A qualitative study I conducted in 2018 in Italy provided interesting data about how local lawyers incorporated mediation in their everyday professional practice. The research also highlighted that the Italian law regulating the so-called mandatory mediation program (Legislative decree No 28/2010) contributed to enculturate mediation in the local legal culture. The decree compels parties, assisted by their lawyers, of a plethora of civil disputes to attend an informational mediation meeting during which the mediator explains the mediation process. After the mediator provides the information, the parties decide whether to start a mediation process or opt-out and litigate their dispute. Despite the fact parties are not required to mediate, the Italian mediation program is often defined as mandatory. Actually, it might be defined as a mitigated form of mandatory mediation program because what is mandatory is attendance at a mediation meeting."
This research is interesting because it provides the first picture about the way local lawyers learn, understand, and internalize mediation and their actual use of mediation. The research will be published in the Harvard Negotiation Law Review, Fall 2020 issue. In this short post, I want to discuss some important data. At the same time, I strongly invite the reader to read the article, once published, to more thouroughly understand the theories that inspired the study, the research methodology, and the data analysis.
I conducted a total of 23 semistructured interviews of civil lawyers practicing in Milan. Questions were inspired by a model of enculturation elaborated in anthropology. “Snowball sampling” was the sampling method used, which has the disadvantage of being a nonprobability method. However, in my research, it also had the important advantage of reducing the possibility to recruiting participants without experience in mediation or with a insignificant exposure to mandatory mediation. Furthermore, this sampling method increased the possibility that subjects would agree to be interviewed and reduce the costs of the research.
The data analysis focused on 20 interviews of civil lawyers practicing in a branch of law exposing them to the mechanism of mandatory mediation. Their experience in assisting clients in mediation processes varied from one or two mediations to a maximum of 30. Although statistical generalizations are not possible given the small sample, this study allows the researcher to infer analytical generalization and thus discuss the capacity of Italian law to stimulate a change in the dispute resolution culture of local lawyers. Furthermore, the findings contribute to reducing the speculation about the reasons lawyers suggest or not suggest their clients mediate, provide data to trainers to design courses that address common misconceptions of lawyers, and possibly inspire further research in Italy.
A significant portion of the participants learned about the existence of a dispute resolution method called “mediation” only after Legislative decree No 28/2010 was enacted. The other lawyers knew about the existence of mediation before the decree was enacted. They knew about it because of word of mouth, attendance at courses on mediation, and the contacts they had with local arbitration providers who offered mediation services too. The data supports the argument that the voluntary regime promoted in Italy for almost 20 years before the mandatory mediation program was enforced was not enough to make all lawyers aware of mediation. Mandatory mediation seems to have played a significant role in creating mediation awareness among lawyers.
Almost all lawyers (18) took some actions to educate themselves about mediation, most of them after the enactment of the Legislative decree. They did so by attending courses, seminars, or workshops offered locally in continuing legal education programs. Those courses or seminars typically lasted a few hours or at most an entire day. Given the fact that during the interviews important misconceptions emerged, it is speculated that those educational events were poorly designed to deliver a comprehensive understanding of mediation. Based on the data analyzed, lawyers typically referred to or defined mediation as a settlement-oriented process. Mediation models other than problem-solving or evaluative were never mentioned or considered. The data has implications for mediators who offer, for instance, a transformative mediation approach because in transformative mediation the pursue of an agreement is a secondary goal. I speculate that this approach might sometimes not satisfy the expectations of lawyers, and thus possibly create tensions with the mediator and jeopardize the mediation process.
In the abstract, the vast majority of lawyers expressed a positive opinions or views about mediation, even though they used different arguments. Those few lawyers who expressed a skeptical opinion considered mediation a useless replication of the early negotiations parties do with the assistance of their lawyers before filing a case in court. Furthermore, in some cases lawyers experienced a gradual internalization mediation. After an initial reluctance toward mediation, over time they became less skeptical. In this regard, it seems that the experience they had in a few mediation processes contributed to this change of attitude.
Despite their positive opinions about mediation, many lawyers subordinated the use of mediation to a plethora of conditional statements that significantly reduced the potential use of mediation. In other words, many lawyers did not suggest mediation to their clients when some important circumstances occurred. Specifically, they did not suggest mediation in the following cases: the counterpart is too positional and an agreement in mediation is unlikely; the client does not want to mediate; mediation is costly for clients and I am afraid it will fail; not all the cases can be mediated; the possibility to win in court is very high and suggesting that the client litigate is the best option. Almost all those arguments were questionable. Mediators and mediation trainers should benefit from this data. Indeed, mediators should be ready to provide arguments to those lawyers who question the value of mediation in the above mentioned circumstances during the informational meeting. Trainers should design mediation training or courses taking into account the above arguments and educate lawyers on the reasons most of those arguments are questionable.
As expected, the study confirmed that the existence of a legal obligation to attend an informational mediation meeting motivates some lawyers to suggest mediation to their clients. Interestingly, the data revealed that many of those lawyers who had a positive opinion or were enthusiastic about mediation were less likely to suggest mediation in cases in which the law did not provide the legal obligation to attend the informational meeting or when mediation is on a pure voluntary basis. This finding supports the argument for a further expansion in Italy of mandatory mediation to other civil disputes. Such an expansion would increase the number of mediations and thus decrease the courts’ workload. In this regard, offering mediation on a pure voluntary basis is not enough. Finally, data collected underlined the phenomenon of lawyers’ mediation cooptation. With the term cooptation, I refer to the phenomenon when mediation is reproduced or reinterpreted in a way that conforms with the values or norms of the adversarial legal culture of lawyers. An example of mediation cooptation is the tendency of lawyers in mediation to focus on the distributive dimension of a dispute or to conceive of mediation as a process where all parties necessarily give something up, or the idea that the mediator should evaluate the case or should have competencies in the branch of law of the dispute at hand.
My opinion is that the co-opted model is the model with which Italian mediators should get used in the future. Mediation cooptation is a phenomenon that occurs in many legal cultures outside Italy. This poses the dilemma for the mediator and the mediation service providers whether they should challenge this coopted model and insist on offering other models, such as the problem-solving model, or simply accommodate it.
This research outlines a first picture about how mediation has been enculturated in the legal professions of Italian lawyers. Even though the study does not allow the researcher to infer statistical generalizations, the data reported provide important information on the reasons the use of mediation in Italy is limited, as reported in the statistics annually reported by the Ministry of Justice. Italian mediators and mediation trainers can take this data into account while preparing for and performing their everyday activities.