Counsel and witnesses

Are the parties typically represented by lawyers in commercial mediation? Are fact- and expert witnesses commonly used?

Apart from the obligation by law (LD No. 28/2010) of the presence of the party’s lawyer in mandatory attempts of mediation, Italian legislation does not require the presence of consultants in mediation proceedings, but it is always recommended by the ADR providers that parties are accompanied by professional advisers, especially when the dispute is complex and difficult.

LD No. 28/2010 sets out special rules applicable only to lawyers. When a lawyer has been appointed, he or she must inform the client about the possibility to use the mediation process and about the tax benefits that may come from a mediation procedure governed by LD No. 28/2010. The lawyer will also inform the client of the cases in which the mediation is a condition of admissibility of the claim. The information must be provided clearly and in writing. In the case of breach of information obligations, the contract between the lawyer and the client is voidable. The document containing the information about the mediation procedure is signed by the customer and must be attached to the application for any court proceeding. The court, which verifies whether that document is attached to the application, informs the party of the right to request mediation, or sets the first hearing after the expiry of the deadline for the obligatory attempt at mediation (within three months of filing the mediation before an accredited provider).

Some mediation providers stipulate in their mediation rules that individuals must personally participate in the mediation process with the mandatory presence of a personal lawyer (in cases of mandatory attempts of mediation), being able to be assisted by other professionals of their choice. Only for serious and exceptional reasons may they participate in the proceedings using one or more representatives with the power to settle the dispute; while legal persons must participate in the process of mediation by a representative with the appropriate authority to resolve the dispute. For non-binding attempts of mediation, some mediation rules require the assistance of an attorney for each party for mediations the value of which exceeds a certain amount (usually €50,000), unless the parties expressly waive this in writing.

With respect to experts and witnesses, the new law indicates that in complex cases, in addition to possible co-mediation, the mediator may make use of experts enrolled in the register of consultants in the courts. Parties may make use of their own experts and witnesses.

Lawyers and other assistants of the parties, as well as co-mediators, experts and witnesses, shall apply the rules of confidentiality provided for in the law.

Procedural rules

Are there rules governing the mediation procedure? If not, what is the typical procedure before and during the hearing?

The entire proceeding in this case can be described as follows:

  • The parties (or one of them) submit a written mediation request to an independent qualified professional ADR provider accredited by the Ministry of Justice.
  • The chosen ADR provider designates an independent mediator (chosen from among the mediators accredited by the ADR provider) and arranges the initial meeting between the parties.
  • The date, location and name of the chosen mediator are communicated to other parties by the ADR provider and by the party who initiated mediation, if he or she wants to ensure that other parties have received the communication; and the fees payable to the accredited mediation bodies and to the mediator, to be borne by the parties, are provisionally established.
  • the new law provides for the obligation of assistance of lawyers for all the parties involved in a mandatory mediation attempt. In these cases, the presence of the lawyers of the parties is mandatory for all the phases of the mediation procedure until the end.
  • The new addition to LD No. 28/2010 introduced the necessity of a preliminary meeting before starting the mediation. For every type of mediation the law orders a mandatory preliminary meeting in which the mediator, together with the parties and their lawyers, explains to the parties the function and how to conduct the mediation. The mediator, in the same first meeting, then invites the parties and their lawyers to discuss the prospects of beginning the mediation process and, if positive, to proceed with the conduct of the mediation.
  • After this point, if the parties reached a positive accord to start the mediation proceeding, two different scenarios are possible, depending on the choices of the parties to the mediation, as follows:
    • if the parties are able to reach a written agreement, the mediator drafts the minutes of the meeting that must be signed by all the parties, by the mediator and by the lawyers of the parties; and
    • if no agreement is reached at the parties’ request the mediator must issue a non-binding proposal about resolution of the dispute, which the parties may choose to accept or refuse.

If either party refuses the proposal, the mediation is considered to have failed and any party may commence a lawsuit. But if the judicial decision is identical to the previous mediator’s proposal, such decision may affect the allocation of judicial expenses, because the court will refuse to award all the costs and the expenses to the winning party if that party has previously rejected the mediator’s proposal. In such circumstances, the court will order the winning party to pay the losing party’s costs and court fees.

Tolling effect on limitation periods

Does commencement of mediation interrupt the limitation period for a court or arbitration claim?

When the request for mediation is communicated to all the parties convened in the mediation, it interrupts the time line for a court action and, provided that it is the first such request, will prevent a right of action from expiring; but if the mediation fails, the proceedings must be brought within the same period of limitation that starts from the filing of the report of failure to the media.

Enforceability of mediation clauses

Is a dispute resolution clause providing for mediation enforceable? What is the legal basis for enforceability?

The new law establishes that if an amicable settlement among the parties is reached, the mediator compiles the mediation minutes to which the text of the mediation agreement is attached.

With the novelties introduced in the text of LD No. 28/2010 by Decree-Law No. 69 (converted by Law No. 98 of 9 August 2013), where all the parties that have acceded to the mediation are assisted by a lawyer, the agreement that has been signed by the parties and by the same lawyers, is automatically enforceable for: compulsory expropriation; execution for delivery and release; performance of the obligations of dos and don’ts; and recognition of judicial mortgage.

Lawyers witness and certify the compliance of the mediation agreement to mandatory rules and public policy.

In all other cases the agreement attached to the minutes is approved, on request of a party, by a decree of the president of the court, subject to verification and approval of compliance with mandatory rules and public order. In cross-border disputes, the mediation minutes are approved by the chief judge of the district in which they are to be performed.

Confidentiality of proceedings

Are mediation proceedings strictly private and confidential?

All mediators must keep any information arising out of (or in connection with) the mediation confidential, including the fact that the mediation exists and has been conducted between the parties.

In addition, LD No. 28/2010 provides that mediators may not be called as witnesses and the parties may not rely on any communications made or any information collected during mediation in the subsequent judicial proceedings.

In particular, article 9, entitled ‘Duty of confidentiality’, states that anyone who works in a mediation provider accredited by the Ministry of Justice is bound by an obligation of confidentiality with respect to statements made and the information acquired during the mediation process. In addition, the same article states that the mediator shall be held to confidentiality in relation to all other parties, with regard to the statements made and to the information acquired during the caucuses (separate sessions), except with the consent of the registrant, or the consent of the party from whom the information originated.

Article 10, entitled ‘Usability and professional-secrecy’, sets forth that the statements made or the information acquired in the course of a mediation process cannot be used in a trial having the same object, even in part, that has begun, been summarised, or continued after the failure of mediation, except with the consent of the registrant or the party from whom the information originated. Further, the evidence of witnesses is not allowed on the content of those statements and information.

The article further states that the mediator may not be required to testify about the content of the statements made and the information gathered during the mediation process before the court or other authorities.

In addition, in accordance with article 22 of LD No. 28/2010, the mediator must report suspected money laundering or terrorist financing to the competent authority. The disclosure of confidential information by the mediator or the parties is permitted or compelled in the cases provided by article 7 of EU Directive 2008/52/EC.

Success rate

What is the likelihood of a commercial mediation being successful?

From the latest data of the Statistical Office of the Ministry of Justice (2018) it can be seen that, in general, a mediation agreement was reached in 43 per cent of voluntary mediation cases, 26 per cent of mandatory mediation cases and 19 per cent of court-assigned cases.

The percentage of proceedings that end with an agreement, when the parties agree to sit at the mediation table even after the first free meeting (which is not yet to be considered as mediation), is the following for any subject in which the mediation attempt is required by law:

  • property rights: 57 per cent;
  • family agreements: 53 per cent;
  • loans: 51 per cent;
  • division of assets: 47 per cent;
  • leasing: 50 per cent;
  • hereditary succession and commercial leases: 44 per cent;
  • defamation: 39 per cent;
  • condominium: 36 per cent;
  • financial agreements: 30 per cent;
  • medical and paramedical liability: 25 per cent;
  • insurance: 24 per cent; and
  • banking agreements: 15 per cent.