Georgia passed its first law on mediation much later than Italy.
Previously, Georgia had limited provisions in its Code of Civil Procedure. In 2012, the Tbilisi City Court launched a court-affiliated mediation pilot project in response to requests from the judiciary for assistance with various strategies to reduce court backlogs.
The high level of success achieved (60-70% resolution rates) showed that there is value in expanding the use of mediation beyond a legal framework limited to the referral of cases by judges and the need to provide protections for private mediation as well. is limited by providing regulation of vitally important aspects such as confidentiality, suspension of statutes of limitations and, most importantly, enforcement of settlement agreements reached in non-court arbitrations.
fIn addition, as part of its efforts to join the European Union, Georgia committed in 2014 to align Georgian legislation with EU standards,[1] These included improving commercial jurisdiction and developing ADR mechanisms.
Therefore, the Georgian Law of 2019 and the Italian Legislative Decree 28/2010 share many of the same characteristics as both aim to implement the EU Directive 52/2008 on civil and commercial mediation: confidentiality, voluntary nature of the procedure, suspension of statutes of limitations, enforceability of settlement agreements and regulation of court-ordered mediation.
While Georgia and Italy are both civil law countries, their legal cultures stem from the very different circumstances, one a former Soviet country in Central Asia and the other a solid western country in southern Europe. So how does Georgia face the challenges of introducing mediation?
First, it passed a very modern law. Georgia’s law on mediation builds on lessons learned from the country’s pilot project, annexed by the court in 2012, as well as the experiences of other countries. At the same time, it includes the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation of 2018. And for international disputes, Georgia was one of the first countries to adopt the United Nations Convention on International Commercial Mediation Agreements Resulting from Mediation (“Singapore Convention on Mediation “) has ratified.
Second, Georgia supports parties to appreciate the potential of mediation rather than provoking a backlash from the legal community. In Georgia, mediation is only mandatory if ordered by the court. And in these cases, court-affiliated mediation is free for the parties because it is government-funded. This has the dual benefit of i) building trust in the parties as they do not incur any additional mediator or court fees by participating in the proceedings, and ii) addressing the legal and ethical concerns of “access to justice” faced by, for example, Italy is faced avoiding the challenge of the law before the Constitutional Court.
Third, the Mediation Law of Georgia helps the parties to define the roles in the mediation process by allowing the mediators to request the participation of the parties when deemed appropriate. This reaffirms that mediation is a matter for the parties and that the lawyers’ role is to support them, not replace them.
Fourth, Georgia has emphasized the value of mediators and the importance of quality. The Georgian Law on Mediation strengthens the professional skills and reputation of those working as mediators, for example through:
- Established the Georgian Association of Mediators (MAG), an official governing body that regulates the conduct of mediators. MAG is a public legal entity established to develop accreditation procedures, set requirements for the training programs and adopt a code of ethics and guidelines for mediators.
- Provide a framework for the remuneration of mediators that balances the need to ensure access to justice with the opportunity to develop a financially rewarding practice. While mediator fees are very low for court-ordered mediation, mediators and parties are free to negotiate compensation for so-called “private” (ie voluntary) mediation.
Through an approach that combines modern mediation law with efforts to address potential concerns from the national legal community, Georgia has attempted to overcome the various problems Italy encountered in implementing its 2010 Mediation Law.[2]
Italy’s latest updates to its Mediation Law and Regulations
Italy’s recent reforms have been similarly designed to address concerns stemming from the underlying legal culture. The Italian Parliament recently adopted a bill amending (so-called “Riforma Cartabia”) the country’s law on mediation, Legislative Decree 28/2010. The reform will come into force later in 2023 and incorporates many of the lessons learned over the past 12 years, including:
- Mandatory participation of the parties in mediation. Parties can no longer send their lawyers to mediation simply to tick a box that mediation has been attempted. The reform not only requires the participation of the parties, but also stipulates that, in the case of delegations or legal entities, the representative must be “competent” in mediation. This, together with the parties’ obligation to be assisted by a lawyer in obligatory proceedings, implicitly formalizes the duty of the lawyers to attend the mediation session in support of their clients and not on their behalf.
- Legal education. The reform requires judges to attend specific programs and seminars designed to increase their understanding of the mediation process. In order to improve judges’ ability to refer parties to mediation with good reason and knowledge, the figure of the judge is officially included among the key actors in the process.
- Educational initiatives on the value of mediation. Finally, the reform gives courts the opportunity to work with universities, bar associations, mediation providers, training organizations and other professional bodies.
Unlike Georgia, the Riforma Cartabia does not fully address the issue of quality in the sense that it does not provide incentives or mechanisms for mediators to invest in improving their skills and knowledge. Well-prepared and high-quality mediators are essential for successful mediation. Given the size of the case backlog in Italy, the lack of investment in preparing mediators can lead to party frustration when the number of parties is insufficient to provide the parties with choices in terms of independence, style and specialization of mediators.
Furthermore, Italy’s current remuneration system is unlikely to offer any incentive to improve one’s own mediation skills. In Italy, the mediator’s fees are borne by the managing institution. A ministerial decree sets the criteria, which are kept low. Ultimately, this means that mediators who invest in their professional development do so more out of a deep spirit of service and confidence in mediation and as an ancillary activity to their primary career as a lawyer, accountant or notary rather than as a main occupation.
Concluding remarks on Italy and Georgia’s efforts to develop mediation: two paths that converge and diverge
If there is one profound lesson to be learned from comparing efforts to introduce mediation in Italy and Georgia, it is the lack of a consistent method, even for civil law countries. Both have found that incorporating mediation into their existing legal cultures is not just a matter of establishing appropriate standards of practice or legal norms, but also of taking due account of the social and cultural environment. Fortunately, the versatility of mediation allows it to be tailored to suit the country and communities it serves.
The author thanks 1) Sophie Tkemaladze for the immensely helpful insights into the Georgian framework, 2) Maura Alessandri for her extremely effective idea of presenting the possibilities of lawyers to assist parties in resolving disputes through the comparative table, 2) Michael Mcilwrath for the valuable editorial and content-related information.
[1] “Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part” https://eur-lex.europa.eu/legal-content/de/TXT /PDF/?uri=CELEX:22014A0830(02)
[2] See Part I
Klara Tondini
CHIARA TONDINI works as International Disputes Counsel at MDisputes, a firm dedicated to providing internal litigation support to private and public organizations confronted with international disputes. Previously, she worked as an international arbitration and mediation consultant for SLCG, an international law firm in Italy, and before that she was the founder and manager of… MORE
