In 2010, the Italian legislature enacted the Legislative Decree no. 28/2010, which was later modified in 2013, to regulate the recourse to mediation, the mediation procedure, and the relationship between the discipline of mediation and judicial proceedings. Additional regulatory framework was provided by the Ministerial Decree no. 180/2010 concerning the accreditation of mediation providers, mediators and mediation fees.
The current Italian mediation law requires parties to attend a preliminary mediation meeting as a pre-requisite to filing a civil lawsuit in a wide range of subject matters. In such meeting, which involves only a nominal cost for the parties, the disputants have an opportunity to learn more about the opportunity of resolving their case through mediation and make an informed decision on the different resolution process options. The initial mediation session must be held before an accredited mediator, and the presence of legal counsel is mandatory.
The types of disputes in which the parties are required by law to request an initial mediation conference include:
- Joint ownership of real estate
- Real estate
- Division of assets
- Inheritances, family Covenants/agreements
- Leases (e.g. residential leases)
- Business or commercial leases
- Medical malpractice liability
- Damages from libel
- Claims arising from insurance, banking and financial contracts
The law provides for specific incentives and sanctions for the parties in relation to their conduct in terms of the mediation requirements. Parties who refuse to attend the initial meeting, without a valid cause face sanctions in subsequent proceedings. A judge will order that the party or parties who do not attend the initial meeting pay into the state budget an amount corresponding to the amount of court fees due for the entire court proceeding. Parties who attend the initial meeting and then decide to opt-out of mediation do not face any sanctions or consequences for opting–out. Parties who proceed with the mediation may receive fiscal and economic benefits.
If a mediation is held and concludes with a settlement agreement, the parties receive a tax credit of up to Euros 500, which is reduced in half if the parties participate in mediation but do not reach a settlement. In addition, property transfer taxes (when applicable) are waived in relation to any settlement agreement reached in mediation valued up to Euros 50,000. Any documents relating to the mediation that would otherwise require payment of stamp taxes are deemed exempt from such duties.
The Italian mediation law also provides for fully voluntary recourse to mediation by the parties in all other subject matters relating to civil and commercial disputes. Furthermore, the law provides civil judges to discretionally order the parties to attempt an amicable resolution of any dispute through mediation, at any stage of the litigation process. Finally, the law recognizes and establishes the enforceability of contractual agreements to mediate.
One of the most relevant aspects of the Italian mediation law consists in the immediate enforceability of a mediated settlement agreement, which provides parties with certainty and finality of a successful outcome of the mediation process. The enforceability of a mediated settlement agreement is subject to compliance with the requirements provided for by the law, including counsel representation in mediation and the accreditation of the mediation provider.
Since the enactment of the Italian mediation law, the number of cases mediated throughout the country has increased dramatically. The implementation of the mediation law has furthered a positive development of the general awareness of disputants regarding the mediation process as well as increased sophistication of legal professionals and the judiciary concerning the use of the mediation process to efficiently resolve a significant number of civil and commercial disputes. That is true not only within the subject matters for which mediation represents a mandatory requirement, but also for a large number of cases for which mediation is purely a voluntary choice for the parties.
By Giulio Zanolla, Senior Fellow – Italy, Weinstein International Foundation.