Mandatory Mediation Sparks Italian Strike

How do you get Italian lawyers to strike?

You give them a long ski weekend. Nordic Ski Gold Medalists from Italy, Not LawyersThat was the wink-wink response of critics in March to the two-day strike called by the Italian litigators’ union – the Organismo Unitario del’Avvocatura Italiana. The attorneys closed down the country’s courts for two days in response to a new law compelling them to mediate their clients’ disputes (Compulsory mediation angers lawyers working in Italy’s unwieldy legal system).

Now there’s been a call for another strike.

Beach season?

Given the Glacial Pace of Italian Justice, Even a Full Year’s Strike Might Make No Perceptible Difference

“Last time most of the lawyers sat in their offices but refused to go to court,” said one observer, adding that it didn’t have much affect. More acerbic were critics who pointed out that the protest extended a long weekend during the height of the skiing season.

Apparently, Italian lawyers are held in even lower esteem by their countrymen than American lawyers and that’s a relief to me, knowing that my profession is subjected to even greater disrespect elsewhere.

Schadenfreude. Particularly for Prime Minister Silvio Berlusconi who is facing multiple trials over his convoluted personal and financial life and who has “repeatedly expressed his disdain for left wing prosecutors and courtroom entanglements.”

Mandatory mediation (though anathema to most mediators) hardly seems cause for a mass walk-out by the practitioners of justice in Italy’s sunny climes. After all, the law simply causes a slight delay in legal proceedings while disputants sit down with a third party neutral in an attempt to craft a negotiated resolution to their dispute.

It’s Not the Money Business, It’s the Justice Business

Because the walk-out in March appeared to be motivated solely by Italian attorneys’ desire to benefit financially from the glacial pace of the Italian justice system, it has reportedly lowered their already abysmal reputation.

That’s because they’re supposed to care about fairness to their clients more than they care about feathering their own nests. If they wanted to be in the money rather than the justice business they should have become investment bankers, financiers, or, venture capitalists.

If they wanted to stay in the justice system but make gazillions of dollars doing so, they could have formed their own liability insurance companies. AIG comes to mind. Or cornered the market on high-end mediation like the lawyers who formed JAMS, the ADR business formerly known as Judicial Arbitration and Mediation Services.

“Delay and Deny, Deny and Delay”

My husband, an attorney who sues insurance carriers when they deny coverage to insureds, mutters that phrase in his sleep. Or at least he used to until I stopped representing the insurance carriers – like Lloyds – who deny coverage to insureds.

Yes, we’re a match made in adversarial heaven.

Patent litigation, a specialty I’ve pursued both as a litigator and as an ADR neutral, is renowned as one of the slowest paths to resolution in one of the fastest paced industries. Thinking that someone must benefit from this other than the lawyers, I asked my LinkedIn network several years ago whether any of the parties benefited from the time they sat watching their litigation’s paint dry.

Here’s the question and the responses, all of them illuminating and all of them from people highly respected in the field.

Which patent infringement litigation parties (if any) benefit from the inefficiencies in the process?

Unless the litigants are disproportional in size there are no winners from these inefficiencies. One can even say that the biggest losers in this process are not even a party to the case. I’m referring to the consumer or the true bearer of the inefficiencies and related cost.

The speed of innovation, the product development, and the marketing efforts will continue to evolve into quicker and more efficient cycles. At some point the legal process will be forced to adapt. A good example of this is the Federal Rules of Civil Procedure on Electronic Discovery.

                       

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >