ADR methods have generally been known in Italy for a long time, but mediation in particular has only started to receive attention in its development as a serious means of extrajudicial dispute resolution over the past 20 years or so, in which the Italian legislator started to produce laws in favour of extrajudicial methods to solve civil and commercial disputes.
Italy implemented Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters with LD No. 28/2010, which was implemented by Ministerial Decrees Nos. 180/2010 and 145/2011.
Besides the above-mentioned pieces of legislation, many ADR providers (public or private) voluntarily refer - for international mediation (outside the EU) - to the United Nations Commission on International Trade Law Model Law on International Commercial Conciliation.
On 3 September 2015 Legislative Decree No. 130/2015 came into force, implementing Directive 2013/11/ EU on alternative dispute resolution for consumer disputes, and adapting it to the various ADR procedures already present in consumer affairs.
The entry into force of Decree No. 130/2015 also modifies Decree No. 28/2010 and the manner in which the mediation centres that are currently registered with the Italian Ministry of Justice should carry out mediations between professionals or companies and consumers.
LD No. 130/2015 made changes and additions to Decree No. 206/2005, better known as ‘Consumer Code’, with the inclusion of ‘Title II-bis - extrajudicial disputes resolution’ (article 141 to 141-decies), which regulates the procedural methods for ADR procedures.
In practice, ADR helps consumers to resolve disputes with commercial traders when problems arise with a purchased product or service; for instance, if the seller refuses to repair a product or to make a refund to which the consumer is entitled.
It should be noted that under article 141, paragraph 10, the consumer will not be deprived of the right of appeal to the competent court, whatever the outcome of the court settlement before the ADR entity. Before LD No. 28/2010 (updated by Decree-Law No. 69 of 21 June 2013, converted by Law No. 98 of 9 August 2013), the most significant innovation over the past few years for the development of mediation in Italy was contained in LLD No. 5/2003 (repealed by LD No. 28/2010, which has taken its place and has broadened the scope of the attempts of mediation to all civil and commercial disputes). Decree No. 5/2003 provided for both mediation and arbitration in disputes within a company (and certain other circumstances as, for instance, banking and financial disputes).
Law No. 129 of 2004 entitled ‘Rules for the regulation of the franchising’, in article 7, entitled ‘Mediation’, states that for disputes relating to the franchising agreement the parties may agree that prior to court proceedings or arbitration, an attempt at mediation should be made at the mediation office of the chamber of commerce in whose territory the franchisee has its main office. At the mediation proceedings the provisions of LD No. 28/2010 shall apply mutatis mutandis.
LD No. 206 of 2005 (the Consumer Code) reorders the legislation on consumers and is the fundamental reference text for the protection of the rights of consumers and users.
The Consumer Code provides that the associations of consumers and users and other entities have the option, before judicial proceedings, to attempt mediation before the mediation office of the local chamber of commerce or other mediation providers competent under article 141 of the Consumer Code. The Consumer Code provides that the duration of the procedure is limited to 60 days (the period within which it must always be settled).
The mediation record, signed by the parties and the representative of the mediation provider, is lodged at the court of the place where the mediation was held for the approval of the judge, who makes it enforceable.
The Consumer Code provides for both offline and online mediation to settle disputes between consumers and professionals.
In 2006, Law No. 55, entitled Amendments to the Civil Code on family pacts, introduced article 768-octies of the Italian Civil Code, which states that disputes arising from provisions related to transfers of family businesses to descendants must be sent to one of the mediation bodies accredited by the Italian Ministry of Justice.
In 2007, by a regulation issued by the Authority for Telecommunications Supervision with Resolution No. 173/07/CONS, new procedures entered into force for settling disputes between users and operators of telecommunication services.
This Resolution states that the attempt of mediation is a ‘condition of admissibility’ of judicial action against suppliers of services, but widens the different procedures available to users.
On the website of the Authority for Telecommunications Supervision (www.agcom.it) it is possible to download the forms by which the user can carry out the following:
- requests for provisional measures to the continuity of telecommunication service (form GU5);
- requests for mediation (form UG); and
- requests for application for settlement of the dispute to the Authority (form GU14).
One change is the recognition of absolute equality - as to the condition of admissibility - between mediation proceedings managed by the mediation chambers established at the public offices for telecommunication (Corecom), those managed by the chambers of commerce and those managed by bodies that have arisen from joint agreements between consumer associations and telecommunications operators, and finally from all mediation providers recognised by the Consumer Code.
Legislative Decree No. 179 of 2007 on the Institution of an Arbitration and Mediation Chamber within the Italian National Commission on Companies and the Stock Exchange (Consob) provides for the establishment of a chamber of mediation and arbitration for resolving disputes between investors and brokers, because of violation by the brokers of requirements concerning information, fairness and transparency in contractual relationships with investors, and a system of compensation for damage suffered by investors and a special guarantee fund.
The legislation provides that the Chamber of Conciliation and Arbitration of Consob can make use of the mediation services of the mediation bodies entered in the Register of the Ministry of Justice.
As regards civil and commercial mediation, under the prescriptions of the actual law (LD No. 28/2010, and Ministerial Decree No. 180 of 2011) there are provisions that must be considered in mediation proceedings.
Authorisation to mediate
For the purposes of Legislative Decree No. 28/2010, mediation should be handled only by mediation bodies accredited by the Ministry of Justice.
Mandatory attempt of mediation
In certain disputes, Italian law requires a previous mandatory mediation attempt.
Need for mandatory presence of the lawyers of the parties
At the first meeting and subsequent meetings, until the end of the procedure, each party must participate with the assistance of a lawyer.
For every type of mediation the law dictates that 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 speak, to begin the process of mediation and, if positive, proceed with the conduct of the mediation.
The mediation proceeding can last for up to three months, after which the mediation attempt can be considered to be satisfied, even if the parties - on a voluntary basis - continue to try to negotiate a possible solution.
The mediation process protects confidentiality and professional secrecy.
The mediation agreement may become enforceable (see below).
Those not participating (without reason) in a mediation are required to pay some court costs in subsequent litigation.
Exemptions and benefits
The minutes of mediations with a value under €50,000 shall be exempt from payment of registration fees.
All records and documents relating to the mediation process shall be exempt from stamp duty and any expenses and taxes.
Those unable to meet the costs of mediation can benefit from legal aid, and can freely participate in mediation. The parties to mediation can benefit from a tax credit up to a maximum of €500 in the event of a successful mediation. In the case of failure of the mediation, the tax credit is reduced by half.
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