Even if mediation in its multiple meanings (family, civil, commercial, corporate, environmental, social, etc.) is well known in Italy for many years, Italy is one of those countries where mediation in its modern form is emerging since some decades and there is, only right now, a general and common culture and a professional discipline and ethics, valid for quite every form of mediation. This said, however, in some cases, there are still barriers to the use of mediation and especially lawyers are divided between the “in favour of mediation” and the “absolute contrary”!
Chronicles of the last months are the continuing attacks by some part of the “avvocatura italiana” (some groups of lawyers, organized in associations) against the last Italian legislation about the mediation procedure.
In particular, the OUA (Unitarian Body of Lawyers) has organized many strikes all over Italy against the regulated mediation mechanism.
Fortunately, very recently the European Commission published a written resolution in which - clearly – says positively about Italian mediation laws, making clarification among the ADR operators. Other attacks against mediation were done asking the attention of the Italian Constitutional Court which has been interested about a judicial request for unconstitutionality of the Italian mediation law. The request is based upon some points as, for instance, the alleged unconstitutionality of the procedure which impose - for some conflicts – a mandatory mediation process. Another point is the one which doesn’t impose the mandatory assistance of a lawyer for every kind of mediation: lawyers would like to be present in every civil and commercial mediation, to help clients to be prepared to better negotiate. During the last period, the hostility against mediation pursued by the majority of lawyers has reduced its negative impact, reaching significant advantages for a real growth of mediation, because some of them are now in favour of mediation and because the accountants and other professionals have built ADR Bodies, and have trained many colleagues as mediators among their professional categories.
Recently, the legislative Decree n. 28 of 4th March 2010 and the Law n. 69 of 2009 provide an obligation for all lawyers in writing advising their clients when mediation is suitable for their case. This provision has incremented the practice of lawyers to assist their clients in mediation procedures.
On the front of training, starting from about 2000 mediation had a more lucky period in Italy, and, starting from 2007, most of the courses related to mediation training have been approved by the Italian Ministry of Justice, for quality assurance and appropriateness. They are high- professional training courses for the training of civil and commercial mediators who are expected to be at very high-level position (infact, if they are mutually asked by the parties of a mediation, they are obliged to issue a non-binding proposal about the possibility of resolution of the dispute, and, before writing a negative mediation paper, they can issue a non-binding proposal, even if they are not mutually requested to do it by the parties).
The Framework of Mediation in Italy
As I just told, mediation is known in Italy since a long time, but has only started to receive attention for its serious development as a means of dispute resolution over the last fifteen years or so.
Before all it is necessary to make a distinction. Before the last Italian law on mediation (the Legislative Decree n. 28 of 4th March 2010), the mediation procedure was more commonly known as “conciliazione”, since mediation (mediazione) traditionally had another meaning, closer to brokerage and/or to family law. A part from the new law, the word "mediazione" (translated: mediation) has made inroads among the Italian operators and is the word officially adopted in the Italian official text of the EU Directive 2008/52 about civil and commercial issues.
Nowadays, the word “mediazione” is applied on civil, commercial, , corporate, financial, banking, insurance, family, environmental, criminal and social disputes.. The word “conciliazione” is still applied on endo-judicial, labour, and consumers disputes.
The role played by the Italian Chambers of commerce and by the few leading private- ADR bodies in the diffusion of mediation procedures after the Law n. 580/1993 and before is undeniable. In many sectors it started the possibility to try to mediate a case and, in some cases, the outcome of the mediation procedure, if positive, started to have binding effects between the parties (and today is still so for the majority of cases in civil and commercial matters).
Generally, judges are not permitted by law to send cases to mediation, they only can “advise” the parties, during the process, to try to mediate their case before them. Only in some cases, like in the Legislative Decree n. 274/2000 (about the criminal competency of the Italian Judges of Peace) the Judge of Peace, when the offense may be prosecuted upon complaint, promotes mediation, or sends the parties to a public or private Mediation Centre. In other cases judges may only advise the parties to try mediation, without the judge can choose the mediator and/or the mediation provider (as in the Legislative Decree n. 28 of 4th March 2010).
Only in the disputes in which it is necessary by law a previous mandatory mediation attempt, it is necessary that the parties try a prior mediation procedure. Subsequently we will analyze this rules. Starting in the 1990's the legislator started to insert requests for mediation or conciliation when passing laws that are dealing with the reform of various sectors. Some of the earlier attempts were poorly designed palliatives to the chronically ill civil justice system, but the legislative trend has continued and improved somewhat.
As I said before, recently the Government approved the Legislative Decree n. 28 of 4th March 2010, enacted in 20th March 2010, implementing the delegation indicated by Law n. 69 of 2009 on the matter of “civil process”. The Decree is all in favour of the institution of “mediation” intended to solve the dispute of two or more parties, in civil and commercial matters. It contains rules regulating and promoting the use of mediation in civil and commercial disputes. In the meaning of the Decree, that regulates "mediation" aimed at the "conciliation" of civil and commercial issues, the "mediation" is the procedure used by the mediator among the parties, trying to help them to find a mutual and satisfactory solution, while the term "conciliation" is used to define the agreement reached by the parties' consensus.
With the new law, the institute of mediation enters into the Italian legal system in every respect, wanting to help deflate the loads judicial systems, while reducing contingencies.
The attempt of mediation is considered by the law as “voluntary” for all disputes on available rights, but - as I said before - it is considered as a condition of admissibility of judicial action, and therefore “mandatory”, for disputes relating to a range of subjects: condominium; real rights; division; hereditary succession; family agreements; leasing, loan; renting of companies; damages deriving from medical liability and defamation through the press or through other means of publicity; damages deriving from driving vehicles and boats; insurance; banking and financial agreements. The parties, in those cases, must first attempt to solve their disputes through an attempt of mediation before they are able to avail themselves to the Italian Judicial System. Then, always in those cases, if a party wants to act before the court before proceeding with an attempt of mediation, the judge doesn't permit the case to proceed and he/she will have to order the parties to prior attempt a mediation; the mediation attempt has to be conducted in one of the ADR Providers accredited by the Italian Ministry of Justice.
The mediation proceeding can last for up to four months, after which the mediation attempt is considered done.
The entire proceeding in this case can be described as follows:
a) The parties (or one of the litigants) submit a written mediation request at an "independent qualified professional ADR provider accredited by the Ministry of Justice";
b) The chosen ADR Provider designates an independent mediator (chosen among the mediators accredited by the ADR Provider) and arranges for an initial meeting between parties;
c) The date, the location and the name of the chosen mediator are communicated to the other parties by the ADR Provider and by the claimant, if he/she wants, with every means capable to insure that the other parties have received the communication;
d) At this point two different scenarios could be possible, depending to the choices of the parties involved in the mediation. (I) If the parties are able to reach an agreement, the mediator drafts the minutes of the meeting which must be signed by all the parties. The signed minutes, once approved by the President of the court of the district of the seat of the chosen ADR Provider, will be binding on the parties and the agreement will be enforceable to the repossession and for the filling of a judicial mortgage. (II) If no agreement is reached among all the participating parties and the mediator is mutually asked by the parties, he/she is obliged to issue a non-binding proposal about the possibility of resolution of the dispute, which the parties may choose to accept or refuse. If the parties (or one among them) refuse the mediator’s proposal, the mediation attempt is considered failed and every party of that mediation proceeding may be able to commence a lawsuit but, then, if the judicial decision is entirely the contents of the previous mediator’s proposal, such a ruling may affect the allocation of judicial expenses because the court will refuse to award all the costs and the expenses in favour to the winning party if that party had previously rejected the mediator’s proposal. Furthermore, in this circumstance, the court will order to the winning party to pay to the losing party’s costs and court fees (in these points, the new Decree followed, in some way, the model established for company disputes by the Legislative Decree n. 5/2003, today repealed).
The legislator is convinced that, in this way, the procedure will be useful for deflating over than 1 million cases per year in the subjects for which mediation will be mandatory and to help Italian justice to be decongested from 5 million cases pending.
Furthermore, the Legislative Decree provides for a soft-entry into Italian civil procedure system of the so called “mediation delegated by the court" (judicial mediation). The judge may invite the parties to attempt to solve the dispute through mediation at any stage, but before the last hearing.
Judges have another power: the new Legislative Decree provides that the unmotivated non- appearance of a party at the mediation procedure can be valued by the judge of the eventual subsequent judicial proceeding for inferring arguments test in the judicial proceeding, on the basis of art. 116, second comma, of the civil procedure code. Furthermore, a new legislation (law n. 148 of 14th September 2011) provides now that, in the above-mentioned case, the party who has not appeared will be obliged to pay a monetary sum (equal to the sum that a party has to pay to the State when he/she participate to a judicial proceeding) to the State as a sort of sanction.
After, the above-mentioned legislation indicates that when a mediation clause is inserted in advance in a contract, in a company’s statutes or in a company’s constitution, when one party has commenced a judicial proceeding directly, not having firstly tried mediation, the judge or the arbitrator - not automatically but only at the request of the interested party proposed in the first defense - must postpone the proceeding pending before him/her and fix a time, maximum up to 15 days, so the parties can submit the request for mediation to an accredited provider.
Moreover, the text provides that "the fees payable to accredited mediation bodies and to the mediator of the case, to be borne by the parties, are established, with statutory, to a greater extent for the case which has been reached the settlement between the parties”.
All mediators shall keep confidential any information arising out of (or in connection with) the mediation, including the fact that the mediation exists and has been managed among the parties.
In addition, the new Decree provides that the mediators cannot be called as witnesses in any subsequent judicial proceedings and the parties of that mediation proceeding are not be able to use any of the representations and/or communications made and any informations collected during the mediation attempt in the subsequent judicial proceedings.
Besides, the law in question states the power of the BAR Associations to establish, within the tribunal in which they are, chambers of mediation, directly managed by the BAR Association staff. These bodies may be included in the Register, which is kept by the Ministry of Justice, of the bodies authorized to manage mediation procedures on civil and commercial disputes.
To resolve disputes relating to specific subjects, mediation chambers may be established by other professional Associations, and also they are admitted in the above mentioned Register.
Finally, as I said before, the text provides an obligation for the professional class of lawyers to inform their clients, before the commencement of judicial proceedings, about the possibility of using the institute of mediation and the possibility of using mediation providers, and the same text provides, in favor of the parties, possibilities of fiscal concessions. Infact, in this kind of mediations, all documents and measures related to the mediation process shall be exempt from stamp duty and all expenses, taxes or charges of any kind or nature. The mediation minutes is exempt from the registration fee within the limit value of 50.000,00 Euros.
This article is the first of a series on Mediation in Italy.