Fitting the Forum to the Fuss While Seeking the Truth: Lessons From Judicial Reforms in Italy

Abstract

While settlement has long taken center stage in common law cultures, giving rise to the "settlement judge", it is also gaining ground in continental civil law cultures, creating unique judicial roles that broaden the repertoire of judicial function. The study uncovers an informative new judicial role arising from reforms in Italy, one that combines mediation awareness, adversarial settlement-seeking and inquisitorial truth-seeking, and which we named: "fitting the forum to the fuss while seeking the truth." We focus on the Florence first-instance court in Italy, whose model for implementing recent reforms encouraging settlement, mediation and judicial conciliation, is being replicated by other courts in the country. We examine the actual involvement of Italian judges in reaching consensual dispositions of civil cases and include a docket analysis of civil cases, findings from interviews with judges and an analysis of court observations. Despite the strong preference for adjudication in Italy, judges are using unique tools to encourage settlement. Their intervention correlates with an increase in settlement prospects. This finding, combined with the finding that less than half of the cases (42%) are disposed through adjudication, raises the possibility that the vanishing trial phenomenon, well documented in common law systems, may slowly and uniquely make inroads in this continental state. In addition, judges view their settlement role as another form of adjudication while viewing mediation as a broad, transformative alternative. The sharp separation between in-court justice and out-of-court justice may offer a new model of justice that avoids institutional cooptation of mediation, a problem in common law systems.

Keywords: conflict resolution; comparative law; judicial settlement; mediation