On March 24, 2016 the Court of Verona issued an Order which deals with the following controversial topics, both related to mandatory mediation procedure set forth in Legislative Decree no. 28 of 2010: the purpose of the first mediation session and the relationship between mediation and cross-claim.
With regard to the first topic, the Court of Verona focuses on article 8 paragraph 1 of the above-mentioned Legislative Decree, which contains rules governing the first session proceeding.
According to the Court of Verona, the judge, on occasion of such session, shall ascertain the actual intention of the parties to start negotiations and, even in case they show the intention not to carry out mediation procedure, the condition for entertaining the application in Court shall be considered realized.
This is because the expression “with no agreement” referred to in article 5 paragraph 2 bis also includes cases where the parties decide not to carry out mediation proceeding and to take court action.
However, with reference to the emotional involvement of the parties who attend the session personally, the Courts have developed conflicting opinions. On one side, they consider mediation actually occurred only in case the parties have effectively started a discussion on the dispute and not in case the minute of the first meeting shows their intention not to carry out the procedure without even specifying the relevant reasons (see Court of Siracusa, 11 April 2016; Court of Florence, 15 October 2015).
According to the above case-law, if one believes that mandatory mediation procedure depends on the will of the parties, then such mediation would become as same as voluntary mediation. Therefore, such interpretation would involve abrogation of the provisions governing mandatory mediation (see Court of Siracusa, 17 January 2015). In this regard, a different number of Courts holds that a disinterested approach of the parties to mediation shall result into claim preclusion.
Further, it should be pointed out that most of the Courts believes that it is necessary for the parties to attend personally the first session, since the attendance of the sole counsels would not meet law requirements. According to this point of view, the attendance of the parties cannot be limited to the informative session (see Court of Monza, 28 January 2015). This is because the ratio of the proceeding requires the parties to have a face to face debate, so that the mediator can verify whether an amicable settlement is possible or not (see, ex multis, Court of Modena, 2 May 2016; Court of Rome, 29 October 2015; Court of Pavia, 9 March 2015; Court of Vasto, 9 March 2015; Court of Bologna, 5 June 2014; Court of Florence, 19 May 2014).
Furthermore, it should be observed that the aim of mediation, which consists in avoiding litigation, is enhanced by a recent trend in the case-law. In this regard, it is worth mentioning cases of mala fides where the party, although aware of the groundlessness of his own claim, refuses to negotiate and, therefore, he is condemned under article 96 of the Italian Code of Civil Procedure (see ex multis Court of Florence, 17 March 2014; Court of Santa Maria Capua Vetere, 23 December 2013). Moreover, judges tend to acquire matters of proof, pursuant to article 116 of the Italian Code of Civil Procedure, from non-attendance of a party at the first session (see Court of Vasto, 23 March 2015). Thus, such obstructionism of a party is clearly in contrast to the recent provisions governing mandatory mediation, that have been adopted in order to expedite the judicial process.
Further, the same principles have been affirmed by some of the Italian Courts with regard to Court-ordered mediation. Thus, it has been affirmed that, especially if proceedings are pending, the Parties had already been informed by their counsels and, eventually, by the judge. As a result, the mediator does not play a relevant role in the course of the informative session and also he has to be considered irrelevant to mediation procedure. This basically means that the Parties are not free to decide whether carry out mediation proceedings or not (see Court of Rome, 26 May 2016).
With regard to the cross-claim, the Court of Verona holds that, in cases where mediation is mandatory under Legislative Decree no. 28 of 2010, a cross claim shall not be subject to mandatory mediation procedure as well as a claim, in order to expedite the judicial process. In this regard, the Court of Verona observes that, even if a defendant who files a cross claim shall be essentially regarded as a plaintiff, it is necessary to ensure the celerity of the judicial process through mediation and to avoid that cross claims cause any additional delay. Moreover, the Court of Milan believes that the provisions concerning mandatory mediation only apply to the first claim and not to the following claims, among which cross claims (see Court of Milan, 11 February 2012).
Then, it has to be pointed out that, according to other Courts, “the provisions governing mandatory mediation do not apply to any claim (the so-called “riconvenzionale inedita”, counterclaim, reconventio reconventionis) other than the claim filed by the plaintiff” (see Court of Palermo – Dist. Bagheria Division, 11 July 2011).
On the contrary, there are Courts holding that cross claims filed by a defendant are subject to the above-mentioned provisions, having regard to the ratio of mediation and, in particular, basing on article 5 of Legislative Decree no. 28 of 2010 (See Court of Florence, 14 February 2012). The above-mentioned article 5 provides that: “Those who intend to take court action in relation to […] shall previously start mediation proceedings under the present Decree […]”.
In consideration of the above, the Court of Rome observes that: “Any cross-claim filed by a defendant (or a third party), as well as any claim filed by the plaintiff, if related to the matters set forth in the above-mentioned article, shall be subject to the provisions governing mandatory mediation. Therefore, in order to decide whether mediation is mandatory or not and to apply the relevant provisions, it does not matter if a claim is filed by a plaintiff or a defendant; what really matters is the subject of a claim: if it is included among the subjects specified in article 5 of Legislative Decree no. 28 of 2010, then mediation shall be deemed mandatory” (see Court of Rome 27 November 2014).
Some of the Italian Courts hold that mediation shall be deemed mandatory also with regard to the so-called “domanda riconvenzionale inedita”, which consists in a cross claim that is filed out of mediation procedure (for example in cases where mediation is related only to the main claim) (see Court of Verona, 12 May 2016; Court of Como, Dist. Cantù Division, 2 December 2012). It is worth also mentioning the judgment rendered by the Court of Florence on 14 December 2012, in which a cross-claim filed after the adoption of article 5 of Legislative Decree no. 28 of 2010 was considered subject to mandatory mediation provisions. To this purpose, the Court affirms that: “in consideration of the ratio of mediation procedure, such procedure shall be inherent to the whole relationship existing between the Parties, in order to solve the dispute having regard to both parties’ interests. Therefore, it does not matter if such procedure starts in relation to a cross-claim”).
In light of the above considerations, it should be concluded as follows. With regard to the first mediation session, it clearly requires personal attendance of both parties; moreover, in case the parties decide not to carry out mediation proceedings, such decision shall be duly motivated within the minute of the meeting. With regard to the cross claim, it would be better, in order to be more cautious, to start mediation proceedings in any case. In general, given the disagreement of the Courts on the matter, it would be convenient to verify, case by case, what is the interpretation affirmed by the competent Court.