Mediation under Italian Law
Mediation is an alternative method of dispute resolution (ADR), managed by a neutral third party with the purpose to facilitate the negotiation between the parties. The mediator will set up a number of private meetings, in order to establish a proper dialogue between the parties and to reach tailored-made solutions.
In Italy, mediation was introduced by Legislative Decree 28/2010 to reduce the workload of the courts. In 2013, a law established mandatory mediation before issuing legal proceedings in certain areas of law.
There are three main types of mediation:
- Voluntary Mediation: the parties can always submit any legal dispute to mediation. If the parties reach and sign the mediation agreement, this has to be deemed as equivalent to a court judgement. Parties may provide for mediation in contract clauses in which case they are under the obligation to try mediation before issuing any legal proceeding in court.
- Mandatory Mediation: in certain civil and commercial matters (e.g. real estate, family business agreements, banking and financial contracts, etc.), mediation is a preliminary compulsory step to be taken before being able to file a petition before the court.
- Preliminary Mediation: during pending proceedings, the judge, having assessed the nature of the case and the conduct of the parties, may at his complete discretion, issue an order to go through mediation before continuing the case in court.
Advantages
- Cost-effective: the mediation is usually cheaper than a court case;
- Fast: the mediation process should end within 3-4 months;
- Confidentiality: the mediator is bound to keep confidential any information obtained during his professional activity.
Disadvantages
- Uncertainty: mediation may end without an agreement;
- Not mandatory: the other party may decide not to attend the mediation.
Mediation process
The process starts with an Application for Mediation submitted by the promoting party to a credited Mediation Centre. Once the request has been accepted, the mediator sets the first meeting within 30 days, to which the other party may decide to accept or refuse to attend. Non-participation without justified reason can be used as grounds in court and, in mandatory mediation, can imply the payment of a penalty. During the first meeting, the mediator explains the functions and procedure of mediation. The first and following meetings must take place in the presence of the parties’ lawyers. Mediation may end:- With an agreement (“conciliazione”): the mediator drafts the minutes signed by the parties and the lawyers, which will be as enforceable as a court judgement;
- Agreement proposal: the mediation may propose an agreement, which can be refused or accepted within 7 days;
- Without any agreement: the mediator drafts the minutes and the other party simply refuses to sign.