Italy launches civil proceedings reform to speed and simplify dispute resolution
Crucial difference from reform’s predecessors is that it puts organisational aspects in the spotlight, writes Laura Salvaneschi
The reform of Italian civil proceedings just launched by Framework Law 206/2021 envisages three lines of action:
- encourage the use of alternative dispute resolution methods (ADR);
- modify legislation to simplify and shorten civil proceedings; and
- make organisational changes
ADR is a powerful instrument to avoid court proceedings but is far from fully effective in Italy. The reform aims to strengthen ADR by introducing tax incentives and extending its use. With regard to mediation, the framework law sets out technical provisions that make a mediation attempt mandatory before parties can resort to the courts and envisages a review of the rules governing mediators’ training and continuing professional development. This is because, for mediation to be successful, it is essential that mediators are properly trained and up-to-date. The framework law also encourages the use of court-ordered mediation, in which many people believe, thereby encouraging the training of judges in mediation. Thus, judges will – after carefully assessing the case type and potential for mediation – increasingly be directing parties to attempt mediation.
As to regulatory changes, the reform makes the first court hearing effective and stipulates that parties must exchange briefs beforehand that specify all their claims, objections and evidence, under penalty of preclusion (i.e., failure to do so will prevent the parties from introducing these at a later stage). The parties will have to attend the hearing in person in order to attempt conciliation. At the end of the hearing or immediately afterwards, the judge will decide on the requests regarding evidence, schedule the related hearing (to be held within 90 days), and set the schedule for the rest of the proceedings. The decision-making phase has also been modified to make it quicker.
Appeal proceedings have also been sped up:
- Appeals before second-instance courts: (a) appeals with no reasonable chance of being upheld will be declared manifestly unfounded in an oral-only procedure and with immediate decision; (b) examining magistrates have been reintroduced on the assumption that not having an entire panel of judges handle a case will speed up proceedings; and (c) the number of circumstances in which appeal courts must refer cases back to the first-instance court will be reduced.
- Appeals before the Supreme Court: the current multiple procedures used have been simplified and each division will be allowed to filter cases rather than only one special division.
Referral for a preliminary ruling has also been introduced: first-instance courts will thus be able to refer new issues of law of particular importance and of a serial nature directly to the Supreme Court for immediate decision.
Despite these changes, the prevailing opinion is that the most important line of action is to make organisational changes, as otherwise the reform will be doomed to fail like its many predecessors. This is the real challenge for Italy because, unlike previous reforms, this one also puts the organisational aspects under the spotlight.
In this respect, one of the most important envisaged changes is to the role of the office for proceedings, which is already operating with good results in some of the most forward-thinking first-instance and appeal courts. The idea is simple: judges will have the help of an office that they direct and coordinate and will no longer have to do everything by themselves; they will be supported in studying casefiles, analysing case law and legal literature in depth, drafting orders and decisions, and assessing whether the conditions for mediation are met.
This signals a general shift from a solo to team game, which is the only thing that – if it works – will make the first appearance hearing effective, as it will allow the judge to be well prepared. In fact, courts are currently unable to cope with the excessive number of pending disputes and only by providing them greater support will we see positive results.
The innovative idea is, moreover, to ensure that the people appointed as members of offices for proceedings have a variety of competences and to give a central role to IT and management systems, as well as to analyse workflows in depth.
This is exactly what the country now needs: many more magistrates and magistrates supported in their work not only by efficient and capable professionals but also by cutting-edge IT systems and workflow management experts to give a crucial boost to the organisation side of justice management. The office for proceedings is just the first step and numerous questions remain as to how it will work. But the success of the reform rests on it.
In short, only by focusing on a new organisation and management, rather than on regulatory aspects, can the challenge of reforming the Italian civil proceedings system be overcome.
Laura Salvaneschi is a litigation and arbitration partner at Italian law firm BonelliErede with a focus on corporate litigation, contractual and tort liability and inheritance and family law. She is also a full professor of civil procedural law and arbitration law at the University of Milan