Compulsory mediation in Italy: what does this mean?

Law establishes compulsory mediation in Italy. It is not always possible to resort to the Court unless you have previously undergone a mediation procedure; the cases that demand a prior mediation attempt are listed in the D. Lgs. n. 28/2010. The mediator and the mediation body are impartial third parties and their aim will be to try and amicably solve the dispute between the parties by finding a possible solution acceptable to all the parties involved.

Italian law establishes that compulsory mediation must be concluded within three months, so it is a much faster solution compared to Italian Court cases; it is therefore much less time consuming and costly. The mediation procedure can be undertaken for any civil and/or commercial dispute on renounceable rights. Article 5 of the aforementioned law lists the matters that must be dealt with in mediation before it is possible to start a court case.

In these specific cases we talk about compulsory mediation and it is an essential preliminary requirement before being able to start a lawsuit.

Unless this first step has been complied with, in the event one resorts directly to the Court the judge will be obliged to dismiss the case. Failure to comply with compulsory mediation can be detected by any party or by the Judge, up until the first hearing of the case.

In such cases the Judge will grant the parties a 15 day term to start the mediation procedure. The mediation application must be filed before the competent mediation body which will be located in the same geographic area as the judge that would be competent for the case. In other words, if the Civil Law Court of Rome (Tribunale Civile di Roma) is the competent body for the dispute, then the mediation body will also be in Rome. In any case, the mediation body can be identified by consulting the Registries held at the Ministry of Justice, that contain the names of all public or private bodies certified to possess the necessary requisites of “trustworthiness” and “efficiency”.

The parties must be assisted by a lawyer and must be present in person during the mediation encounters because the aim of the mediation is to stimulate communication among the parties, in order to find a mutually satisfactory solution to the disagreement,  and this can only be achieved if they are present (physically or in teleconferencing). For this reason, the activities that could lead to a possible agreement are of a strictly personal nature and cannot be delegated, not even to one’s own lawyer.

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