What is Mediation?

For the purposes of this Legislative Decree of 4 March 2010, n. 28, the following definitions shall apply:

a) Mediation: the activity, however named, carried out by an impartial third party and aimed at assisting two or more parties in seeking an amicable agreement for the resolution of a dispute, including by formulating a proposal for its resolution;

b) Mediator: the person or persons who, individually or collectively, carry out Mediation while remaining deprived, in any case, of the power to make judgments or decisions binding on the recipients of the service itself;

c) Conciliation: the settlement of the dispute following the mediation;

d) Body: the public or private body where the Mediation procedure may take place pursuant to this decree;

e) Register: the Register of Bodies established by decree of the Minister of Justice pursuant to Article 16 of Legislative Decree no. 28 of 4 March 2010, as well as, until the issue of such decree, the Register of Bodies established by decree no. 222 of 23 July 2004.

Mediation is the activity carried out by a professional with third-party requirements, aimed at finding an amicable agreement for the resolution of a dispute, also with the formulation of a proposal for the resolution of the dispute.

Civil Mediation, in particular, is a legal institution having as its object the activity of Mediation and intermediation in matters of civil disputes between private individuals, companies, associations or entities, companies and consumers, between companies and Public Administration.

It is regulated differently in the world. The European Union has requested the adoption of Member States, to equip themselves with specific legislation for the purposes of implementing the European Union Directive 2008/52/CE relating to civil and commercial matters.

The institute is aimed at deflation of the Italian judicial system with respect to the load of arrears and the risk of accumulating new delays. In fact, it represents one of the fundamental pillars of the reform of the civil process.

What is the purpose of Mediation?

Civil mediation aims to help the parties reach a conciliation through the work of a Mediator, that is, a professional, qualified and impartial person who helps the parties in conflict to resolve a dispute.

The Mediator assists the parties in seeking an amicable agreement to resolve a dispute and in formulating a proposal for its resolution.

The main task of the Mediator (who must work in a public or private body controlled by the Ministry of Justice) is to lead the parties to an amicable agreement, assisting them in the discussion and removing any obstacle that may prevent them from reaching a shared solution. The Mediator, therefore, has no power to issue binding solutions for the parties, but limits himself to managing the timing and phases of the same, leaving the parties involved in control of the content of the final agreement.

Types of Mediation

From the point of view of the method and the relationship with the process, Legislative Decree 28/2010 distinguishes four types of Mediation:

• Optional or voluntary, i.e. chosen by the parties
• Mandatory by law
• Referred by order of the Judge, when in order to proceed before the judge, the parties must have attempted Mediation without success.
• Contractual and agreed

Condition of admissibility and relations with the process

Anyone who intends to bring an action in court relating to a dispute concerning condominiums, real rights, division, inheritance, family agreements, leasing, loan for use, business leasing, compensation for damages arising from medical and health liability and defamation through the press or other means of advertising, insurance, banking and financial contracts, joint ventures, consortiums, franchising, works, networks, supply, partnerships and subcontracting, is required to first go through the Mediation procedure.

Differences with other institutions

Legislative Decree no. 28 of 4 March 2010 clearly distinguishes the institute of Civil Mediation from other forms of conciliation already existing in the Italian legal system. The law, in fact, establishes that Civil Mediation must be understood as the activity aimed at the resolution of a dispute and that, instead, conciliation is the mere result of such activity. This distinction has been well highlighted to underline the fact that Civil Mediation, compared to previous institutes aimed at the resolution of conflicts, is now an innovative instrument of general scope regarding all civil and commercial disputes.