CARMINE PUNZI
Professor Emeritus of Civil Procedure
at Rome University “La Sapienza”
INSTRUMENTS FOR ALTERNATIVE DISPUTE RESOLUTION:
SETTLEMENT PROCEDURE, CONCILIATION, MEDIATION AND ARBITRATION[1]
1. We need to start the examination of the instruments for alternative dispute resolution from a fundamental premise: when a party does not spontaneously comply with an obligation arising from a legal or conventional source and a dispute with the party entitled to have that particular obligation complied with arises, such a dispute may be resolved with instruments other than those provided for by the State for the exercise of civil jurisdiction or the forcible safeguard of rights.
Indeed, when a dispute between the interested parties occurs, the accomplishment of legal order is not an exclusive domain of the State as embodied by the judiciary; insofar as the contractual autonomy of private parties is recognized to have effect, and such autonomy is not restricted by those limitations imposed in the interest of the whole community and comprised - by jurisprudence and law alike - under the formula of “public order”, such an accomplishment may well be entrusted to instruments for dispute resolution based on contractual autonomy.
The fact is that although it appears essential for the State to have the monopoly of force in the forcible implementation of law, it is not as essential for it to have the monopoly of law whenever no super-individual interest – i.e. public order sensu latu - is involved.
The instruments for alternative dispute resolution span a range that is defined by the typical instrument for self-settlement of disputes (also called direct settlement), i.e. settlement procedure, and the typical instrument for settlement through a third party i.e. arbitration.
Moreover these instruments can be “preventive”, that is aimed at preventing seeking an ordinary judgement, like amicable agreements[2], settlements ante litem[3], or conciliation[4] (this last instrument can be a mandatory or optional “filter” with regard to access to ordinary jurisdiction or arbitration), or, in cases when the full resolution of a dispute cannot be achieved in a preventive manner, they can be instruments fully “alternative” to ordinary trials, like arbitration, and therefore the cognisance process ordinarily performed by judges is instead entrusted to private judges; the sheer inclusion of an arbitration clause[5] – whenever a party makes use of it – prevents a dispute being brought before an ordinary judge.
Finally, they can be instruments aimed at concluding an arbitration or judicial judgement which has already begun, through an agreed deal between the parties, which, if it is reached after the issue of a judgement appealable, already appealed against or not appealable any more (and therefore res judicata), or of an arbitration judgement leads to replace the judgement of the judge or arbitrator and the settlement contained therein with the parties’ deal and the balance of interests determined by them.
2. After this general description, I need now to enter into a more detailed characterisation of the instruments for alternative dispute resolution in order to highlight the differences in structure and functioning among settlement procedure, conciliation, mediation and arbitration.
Although all these instruments are characterised by the fact that the source of the dispute resolution is to be found in the will of the parties (in fact, all of them achieve the peaceful resolution of a conflict thanks to the will of the parties involved[6] and therefore the definition of compromissum given by Paul in one passage as being ad finiendam litem[7], can be applied also to these instruments and say that they are private legal transactions “ad finiendas lites”) it is necessary to identify the specific differentia which characterises and differentiate each of them.
As I said before, these alternative dispute resolution instruments span a range defined by the typical instrument for self-settlement (also called direct settlement), i.e. settlement procedure and the typical instrument for settlement through a third party i.e. arbitration[8].
If we take conciliation, we can immediately see that this instrument is halfway between these two poles: it is different from arbitration because it is an instrument aiming at having a dispute directly settled by the litigants themselves, and therefore the settlement is not committed to a third party’s judgement, but it is also different from a settlement procedure because this latter is perfected by the simple meeting of wills without the participation of any possibly indiscreet third parties[9]; conciliation too does, obviously, require a meeting of wills, but it also requires the presence and active participation of a third party. Moreover, it has been observed that a settlement procedure implies an aliquid datum and an aliquid retentum, on the contrary, conciliation may also be achieved by simply waiving one’s claim or unilaterally acknowledging the other party’s claim.[10]
If we examine the role of the arbitrator and that of the conciliator we see that in arbitration the manifestation and meeting of the parties’ wills must occur antea and be embodied in a pact – an arbitration clause – where the parties waive recourse to ordinary jurisdiction and vest an arbitrator with the power of deciding upon a possible dispute; consequently the arbitrator intervention occurs only postea and takes the form of a resolution effected by the arbitrator by virtue of the power he has been vested with by means of the arbitration clause and following the judgement criterion – law, equity, arbitrium merum - chosen beforehand by the parties themselves.
On the contrary, when there is a conciliation attempt, the intervention of a third party occurs antea and takes the form of advice offered by the conciliator to the parties with the recommendation that they evaluate it and - if they find themselves in accord with it – follow it; the manifestation of the parties’ wills occurs postea and is guided by the third party’s advice.
This is the fundamental difference between the arbitrator’s and the conciliator’s roles in a dispute; an arbitrator must make an evaluation of what is fair according either to the law either to equity and - on the basis of the conviction so formed - he must resolve the dispute; a conciliator must evaluate the opposite positions of the parties and find a fair meeting point between them on the basis of which he must offer his consilium to the parties and thus cause their concilium, that is their assembling together and meeting, and therefore their conciliation[11].
3. After such a specification of the characteristics and functionioning of conciliation, it is easy to see that mediation, like conciliation, differs from both a settlement procedure and arbitration, but cannot be equated to conciliation tout court.
True, mediation too, like any settlement procedure, tends to reach an agreement between the parties, but, in the first place, it does not require the aliquid datum and aliquid retentum condition to be perfected, secondly, the parties agreement does not exclude the intervention of a third party.
However, in mediation as experimented so far in our legal system (which follows in the steps of the so-called facilitative mediation elaborated in the procedural system overseas), the third party does not have the task of proposing a solution, he does not offer any consilium but only assistance, usually technical assistance, to facilitate an agreement that the parties involved reach by themselves.
This is particular clear when we analyze the activity of the conciliation offices established by Art. 38 of D.lgs.[12] no 5 of 17 January 2003, referred to in Art. 768 octies of Civil Code, as compared to Art. 155 sexies of Civil Code.
In particular, Art. 40 of D.lgs. no 5/2003 requires the conciliation procedure to go through two phases.
In the first phase also there is a conciliator, and he - naturally - gives his assistance, which, however, at this point, is nothing more than pure assistance, the first phase ends with an agreement reached by the parties on their own; only if no such a direct agreement is reached, a second phase begins, where the conciliator - taking up an active role - proposes his solution. If the conciliator’s proposal is accepted, conciliation follows, otherwise each party specifies “its final position, that is the conditions required to accept conciliation”.
Art. 155 sexies (included in chapter V of Title VI, book I of Civil Code, devoted to the dissolution of marriage and the separation of spouses, introduced by Art. 4, para. 2 of Law no 54 of 8 February 2006), provides an element towards the definition of mediation[13] as an activity entirely performed by the parties themselves (albeit with the help of experts ) aimed at achieving an agreement between them .
4. In conclusion, mediation and conciliation - which in the context of alternative dispute resolution are somewhere between the extremes, that is on one side the settlement procedure, the typical self-settlement instrument, and on the other side arbitration, the typical instrument for settlement by the intervention of a third party - have characteristics that prevent their hasty equation, allowing instead their careful differentiation.
In fact, in mediation the intervention of an “expert” third party is only a help to reach an agreement whose conditions are negotiated and accepted by the parties, and therefore mediation is an action carried out by the parties themselves (albeit with the help of an expert third party) aimed at finding an agreement directly between themselves.
In conciliation, instead, the conciliator does not merely help the parties to reach an agreement; although he does not have the functions and powers an arbitrator has to decide on a dispute - a tenet reaffirmed by the Ministerial Decree 222/2004 which set up the conciliation offices (which, in its first article, states that conciliators do not have the power to decide on a dispute) - nevertheless he has the task of evaluating the opposite positions of the parties and find out the right balance between them, offering on this basis his consilium in order to cause a concilium , that is an assembling together and meeting ultimately leading to conciliation.
5. From all the above said, we can draw the conclusion that whenever a conflict of rights arises, it can be solved also with instruments other than those created by the State for the exercise of jurisdiction and the forcible safeguard of rights.
These instruments are differentiated by a number of elements; first of all by the difference between instruments for dispute self-settlement and instruments for dispute settlement operated by a third party, in the first category fall settlement procedure, mediation and conciliation, while in the second category we find arbitration which requires that the parties devolve the power to intervene, judge and decide on the dispute to a third party.
Another distinction can be made between pre-judicial (preventive) instruments and post-judicial instruments in relation to engagement in a judicial action, and it basically concerns settlement procedure, mediation and conciliation which – if achieved before engaging in a judicial action – are able to end litigation thus preventing the intervention of a judge.
When any of these alternative actions is concluded when the case is already pending, their effect is to cause the matter of litigation to cease, and therefore the case is dropped. If the judge has already issued a decision, the parties’ agreement will prevail on the judicial dictum, replacing it and preventing it from producing its natural effects.
In short, all these instruments are means for the resolution of disputes alternative to the jus dicere of the State and constitute a way to make the law in that rather ample space that the State does not include in its monopoly in the name of super-individual interests or of “public order”.
Through these instruments private persons claim – in the face of State’s authority and sovereignty – that citizens’ sphere of freedom, that sphere of autonomy, within which each person in the legal system can act and make use of his rights without touching upon public interest or public order and therefore on State sovereignty.
In other words, arbitration, conciliation and the other non-judicial instruments for dispute resolution are nothing else than manifestations of private autonomy and they contribute to create legal order between private persons that remain autonomous from the State and does not loose its autonomy because the vehicle, by which the dictum containing them enters into the State legal order, is positively instituted in the form of “recognition” or “homologation” in some legal systems or historical periods.
Finally, these instruments alternative to State jurisdiction, which are a free and autonomous choice of private persons with respect to the State, by resolving conflicts by the litigants’ will, are also a token of peace and an instrument of civil living[14].
Translated by
Silvia Canullo
Translator
Ministry of Justice
Rome
4
[1] Transazione, conciliazione, mediazione e arbitrato.
[2] Accordo bonario.
[3] Transazione ante litem.
[4] Conciliazione.
[5] Patto compromissorio, clausola compromissoria o compromesso.
[6] See C. Punzi Conciliazione e tentativo di conciliazione in Enc. dir. Aggiornamento, IV, Milano 2000, p. 328; Id Conciliazione e arbitrato in Riv. dir. proc., 1992, 1030.
[7] See Pauli, lib. II ad ed, D.4, 8.1.