Mediation in Italy

Alternative dispute resolution methods, or ADR, have long been known in Italy. However, mediation itself began to attract attention only over the last 30 years, when it developed as a serious method of out-of-court dispute resolution and when the Italian legislator began drafting laws in favor of extrajudicial methods for resolving civil and commercial disputes.

Italy, in particular, implemented Directive 2008/52/EC of the European Parliament and of the Council of May 21, 2008, on certain aspects of mediation in civil and commercial matters, together with Directive No. 28/2010, which was implemented by Ministerial Decrees No. 180/2010 and No. 145/2011.

In addition to the above-mentioned directives, many ADR providers, whether public or private, voluntarily refer to provisions on international mediation outside the EU, namely the UNCITRAL Model Law on International Commercial Conciliation.

On September 3, 2015, Legislative Decree No. 130/2015 entered into force, implementing Directive 2013/11/EU on alternative dispute resolution for consumer disputes and adapting it to the various ADR procedures that already existed in consumer matters.

The entry into force of Decree No. 130/2015 also amended the provisions of Decree No. 28/2010 and the method of conducting mediation between professionals, companies, or consumers, on the one hand, and mediation centers registered at that time with the Italian Ministry of Justice, on the other.

Thus, today, public and private mediation service providers in Italy must be accredited by the Ministry of Justice in order to conduct mediation in civil and commercial matters under the provisions of Decree No. 28/2010, which is soon to be amended by new reforms introduced by the Italian Government.

Over the past 20 years, mediation in civil and commercial matters has had to be carried out by professional and independent mediation service providers and professional mediators accredited by the Italian Ministry of Justice, whose data are entered into two different registers maintained and supervised by the same Ministry.

Today, official registration with the Ministry of Justice is mandatory for ADR and mediation service providers that wish to conduct mediation in accordance with the new legislation. Therefore, only those ADR institutions listed in the Ministry’s register may act as ADR providers, together with their accredited mediators, within mediation in civil and commercial matters and other disputes covered by the current legislation.

The same applies to mediators: in order to work, professional mediators must complete accredited training courses organized and conducted by an accredited ADR training center and must be accredited within the group of mediators of an accredited ADR provider. Otherwise, he or she will not be able to practice.

Italian legislation currently establishes four different types of mediation in civil and commercial disputes. For each of these types, a mandatory preliminary meeting is provided, during which the mediator, together with the parties to the dispute and their lawyers, explains to the parties the functions and process of mediation. During this first meeting, the mediator gives the parties and their lawyers the opportunity to express themselves, begin the mediation process, and, if there are positive results, continue the mediation.

The following types of mediation are distinguished:

• voluntary mediation, by the free choice of the parties to court proceedings;
• judicial mediation, or mediation ordered by a court, when judges may, at their discretion, order the parties to court proceedings, even in cases where mediation is not mandatory, at any stage of the proceedings but before the final submissions or oral discussion of the claims, even if this takes place in the court of appeal, to attempt mediation, giving them 15 days to choose a mediation service provider;
• contractual mediation, when recourse to mediation in the event of a dispute is included as a clause in a commercial contract between the parties or in the company’s articles of association;
• mandatory mediation, when prior and compulsory recourse to mediation is established by law and becomes a precondition for filing a claim in court.

The civil and commercial mediation system itself is based on the principle of mandatory mediation. For some of the conflict matters described above, Legislative Decree No. 28/2010 provides for the obligation of preventive participation in mediation. The obligation lasts 90 days; after that, the parties may apply to court, although the procedure may be extended by agreement of both parties.

Mandatory mediation is prescribed in disputes concerning the following matters:

• co-ownership of land;
• property rights;
• division of assets;
• inheritance succession;
• family agreements;
• leasing;
• loans;
• commercial lease;
• medical and paramedical liability;
• defamation;
• insurance;
• banking and financial agreements.

The Legislative Decree provides that the unjustified failure of a party to appear at mediation may be taken into account by the judge in subsequent court proceedings and may lead to negative inferences under Article 116(2) of the Civil Procedure Code.

Also, in the above-mentioned situation, the party that did not participate in mediation is required to pay a certain amount to the state as a sanction. This amount is equal to the amount that the party would have to pay to the state when participating in court proceedings.

Italian legislation provides that a court, including an appellate court, may, after considering the nature of the case and the conduct of the parties, require the parties to attempt mediation. In such cases, mediation is a “condition of admissibility” of the proceedings, including appellate proceedings, but judges may not indicate a specific mediator or mediation service provider, in accordance with Legislative Decree No. 28 of March 4, 2010.

As regards court-related mediation, Italian legislation generally does not provide for real integration of mediation into the judicial process.

All mediations in civil and commercial matters must end with a written report, and, in cases where the parties reach an agreement, the text of the mediation agreement must be attached to the report. The first document is prepared by the mediator, while the text of the second may be drafted by the parties and their lawyers.

A mediation agreement must contain the names, details, and identification of the parties, including through an identification document number; settlement and negotiation provisions by means of which the parties make concessions to each other in order to resolve the dispute; any provisions on sanctions in the event of breach of the terms of the agreement; any provisions on recourse to mediation if new problems arise from the mediation agreement; the place and date of signing the agreement; the signatures of the parties to the agreement and the signatures of the parties’ lawyers confirming that the agreement does not contain provisions contrary to public order or mandatory rules. After this, the agreement automatically becomes enforceable for compulsory transfer, enforcement proceedings for delivery and release, enforcement of obligations to do and not to do, and recognition of a judicial mortgage.

In all other cases of non-automatic enforcement, the agreement attached to the minutes is, at the request of one of the parties, approved by a decree of the president of the court, provided that it is checked and confirmed that it was concluded in accordance with mandatory rules and public order.

In cross-border disputes, the record of the mediation procedure must be approved by the chief judge of the region in which it is to be enforced.

In addition to mediation, some ADR providers, for example CONCILIA, also use other ADR methods, such as adjudication, expert opinions, and “round table” peace dialogue sessions. These ADR methods are used in certain cases and usually at the request of the parties.

As for the use of online dispute resolution methods in Italy, the practice of resolving disputes through the Internet and with the help of computers has been widespread in the Italian ADR system for many years.

The level of use of online dispute resolution, or ODR, especially during the pandemic, increased significantly among most ADR providers. Access to a large sector of electronic ADR programs, which make it possible to resolve disputes in a virtual environment, such as Zoom, Webex, and similar platforms, played a particularly important role.

Today, some ADR-ODR providers in consumer disputes have begun conducting online mediation using the European Commission’s e-mediation platform.

Some ADR providers, for example CONCILIA, specialize in developing management systems for companies. However, during mediation in civil and commercial matters, participants in the process must always comply with the provisions of Legislative Decree No. 28/2010.

These systems are especially used to automate the processes underlying any mediation, such as mediation requests, submission of documents, responses to individual inquiries addressed to ADR providers, and so on.