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Recent Reforms of Italian Civil Procedure (or ‘The Road to Hell is Paved with Good Intentions’)
Authors: Elisabetta Silvestri
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This essay describes some among the most recent reforms that have affected Italian civil procedure. These reforms rely heavily on the use of ADR, and particularly on mediation, arbitration and assisted negotiation, in an attempt to reduce the heavy backlog of civil cases and to speed up the resolution of disputes. In Italy, an attempt at out-of-court mediation is mandatory in a wide variety of civil and commercial cases: mediation had some ups and down, since it was made mandatory in 2010, repealed by the Constitutional Court at the end of 2012, and eventually reinstated in 2013. In 2014 two new ADR procedures were established, that is, assisted negotiation and the ‘transfer’ of cases already pending before courts of first instance or appellate courts to a panel of arbitrators. While assisted negotiation is mandatory for cases whose value is above a certain threshold (provided that the claim is for payment of sums of money), the ‘transfer’ of cases to arbitration is strictly voluntary and, as a matter of fact, it is possible only when both parties agree on diverting their case from the court system to arbitration. This essay expands on the many controversial issues raised by the ‘transfer’ of cases to arbitrators and, more generally, on the dangers of the ‘outsourcing’ of dispute resolution.