CIVIL AND COMMERCIAL MEDIATION IN ITALY: A SHORT INTRODUCTION

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By Gianluca D’Agnolo

Mediator at Shanghai Commercial Mediation Center

Of Counsel at Chiomenti Law Firm of Italy

21 April 2025

Index

1. Legal framework of civil and commercial mediation in Italy

2. The concept of “disposable rights” in Italy

3. Mediation bodies and mediators in Italy

4. Various types of mediation in Italy

5. Some specific characteristics of mediation procedures in Italy

6. Some statistical data from the Italian Ministry of Justice

It has been 15 years since the main piece of legislation about civil and commercial mediation in Italy was enacted, so it is a good time to check the current status of this alternative dispute resolution system in a country where litigation has always been very active.

1. Legal framework of civil and commercial mediation in Italy

On 21 May 2008, the European Parliament and the European Council issued the Directive n. 52 (“Directive 52/08”) on certain aspects of mediation in civil and commercial matters.

The purpose of Directive 52/08 was to

“facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings” (Article 1).

Article 3 of Directive 52/08 defines

Mediation as “a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State”, and

Mediator “any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation”

In response to the issuance of Directive 52/08, the Italian parliament, through the law 69/2009 of 18 June 2009 (“Law 69/09”), delegated the government to issue a regulation on mediation.

Article 60 of Law 69/09 specifies the guidelines to be followed by the government in regulating the mediation, including the following:

the subject matters of mediation shall be disposable rights and mediation shall not stop access to ordinary judicial proceedings;

mediation shall be managed by professional and independent bodies;

lawyers shall have the obligation to inform their clients about the option of mediation, and

the recourse to mediation shall enjoy a preferential tax treatments for the parties involved.

The Italian government issued the relevant regulation on 4 March 2010: the legislative decree n. 28/2010 ( “Decree 28/10”), subsequently amended by the legislative decrees n. 149, dated 10 October 2022 and n. 216, dated 27 December 2024.

Article 1 of Decree 28/10 defines

Mediation as “the activity, however defined, performed by an impartial third party, finalized at the assistance to two or more subjects in the aim of reaching a friendly agreement to a dispute, including the drafting of a proposal for the resolution of such dispute”, and

Mediator “the person or the persons who, individually or together, performed the mediation, without the power, in any case, to issue decisions binding for the parties involved”

2. The concept of “disposable rights” in Italy

Article 2 of Decree 28/10 provides that the subject matter of mediation must be “a civil or commercial dispute about disposable rights”.

Disposable rights mean rights which may be negotiated and even relinquished by the relevant party, i.e. rights (usually of monetary nature) which, according to the legislator, are not of such nature to be considered not disposable by a party because they are connected with a higher value usually directly protected by the Constitution (for instance, the right of the employee towards the employer to enjoy paid leave, the right of the child towards the parents to obtain a proper education, etc.).

If the subject matter of a dispute are both disposable and not disposal rights, mediation is possible for the part of the dispute related to disposable rights.

3. Mediation bodies and mediators in Italy

According to article 1 of Decree 28/10, both public and private subjects can create mediation bodies to perform mediation activities.

Such bodies shall be duly registered in a list organized by the Italian Ministry of Justice, and shall adopt proper internal regulations and ethic codes.

To be allowed to be registered in the above mentioned list, all mediation bodies shall declares that its members fulfill certain requirements, with specific reference to their criminal record and to their obligation not to act if under conflict of interest.

In particular, with reference to the conflict is interest issue, mediators shall refuse to perform their activity in the same circumstances listed by article 51 of the Italian Civil Procedure Code in relation to judges’ conflict of interest, i.e.:

If he/she has a personal interest on the dispute or on a legal matter identical to the one underlying the dispute;
If he/she or his/her spouse is a relative (within the 4^th degree), live together with or has close connection with any of the parties or their lawyers;
If he/she or his/her spouse has a pending legal action, conflicting relation or a credit7debit relation with any of the parties or their lawyers;

If he/she has represented any of the parties in the dispute, has been a witness on the dispute, has been acted as a judge or arbitrator of technical consultant to the dispute;

If he/she is a guardian, agent, employer of any of the parties, or is a director or manager of an entity somehow involved in the dispute.

Italian lawyers are automatically authorized to act as mediators. Local bar associations can create mediation bodies within the local court.

4. Various types of mediation in Italy

As provided for in Decree 28/10, in Italy there are the following types of mediation:

Mandatory: on some matters, the parties must try mediation before being able to start a legal action. The mediation is currently mandatory on the following matters: condominium, real estate (including lease), partition, inheritance, family pacts, loan for use, lease of business, compensation for damages related to medical liability or defamation by means of press, insurance, banking and finance contracts, consortia, franchising, etc.

Delegated: in some circumstances the judge can order the parties to try mediation;

Agreed: the parties can include in a contract a mediation clause according to which mediation shall be tried before starting a legal action (if related to disposable rights), and

Optional: the parties can agree to try mediation after the insurgence of the dispute (if related to disposable rights).

5. Some specific characteristics of mediation procedures in Italy

The mediation procedure may occur online if all the related parties agree to such method.

The duration of the mediation procedure shall not exceed 6 months, but such duration can be extended, by unanimous agreement by the parties, by additional 3-month periods (in case of mandatory or delegated mediation procedures, such extension can occur only once).

The parties to a mediation must attend the procedure in person. In case of justified reasons, a party may authorize somebody else to attend the procedure on his/her behalf, but such person shall be fully aware of the facts underlying the dispute and shall have the power to negotiate on behalf of the relevant party.

If a party does not attend the mediation procedure without justified reason, the judge in charge of the subsequent legal proceeding may consider such absence as an element on which to ground is decision and may as well impose to such party a monetary sanction.

If all the parties to a mediation procedure are represented by lawyers, and the final agreement is signed by the parties and by all the lawyers as well, such agreement can be directly enforced on the relevant party.

Mediation procedures in Italy enjoy special preferential tax treatment compared to judicial proceedings.

6. Some statistical data from the Italian Ministry of Justice

As mentioned above, in 2009 the Italian parliament delegated the government to issue a regulation on mediation (Law 69/09).

Year 2009 was the very year during which Italy experienced the highest number of cases pending in front of Italian civil courts: 5,700,105 (see Table A below).

Since 2009 the number of cases pending in front if Italian civil courts has been in almost constant decline, although it is not clear if mediation is the main reason for such decline, since the number of new mediation procedures and the numbers of solved mediation procedures in Italy (see Tables B and C below) has been fluctuating during the last 10 years, instead of constantly growing.