Mediation in Italy
Starting in March 2011, civil and commercial mediation became mandatory in many civil disputes; the mandatory nature was eliminated in December 2012 and reintroduced in September 2013. Initially, mediation met strong opposition from lawyers, who feared a possible decrease in income. At the same time, judges did not attach too much importance to it, being quite skeptical about the use of non-legal techniques in conflict resolution and labeling mediation as the product of a "foreign" legal culture. By law, mediation bodies were regulated in detail and 50 hours of training were established for initial training (too few), with special attention paid to the communication part.
On December 12, 2012, the Constitutional Court declared the mandatory mediation unconstitutional, the reason being that the Italian Government had exceeded its powers in creating the legislation regarding mandatory mediation. Consequently, the number of initiated mediation procedures decreased. Voluntary mediation survived, registering a much higher success rate than during the mandatory period. Legislative Decree no. 69/2013, reintroduced mediation as a mandatory first step before going to court, starting from September 20, 2013.
Legislative Decree no. 69/2013 also established some possibilities for judges:
to issue a proposal for a solution based on equity (ex art 185-bis Civil Procedure Code) in cases concerning rights that the parties can dispose of. The parties are free to accept or refuse the proposal (non-binding arbitration);
to impose on the parties in dispute to resort to mediation, in cases concerning rights that the parties can dispose of.
In most cases, judges mixed these two options: they formulated a proposal for a solution and, if the proposal was not accepted by the parties, they imposed on them to participate in mediation (arbitration followed by mediation – ARB/MED). In 2014-2015, new provisions appeared:
- Cases pending before the court, based on the agreement of the parties, can be transferred to arbitration;
Negotiation assisted by lawyers: in the case of disputes related to compensation for damages caused by cars and boats and for all payment claims up to 50,000.00 euros; for divorce (provided there are no minor children or adults dependent in any way on their parents);
- The involved parties, assisted by their lawyers, will be able to reach an agreement, which is enforceable; like mediation, this procedure is a prerequisite for referring the matter to the court;
- The initial 50-hour training courses proved insufficient. At least 200 hours would have been necessary and should have involved not only experts in legal matters but also experts in communication, psychologists, bankers, etc. Alternative dispute resolution methods represent a mixture of very different skills.
Who can mediate?
Graduates of university studies (with at least three years of study, regardless of the field) can become mediators. At the beginning of 2011, mediators were professionals with experience in the field, with many years of training behind them and capable of understanding the causes of conflicts and how to manage them. Subsequently, (one of the causes being the emergence of the economic crisis) many of those who became mediators followed poor initial training courses (50 hours); the consequences were the deterioration of the quality of mediation process management and inferior results. Mediators are registered in a register kept by the Ministry of Justice. In February 2017, their number was 22,786. Through Legislative Decree no. 69/2013, lawyers became mediators "Ope legis".
Legislative Decree no. 28/2010 and Ministerial Decree no. 180/2010.
What kind of training program is required - how many hours and what main topics were taught?
Mediators must complete a 50-hour training course on theory and practice, designed for a maximum of 30 participants, which has the following content:
Italian, European, and international laws on mediation;
- facilitative and evaluative mediation procedures and mediation delegated by the judge;
- conflict management techniques;
- communication techniques;
- mandatory clauses of the mediation agreement;
- the form, content, and effects of the mediation request and agreement;
- the duties and responsibilities of the mediator;
- simulated mediation sessions;
- final 4-hour test;
Subsequently, the mediator must update their training every two years with an 18-hour professional development course on the topics mentioned above, including simulated mediation, and participate in 20 mediation procedures.
Is there a national organization of mediators?
No. The names of the mediators are registered in a register kept by the Ministry of Justice. Mediators must operate within a mediation body (Organismo di mediazione). Mediation bodies were established by Ministerial Decree no. 180/2010, being defined as: "Public or private entities or their branches, within which mediation can take place..." In Italy, mediators can carry out their activity only within a mediation body and not as independent professionals (independent natural persons). Mediation bodies must hold share capital and an insurance policy of at least 500,000 Euros. At least 5 mediators and one administrator (who cannot act as a mediator) must operate within them. The administrator must assign mediation cases by rotation, while also considering the specialization of the mediators. Furthermore, the body's regulations and the list of names and experience of the mediators working within it must be published on the organization's website.
Mediation bodies can carry out their activity in all areas provided by law or only in some of them (even just one). The Italian State does not financially support them in any way, with the exception of legal aid benefiting those who do not have the necessary financial resources to initiate a court action or to ensure their defense. Mediation bodies undergo a procedure following which they are accredited by the Ministry of Justice. In 2016, there were 778 accredited mediation bodies (a decrease compared to 2012, when there were 968 such entities). Fees are set by the Ministry of Justice and are paid by the parties directly to the mediation body. The mediator is paid by the mediation body. Mediation bodies are obliged to transmit quarterly to the Ministry of Justice the number of initiated, ongoing, or finalized mediation procedures (by agreement or not), accompanied by the relevant documents.