In an interim statement released by the Court on 26 October, Italy’s mandatory four-month mediation process to be undertaken before litigation is commenced has been found to be unconstitutional because it denies access to justice.
Like some other European countries, Italy used the 2008 EU Mediation Directive as an opporuntiy to broaden the applicability of mediation on the domestic stage. Through legislative decree No. 28 enacted on 20 March 2010, the parliament introduced a mandatory mediation scheme (in part to reduce the 5.4 million national backlog of court cases). The Italian legal community was divided over the new rules, and a country-wide protest strike in 2011 lead to the closure of the courts for several days.
It is noteworthy that Italy’s law did not require parties to settle disputes at mediation, merely to attempt to do so. As such, supporters of the law believe that the Constitutional Court has misinterpreted its reach.We await a judgment to understand the Court’s full reasoning.
Domestic courts in many jurisdictions, for example Australia, have the power to refer cases to mediation, whether the parties consent or not. This is often more successful during, as opposed to before proceedings are issued, when it is often feared that the parties’ cases may not be adequately defined to lead to settlement at mediation.