Into motion an exclusively written preparation of the case. Such a written preparation will take

place through an exchange of pleadings that can drag on from one hearing to the next for a very

long time. Similarly, in a subsequent stage of the proceeding the evidence is taken in a piecemeal

way, and the judgment is not issued immediately after the final submissions of the parties, but much

later. Concentration and immediacy are still utopias, not to mention orality: even witnesses are not

expected to give their depositions orally any longer, since now it is possible to use written

affidavits. Case management is unheard of. Theoretically, the judge could set the ‘calendar of the

procedure’, but the wording of the relevant rule clarifies that he or she could only set the dates for

the hearings devoted to the taking of evidence. Therefore, such a calendar has no bearing on the

preparation of the case, whose time frame is left to the parties. Furthermore, no sanctions are

provided for in order to force compliance with the deadlines set by the judge: in other words, the

rule has the same effect as a toy weapon, and is completely useless.

Coming back to the plan of privatizing justice, a clear sign pointing in this direction is the recent

statute on out-of-court mediation.(11) It is true that Italy had the duty to implement Directive

2008/52/Ec of the European Parliament and of the Council of May 2008 on certain aspects of

mediation in civil and commercial matters, but the Italian legislator jumped at the chance to make

mediation mandatory in a wide variety of civil cases, so that parties can go to court only if an

attempt at mediating their disputes has failed. I have to admit that I am biased against ADR, since I

do not subscribe to the idea that a settlement is under any circumstances a better solution than a

judgment, most of all in a country, such as Italy, where you can grow old while waiting for that

judgment.(12) In any event, the choice of making mediation mandatory is simply a strategy to keep

disputes out of courts, that is, it is a choice made with the only purpose of deflating the courts’

(11) Legislative Decree n. 28 of March 4, 2010 (Gazzetta Ufficiale, 5 marzo 2010, n. 53).

(12) See SILVESTRI, E., ‘ADR Italian Style: Panacea or Anathema?’ in UZELAC, A. and VAN RHEE, C.H. (eds.), Civil

Justice between Efficiency and Quality: From Ius Commune to the CEPEJ (Cambridge-Antwerp-Portland, Intersentia,

2008) 249.

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