The Italian Government, with the aim of reducing the prolonged civil litigation proceedings and to improve its efficiency, has reintroduced a mandatory civil mediation procedure.
The provisions have been enacted by Section 84, Law Decree no. 69/2013 (“Decreto del Fare”) which contains amendments and integrations to the Legislative Decree 28/2010 previously declared unconstitutional on the ground of excessive delegation (Constitutional Court, Judgment no. 272 dated December 6, 2012).
The amended version of Legislative Decree 28/2010 entered into force on 20th September, 2013.
Condition for the admissibility
The civil mediation procedure is “a condition for the admissibility of the petition” in civil proceedings, including disputes arising out of banking and finance agreements. Therefore, is in the dispute resolution clauses of their relevant agreements, it behooves the parties to provide specific description of the mediation procedure so as to control the process and including the identity of an agreed mediator.
In the absence of mediation the petition may be objected by the defendant, with the penalty of forfeiture of the claim, or raised by the Judge, no later than the first hearing.
The Judge can order the recourse to mediation. Such measure can be imposed before the hearing in which the parties define their petitions or, if such hearing is not scheduled, before the final discussion of the case including within the appeal proceedings.
The mandatory nature of the mediation attempt has been limited to a trial period of four years, in the course of which the Ministry will supervise on the outcomes actually occurred in practice.
The mediation procedure shall be concluded three months, starting from the date of filing of the request for mediation or from the expiration date granted by the Judge for the filing thereof.
The summer suspension of the terms is excluded from the three-month time period.
The mediator, either a lawyer or a mediation association enrolled in the relevant register kept by the Ministry of Justice may be chosen by the consent of the parties. If the parties cannot agree on the mediator, he or she will be assigned by the court.
At the preliminary meeting, which must be held no later than thirty days from the filing of the mediation petition, the mediator shall verify the feasibility to engage the mediation. Thereupon, the parties are enabled to declare the failure of the negotiations (in that case the condition of admissibility is to be considered as satisfied) or to continue the mediation proceedings with the prospect of reaching a mediated agreement.
The settlement agreement reached upon conclusion of a mediation before an accredited agent is automatically enforceable if also executed by the parties appointed lawyers. Otherwise, to take such enforceable effect it shall have to obtain the approval of the court.
By Avv. Marco Cerritelli, LLM and Avv. Ludovico Mannini