Civil Trial on Trial

There have been many attempts to put remedy to the malfunctioning of the Italian civil justice system. The legislature has recently increased the role of alternative dispute resolutions in order to decrease widespread use of civil litigation. The idea is not new, since, in addition to the old legal tool of arbitration, the parties involved in a dispute have always experimented with alternative solutions, usually involving transaction settlements. It is only in recent years, though, that Italian law introduced what appeared as more effective tools in deflating litigation. First, the Legislative Decree no. 28/2010 provides that disputes in civil and commercial matters can undergo conciliatory solutions through the work of a mediation body, if the parties so decide. But the real turning point was the provision that, in relation to certain types of disputes (such as those relating to property rights, inheritance, banking and insurance contracts), the mediation attempt is made mandatory by law before taking the case to court.

A similar approach, moreover, also inspired the Legislative Decree no. 132/2014, which allows parties to start resolution of a dispute through the assistance of their lawyers. The legislator in short relies on the mediators' and civil attorneys expertise and to ensure an effective decrease in the number of civil lawsuits. A closer look, however, reveals that it was illusory to believe that making it more difficult to ask for judicial protection by obliging parties to go through prior attempts at mediation or negotiation would induce them to seek a conciliatory solution rather than deciding to go before a judge and, therefore, aggravate the costs of administering civil justice.

Indeed, in a context in which the long duration and high costs of a civil trial make conciliation of disputes difficult from the perspective of protection of the interests of parties, alternative solutions are in themselves incapable of preventing the inefficiency of the legal process. This is because only if there were an efficient legal process, the parties, and especially the one that is in error, would be induced to put their trust in conciliation as a means to avoid speedy sanctions (which would apply if trials were indeed efficient). Alternative dispute resolutions are viable if the legal process possesses requirements of sufficient efficiency in terms of cost containment and the time required to deliver judgment, as well as its execution. But they prove inadequate if they are conceived as mere barriers to inhibit access to courts.

If we consider that conciliation instruments involve costs to the parties, it is worth noting the Italian law already provides for cost-free judicial conciliation during the trial. This latter type of conciliation, were it reinforced by legislators and endowed with real powers of sanction, would ensure a more effective and timely result in terms of an alternative resolution of civil disputes.