Italy take-offs civil proceedings reform, speed and update dispute resolution

Italy take-offs civil proceedings reform, speed and update dispute resolution

Laura Salvaneschi writes that the biggest difference from reform's predecessors emphasizes organizational aspects in the limelight.

The reform of Italian civil proceedings just announced by Framework Law 206/2021 proposes three lines of action:

- Promote the use of alternative dispute resolution methods (ADR);

- Amend legislation to streamline and curtail civil proceedings; and

- Implement organizational changes

ADR can be an effective tool in avoiding court proceedings, but in Italy, it is far from fully effective. The reform's objectives is to strengthen ADR through tax incentives and expand its use. Regarding mediation, the framework law defines technical provisions that make mediation mandatory before parties can approach the courts and envisages a review of the rules governing mediators' training and continuing professional development. Mediators must be properly trained and updated for mediation to be successful. Similarly, by encouraging court-ordered mediation, which many people believe in, the framework law also encourages judges to be trained in mediation. Judges will – after carefully considering the case type and the possibility of mediation – increasingly direct parties to try mediation.

In terms of regulatory changes, the reform provides that parties must exchange briefs beforehand that enumerate their claims, objections and evidence, under penalty of preclusion (i.e., failure to do so will prevent the parties from introducing these down the road). To attempt conciliation, the parties must attend the hearing in person. After 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 remainder of the proceedings. Decision-making has also been streamlined to make it faster.

 The appeal processes have also been sped up:

• Appeals before second-instance courts: (a) appeals with no reasonable chance of success will be declared manifestly unfounded in an oral-only procedure with the immediate ruling; (b) examining magistrates have been reinstated on the supposition that not having a complete panel handling a case will accelerate proceedings and (c) the number of circumstances in which the appeal courts need to refer cases back to the first-instance courts will be decreased.  
• Appeals before the Supreme Court: the current multiple procedures have been streamlined and each division can filter cases rather than just one special division.
  

A preliminary ruling request has also been introduced: First-instance courts will therefore be able to refer new aspects of law with a particularly important and serial nature directly to the Supreme Court for decision.

Although these changes have been made, the prevailing consensus is that the most important thing is to implement organizational changes, or else this reform will fail like so many before it. It is the real challenge for Italy since, unlike previous reforms, this one also focuses on organisational factors.

In that context, one of the most important envisaged changes is to the role of the office for proceedings, which operates with good results in some of the most forward-looking first-instance and appeal courts. This concept is simple: judges will have the assistance of an office they direct and coordinate, and they will no longer have to do everything by themselves; they will be supported in studying case files, analysing case law and legal literature in depth, drafting orders and decisions, and assessing whether the conditions for mediation have been met.

It signals a change from a solo to a team game, which is the only way - if it is successful - to make the first appearance hearing effective since the judge will be well prepared. In fact, the courts are presently incapable in handling the excessive number of pending disputes and only if more help is provided we will see positive results.

Furthermore, the idea is to ensure that the people appointed to work in the offices for proceedings are well-versed in a variety of disciplines and to give a central role to IT and management systems and to evaluate the workflow deep down.

It is precisely what the country needs now: several more magistrates and magistrates supported in their work not only by competent and efficient professionals but also by advanced IT systems and workflow management experts to give the organisational aspect of justice management a significant boost. The creation of the office for proceedings is just the first step and there are numerous questions as to how it will operate. But its success depends on it.

Hence, only by focusing on new management and organization, rather than on regulatory features, can the challenge of reforming the Italian civil courts be met.

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