In this informative article, one of our alumni who is a dual qualified mediator in Italy and the UK, gives a comparison of the 2 jurisdiction’s approach to mediation.
This August I undertook London School of Mediation’s course to become an accredited mediator in the UK. Being an accredited mediator in Italy with the Istituto Nazionale per la Mediazione e l’Arbitrato, I was curious to find out the differences between mediator training in Italy and the UK. In fact, since I moved to the UK earlier this year, finding differences in how things are done in mediation has become a part of my daily reality. Constantly comparing between the two ways of doing things has been especially enriching to me since I come from a country in which there is a statutory scheme, albeit recent, for mediation. Moreover, I now work in a country with a longstanding tradition of mediation, even if it is devoid of any sort of mandates.
The differing extent to which mediation has been formally developed in Italy and the UK is especially curious given that mediation was formally introduced as a soft option to both countries in the 1990s. England and Wales saw the introduction of alternative dispute resolution (ADR) by the Civil Procedure Act, which introduced the Civil Procedure Rules in 1997 . Italy saw its first laws regulation mediation introduced in 1993 .
While the UK saw mediation develop stably from its introduction, the case of Italy was quite the opposite. First, it should be noted that from its introduction in the 1990s, Italy did not see widespread adoption of mediation until the implementation of Directive 52/EC/2008 in the early 2010s. Second, mediation in Italy has gone through five key phases during its lifetime so far, being characterized by:
1. voluntary mediation with no regulation (1990s to 2004)
2. voluntary mediation before accredited mediation service providers (2005 to 2010)
3. mandatory mediation in certain civil and commercial disputes following Decree no. 28/2010 (March 2011 to October 2012)
4. cessation of mandatory mediation following the decision of the Italian Constitutional Court holding that the prior legislative decree was unconstitutional for procedural reasons, voluntary mediation remained (October 2012 to September 2013)
5. required initial mediation session for limited categories of cases following law decree 69/2013 (2013 to present)
As evident from the above phases, the culmination of these fluctuations was the introduction of the required initial mediation session which has drawn increasing attention in the mediation community over the past years. This is in contrast to the UK which does not require an initial mediation session.
How the required initial mediation session system works in Italy
For a limited category of disputes , Italian law requires parties to attend what is called a “required initial mediation session.” Despite the name, this session is not a real mediation session, but rather serves to allow the parties, together with a mediator, to explore the feasibility of resolving their dispute via mediation. In essence, this session is a consultation with a mediator. Since it is not a mediation session the fees for this mandatory session are fixed by law at 40 EUR plus VAT.
This session has two typical outcomes: the parties opt-out of mediation, proceeding with litigation, or the parties agree they will try mediation to resolve the dispute. If the parties decide to proceed with mediation, normal fees will apply, however, after 90 days they have the opportunity to return to litigation.
Because the required initial mediation session is a condition for admissibility to start judicial action in certain subjects, should parties in these types of disputes somehow attempt to skip the required initial mediation session and go directly to litigation, the judge will order a stay in litigation until it is demonstrated that the parties have participated in the required session.
In contrast to the idea of Italian lawyers being antagonistic to mediation, the Italian legislator made sure that lawyers played a key role in the system of initial mediation sessions and in developing mediation in general. As a result, the presence of lawyers is mandatory both in the pre-mediation session and in subsequent mediation sessions. This is not the only aspect where lawyers are involved. Lawyers are required to inform clients at the outset of their professional relation about the possibility of using mediation, both verbally and in writing. The latter of which must be signed by the client and attached to any court filings.
Comparing the Italian and UK systems
In the UK, there is no similar demand to engage in a formal initial mediation session. Only the specific branch of family mediation has a similar mechanism – the Mediation Information and Assessment Meeting (MIAM).
In the UK, cost of mediation varies and is not typically regulated by the state, whereas in Italy criteria to determine costs for disputes in the subjects where initial mediation sessions are required are set in a decree.
With regards to the possibility of calling a mediator as witness in a trial, Italy adopted the approach of EU Directive 52/2008/EC which sets out that mediators cannot be called unless compelled by law or public policy . In the UK, a judge may order a mediator to be a witness if a party applies for such an order and the Court believes it is appropriate.
Under certain conditions in Italy the mediator can make proposals. However, both in Italy and the UK general consensus holds that facilitative mediation is the preferable option.
Both UK and Italian legal systems allow for judges to encourage parties to mediation. When a party does not take up such offer, the judge has the ability to implement financial consequences.
On training mediators:
After having noted some of the differences and similarities between mediation in Italy and the UK let’s look at how mediators are trained in both countries. In Italy in order to become a mediator, one must first hold at a 3-years undergraduate degree from an accredited university or be enrolled in a professional society. Second, it is necessary to complete a mediation training of at least fifty-four hours, as well as re-certification training every two years. Finally, it is required to assist a more experienced mediator in at least twenty mediations in their first two years of being certified.
The UK does not have similar national-wide requirements to become an accredited mediator. However, qualification courses are normally from five to six days. Besides these requirements, in my personal experience mediator training tends to be more theoretical in Italy, whereas UK courses tend to be more hands-on. These differences are clearly grounded in the different realities discussed above: Italian training necessarily requires more theoretical component to ensure mediators understand legislation affecting them, while training in the UK is not similarly restricted. Another key aspect of mediation training in the UK I was sceptic of at first was the proliferation of role-playing as a means of training without extensive theoretical background – however, seeing the effectiveness of these methods in bringing new mediators up to speed has convinced me of their usefulness.
In the end, my mediation training in both Italy and the UK have provided me with essentials – a strong theoretical background from the Italian tradition rooted in legislation, practical skills and the confidence to use them from the UK tradition. As a mediator, my professional abilities have only benefited from this cross-cultural training, which leads me to look towards the future and think: why strengthen ourselves as mediators by seeing what we can learn from how mediation is done and trained in other countries?