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4 . MANDATORY MEDIATION APPROVED (2010), UNCONSTI-
TUTIONAL DECLARED (2012), REINTRODUCED (2013)
In 2010 the compulsory civil and commercial mediation was ruled
by Legislative Decree no 28/2010), starting from March 2011, in many civil
matters
5
; it was declared unconstitutional in October 2012 and reintro-
duced in September 2013. It had to face a furious opposition by lawyers (a
matter of culture and revenues – ADR, here, doesn’t mean Alternative Dis-
pute Resolutions, rather
Alarming Drops in Revenues
) and -until 2013- a
benign neglect by judges (a matter of culture). 50 hours of training (too few)
were established, with specific attention to communication; graduates in any
subject could become mediators (also non-graduates, but only on matters
related to their activities). In Italy civil and commercial mediation took-off
: from March 21 to December 31, 2011 : registered proceedings 60.810, all
parties present in 31% of proceedings, agreements 9.912 (with a success rate
of 16%), two to three months required to reach the deal.
Over time, the number of proceedings increased, as well as the per-
centage of proceedings where all parties were present. But the success rate of
the latter started to decline, continuously, constantly, and stubbornly, until
the end of 2012.
On December 12
th
, 2012, the Constitutional Court declared the un-
constitutionality of compulsory mediation, due to over-delegation (the Go-
vernment went beyond its powers in creating the delegated legislation) and
not because of the breach of a citizen’s right to defense. The number of
mediation proceedings dropped, voluntary mediation survived, with a much
higher success rate than the compulsory one.
Under the pressure from the European Union, the so called “To Do”
Law, Legislative Decree no. 69/2013, reintroduced mediation as a mandatory
first step before going to court, starting on September 20
th
, 2013.
But the heavy pressure exerted by lawyers on the members of Parlia-
ment led to significant changes from the previous law. Among others :
- lawyers mediators “
ope legis
” (and for almost two years they were
asked to attend only a 15 hours training)
5 Rights in rem, property; division of assets, partition; wills and inheritance; family covenants and agreements; lease;
gratuitous loans; business rents; civil liability for medical malpractice; civil liability for defamation in teh press or other
media; insurance, banking and financial contracts; condominium. Interim and preventive procedures (injunction proce-
edings, notice to quit, possessory proceedings, civil action inside the criminal proceedings, etc.) were exempted from the
mandatory attempt at mediation. The conflicts subjected to mandatory mediation are the 8% of all the conflicts filed in
Italian courts.