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The “Mandatory mediation in civil and commercial disputes” reintroduction

09/09/2013

The Italian Government, following the declared unconstitutionality of Legislative Decree 25/2010 in the section introducing the institution of the so-called “mandatory mediation” (Supreme Court decision n. 272 of 6/12/2012), has reintroduced such institution, even though partially amended, by mean of Law Decree 69/2013 on “Urgent dispositions to relaunch the economy”(so called “Decreto del Fare”- “Decree of Making” – of 21/6/2013, converted by Law n. 98/2013, edited in the “Gazzetta Ufficiale” n. 194 of 20/8/2013), specifically throughout Article 184 bringing amendments and integrations to Legislative Decree 28/2010.

In the press release of the Counsel of Ministers n. 9 of 15/6/2013, when the L.D. n. 69/2013 was proposed, the Prime Minister Mr Letta has, in fact, expressly recognized the necessity of intervening on the pace of the Italian civil proceedings and improving their effectiveness by restructuring and reintroducing the civil and commercial mediation.

Such amended and reintroduced civil and commercial mediation will be mandatory for an experimental period of four years, during which the Ministry will have to carry out a follow upon the results concretely detected in the praxis and will enter into force by 19/9/2013.

Hereinafter, the main points of the renewed “compulsory mediation in civil and commercial disputes”.

1. Condition for the admissibility of the petition

The experiment of procedure is “a condition for the admissibility of the petition” in civil and commercial disputes regarding the following subjects:

  • joint ownership
  • rights in rem
  • division
  • inheritance
  • family agreements
  • lease
  • commodate
  • rent of companies
  • damages arising from medical and health liability and defamation by the press or by other means of advertising
  • insurance, banking and financial agreements.

Compared to the previous (unconstitutional) legislation, the cases related to the compensation for damage caused by the traffic of vehicles and boats, as well as the procedures of prior technical advice for the settlement of the dispute provided by Article 696-bis of the Italian Code of Civil Procedure are excluded.

The non-admissibility of the petition shall be objected by the defendant, under the penalty of forfeiture, or raised by the Judge, no later than the first hearing.

The Judge – taking into consideration the nature of the proceeding, the level of inquiry and the conduct of the parties – can also order the recourse to the mediation to the parties, before the hearing in which the parties define their petitions; if such hearing is not scheduled, the final discussion of the case, also within the appeal proceedings.

The Judge is also required to indicate the mediation body designated.

The choice of the mediation body which to apply has been left to the free determination of the parties (against the former provision which reserved such choice to the sole discretion of the Judge; anyway, this choice would be determined by compliance with territorial jurisdiction criteria in accordance with the principles of civil procedure). In case of more than one application relating to the same dispute, the body where the petition was first filed prevails.

2. Limits of duration

The single mediation will last for no more than three months (instead of four, according to the previous discipline), starting from the date of the filing of the mediation petition or from the expiration date granted by the Judge for the filing thereof (such limit term is not subject to the so called “procedural terms Summer suspension” period – running yearly from 1st of August to 15th of September - as it has no judicial nature).

3. Procedural aspects

At the preliminary meeting, which has to be held not later than thirty days from the filing of the mediation petition, the mediator shall verify the possibility to continue the mediation. Then, the parties are able to formalize the failure of the negotiation or to continue the mediation proceedings which may lead to an agreement or not.

From the absence of a party on unjustified grounds, the Judge may gather evidence as provided for by Article 116, Italian Code of Civil Procedure, and condemn such party to the payment of a sum equal to the contribution due for the filing of a petition.

4. Compensation

In case of negative outcome of the first mediation meeting, i.e. without the reaching of any agreement, the condition of admissibility is to be considered as satisfied and no compensation is due to the mediation body.

No compensation is due, in any case, by any party who is eligible for the free legal aid in accordance with Article 76, para. 1, of the Presidential Decree dated May 30, 2002 no. 115.

5. Conciliation

If an agreement is reached, the mediator drafts the minute of the mediation hearing to which the text of the same agreement is attached; if such agreement has not been reached, the mediator may make its proposal for conciliation. In any case, the mediator makes a proposal for conciliation if request by the parties. Before expressing the proposal, the mediator informs the parties of the possible consequences in terms of procedural costs.

The agreement, properly undersigned by all parties and their lawyers (see below), consists of an enforceable title.

6. Lawyers’ role

The lawyer has to inform his client of the duty to set up the mediation process and to assist him (the assistance was not compulsory under the previous discipline).

The lawyers also have to undersign the minutes of the mediation hearing and the agreement reached by the parties before the mediator, so that the latter may be homologated and become an enforceable title.

The qualification of mediator is assigned “ex lege” to the lawyers who are regularly enrolled into the Italian Lawyers’ Register (such automatic qualification did not exist under the previous discipline). In order to practice as mediator the lawyers have however to enter mediation bodies enrolled into the relevant Register kept by the Ministry of Justice, and to attend specific training and update courses.

Conclusion

The achievement of the goals the Government put itself throughout the introduction of the mandatory mediation in civil and commercial disputes, namely to make the Italian judicial system more efficient and competitive, cannot disregard the actual and daily commitment, in such direction, of all the Justice officers, above all of lawyers and judges.

In the same time, such compulsory mediation cannot be deemed as sufficient, nor result successful, if not accompanied by further reforms of the Justice system with the same capability of contribution to the achievement of such a primary goal.

The views and opinions expressed in CMS Adonnino Ascoli & Cavasola Scamoni's Newsletter are meant to stimulate thought and discussion. They relate to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments. CMS Adonnino Ascoli & Cavasola Scamoni's Newsletter does not intend to constitute legal or professional advice. CMS Adonnino Ascoli & Cavasola Scamoni's Newsletter is CMS property

Source
CMS Italia Newsletter | 30 Sep 2013
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Authors

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Laura Opilio
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