The document discusses the Italian model of mandatory mediation that requires parties to participate in an initial mediation meeting before filing a lawsuit for certain dispute types. It has led to over 180,000 mediations annually in Italy compared to under 10,000 in other European countries with voluntary models. The key aspects of the Italian model include a nominal initial mediation fee, no sanctions for opting out after the initial meeting, and judges may order mediation in pending disputes. There is evidence it has reduced litigation without being overly burdensome. The document advocates modifying the EU Mediation Directive to require member states to integrate a similar initial mandatory mediation step.

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The Italian model and experiences before
the EU institutions.
MEDIATION.
THE ITALIAN MODEL.
Giuseppe De Palo | ADR Center
ADRCENTER.COM/INTERNATIONALPhone: +39 06 360937 international@adrcenter.com
EXPERIENCE
MATTERS

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MAKING MEDIATION HAPPEN IN THE EU.
THE ITALIAN MODEL AND EXPERIENCES BEFORE THE EU
INSTITUTIONS
Last year, in Italy almost 180,000 civil and commercial mediations were started. This is almost
20 times the number of mediations in countries such as the UK, Germany and the
Netherlands, and 400 times countries such as Greece, Sweden and Portugal.
The European Parliament study titled «Reboting the Mediation Directive»
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET%282014%29493042_EN.pdf
shows that sole legal mechanism capable of increasing the number of mediations, seven
years after the Mediation Directive, is to integrate mediation as a required step of the civil trial,
in certain cases (cd «opt out»).
The European Court of Justice (in the 2010 «Alassini» case) wrote that a voluntary alternative
dispute resolution mechanism is less efficient that a voluntary one. The court also indicates
four conditions to be met for a mandatory mediation system to be consistent with EU Law.
The current Italian mediation model is not mandatory, and yet has proven to be much efficient
than any other model in the EU.
A proposal before the EU institutions is to modify the 2008 Mediation Directive so as to
require Member States to integrate mediation in the civil trial process, allowing litigants the
possibility of an easy way out.

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ESTIMATED ANNUAL NUMBER OF CIVIL
AND COMMERCIAL MEDIATIONS IN THE EU (2013)
Over 10,000
Between 5,000 and 10,000
Between 2,000 and 5,000
Between 500 and 2,000
Less then 500
HU, PL
AT, DK, IE, RO,SK, ES
BE, FR, SL
BG, HR, CY, CZ, EE, FI, GR, LV, LT,
LU, MT, PT, SE
DE, UK, IT, NL
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-
JURI_ET%282014%29493042_EN.pdf

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ESTIMATED ANNUAL NUMBER OF CIVIL
AND COMMERCIAL MEDIATIONS IN THE EU (2013)
Over 10,000
Between 5,000 and 10,000
Between 2,000 and 5,000
Between 500 and 2,000
Less then 500
HU, PL
AT, DK, IE, RO,SK, ES
BE, FR, SL
BG, HR, CY, CZ, EE, FI, GR, LV, LT,
LU, MT, PT, SE
DE, UK, IT, NL
Almost 180,000
More or less 10,000

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«OPT-IN» vs. «OPT-OUT» MEDIATION
Parties must sign
an agreement TO mediate
OPT-IN MODELS
Parties are by default in
mediation, but either can
decide NOT TO mediate
OPT-OUT MODELS
27 Countries
• None has more than 15,000 cases
• 19 have less than 2,000 cases
• 13 have less than 500 cases
Almost 180,000
1 Country (Italy)
‘Rebooting the Mediation Directive’, available at http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/
493042/IPOL-JURI_ET%282014%29493042_EN.pdf

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HOW TO GET TO 180,000 MEDIATIONS IN ONE YEAR
THE ITALIAN “OPT-OUT” MEDIATION MODEL
Required initial mediation meeting,
in certain cases
(until september 2017)
1
Nominal fee for mediation
(40 euro per party for initial
meeting)
2
Sanctions for not showing up
at initial meeting3
No obligation to pay more, unless
parties agree to continue mediation
after initial meeting
4
No sanctions for opting out during
initial meeting5
Judges may order mediation in
pending disputes6
some fiscal/economic benefits
to parties7

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ART 5 THE OF ITALIAN MEDIATION LAW
1.[1] omitted
1-bis. Those who intend to commence a legal case in a court of law in an action related to a
dispute concerning a matter of joint ownership, real estate, partition, inheritances, family
covenants, lease, bailment, business lease, medical malpractice and defamation via the press
or any other means of publicity, insurance, bank and financial contracts, are required to
participate, prior the initiation of legal proceedings and with the assistance of a lawyer,
in the mediation procedure foreseen in this decree …. The attempt at mediation is a
condition precedent for legal proceedings. These provisions will be effective for four years
following the date of their entry into force. Failure to comply with the condition precedent
must be raised by the defendant, or by the judge ex officio, no later than at the first hearing,
under penalty of forfeiture … [NEW CASES]
2… A judge, even in the Appellate Courts, may consider the nature of the case, the stage of
the trail and the conduct of the parties, and can order the parties to attempt mediation …
[PENDING CASES]
2-bis. When mediation is a condition precedent for legal proceedings, the condition is
considered satisfied where the initial meeting with the mediator ends without an
agreement. [EASY OPT OUT]

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ONLY 7% OF ITALAN CIVIL AND COMMERCIALE CASES
ARE SUBJECT TO THE MEDIAITON REQUIREMENT
joint ownership, real estate, partition, inheritances, family covenants, lease,
bailment, business lease, medical malpractice and defamation via the press or
any other means of publicity, insurance, bank and financial contracts …
1-bis
CASES SUBJECT TO MEDIATION
200,000
2,800,000
TOTAL CASES IN TRIAL COURTS (2014)
VS

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THE NUMBER OF MEDIATION, AND THE SUCCESS RATE,
UNDER DIFFERENT MEDIATION REGIMES
MANDATORY
MEDIATION
VOLUNTARY
MEDIATION
ONLY INITIAL
MEDIATION MEETING
MANDATORY
2012 2013 20141993-2012
VOLUNTARY
MEDIATION
42%
SUCCESS
RATE
47%
SUCCESS
RATE
+5%
+63%
Source: Department of Statistics – Italian Ministry of Justice, 2015
< 2,000/Y 179,58715,633110,220
The number of mediation,
and the success rate,
under different mediation
regimes: voluntary, fully
mandatory, voluntary and
when only the first
mediation is mandatory
(cd «easy opt out»)

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WHEN MEDIATION IS REQUIRED IN CERTAIN TYPES OF
DISPUTES, THE NUMBER OF NEW CASES DECREASES
-34,749
+19,846
12%
DEFLATION
(attributable to Mediation)
- 3%
DISPUTES NOT SUBJECT TO
MEDIATION REQUIREMENT
- 15%
DISPUTES SUBJECT TO
MEDIATION REQUIREMENT
VOLUNTARY
MEDIATION
ONLY INITIAL MEDIATION
MEETING MANDATORY
Source: Department of Statistics – Italian Ministry of Justice, 2015

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WHO PAYS, AND HOW MUCH, FOR CIVIL JUSTICE
IN ITALY?
With court fees,
average Italian
litigant
of total civil justice
service costs
(EU average is
20.5%)
PAYS ONLY
Non-litigants in Italy Pay
89.5% of costs
(via general taxation)
Have the right to ask
litigants to try
mediation first
Data from the 2014 CEPEJ Report on «European Judicial Systems – edition 2014: efficiency and quality of justice»
(http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2014/Rapport_2014_en.pdf)

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VOLUNTARY MEDIATION IS NOT AS EFFICIENT
AS MANDATORY MEDIATION
“No less restrictive alternative to the implementation of a
mandatory procedure exists, since the introduction of an
out-of-court settlement procedure which is merely optional
is not as efficient … ”
• Should not be binding on the parties
• Should not cause a substantial delay
• Should suspend the period for the time-barring of claims
…
• Should be free or very low cost.”
Regional Court
of Lazio (TAR)
European
Court of Justice
The “Alassini”
Case of 2010
(sec. 65)
Mediation..
(sec. 67)
• “The TAR has never doubted the ability to render …
mandatory the use of mediation
• 4The judgment of the Constitutional Court n. 272/2012
has frustrated the clear purposes of reducing the number
of civil cases arriving in courts …”
Judgment
1351/2015

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A NEW ARTICLE 5 FOR THE MEDIATION DIRECTIVE
Member States shall ensure that a mediation step is integrated into the
judicial process for civil and commercial cases, except for such cases as
Member States shall determine are not suitable for mediation.
The minimum requirements for such mediation step are that the parties
must meet together with a mediator, subject to the condition that the
procedure shall:
• Not result in a decision binding on the parties
• Not cause a substantial delay
• Suspend the period for time barring of claims
• Be free of charge, or of limited cost in the case any party decides
to opt out at the initial session.

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LESSONS FROM ‘THE PRINCE’

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