/// Who is opposing the Italian “opt-out” model in mediation and why?

Who is opposing the Italian “opt-out” model in mediation and why?

Petros Zourdoumis, Mediator, Founder ODReurope

I recently had a discussion with a German academic and mediator about ways to boost mediation in Europe. Naturally, after a while, the Italian “opt-out” model bought into the discussion as a short cut to this end. We both agreed that even though many decision makers in Europe take a proactive view on mediation and are willing to speed up the use of mediation by legislative measures of this nature and although the European Commission itself strongly supports the wide use of ADR practices (just recently introduced to consumer disputes through directive 2013/11 and regulation 524/2013), still there is a strong resistance or reluctance both nationally and on a European level to legislate accordingly.

We have also stressed the detrimental effect of the use of the term “mandatory mediation” not so much as one that appears to be a contradiction in terms, but rather as one that describes inaccurately and misleadingly the rationale behind the “opt-out” model. The word “mandatory” should be set aside in such a discussion. The “opt-out” model is not related at all to the core of the mediation process which remains a voluntary one. It is simply a legal prerequisite, a pre-mediation process which aims to formally inform parties to a dispute about the option of mediation and let them freely decide whether they wish to take it or insist on court proceedings. It is a non-costly and non-time consuming requirement that has led thousands of cases off the Italian courts and has raised settlement figures.  

So the question is, if there is an admittedly successful model in Italy why don’t we simply copy it and implement it throughout Europe? When uniformity is required in so many minor European policies, why not imposing such a key change by a nicely drafted European regulation? If ADR is indeed a good practice (you will be amazed by the beneficial consequences of ADR set out in the preamble of the ADR Directive) why go half the way to make it an everyday practice? Finally, if we all agree on what seems to be a workable solution who is opposing the Italian “opt-out” model in mediation and why?

Copyright/PetrosZourdoumis