Ask An Expert: Laura Benedetto

Laura_Benedetto.jpgLaura Benedetto, Secretary General of the Florence Chamber of Commerce in Italy,  speaks about expanding the Florentine disputes landscape, international mediation and educating the legal and business community on the range of processes available.

What made you specialise in dispute resolution?

I’ve been serving as Secretary General at the Florence Chamber of Commerce since 2011. The Florence Chamber of Commerce has been promoting and investing in ADR tools since the 1970s, when almost nobody in Italy knew these processes.

How is the market currently addressing parties’ needs?

Aside from litigation, parties can choose to address to mediation and arbitration chambers. It also is necessary to work on improving these processes. A court judgment currently takes about three years at the first level and, for commercial parties, this comsumes too much time and cost. Arbitration can be a good solution but, especially when conducted ad-hoc, can be too expensive and less accessible for small businesses.

Chambers of commerce charge predictable arbitration fees, with the purpose to help businesses effectively resolve disputes. Finally, mediation is currently not used very frequently on a voluntary level, but the 2010 Italian Mediation Act, has helped to promote mediation overall. On an international level nowadays the most frequently used tool is still arbitration. This is because court litigation is too risky and mediation is still considered not effective enough particularly because of the lack of enforceability. In this regard, we all look at the UNCITRAL Working Group II project as an instrument capable of providing enforceability to mediation settlement agreements reached through international mediation.

Do you think the full range of dispute resolution processes is available to users of dispute resolution?

Dispute resolution range can always be improved, but in my opinion we currently have a good range of tools. Not only court litigation, but also arbitration, mediation, ODR and other kind of instruments. I think that now the next step to do is ‘educate’ all dispute resolution stakeholders to correctly play their role in helping parties to appropriately choose them. This process is not possible without in-house or external counsel, because they represent the first point of contact for parties when in dispute, and they have the responsibility to hear and understand parties’ needs and expectations in each case. The goal is to explain the range of tools available and to help them to make an appropriate choice.

On the other hand, providers must keep their service offer up-to-date to market and society’s changes, and be very careful to give parties what they need and expect in each case. That means that not only arbitration and mediation institutions, but also judges shall manage processes in an even more flexible way. Most Italian lawyers are still action-focused and quite reluctant to use ADR, however, the situation has improved in the last year. The reason is the enactment of Legislative Decree 28/10, which sets forth mandatory mediation in many civil matters as a precondition to start a Court proceeding.

As I mentioned earlier, the FIMC provides only for international mediation proceedings, but is very keen in promoting and encouraging access to ADR. We usually meet Italian companies and corporations, even going to their headquarters, and explaining to them how important it is to handle actual and potential disputes in a conscious and appropriate manner. Appropriately resolving disputes does not only to save time and money, but above all, it can preserve business relationships and investments. I like to say, “to think to the future instead of the past”, in contrast to litigation. Companies which will be able to adopt this approach will gain an added value capable to make them prevail with their competitors. That is why the FIMC decided to promote the Florence LOC establishment, in order to host the only Italian GPC event on 9 June.

Allowing all dispute resolution stakeholders to express their perspective is a unique occasion to make them sensitive towards these matters and accelerate the growth of modern dispute resolution processes.

How do you think the dispute resolution processes are likely to change in the future?

I don’t know how the future disputes resolution landscape will be, but I do wish that stakeholders realise that we have to start thinking of dispute resolution processes as  flexible and interactive tools. We cannot view different dispute resolutions tools as independent and closed-off sections.

If parties have already started litigation or an arbitral proceeding, it doesn’t mean that they cannot meanwhile try to mediate and then, if they don’t reach an agreement, they return before the judge or arbitral tribunal. Counsel and providers have to learn to handle these kind of interactions. Florence can be seen as an example of this, because the local court is very sensitive to mediation, and court-ordered mediation is usual. I would centainly like that in the future the most developed mechanism will be mediation.

Are there any further trends specific to Italy that are especially relevant?

Mostly, in the last seven years Italy has seen the growth and significant changes in the field of mediation. In fact, in 2010 the Legislative Decree no. 28/10 was enacted, the first Italian mediation statute, which rules both mandatory and voluntary mediation. Mandatory mediation means that in many civil matters mediation is a precondition to the initiation of a court or arbitration proceeding. That happens for real property, company leasing, bank and insurance disputes just to name a few.

Another important provision is that the agreement is immediately enforceable if the parties’ counsel attend the mediation meeting and sign the agreement certifying that it is complying with Italian public policy and mandatory rules. In the event that lawyers don’t attend the mediaton meeting or don’t sign the mediation agreement, enforceability may be obtained by way of a judge’s order, called decreto di omologazione. Indeed, in our experience, it has never happened that counsels refused to sign the agreement. It is important to remark that the provision regarding the agreement enforceability is applicable both to voluntary and mandatory mediation proceedings.

Furthermore, the law sets forth a tax credit for mediation fees. Just a few months after enactmenta constitutional challenge to the Mediation Act arose, spearheaded by the legal profession. They succeeded on a technicality but this challenge has been overcome by an amendment which has proved wise and durable. We could start a long discussion about the opportunity of spreading the mediation culture through mandatory mediation. We all agree that the best way to promote mediation would be encouraging parties to use mediation voluntarily, but this approach has provided results, because nowadays every lawyer and user is aware of the opportunity to mediate. There are so many things to do before we can say that mediation is generally accepted and properly used in Italy, but we are definitely at a point of no return, mediation is here to stay and is part of the Italian dispute resolution processes.

Could an improved cross-cultural dialogue promote different forms of dispute resolution?

The dialogue among different cultures and backgrounds can undoubtedly bring  reciprocal value to the range of disputes resolution instruments available at a global level. The introduction of ADR, and especially mediation, in the civil law countries is an excellent demonstration of it. 

From a practical perspective, the main issue to be faced is overcoming the lack of uniformity due to the dealing of different legislations and jurisdictions. In this regard, international organisations as UNCITRAL can play a key role in achieving a global range of dispute resolution processes capable of conveying the certainty and consistency to commercial users that they ask for.

Interviewed by Natasha Mellersh.

Laura Benedetto has been the Secretary-General of the Florence Chamber of Commerce since 2011 and is a chartered accountant. She is currently also General Manager of Promofirenze – Special agency of the Florence Chamber of Commerce, President of the Arbitral Council of the Chamber of arbitration in the Florence Chamber of Commerce since, as well as being responsible for the Florence International Mediation Chamber of the Florence Chamber of Commerce. Her previous appointments include Secretary General at Unioncamere Toscana, General Manager of Siena Local Health Authority and Managing director of the Civil Sassuolo Hospital Ltd.