By its decision issued on 24 October 2012, the Italian Constitutional Court has declared the illegitimacy of the provision of the Legislative Decree n. 28 dated 4 March 2010 implementing the “Compulsory Mediation” procedure for the resolution of certain disputes (article 5.1 of the “Decree”).

BACKGROUND

The Decree - implementing in Italy the European Mediation Directive (2008/52/EC) published on 21 May 2008, as part of the European initiative to promote and regulate the development of Mediation throughout the EU (“the establishment of basic principles in this area is an essential step towards enabling the appropriate development and operation of extrajudicial procedures for the settlement of disputes in civil and commercial matters so as to simplify and improve access to justice”) – was aimed at reducing the overload on the Italian legal system (which, according to a recent World Bank Report, ranks 157th for enforcing contracts) by the introduction of a two folds Mediation procedure:

  • a Non-Compulsory procedure which applies to any civil and commercial litigation (article 2.1, introduced on 20 March 2010);
  • a Compulsory procedure which applies to any possible litigation in relation to insurance, banking and financial agreements, joint ownership, property rights, division of assets, hereditary and family law, leases in general, gratuitous loans, leases of going concern, medical liability or defamation/libel (article 5.1, effective since 20 March 2011 and, only for motor/vehicles insurances and condominium disputes, since March 2012). More precisely:
  1. disputes subject to the Compulsory Mediation attempt can have access to judicial Courts only if the Mediation has failed;
  2. should a party do not attend the Compulsory Mediation hearing, it can be sanctioned by the Court (administrative sanction).

Also, in both Non-Compulsory and Compulsory Mediation procedures:

  1. the Court can deduce from the party’s unjustified absence to the Mediation hearing, an argument of evidence against the same party;
  2. should the Court’s judicial decision correspond to the Mediator’s proposal (if any), the party having refused such proposal, although successful in the judicial claim, shall be condemned to the counterparties’ legal costs refund.

THE CONSTITUTIONAL COURT’S DECISION

The Constitutional Court’s statement of illegitimacy of the Compulsory Mediation procedure is grounded (although the decision rationale has not yet been published) on the lack of legislative power of the Italian Government having introduced, through article 5.1 of the Decree, the Compulsory nature of the Mediation for the aforementioned specific disputes (i.e. going beyond the relevant provisions of the Delegation Law n. 69/2009 - which did not explicitly refer to the Compulsory Mediation procedure).

According to some of the Syndicates which have challenged the Compulsory Mediation provision and procedure, the compulsory nature of the mediation would have resulted into an invalid and unjust limitation to the parties’ right and freedom to access the Justice for the resolution of any kind of litigation (including those concerned by the Compulsory Mediation).

A clear and consistent analysis of the Constitutional Court decision and of its effects cannot depart from the analysis of its rationale (not published yet), thus will be possible only after its filing.

CONSEQUENCES – FOCUS ON INSURANCE LITIGATION

The Compulsory Mediation provision and procedure, despite illegitimate, will formally remain applicable until the Constitutional Court’s decision under discussion is published on the Official Gazette (not yet).

After such publication, parties of a dispute of any kind, including insurance disputes, are no longer subject to the preliminary mediation attempt and can therefore access the Justice immediately regardless of the nature of their dispute.

Although the decision at issue eliminates the Compulsory Mediation procedure, since it is to be considered illegitimate, parties of a dispute of any nature, aiming at avoiding the overload of the legal system, are still entitled to (voluntarily) apply for the Non-Compulsory Mediation procedure.

In this case, a party’s absence at the Non-Compulsory Mediation hearing, without a justification, will result in a behavior which can be interpreted by the Court, in the following judicial claim (if any), as an evidence against the same party (however, no more administrative sanctions are applicable to such party).

Insurance litigation triggered after the publication on the Official Gazette of the Constitutional Court’s decision, then, does not seem completely free from the burdens imposed by the Non-Compulsory Mediation rules, should the insured call for a Mediation attempt.

In this case, in fact, the Insurer shall evaluate the insured’s claim and requests before the mediation hearing, in order to decide whether to attend it or not (and, if not, also to provide the competent mediation Organism with a justified reason).

CONCLUSIONS

Some do believe that by this decision an important chance has been lost for the Italian legal system to be improved, others do not alleging that thanks to such decision access to the Justice has been granted without discrimination.

After the Constitutional Court’s decision announcement, the Italian Ministry of Justice has confirmed that, for the Government, Mediation still be, in the Italian legal system, absolutely worth and that, therefore, discussions on the possible incentives to be implemented are ongoing.