From 21st September 2013 mediation has been formally re-introduced in Italy as a compulsory step, for some disputes, before the parties may apply to the courts.
Mediation has had a checkered life in Italy. Introduced in 2010 as an attempt to deflate the spiralling burden of litigation and of arrears pending in the Italian courts, it was struck off in 2012 by the Italian Constitutional Court on a (rather fundamental) technicality, that has nothing to do with the mediation process as such. The Legislative Decree originally issued by the Government and introducing mediation in Italy had exceeded the limits of the authority granted by Parliament and so to an extent was ultra vires and unconstitutional.
However the protracted length of judicial proceedings and the level of arrears pending in the Italian courts were and currently are a serious problem. This is proved by the repeated rulings of the European Courts of Human Rights against Italy for delay in legal proceedings. Effectively, delayed justice is denied justice.
Also, the excessive length and complication of legal proceedings contributes to the creation of an unfavourable business and investment environment in Italy. Mediation had to be re-introduced in Italy.
Because, originally, professional lawyers had been excluded from the process, mediation had met the spirited opposition of the Italian legal profession. The lessons of the past having been learned, this time mediation was preceded by extensive consultation and lawyers are now expressly called to co-operate and to support their clients. All Italian lawyers are granted the status of “mediators” and have important powers in the mediation process.
Mediation is now a condition precedent to most form of judicial proceedings. In particular, mediation must now be attempted before formal litigation in any dispute relating to property rights, rights of co-owners in a condominium, succession and probate, letting agreements, medical negligence, defamation and financial and insurance contracts.
Disputes relating to traffic accidents have been excluded, whereas medical negligence has been introduced. It is always open to the parties or even to the judge to apply for mediation in all civil and commercial matters, even before the judicial proceedings are commenced. Mediation must involve qualified bodies operating in the district where the parties reside or the dispute arose.
Italian mediation has a statutory term of three months and facilities have been introduced to reduce mediation costs to the parties.
Judges are required to make a “conciliation proposal” (Proposta transattiva o conciliativa) to the parties at the first Court Hearing. The Judge will then consider the conduct of the parties with respect of such offer in issuing judgement in the proceedings.
Even where legal proceedings are pending, the judge may still require that mediation be attempted. If one of the parties called to mediate does not attend, then he / she will be liable to fines and the judge will be allowed to consider such a failure to attend in formulating the judgement.
A mediator can now make a formal settlement proposal (Proposta di conciliazione) to the parties. If such proposal is unreasonably refused by one of the parties, severe sanctions will apply if the final judgement at the end of the legal proceedings is substantially on the same lines as the settlement proposal originally made. The winning party cannot recover the costs from the losing party and will have to pay additional charges connected to the proceedings to the State.
If, on the other hand, the mediation is successful, then the mediation agreement can then be signed by the parties and their lawyers and it will be immediately as effective and enforceable as a final judgment.
Parliament will revise this legislation and its practical effects in four years time, in order to asses whether any changes are required.
Hopefully, mediation will now succeed in Italy and yield the benefits that many experts ascribe to it.
Dr Claudio Del Giudice – Copyrights reserved, 22.09.2013