The long-awaited legislative decree addressing "mediation aimed at conciliation of civil and commercial disputes" came into effect on 20 March. The driving force behind the law is to reduce the back log of civil cases pending in Italy, which has reached 5.4 million. The Italian government is strongly relying on mediation to eliminate at least 1 million disputes per year.
The new legislation requires parties to engage in mediation as a precondition to accessing the courts in many types of disputes. In addition, judges are granted authority to refer parties to mediation and enforce financial consequences on those that refuse to do so. In terms of procedure, the new legislation coincides with the requirements outlined in the European Directive on Mediation. The quality of the process is to be controlled by allowing only providers who are accredited and monitored by the Ministry of Justice to administer mediation.
An interesting aspect of the legislation is the scope for a "mediator's proposal". When the parties cannot reach agreement, the legislative decree gives the mediator discretion to make a written proposal. The parties are free to accept or decline the proposed agreement. Declining the mediator's proposal, however, may produce legal consequences such as fee shifting at trial. If the mediator's proposal completely corresponds with the subsequent judicial sentence, the judge will exclude recovery of costs incurred by the winning party that declined the proposal. Click here to read a recent article by Giuseppe De Palo and Leonardo D'Urso on this legislation.