Abstract
This chapter examines the present situation of mediation in Italy, trying to highlight the most important features and trends.
Although the right of access to the courts guaranteed by article 24 of the Italian Constitution has traditionally been seen as a right of access to a judge and to a decision by the judge, in recent times Italy too shared the general trend towards ADR. Mediation is the most widespread ADR device and also the one to which the Italian legislator has attached more importance as a means to alleviate the workload of the court system.
The legislative decree of 4 March 2010, no. 28 implemented the EU directive by enacting the first general regulation of mediation for civil and commercial disputes, without distinguishing between domestic and cross-border mediations. The hallmark of the new regulation, and its most controversial feature, is “mandatory out-of-court mediation” for the disputes concerning a large and diverse range of subject matters. Another distinguishing feature of the Italian system is the adoption of administered mediation, with mediators acting only within the framework of registered centres established by public or private bodies. While informality is one of the basic principles concerning the process of mediation, the initial and final stages of the procedure are considerably regulated, with several provisions intended to encourage the parties to reach an agreement.
Even though it is possible for the procedure to take place online, the regulation is scarce and ODR is still underdeveloped.
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Notes
- 1.
According to the annual report published by ISDACI (Istituto scientifico per l’arbitrato, la mediazione e il diritto commerciale), which is by now the most comprehensive source of information about ADR in Italy, in 2010 only 753 disputes were referred to administered arbitration, whereas there were 17,407 negoziazioni paritetiche, the Authority for Telecommunications received 3,731 complaints, and the Banking Ombudsman 3,409 complaints (Bonsignore 2012, 27–28).
- 2.
In 2010 almost 68,000 mediations were initiated (Bonsignore 2012, 27).
- 3.
See, e.g., articles 185 and 410 of the Code of civil procedure. For a comprehensive translation and a commentary on the Italian Code of civil procedure see Grossi and Pagni (2010).
- 4.
See article 342-ter of the Italian Civil code, introduced by the law of 4 April 2001, no. 154 (on restraining orders in cases of family abuses) and article 155-sexies of the Italian Civil code, inserted by the law of 8 February 2006, no. 154 (on joint custody) (Varano and De Luca 2007, 16).
- 5.
See the legislative decree of 28 August 2000, no. 274 (Queirolo et al. 2012, 255, ft. 6).
- 6.
For the same reason, i.e. the lack of an impartial third party, also complaint procedures provided for by service charters are explicitly excluded from the notion of mediation.
- 7.
According to the statistics provided by the Ministry of Justice, from 21 March 2011 to 31 December 2012 court-annexed mediations were only 2.9 % of the mediations initiated. https://webstat.giustizia.it/Analisi%20e%20ricerche/Mediazione%20civile%20al%2031%20dicembre%202012.pdf. Accessed 17 October 2014.
- 8.
Condominium, property rights, division of assets, hereditary succession, leases, gratuitous loans, immediate family company agreements, rental companies, damages resulting from vehicle and boat accidents, medical malpractice, defamation by the press or other means of advertising, insurance or banking and financial contracts.
- 9.
On the connection between the excessive duration of proceedings and lost economic development, see Martuscello (2011, 49–51).
- 10.
According to the data provided by the Ministry of Justice, from 21 March 2011 (when mandatory out-of-court mediation came into force) to 31 December 2012 215,689 mediation proceedings were initiated. During this period, however, the other party participated in the procedure only in 27 % of cases. The success rate in case of participation was 43.9 %, with a declining trend (from 59.3 % in the first trimester of 2011 to 38 % in the fourth trimester of 2012). https://webstat.giustizia.it/Analisi%20e%20ricerche/Mediazione%20civile%20al%2031%20dicembre%202012.pdf. Accessed 17 October 2014.
- 11.
According to article 76 of the Italian Constitution “The exercise of the legislative function may not be delegated to the Government unless principles and criteria have been established and then only for a limited time and for specified purposes.”
- 12.
Cases concerning vehicle and boat accidents were excluded. Actually, during the period when out-of-court mediation had been mandatory it had proved to be particularly ineffective in this type of disputes, because insurance companies did not take part in the procedure in 95 % of cases. https://webstat.giustizia.it/Analisi%20e%20ricerche/Mediazione%20civile%20al%2031%20dicembre%202012.pdf. Accessed 17 October 2014.
- 13.
Also the special provisions on mediation existing in family law were unaffected by the new legislative regulation (Varano and Simoni 2012, 48).
- 14.
This procedure was recently considered by the European Court of Justice in the Alassini case (Joined Cases C-317/08 to C-320/08, 18 March 2010) that concluded that “Article 34 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on Universal Service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as not precluding legislation of a Member State under which the admissibility before the courts of actions relating to electronic communications services between end-users and providers of those services, concerning the rights conferred by that directive, is conditional upon an attempt to settle the dispute out of court.
Nor do the principles of equivalence and effectiveness or the principle of effective judicial protection preclude national legislation which imposes, in respect of such disputes, prior implementation of an out-of-court settlement procedure, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires.”
- 15.
According to the statistics of the Ministry of Justice, from 21 March 2011 to 31 December 2012 a mere 0.3 % of the mediations that were initiated were based on a mediation clause. https://webstat.giustizia.it/Analisi%20e%20ricerche/Mediazione%20civile%20al%2031%20dicembre%202012.pdf. Accessed 17 October 2014.
- 16.
The rules concerning the requirements and the procedure for registration of these mediation training institutions are established by articles 17–19 of the Ministerial decree.
- 17.
The Ministerial decree of 4 August 2014, no. 139 added article 14-bis to the Ministerial decree no. 18 of 2010, that enhanced the guarantees of impartiality with several measures, including barring mediators from assisting parties in procedures held before the centers they have a connection with and from having a professional relationship with one of the parties in the two years following the end of the mediation procedure.
- 18.
This means of legal proof, based on the idea that the challenged party will swear the truth under the threat of religious and moral sanctions, is a kind of a relic still surviving in some civil law jurisdictions, but it is hardly ever used (Chase and Hershkoff 2007, 10).
- 19.
Initially it was four months. The duration has been reduced by the decree law no. 69/2013. According to the statistics provided by the Ministry of Justice, the median duration of mediation is 77 days in cases where the parties fail to reach and agreement and 65 days in cases of success. https://webstat.giustizia.it/Analisi%20e%20ricerche/Mediazione%20civile%20al%2031%20dicembre%202012.pdf. Accessed 17 October 2014.
- 20.
Although some have interpreted the new text of article 8 of the legislative decree to mean that the assistance of a lawyer is always necessary, if read together with the other provisions of the legislative decree modified in 2013, the more reasonable interpretation of this provision is that this obligation only exists in case of mandatory (out-of-court or court-ordered) mediation.
- 21.
According to the statistics provided by the Ministry of Justice, from 21 March 2011 to 31 December 2012 about 20 % of parties were not assisted by a lawyer. https://webstat.giustizia.it/Analisi%20e%20ricerche/Mediazione%20civile%20al%2031%20dicembre%202012.pdf. Accessed 17 October 2014.
- 22.
The records of the procedure, whether they take note of the fact that the parties reached an agreement or that they did not, have to be signed by the mediator and by the parties. On the distinction between the agreement and the records of the procedure see Queirolo et al. (2012, 275).
- 23.
According to the case law of the Italian Constitutional court, the possibility to obtain interim measures where the urgency of the situation so requires is a condition for the constitutionality of the legislation that requires to satisfy some conditions (e.g. making an attempt of conciliation) before bringing a claim into court (the so-called “conditional jurisdiction”).
- 24.
In 2010, only in 1 % of mediations the mediator put forward a proposal on her own motion, and in 0.5 % of cases upon request by the parties (Luiso 2012, 156).
- 25.
According to this provision, a settlement is a contract by which the parties end an existing or possible dispute by making reciprocal concessions.
- 26.
Article 12 does not explicitly provide for an appeal against the order rejecting the application for homologation, but the positive solution seems to prevail among scholars (D’Alessandro 2011, 4).
- 27.
Every 3 years the amounts may be adjusted taking into account the variation of the consumer price index.
- 28.
This second exemption from the costs of mediation for the parties entitled to legal aid has been introduced by the law no. 98/2013 as a result of the changes to court-annexed mediation.
- 29.
According to article 8, paragraph 4, of the legislative decree experts may be appointed by the mediator when specific technical competences are needed and auxiliary mediators cannot be appointed.
- 30.
http://www.risolvionline.com/Documenti_News/Statistics%20ROL%202002-2012%20-%20Eng.pdf. Accessed 17 October 2014.
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De Luca, A. (2015). Mediation in Italy: Feature and Trends. In: Esplugues, C., Marquis, L. (eds) New Developments in Civil and Commercial Mediation. Ius Comparatum - Global Studies in Comparative Law, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-319-18135-6_11
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