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Mediation in Italy (Part 2)

by Alessandro Bruni
December 2011 Alessandro Bruni

This is the second in a two-part series by Alessandro Bruni about Mediation in Italy.

Before the Decree n. 28 of 2010 was enacted, the most significant innovation over the last few years for the development of mediation was contained in the Legislative Decree n. 5/2003 (now repealed by the above-mentioned Law n. 69/2009, and by the subsequent Decree n. 28/2010 that has taken its place and has broadened the scope of the attempts of mediation to all civil and commercial disputes). The Decree n. 5/2010 has provided for both mediation and arbitration in disputes within a company (and certain other circumstances as, for instance, banking and financial disputes).

With the new Decree (as in the repealed Decree n. 5/2010), a formal form of registration with the Ministry of Justice is required for those wanting to conduct mediations in compliance with the new law. Training bodies, such as "CONCILIA", one of the leading Italian ADR providers, headquartered in Rome (www.concilia.it), are also required to register, to submit their training programmes, and to implement a system of quality control reporting back to the Ministry of Justice.

The system means that, at present, only those ADR bodies on the Ministry Register can act asan ADR Provider (with their accredited mediators) in civil and commercial mediations and other disputes covered by the current legislation.

Put the other way round, parties who entrust their civil and commercial dispute to an unregistered mediator risk not being able to enforce any resulting agreement. It seems like the legislature believes that this interventionist regulatory approach is the best suited to Italy, and that this is the most appropriate way to implement in the Italian juridical system the of EU Directive n. 2008/52.

With the above mentioned system, mediators are very high-qualified and are always controlled by the ADR providers in which they are enrolled and, indirectly, by the Ministry of Justice. According to the law, the minimum standard for civil and commercial mediators is to attend a 50-hours basic training course on mediation. After this course they have to attend a minimum 18-hours training course of refreshment every 2 years. Every course must be organized by an ADR provider accredited for training by the Italian Ministry of Justice.

The preparation of mediators in the fields of civil and commercial is necessarily very high because they can be forced by the parties to make a proposal of agreement. As said before, if both parties require it, the mediation proceedings must culminate in a non-binding proposal by the mediator with respect to which each of the parties must indicate if they can agree on it or not.

With this scenario we can conclude that the parties will not be able to rely on any civil and/or commercial mediation agreement unless conducted through a registered ADR-Provider. Thus henceforth nor mediation-trainings, neither mediation-providers are likely to be useful to an Italian professional, unless they can claim to satisfy Ministry requirements.

Going forward with the excursus of Italian mediation laws , Law n. 129 of 2004 entitled "Rules for the regulation of the franchising", in the article 7, entitled "Mediation", states that for disputes relating to the franchising agreement the parties may agree that prior to asking the court or arbitrator, should be made a mediation attempt at mediation office of the Chamber of commerce in whose territory the franchisee has the main office. At the mediation proceedings shall apply “mutatis mutandis” the provisions of Legislative Decree n. 28 of 2010.

Another important legislation was the Legislative Decree n. 206 of 2005, called "Consumer Code". It reorders the legislation on consumers and it is the fundamental text of reference for the protection of the rights of consumers and users. It brings together in a single text the provisions of 21 measures (4 laws, 2 Presidential Decrees, 14 Legislative Decrees and 1 Implementing Regulation), summarizing in 146 articles the content of 558 legal regulations.

The Consumer Code provides that the associations of consumers and users and other entities have the option to activate, before judicial proceedings, an attempt of mediation before the mediation office of the local Chamber of commerce or other mediation providers competent under article 141 of the same Code. The Code provides that the duration of the procedure is limited to 60 days (period within which it must always be defined).

The mediation record, signed by the parties and the representative of the mediation provider, is lodged at the court of the place where the mediation was held for the approval of judge that makes it enforceable.

The Code also provides for mediation both off-line and on-line, in order to settle disputes between consumers and professionals.

Other peculiar and salient features provided in the Code and related to the mediation are that:
a) In any case, “mediation providers” are considered to be the mediation office of the Chambers of commerce and the private ADR providers that conform themselves to the parameters and principles of the European Recommendation n. 98/257/EC and n. 2001/310/EC.
b) Contractual clauses providing for a mediation are not vexatious when they involve the use of ADR providers that comply with the provisions of the Code, otherwise they are vexatious.
c) It is always provided, then, the recognition of the right of legal defense for consumers, regardless of the outcome of mediation.

In 2006 the Law n. 54, titled “Provisions on separation of parents and children custody”, has inserted into the regulatory framework of the Italian Civil Code, among others, the article n. 155 entitled "Powers of the judge and power of listening to the child" which states that if the judge deems the opportunity, he/she, heard the parties and obtained their consent, may postpone the adoption of measure of the article n. 155 to allow the spouses, using experts, try mediation to possibly reach an agreement, with particular reference to the protection of the moral and material interests of their children.

Also in 2006, Law n. 55, entitled "Amendments to the Civil Code on family pacts", introduced the article n. 768-octies of the Italian Civil Code which says that disputes arising from provisions related to the family pact must be sent to one of the mediation bodies accredited by the Italian Ministry of Justice.

In 2007 entered into force new procedures for settling disputes between users and operators of telecommunication services, regulation issued by the Authority for Telecommunications Supervision with Resolution n. 173/07/CONS.

The new act, like the previous one, confirms that the attempt of mediation is a “condition of admissibility” of judicial action against suppliers of services, but enlarges the possibilities of using different procedures that users can activate.

On the website of the Authority (www.AGCOM.it) it is possible to download the forms by which the user can carry out:
a) Request for provisional measures to the continuity of telecommunication service (Form GU5);
b) Request for mediation (Form UG);
c) Request for application for settlement of the dispute to the Authority (Form GU 14).

A novelty is the recognition of absolute equality - as to the condition of admissibility – between mediation proceedings managed by the mediation chambers established at public offices for telecommunication (the so called “Corecom”), those managed by the Chambers of commerce and those managed by bodies arose from joint agreements between consumer associations and telecommunication operators, and finally from all mediation providers recognized by the Italian Consumer Code.

Controversial point of this legislation is that only for mediation records managed by the Corecom is said: "The mediation record, signed not only by the parties, but even by the head of the procedure designated by Corecom territorially competent, or his delegate, which certifies the authenticity of signatures, is enforceable " under article 24 paragraph 2, letter b of Law n. 481 of 1995 (Rules for competition and regulation of public utilities. Establishment of Regulatory Authorities for public utility services).

The new rules also clearly state that if the Corecom has not been delegated to carry out mediation by the Authority, the user may also promote mediation attempt at the local Chamber of commerce or at one of the ADR provider inserted on the Register kept by the Italian Ministry of Justice.

The Legislative Decree n. 179 of 2007 about the institution of an Arbitration and Mediation Chamber within the “Italian National Commission on Companies and the Stock Exchange (CONSOB)” provides for the establishment of a Chamber of mediation and arbitration for resolving disputes between investors and brokers, because of violation by the brokers of information, fairness and transparency requirements in contractual relationships with investors, and a system of compensation for damaged investors and a special guarantee fund.

The legislation provides that the Chamber of Conciliation and Arbitration of CONSOB can make use of the mediation services of the mediation bodies entered in the Register of the Ministry of Justice under the Legislative Decree No 5/2003 (nowadays, under the legislative Decree n. 28 of 2010). However, the legislation says that the mediation with CONSOB is possible only if the dispute has not been already scope to the examination of another mediation body, and complaint has prior been lodged to the intermediary or not more than 90 days have elapsed after the submission of that claim without the intermediary has communicated its intention to the investor. The process must necessarily be completed within 60 days from the date of submission of application for mediation. Finally, the rule in question provides that the associations of consumers referred to the Consumer Code are entitled to act in accordance with the provisions of the same Code.

Brief Legislative Appendix
1931: “Uniform Public Safety Act”, mediation as attempt by public-safety officers.
1940: “Civil Procedure Code”, mediation as endo-processual procedure before judges.
60’s: compulsory attempts of mediation for labour disputes.
1992: “Law n. 580”, power to the Chambers of commerce to establish mediation and
arbitration Chambers.
2003: “Legislative Decree n. 5”, mediation in endo-corporate, financial, intermediation
fields.
2004: “Law n. 129”, rules for the regulation of the franchising.
2005: “Legislative Decree n. 206”, Consumer Code.
2006: “Law n. 54”, provisions on separation of parents and children custody.
2006: “Law n. 55”, amendments to the Civil Code on “family pact".
2007: “Resolution n. 173/07/CONS”, new settlement procedures for settling disputes
between users and operators of telecommunication services, regulation issued by the
Authority for Telecommunications Supervisor.
2007: “Legislative Decree n. 179”, about the institution of an Arbitration and Mediation
Chamber within the “Italian National Commission on Companies and the Stock Exchange
(CONSOB)”.
2009: “Law n. 69”, mediation recognized in every civil and commercial disputes.
2009: “Draft Legislative Decree on “mediation” approved by the Government.
2010: “Legislative Decree n. 28”, on mediation in every civil and commercial disputes.
2011: “Ministry Decree n. 180”, for the explanation on how to interpreter the Legislative
Decree n. 28/2010.
2011: “Legislative Decree n. 145”, integration of the rules of the Legislative Decree n.
28/2010.
2011 “Law n. 148”, article 35-sexies, integration of the rules of the Legislative Decree n.
28/2010.

Brief Bibliographical Appendix on Mediation in Italy
AA.VV., Temi di mediazione penale, Pisa University Press – PLUS, 2006;
AA.VV., Mediazione e conciliazione. Ambiti applicativi e modalità di svolgimento di una
nuova professione, Pisa University Press – PLUS, 2004;
Bruni A. - Sitzia M., Mediazioni civili e commerciali. 30 casi di successo, Maggioli Editore,
Santarcangelo di Romagna (RN), 2011
Bruni A., La Mediazione Conviene, Maggioli Editore, Santarcangelo di Romagna (RN),
2011
Bruni A. - Sitzia M., La nuova mediazione civile e commerciale. Istruzioni per l’uso, Uni-
Service Editore, Trento, 2011
Bruni A., Codice pratico della Mediazione, Maggioli Editore, Santarcangelo di Romagna
(RN), 2011
Bruni A., Codice della Conciliazione in Italia e all’Estero, Maggioli Editore, Santarcangelo
di Romagna (RN), 2008;
Bruni A., Conciliare Conviene, Maggioli Editore, Santarcangelo di Romagna (RN), 2007;
Bruni A., Procedure di A.D.R., in Internet: www.concilia.it/concilia-adr/procedure.htm;
Bruni A., La gestione costruttiva del conflitto attraverso la mediazione, in Internet:
www.concilia.it/La_gestione_costruttiva.pdf;
Bruni A., La conciliazione delle controversie: un metodo antico con un cuore moderno, in
Internet: www.concilia.it/La_conciliazione_delle_controversie.pdf;
Bruni A., La conciliazione stragiudiziale professionale – negoziato assistito, in Internet:
http://www.concilia.it/Conciliazione_Negoziato_Assistito.pdf.

Biography


Alessandro Bruni is the President of Mediators Beyond Borders, Italy Chapter.  He is also an attorney with IMI Certified Professional Mediator and Arbitrator. He is a professor of “Mediation and Conciliation”, The International Academy of Sciences of Peace, Rome.  He is the founder and Board Member of CONCILIA, Rome: the Italian leading ADR Provider, since 1999.  Mr.Bruni is also a member of the Executive Committee of Gemme, Italian Section Founding Member and Member of the Scientific Committee of CIMJ – Conférence Internationale de la Médiation pour la Justice.



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Website: www.concilia.it

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