Alternative dispute resolution (ADR) methods have generally been known in Italy for a long time, but mediation in particular has only started to receive attention in its development as a serious means of extrajudicial dispute resolution over the past 30 years or so, in which the Italian legislature started to produce laws in favour of extrajudicial methods to solve civil and commercial disputes.
In particular, Italy implemented Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters with Legislative Decree No. 28/2010, which was implemented by Ministerial Decrees Nos. 180/2010 and 145/2011.
Besides the above-mentioned pieces of legislation, many ADR providers (public or private) voluntarily refer – for international mediation (outside the EU) – to the United Nations Commission on International Trade Law’s Model Law on International Commercial Conciliation.
On 3 September 2015, Legislative Decree No. 130/2015 came into force, implementing Directive 2013/11/EU on alternative dispute resolution for consumer disputes, and adapting it to the various ADR procedures already present in consumer affairs.
The entry into force of Decree No. 130/2015 also modifies Decree No. 28/2010 and the manner in which the mediation centres that are currently registered with the Italian Ministry of Justice should carry out mediations between professionals or companies and consumers.
That said, currently in Italy public and private mediation providers are accredited by the Ministry of Justice for conducting civil and commercial mediation upon the provisions of Legislative Decree No. 28/2010 that will be soon modified by the new provisions of the Italian Government.
Since the last 20 years or so, civil and commercial mediation attempts must be carried out by professional and independent mediation providers and professional mediators, accredited by the Italian Ministry of Justice, and inserted in two different registries maintained and controlled by the same ministry.
So, nowadays formal registration with the Ministry of Justice is required for those (ADR providers and mediators) wanting to conduct mediation in compliance with the new law. This means that, at present, only those ADR bodies listed on the Ministry register can act as an accredited ADR provider (with their accredited mediators) in civil and commercial mediation and other disputes covered by the current legislation.
The same is required for mediators: to work, a professional mediator who has passed an accredited training course (organised and managed by an accredited ADR training centre) needs to be accredited into the mediators’ panel of an accredited ADR provider, otherwise he or she cannot operate.
Nowadays in Italy, four different types of civil and commercial mediation are established by law. For every type of mediation, the law dictates that a mandatory preliminary meeting in which the mediator, together with the parties and their lawyers, explains to the parties the function and how to conduct the mediation. The mediator, in the same first meeting, then invites the parties and their lawyers the chance to speak, to begin the process of mediation and, if positive, proceed with the conduct of the mediation.
Mediation types are:
-Voluntary (freely chosen by the litigants);
-Judicial or court-ordered (when judges, at their discretion, can order the parties of a judicial proceeding (even for non mandatory cases), at any stage of the proceeding, but before the closing arguments or the oral discussion of the pleadings (even in the Court of Appeal), to attempt mediation, giving them 15 days to choose a mediation provider);
-Ex contractu (when the mediation attempt -in the case of a dispute- is written in a clause of a commercial contract among parties or in a company statute)
-Mandatory (when a preliminary and mandatory mediation attempt is imposed by law and becomes a condition precedent to bringing a suit in court).
The actual system of civil and commercial mediation is based on a mandatory mediation principle. For some described matters of conflict, Legislative Decree No. 28/2010 prescribes an obligation to (preventively) participate in a mediation attempt. The obligation lasts 90 days; after that the parties are free to go before the court (although the procedure can be extended upon the consent of both of the parties).
Mandatory mediation is prescribed for disputes upon:
• co-ownership of land; • property rights;
• division of assets;
• hereditary succession;
• family agreements;
• commercial leases;
• medical and paramedical liability;
• insurance; and
• banking and financial agreements.
The Legislative Decree provides that the unjustified failure of a party to appear at the mediation procedure can be considered by the judge in the subsequent judicial proceeding and trigger negative inferences, on the basis of article 116(2) of the Code of Civil Procedure.
Additionally, in the above-mentioned case, a party who fails to appear will be obliged to pay an amount (equal to the amount that a party must pay to the state when he or she participates in a judicial proceeding) to the State as a form of sanction.
The Italian law provides that the court, even in court of appeal, after considering the nature of the case, the state of education of the case and the behaviour of parties, may order the parties to try to mediate. In these cases, the mediation is ‘a condition of admissibility’ of the proceedings, including during the appeal proceedings, but judges may not specify the mediator or the mediation provider (pursuant to Legislative Decree No. 28 of 4 March 2010).
As for court-annexed mediations, generally speaking, Italian legislation does not provide for a real integration of mediation into court proceeding.
All civil and commercial mediations must end with a written report to which, where the parties have reached an agreement, must be attached the text of the mediation agreement. While the first document is composed by the mediator, the second document could also be drafted directly by the parties and their lawyers.
The mediation agreement must generally contain: the names, references, and identification (via the identification document number) of the parties; the settlement and negotiation clauses with which the parties make each other concessions for the purpose of resolving the dispute; any penalty clauses in the event of breach of the contract; any clauses of recourse to mediation in the event of new problems arising from the mediation agreement; the place and date of drafting of the contract; the signing of the parties to the agreement; and the signing of the parties' attorneys who sign the agreement in order to certify the absence of clauses contrary to the public order and mandatory rules. After that, the agreement is automatically enforceable for compulsory expropriation, execution for delivery and release, performance of the obligations of dos and don’ts, and recognition of judicial mortgage.
In all other cases of non-automatic enforceability the agreement attached to the minutes is approved, on request of a party, by a decree of the president of the court, subject to verification and approval of compliance with mandatory rules and public order.
In cross-border disputes, the mediation minutes are approved by the chief judge of the district in which they are to be performed.
Apart from mediation, some ADR providers (such as CONCILIA) also use other ADR techniques, such as adjudication, expert determination and peace dialogue tables. These kinds of ADR are used for specific cases and, generally, upon request.
Regarding the use of online dispute resolution in Italy, the practice of using the internet and computers to try to solve disputes in mediation or arbitration has been known for many years in the Italian ADR system.
The use of online dispute resolution (ODR), especially during the pandemic period, has been greatly increased by the majority of ADR providers with a wide range of electronic ADR programmes that enable disputes to be solved in a virtual environment (Zoom, Webex, etc).
At the present, some ADR-ODR providers have also started to mediate online, using the e-mediation platform of the European Commission (EC), for consumers' disputes.
Some ADR providers (such as CONCILIA) specialise in creating dispute management systems for companies. However, mediation in civil and commercial matters must always follow the directions of Legislative Decree No. 28/2010.
Systems are especially used to automate the processes that are the basis of any kind of mediation, such as requests for mediation, submission of documents, responses to individual requests by the ADR provider, etc.