties, if attending the meeting.

Increase of matters subject to mandatory mediation
Mediation belongs to the Italian legal tradition. But since the 1930, when it was no longer taught in universities for about seventy years, we have forgotten about it. It is provided for in article 183 of the Code of Civil Procedure (first attendance of the parties in the civil judicial proceeding), but it has been used less than formally; it is scattered here an there in the legal system, but its management is entrusted to professionals skilled in adversarial techniques; it was provided for by Legislative decree 5/2003 ("Reform of company law"), related to corporate, financial, banking and credit disputes (very wide fields) but it was hardly used at all (and when, in 2011, I asked lawyers why, they replied: "It was not mandatory").
At the end of 2009 there were a bit less than 6,000,000 pending civil cases in courts.
In 2010 the Ministry of justice asked for the availability of 95,000,000.00 euro to deal with the compensations for excessively long trials. By the Law 69/2009 the government was given delegated powers of the use of mediation in disputes related to available civil rights.
Legislative Decree 28/2010 ruled mediation as an obligatory condition for judicial proceedings in matters amounting to approximately 9% of civil cases. Strong opposition from lawyers, 'benign neglect' from the judiciary. 5 . In 2013 the "OPT-OUT" mandatory mediation model was ruled: the parties, assisted by lawyers, are obliged to attend a "first" introductory meeting, during which the mediator explains them the principles of mediation and asks them if there are any particular reasons why they should not to begin the mediation.
After that the parties can decide whether or not to continue. 6 The Luiso Commission recommends the extension of the first compulsory mediation meeting in dispute related to contracts, in which the relationship between the parties is due to last over time: agency contracts, joint ventures, consortia, franchising, networks, partnership and subcontracting.
Voluntary recourse to mediation and assisted negotiation in individual labour disputes is also suggested.
Enhancement of court-appointed mediation As mentioned above, when mediation, as mandatory condition for judicial proceeding, was introduced, the vast majority of judges considered it to be a "Child of a lesser God". However, apart a few judges who acted as pioneers, the judiciary at a very slow pace began to realize the usefulness of the institute.  1analysis of court files by the researcher, who selects the files, draws up the report for each file, delivers the file and the report to the judge; 2referral to mediationthe judge considers whether or not to accept the researcher's proposal, draws up the order referring the case to mediation and sets the date for the next court hearing (the mediation proceeding completed) within a maximum six months period; 3the mediator undertakes the proceeding within the time limit set by the judge and reports every month on completed procedures; 4return to courtthe judge reviews the results of the return hearing and assesses the effectiveness of his / her previous decision.
In 2018 researchers analyzed 9,941 court files; 1,296 cases were submitted to mediation; 577 cases were resolved through mediation (6% of the files initially analyzed).
The Dpt. of Engineering -DISITLab, University of Florence is studying all the documents to develop the predictive algorithm.
In relation to this project, the following have also been quantified: -the social impact (increase of trust in mediation by citizens and professionals) through the number of compliances of the parties to the judge's order to resort to mediation; -the economic impact, the reduction in the average length of proceedings; -the impact on the efficiency of justice, through the reduction on the judicial burden; -the cultural impact (trust in mediation within the courts) through the number of mediation orders issued by judges.
Results will be published soon.

Clarifications of the mediation proceeding requirements
The Luiso Commission report underlines that the first mediation meeting must be effective and the personal presence of the parties must be expressly provided for. The lack of respect for these principles severely undermines the effectiveness of mediation in Italy.
Indeed, of all the procedures started, in 2011 all the parties were present in only 32% of them; 49% in 2019. But there still is a long way to go.
Even today, art. 8, c.1, third sentence and following, and c. 4bis of Legislative Decree 28/2010 explicitly provide the presence of the parties but the age-old habit of the layer "representing" the party in the judicial proceeding has generally prevailed over the understanding of the essence of mediation. Consideration supported by the Court of Cassation, judgment 8473/2019, according to which the need for personal presence in mediation does not mean that it cannot be delegated. Therefore, the party, who, for his/her own choice or impossibility cannot attend a mediation meeting in person, can also be replaced by his/her lawyer, with a "substantial" special power of attorney, which cannot be authenticated by the lawyer himself. In practice, it has become a habit among public administrations (condemned by the local courts) not to attend mediation, for fear of incurring liability for financial loss.
According to the Luiso Commission, "such considerations … have been overtaken by the approval of Article 21, Law Decree no. 76, 16.07.2020, converted by Law no. 120, 11.09.2020  The commission also suggests the presence of family mediators in all courts dealing with disputes on the subject.
Italy has an estimated population of 60 million people. There are 9,401 judges and 242,000 lawyers.
In 2019 there were: -2,974,684 new proceedings filed in civil courts; -147,691 civil mediation proceedings; -20,824 mediated settlement agreements.
In the 2011 / 2019 period there has been -a decrease in civil court litigation (-4% per year), because of the economic crisis; -a strong increase in mediation proceedings (+18% per year) and -a strong increase in mediated settlement agreements (+14% per year).
Nevertheless, there is wide room for their growth. 9 Greg Bond: "… I have always been skeptical about one-week forty-hour mediation courses leading to accreditation and people being able to say they are qualified mediators. … I was proud to have to do two hundred hours of mediation training, then several mediations, and coaching on those mediations before I could become accredited by the German Mediation Association (Bundesverband Mediation). I was and am convinced that this is a sign of quality" -"On the benefit of mediation training, and on getting things wrong. An interview with Ewa Chye", Kluwer Mediation Blog, 3.2019 http://mediationblog.kluwerarbitration.com/2019/03/24/on-the-benefits-of-mediation-training-and-ongetting-things-wrong-an-interview-with-eva-chye/ 10 CEPEJ mediation tools https://www.coe.int/en/web/cepej/mediation-tools.