Important Italian Legislation following Directive 2008/52/EC
Law No. 69 of 19 June 2009, Article 60 officially recognized mediation in civil and commercial disputes and delegated power to the Italian government to issue a Legislative Decree on mediation to implement the provisions of Directive 2008/52/EC.
- Legislative Decree No. 28 of 4 March 2010 was enacted as a result of the delegation from Law 69/2009, Art. 60 and, while implementing Directive 2008/52/EC, incentivised mediation by creating financial incentives and enacting procedures for not only voluntary and judicial referral mediation, but also mandatory mediation in many civil and commercial cases. Decree 28/2010 “forces” parties to mediate while ensuring the quality of mediation.
- Ministry of Justice Decrees No. 180 of 18 October 2010 and No. 145 of 6 July 2011 provide specific guidelines needed to effectuate the provisions of Decree 28/2010 and issue quality standards for mediation organisations, mediators, mediator training, and mediation costs.
Provisions of Decree 28/2010 which go beyond the requirements of Directive 2008/52/EC:
- Art. 4(3) – Duty to inform. When retained, the attorney is required to inform their clients, in writing, about the option or requirement to mediate and the financial incentives available. Should the lawyer fail to do so, the attorney-client contract may be voided by the client.
- Art. 5(1) – Mandatory mediation. Parties must attempt mediation before trial in some subject areas which arise from a relationship between the parties. These areas are: tenancy, land rights, partition of property, hereditary succession, leases, loans, rental companies, damages resulting from vehicle and boat accidents, medical malpractice, defamation by the press or other means of advertising, contracts, insurance, or banking and finance.
- Art. 11 and 13 – Ability of the mediator to issue a final proposal. Under Art. 11, when the parties cannot reach an agreement, the mediator must make a “written formal proposal” upon the unanimous request of the parties after warning the parties of the possible legal consequences (though in practice, there are circumstances in which the mediator need not make a proposal upon the parties request). Alternatively, the mediator may make a “written formal proposal” at his own discretion even absent the parties’ request. The parties are free to accept or decline, however declining may produce fee shifting at the later trial. Under Art. 13, if the proposal is declined and later corresponds with the subsequent judgement at trial, the judge will exclude costs incurred at trial from the award if the winning party declined the proposal (this can also occur in certain circumstances even if they are not equivalent).
- Art. 17 and 20 – Financial Incentives. Under Art. 17, all mediation acts, documents and agreements are exempt from stamp taxes and other charges. Under Art. 20, parties are entitled to a tax credit towards the mediation fee of up to €500.00 for a successful mediation and up to €250.00 if the mediation fails.
- mediations 21 May – 30 June 2011: 7,333/month, 28% increase from the previous month
- Type of filings: 69% mandatory: 29% voluntary, 1% judicial referral, 1% by contract
- Most frequently mediated subject matters: property rights (16%), lease agreements (11%), medical malpractice (8%)
- Percentage of mediations which have attendance of all parties: 27%
- Percentage success of mediated case: 58%
- Percentage of mediations where parties have attorney representation: 80%
- Number of mediations expected by 2012: 30,000 per month