The crosstalk among institutions, law society and trade associations on civil and commercial mediation, and in particular on the compulsory mediation attempt, deserves the interest of legal professionals and of anyone interested in justice.
Let’s briefly recall the phases of this case, started with European Union directive 2008/52/EC, which imposed on Member States the introduction of mediation procedures for cross-border disputes. Italy, constantly engaged in the reform of its frozen legal system, seized the opportunity. In 2009 the Italian Parliament delegated the Government to introduce an organic regulation of civil and commercial mediation also for domestic disputes that provided a series of guarantees for the protection of citizens’ rights and ensured the quality and professionalism of the bodies providing mediation services.
The Government issued the regulation on mediation by legislative decree 28/2010 (providing enforceability of mediation agreements, confidentiality of the process, training of mediators,suspension of forfeiture of rights). In order to show its intention to intervene on the judicial backlog, it further provided that in a wide list of casesthe parties were compelled to submit the dispute to a mediator, failing which legal action could not be taken. It was initially reckoned that these sectors generated about 1 million new proceedings per year. This gave rise to a harsh polemic, carried on in the first place by the bodies representing lawyers, which affirmed that a risk was being incurred for the citizen’s defence in the proceedings (mediation bodies may even be private bodies, thus lacking the necessary guarantees) and presumably also for their own professional prerogatives (the assistance of a lawyer was not required to turn to a mediator).
The controversy worsened in 2011 when the provisions on the compulsory attempt entered into force: many affirmed that disputes settled by mediation (a few thousand per year) were not worth the costs and timing imposed on all cases subject to compulsory mediation, which in the majority dodged the new procedural mechanism, due to the proceedings inertia in detecting the procedural defect, or due to the other party’s refusal to join the mediation meeting with the plaintiff and the mediator.
The provision establishing the obligatoriness (article 5) was challenged before the Constitutional Court, which in December 2012 stated the unconstitutionality of the compulsory mediation attempt and of certain other provisions directly connected to the obligatoriness of the attempt. However, the reason of the decision was not, as requested by lawyers associations, the breach of the citizen’s right to defence (article 24 of the Italian Constitution) but rather overdelegation: in fact the Government had not been expressly delegated by the Parliament to introduce the obligatoriness of the mediation attempt. In the following months,standpoints have proliferated for the reinstatement of the compulsory attempt: European institutions, representatives of the newly settled government, top judiciary and finally the new minister of justice. They all agreed on the need to correct the regulations, but also on the fact that, after all, the results of the compulsory mediation were not negative and that the mechanism was starting to work. Hence, many hoped for a reintroduction of the compulsory attempt, this time with the express approval of the Parliament. The “to Do” Law Decree (no. 69 of 2013) reintroduced the provisions declared unconstitutional, along with certain amendments to the previous regulations. The amended version of Legislative Decree 28/2010 will enter into force on 20th September, 2013.
These are the main changes to the framework:
- Mediations, either voluntary or by order of the judge, shall take place before a mediator whose seat is within the territorial jurisdiction of the competent judge (article 4, I). Until today, instead, there was complete freedom of choice. However, it is worth remembering that mediation is, in principle, a free activity due to its voluntary nature. Without prejudice to the compulsory attempt, each dispute may always be mediated also outside the rules and limits established in legislative decree 28/2010, obviously waiving the advantages granted by such regulation.
- Except for compensation claims arising out of the circulation of motor vehicles, the compulsory attempt has been reintroduced for all matters that were already provided for (condominium disputes, property rights, division of goods, trusts and estates, family-owned business, landlord/tenant disputes, loans, leasing of companies, medical malpractice, libel and slander, insurance, banking and finance contracts).
- The compulsory attempt will be in force for the next four years and upon the expiry thereof its continuation will be evaluated (article 5, I). The duration of the mediation attempt is reduced from four to three months (article 6, I).
- The compulsory mediation attempt shall be necessarily performed with a lawyer’s assistance (article 5, I), and the first meeting with the mediator is for preparatory and information purposes(article 8, I):should the parties not be willing to continue after the first meeting, they shall incur no costsfor the mediation (article 16, V bis).
- The settlement agreement reached upon conclusion of a mediation before an accredited body is automatically enforceable if executed also by the party-appointed lawyers. Otherwise, it shall have to obtain the approval of the court to take such effect (article 12, I). As it is known, settlement agreements reached by mediation outside the system provided for by legislative decree 28/2010 have the same effect as a contractual agreement and are, therefore, not directly enforceable.
- While it is necessary to attend a course and pass a professional examination to achieve an accredited mediator qualification, lawyers are mediators “by right”. However, the decree establishes that also lawyers will be required to receive proper training. Moreover, lawyers shall limit themselves to the mediation of cases in which they have specific legal competence, in compliance with the provisions of new article 55 bis, introduced in 2011, of the lawyers code of ethics (article 16, IV bis).
- The judge, based on its evaluation, may decide ex officio that the parties already involved in a judicial proceeding make an attempt of mediation before an accredited body: previously it was provided that the parties received a mere invitation to proceed in such respect, and that the proceedings were suspended (article 5, paragraph 2).