From Legalism to Engagement: Strengthening Parties' Preparation for Mediation

ABSTRACT This article reports the findings of a survey of 228 Italian mediators on parties' preparation for mediation in civil and commercial disputes. The study found that a significant portion of mediation occurs among parties, mandatorily assisted by a lawyer, who lack preparation on key elements of mediation, including considering their interests and assessing the strengths and weaknesses of their case. Interestingly, managing emotions and repairing relationships are among the most overlooked aspects of mediation preparation. Parties' preparation varies depending on the type of dispute, and this study provides quantitative data showing that settlement rates increase when all parties are prepared and actively participate in mediation. This study critically discusses the abovementioned data, and it examines policy options to address party underpreparation, and it emphasizes the limitations of the legalistic approach, intended here as a top‐down, rule‐based policymaking strategy. It advocates for a decentralized approach to mediation policymaking and the adoption of local best practices developed through well‐structured stakeholder engagement processes. Members of local legal communities, such as judges, lawyers, mediators, and not an unsophisticated central legislator, should drive the development of local best practices that meet the needs of local legal communities and enhance parties' participation and outcomes in mediation.