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R. EMERJ, Rio de Janeiro, v. 19, n. 4, p. 78 - 100, Setembro/Dezembro. 2017
82
Cases discussed in Tribunals
From 2013 to 2015
All civil proceedings
Proceedings related
to civil mediation
-8%
-16%
Therefore (compulsory) mediation “
works
”, but the overall success
rate is still too law, only 11%. Why ?
In order to kick-start mediation (and ADR), it is necessary to have
clear goals to be reached, a very good training, a strong attention to the
“stakeholders” (people, lawyers, judges), their attitudes and interests, and
to control what is going on. Starting with the knowledge of the historical
framework.
3 . A BIT OF HISTORY
Mediation belongs to the Italian cultural and juridical tradition. The
Italian State was founded in 1861. In the first Civil Procedure Code (1865)
the heading of the introductory seven articles was “Conciliation”. According
to a law issued in the same year, police officers must first of all reconcile
conflicts among private citizens. In 1880 Justices of Peace issued the 70%
of all sentences delivered in Italy. According to Law 261/1892 the judge
“
in order to reach a conciliation, could call for the single party in a private
hearing
” (an
ante litteram
caucus). But the totalitarian regime carried out
during the Fascist period (1922 – 1943) disliked conflict resolutions reached
by private citizens; they must be settled by judges, through sentences. 1941
Civil Procedure Code, art. 183, provided the possibility of conciliation man-
aged by the judge in the pre-trial hearings; nevertheless it is always been a
pure formality.
The bankruptcy rules have their roots in the “
jus mercatorum
”, de-
veloped in Central and Northern Italy around the thirteenth century. These
laws included the “
affida
”, i.e. the
trust
given to the insolvent debtor and
fugitive allowing him to return to his city in order to negotiate with his
creditors; this practice became very popular in the highly business-oriented
Republic of Venice from the fifteenth century onwards. The debtor-creditor
negotiation was later opposed by the Napoleonic Code, shyly resumed by
the Italian legislation of the late nineteenth century, supported by the Ital-
- pre-mediation first meeting, free of charge, with an “opt out” mechanism.