Mediators

Accreditation

Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?

In Italy, public and private mediation providers are accredited by the Ministry of Justice for conducting civil and commercial mediation upon the provisions of Legislative Decree No. 28/2010.

Civil and commercial mediation attempts must be carried out by professional and independent mediation providers and mediators, accredited by the Italian Ministry of Justice, and inserted in two registries maintained and controlled by the same Ministry.

The two registries are public and are updated constantly to show to the public of users all the mediation providers and mediators working under the law all around Italy.

Formal registration with the Ministry of Justice, then, is required for those (ADR providers and mediators) wanting to conduct mediations in compliance with the new law. This means that, at present, only those ADR bodies listed on the Ministry’s register (www.giustizia.it) can act as an accredited ADR provider (with their accredited mediators) in civil and commercial mediations and other disputes covered by the current legislation.

The same is required for mediators: to work, a professional mediator who has passed an accredited training course (organised and managed by an accredited ADR training centre) needs to be accredited into the mediators’ panel of an accredited ADR provider, otherwise he or she cannot operate.

Mediators must possess at least a bachelor’s degree or, alternatively, must be enrolled in a professional association or board.

Moreover, an accredited mediator must meet the following criteria:

  • he or she must not have a criminal record;
  • he or she must not be permanently or temporarily disqualified from public office;
  • he or she must not be the subject of preventive or security measures or safety; and
  • he or she must not have been the subject of disciplinary sanctions other than disciplinary warnings.

In addition, no mediator may declare himself or herself willing to act as mediator for more than five accredited mediation providers.

Mediators may not assume rights and obligations, directly or indirectly, in the mediations they oversee. In addition, the mediators may not receive monetary compensation directly from the parties. The payment must be made directly to the mediation provider.

Before every mediation, the appointed mediator must: sign a declaration of impartiality; notify the mediation provider and the parties all the reasons for possible damage to impartiality; and respond to any organisational request of the mediation body.

The law states that civil and commercial mediators should have specific training (at least 50 hours) acquired from accredited ADR training centres.

The basic content of the training is laid down in the legislation as follows:

  • national, EU and international legislation on mediation and conciliation;
  • methodology of facilitative and award procedures of negotiation and mediation;
  • conflict management and communicative interaction techniques, also with reference to mediation referred by the court; and
  • effectiveness and operation of the mediation clauses, form, content and effects of the request for mediation and of the conciliation agreement, duties and responsibilities of the mediator.

The training is divided into theoretical and practical parts, with a maximum of 30 participants per course, including simulated sessions with student participation and a final examination for a minimum of four hours.

The same law prescribes that civil and commercial professional mediators must take refresher courses (at least 18 hours every two years) and establish their participation, during each two-year period, and for the purposes of professional education, in at least 20 mediations managed by mediation organisations accredited to the Ministry of Justice.

Parties who entrust their civil and commercial dispute to an unregistered ADR provider and before an unregistered mediator risk not being able to enforce any resulting agreement. It seems that the legislature believes this interventionist regulatory approach is best for Italy, and that this is the most appropriate way to implement EU Directive 2008/52/EC in the Italian judicial system.

Apart from the special ministerial authorisation of ADR providers and mediators dealing with civil and commercial mediations under LD No. 28/2010, there is a two-tier system in Italy, whereby ordinary mediators (not accredited by the Ministry of Justice) may deal with mediations in family, environmental, social, criminal and consumer disputes. Obviously, except for some provisions, a mediation managed by ordinary mediators may not have all the positive outcomes of a mediation under an accredited ADR provider and managed by an accredited mediator.

As for the public, the 104 Italian chambers of commerce are the more prominent public ADR bodies: each of them has a mediation and arbitration chamber.

Among them, the more well known are as follows:

  • the chamber of mediation of the Milan Chamber of Commerce;
  • the chamber of mediation of the Rome Chamber of Commerce; and
  • Curia Mercatorum, an association of private law, not for profit, owned by several chambers of commerce, trade associations and professional associations, and led by the Chamber of Commerce of Treviso.

As for the private ADR providers, the most prominent are as follows:

  • Concilia (www.conflictresolution.it), which, since 1999, has provided training and consultancy services in civil and commercial negotiation, mediation, conciliation and arbitration, as the leading Italian ADR provider. Concilia is headquartered in Rome, with accredited secondary offices in Italy and abroad. Concilia is accredited by the Ministry of Justice for conducting civil and commercial mediations and for organising training for professional mediators. Among other things, Concilia houses the headquarters of the Italy Professional Chapter of Mediators Beyond Borders International and has been nominated as the first and unique Italian qualifying assessment programme by the Independent Standard Commission of the International Mediation Institute;
  • Conciliatore BancarioFinanziario (banking and financial mediation provider). This was born from an initiative led by the first 10 Italian banking groups to give customers a fast and efficient alternative to court proceedings (www.conciliatorebancario.it);
  • the Chamber of Mediation of Consob, which was created to try to resolve, through mediation, banking and financial disputes (www.camera-consob.it);
  • ADR Notariato, created by the National Council of Notaries with multiple offices in Italy (www.adrnotariato.org); and
  • ADR Commercialisti, created by the National Council of Accountants with multiple offices in Italy (www.adrcommercialisti.it).
Liability

What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?

The mediator must keep information acquired in joint and separate meetings confidential. In addition, the mediator must remain impartial, neutral and independent from all the parties to the mediation. The mediator must also inform the parties and the ADR provider that appointed him or her of every circumstance that may affect his or her impartiality and independence during the mediation. The mediator must ensure that the parties do not perpetrate crimes or fraud during the mediation procedure.

The mediator may be liable for wilful misconduct or gross negligence, or for improper behaviour adopted during the mediation procedure he or she runs. The mediator may only be liable for the management of the mediation and for the preparation of the written minutes of mediation. The subsequent written agreement of the parties, which will be attached to the minutes of mediation, does not place any liability on the mediator.

Accredited ADR providers must possess an insurance policy for an amount not less than €500,000 for liability arising - for any reason - from the management of the mediations.

To date, Italian law does not oblige accredited mediators to have professional liability insurance if they are covered by the insurance of their ADR body, but if a liability arises and the ADR provider uses its insurance, the mediator can be obliged to reimburse the ADR body if he or she is found to be at fault.

The mediator may be dismissed at any time by the ADR mediation body; the mediator is not an employee of the ADR body, but acts as external adviser. The ADR body, therefore, may decide to remove the mediator from its list, especially in the event of misconduct or poor performance. Each ADR body has its own rules for evaluating the performance of its mediators. For example, some ADR bodies have accredited mediators who have a system of monitoring their performance certified by other external entities.

At the end of every mediation process, each party receives a form for the evaluation of the service and of the mediator: such an assessment of the parties may affect the subsequent assessment of a mediator by the ADR provider.

The law provides for cases in which the mediator may be expelled from the ADR provider that accredited him or her. An example is when the mediator has not taken a refresher course every two years, or no longer fulfils all the criteria to practise as a mediator.

Mediation agreements

Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?

All civil and commercial mediations must end with a written report to which, where the parties have reached an agreement, must be attached the text of the mediation agreement.

Although the first document is composed by the mediator and has to be signed by all the intervenients in mediation, the second document could be drafted directly by the parties and their lawyers and, anyhow, it is signed only by the parties and their legal counsel (not the mediator).

The mediation agreement must generally contain: the names, references, and identification (via the identification document number) of the parties; the settlement and negotiation clauses with which the parties make each other concessions for the purpose of resolving the dispute; any penalty clauses in the event of breach of the contract; any clauses of recourse to mediation in the event of new problems arising from the mediation agreement; the place and date of drafting of the contract; the signing of the parties to the agreement; and the signing of the parties’ attorneys who, as already mentioned, sign the agreement in order to certify the absence of clauses contrary to the public order and mandatory rules.

Appointment

How are mediators appointed?

The rules of the ADR bodies must provide - by law - the possibility that the parties voluntarily and mutually indicate the same mediator, for the purpose of his or her possible nomination by the ADR body.

Moreover, the law provides that if the mediator is not jointly chosen by the parties, the ADR bodies shall appoint the right mediator among those accredited, taking into account professional competences, also derived from the type of university degree held, besides other factors of competence and professionalism.

As mentioned above, at the time of his or her appointment the mediator must sign a declaration of impartiality. The mediator must not have any previous relationship with the parties, nor have relations of kinship, affinity, marriage with any of them. In addition, the mediator must not have been the adviser or the lawyer of one of the parties before the mediation.

Conflicts of interest

Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?

First of all it is important to observe that the law prescribes that the mediator and any co-mediators may not assume rights or obligations related, directly or indirectly, to the mediation they oversee, and they may not receive monetary compensation directly from the parties; that’s because the payment must be made directly to the mediation provider.

Before every mediation, the appointed mediator must: sign a declaration of impartiality (failing which, the proceeding cannot be activated); notify the mediation provider and the parties all the reasons for possible damage to impartiality; and respond immediately to any organisational request of the mediation body.

During the procedure, the mediator must operate in an impartial manner and, as far as possible, appear to be impartial (article 2.2 of the European Code of Conduct for Mediators);

At any time, he or she must inform, without delay, the conciliation body of any criticality profile that could compromise the equidistance or even just the ‘impermeability’ from any suspicion.

He or she must refuse the designation in the presence of the causes of incompatibility established by the regulation of the conciliation body to which it has adhered or when required by the provisions to protect the good repute of the legal profession (if the mediator is also a lawyer).

Moreover, lawyers must not take on the role of mediator if, in the past two years, they have had professional relationships with one of the parties, or where one of their partners, associates or professionals working in the same premises have established similar relationships (article No. 62 of the Code of Forensic Ethics).

Upon request of one of the parties, the body responsible for the mediation provider will provide for the replacement of the mediator. The mediation rules of the chosen ADR provider shall identify the person responsible for selecting a replacement in the event that the mediation is carried out by the responsible party of the mediation provider.

The law (Ministerial Decree No. 180 of 2010) establishes, among other things, that in the case of repeated breach of the obligations of the mediator, the Ministry of Justice arranges the suspension and, in the most serious cases, the cancellation of the mediation body (and consequently also of the mediator) from the register of the organisms acclaimed to the same ministry. Consequently, that body and that mediator will no longer be able to exercise their work .

Fees

Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?

For mediation mandated by law, there is an identical tariff for both public and private providers. With regard to voluntary mediation, each provider may set its own rates, which must be approved by the Ministry of Justice.

Parties are jointly and severally obliged to pay the fees and the fees increase in proportion to the value of the dispute.

No compensation is due, in any case, by any party who is eligible for the free legal aid provided by law.

The mediator is paid by the provider, with a percentage of the fee (usually from 30 per cent to 50 per cent) that the parties pay to the same provider.

Public rates range from a minimum of €65 to a maximum of €9,200.