According to Article 1(a) of the Legislative Decree No. 28 of 4 March 2010, mediation of civil and commercial disputes consists of “the activity, however named, carried out by an impartial third party, finalised to assist two or more parties in seeking an amicable agreement for the settlement of a dispute, including the formulation of a proposal for its resolution”.

Alongside this, however, there is also “family mediation”, a pathway for managing family relationships in view of or following separation or divorce.

Letter (b) of the same Article 1 of Legislative Decree No. 28/2010 also defines the mediator role as that of a person or persons “who, individually or collectively, carry out mediation without, in any case, the power to make judgments or decisions that are binding for the parties to whom the service is provided”.

In this regard, it is important to underline at this point that this person is not comparable to a judge.

In “family mediation”, the mediator is a third and impartial party who helps the parties to come to a mutually satisfactory solution in the primary interest of the children.

Mediation and arbitration are both alternative dispute resolution (ADR) procedures with the purpose of avoiding litigation before a judge and reducing the burden on courts. However, a mediator does not resolve a conflict but helps the parties to do so, whereas an arbitrator(s) resolves and decides on a dispute between the parties.

Specifically, mediation of civil and commercial disputes is an informal and flexible procedure that parties may voluntarily choose in order to avoid dispute before a judge. With the mediator’s assistance and communication skills, parties usually negotiate and reach a mutually agreeable solution to their dispute. In some cases, recourse to this procedure is mandatory as a condition for the claim to be pursued at a trial and it may even be delegated by the judge him/herself. It is intended to prevent, as much as possible, the involvement of the already very busy court.

By contrast, in arbitration, which is a more formal and structured procedure, parties decide to entrust one or more private arbitrator(s) to resolve their disputes, thus expressly choosing not to resort to the court. In this case, therefore, the arbitrator(s) will take a proper decision known as “lodo” which, for ritual arbitration, will have the same force as a judgment, and for non-ritual arbitration, will have the effect of an agreement between the parties.

These two procedures differ from court litigation because they are faster and less expensive.

Delegated Law No. 69 of 18 June 2009 represents the starting point of Italian legislation on mediation, which has been realised through Legislative Decree No. 28/2010, now the main regulation on civil and commercial mediation.

That decree has subsequently been subject to numerous amendments — first by Ministerial Decree No. 180/2010, then by Ministerial Decree No. 150/2023.

In addition, Legislative Decree No. 149 of 10 October 2022, known as the “Cartabia Reform”, made some further important changes.

On 17 September 2024, a legislative decree scheme with supplementary and corrective provisions to Legislative Decree No. 149/2022 was approved in preliminary examination. And, most recently, Legislative Decree No. 216 of 7 December 2024 made other changes.

In addition, it should be noted that each mediation body also has its own regulations and code of conduct.

With respect to family mediation, the most relevant reference can be found in Article 337 ter of the Civil Code and in Article 473 bis 10 Code of Civil Procedure, but it was first recognised by Law No. 54/2006.

In the last few years, the Italian legislature has tried to encourage mediation as a way to reduce pending litigation, primarily providing the inadmissibility of certain trials if not preceded by an attempt at mediation. In fact, there are some matters for which this procedure is mandatory and it is worth noting that, recently, with the so-called “Cartabia reform”, the list of subjects for which the prior mediation procedure is mandatory has increased. Thus, in addition to disputes concerning co-ownership, real rights, distribution, inheritance, family agreements, rent, “comodato”, business leases, compensation for damages resulting from medical and healthcare liability, press defamation, other advertising media, insurance, banking and financial agreements, the list of matters also subject to mandatory prior mediation now includes disputes concerning joint ventures, consortia, franchising, service agreements, network agreements, supply contracts, partnerships and subcontracting.

Several tax advantages are envisaged, including:

• exemption of the minutes and the conciliation agreement from registration tax up to the value of EUR 100,000, otherwise the tax is due for the portion exceeding this (Article 17 of Legislative Decree No. 28/2010);
• exemption from expenses, stamp duty and taxes for all acts of the mediation proceedings (Article 17 of Legislative Decree No. 28/2010); and
• various tax credits (see Article 20 of Legislative Decree No. 28/2010).

Lastly, pursuant to Article 15 bis of Legislative Decree No. 28/2010, legal assistance is provided for indigent parties so that they can be assisted by a lawyer during the mediation procedure. The Legislative Decree No. 216/2024 has recently better defined eligible persons as “indigent Italian citizens” and “foreigner legally residing in the national territory at the time of the arising of the relationship or the fact that is the subject of the mediation proceedings, to the stateless person and to entities or associations that are not for profit and do not engage in economic activity”.

Current Article 5 quater of Legislative Decree No. 28/2010 provides that a judge, even during the appeal trial, up to the time at which he/she fixes the hearing for the suit to be remitted for decision (in cui fissa l’udienza di rimessione della causa in decisione), considering the nature of the case, the stage of the proceedings, the behaviour of the parties and any other circumstance, may order that a mediation procedure must be attempted. That provision also points out that mediation ordered by the court is a condition for the admissibility of the trial.

Family mediation is voluntary, but the judge may inform the parties at any time of the possibility of using this procedure and, if considered appropriate, the judge may postpone any decision to allow the spouses to attempt mediation.

The procedural consequences of non-participation at the first meeting of the mediation process, without a valid reason, are set out in Article 12 bis of Legislative Decree No. 28/2010. The judge may use that circumstance as evidence in the subsequent court litigation.

In all cases for which mediation is a condition for proceeding, the judge can also:

• order the party who has joined the proceedings but did not participate in the first meeting to pay to the state a sum corresponding to twice the amount of the unified fee due for the trial; and
• if requested, even order the losing party that did not participate at the first meeting to pay to the other party a sum equitably determined, not exceeding the maximum amount of the costs of the trial accrued after the conclusion of the mediation proceedings.

More generally, failure to start the mediation procedure, if compulsory, as prevents court action, entails the exception of inadmissibility.

In addition, when the ruling that defines the trial corresponds entirely to the content of the mediator’s proposal, the court shall “exclude the repetition of the costs incurred by the winning party that rejected the proposal, referring to the period following the formulation of the proposal, and order to reimburse the costs incurred by the losing party relating to the same period, as well as to pay to the State budget revenue an additional sum in an amount corresponding to the unified contribution due” (Article 13 of Legislative Decree No. 28/2010).

Except for family mediation and delegated mediation, which are carried out when a trial is already pending, mediation must take place before the possible trial begins.

The drivers of this procedure may be the judge for delegated mediation, and both parties in other cases.

It should be noted that mediation is particularly effective:

• when it makes it possible to settle divergences and misunderstandings and keep good relations for the future in all those situations where parties are bound by an ongoing relationship, such as in the family, condominium or commercial sphere;
• when it offers a way to reach a customised and creative solution that either law or a court would not be able to meet;
• in small claims, thus avoiding significant costs; and
• in disputes involving delicate aspects or requiring special discretion to prevent negative advertising.

Disputes that can be subject to civil or commercial mediation, according to Article 2 of Legislative Decree No. 28/2010, are only civil or commercial disputes concerning disposable rights.

Clauses mandating mediation have become increasingly common in contracts as a way to manage potential disputes. Article 5 sexies of Legislative Decree No. 28/2010 expressly provides that the parties may in a contract, statute, or deed of incorporation of a public or private organisation include a mediation clause, which will subsequently be a condition for proceeding. These clauses are enforceable in courts, and the dispute cannot proceed to litigation until the preliminary mediation attempt has been made. This takes special consideration of the fact that these clauses do not limit the possibility of access to justice. Only clauses involving a restriction of the freedom of the parties to recourse to court could be considered against the law and therefore null and void.

Generally speaking, it can be said that mediation is binding for the parties when it is compulsory in itself.

Article 12 of Legislative Decree No. 28/2010 defines the enforceability of the mediation agreement and its execution providing that, if all parties are assisted by lawyers and the agreement has also been signed by them, the agreement constitutes an enforceable title for expropriation by compulsory execution, execution by delivery and release, execution of obligations to do and not to do, as well as for the registration of a judicial lien. In other cases, the agreement attached to the minutes should be homologated, at the request of a party, by a decree of the President of the Tribunal of the place where the mediation body before which the agreement was reached is located, after ascertaining that it complies with mandatory rules and public order. Thereafter, it shall constitute an enforceable title for compulsory expropriation, execution in a specific form and the registration of a judicial lien.

There are no common agreed terms between the parties as each mediation and mediation agreement are tailored specifically to the dispute. However, reciprocal freedom and extinction of the dispute sentences, upon proper fulfilment of what is stipulated in the agreement, are frequently included.

Various requirements must be met to become a mediator. Article 8 of Ministerial Decree No. 150 of 24 October 2023 provides that the following are necessary:

• A qualification of no less than a master’s degree or single-cycle degree or the certification, for mediators registered with a professional association or college, that they have completed a three-year degree.
• A declaration of willingness, signed by the mediator, to perform the service at the requesting body and to be included in one or more lists.
• A certificate of fulfilment of the requirements of honourability.
• Completion of a training and/or update course at organisations accredited by the Ministry of Justice, pursuant to Article 23 of that decree. Generally speaking, mediators with a master’s degree in law or a single-cycle degree in law, have to pass a four-hour final test after attending an 80-hour course and working alongside a mediator in 10 mediations. Mediators with a master’s or single-cycle degree in a different subject and those registered with a professional association or college with a three-year degree must also complete an additional training course of 14 hours, with a final written and oral test of two hours. Lawyers enrolled in a Bar Association are exempt from the theoretical training module for the part relating to national law and demanded mediation.

In some cases, a language certification of not lower than B2 level is also required, and finally, it is necessary to be registered with a mediation body.

The process involved in becoming a family mediator is different. This requires a university degree in psychology, law, social services, sociology, training and/or education sciences, and completion of a specific training course and a final examination.

Italy does not have a single mediation body, but rather there are multiple bodies. To be recognised and accredited as mediation bodies, it is necessary to comply with legal requirements and to be included on a specific register established by decree of the Ministry of Justice.

The mediation bodies may be both private and public. Bar Associations usually have their own mediation body, as does the Chamber of Commerce.

Mediators are required to comply with the codes of conduct drafted by the various mediation bodies but also to respect law and ministerial decree provisions:

• they have a duty of confidentiality (Article 9 of Legislative Decree No. 28/2010);
• they cannot depose on the content of declarations made and information acquired in the procedure (Article 10 of Legislative Decree No. 28/2010);
• they may not assume rights or obligations related to the subject of the mediation (Article 14 of Legislative Decree No. 28/2010);
• they may not receive payments directly from the parties (Article 14 of Legislative Decree No. 28/2010);
• they must sign for each mediation a declaration of independence and impartiality and immediately communicate to the body circumstances likely to affect this (Article 14 of Legislative Decree No. 28/2010); and
• they must formulate settlement proposals in compliance with public order and mandatory rules and respond to all organisational requests (Article 14 of Legislative Decree No. 28/2010).

In Italy, the mediation procedure, which lasts no longer than six months but can be extended for periods from time to time not exceeding three months, is conducted as follows:

• Application shall be filed by the party to the competent mediation body that is the one located in the place with territorial jurisdiction over the trial dispute.
• The mediation body shall appoint a mediator and schedule the first meeting not earlier than 20 and not later than 40 days after the filing of the application.
• The application for mediation, the designation of the mediator, and the location and time of the first meeting shall be communicated to the parties by the body.
• The other party may decide to join or not join the mediation by filing, in turn, a form that basically responds to the claimant’s application.
• At the first meeting, the parties shall attend in person unless there are justified reasons, and at this occasion, the mediator shall explain the function and manner of conducting mediation. The mediator shall also make efforts to bring the parties to a conciliation. Minutes of the first meeting shall be written by the mediator and signed by all participants. The mediator may avail him/herself of advisors registered in the court registers.
• If a conciliation agreement is reached at the first or subsequent meetings, the mediator shall form minutes to which the text of the agreement is attached. If the agreement is not reached or if the parties request to do so, the mediator shall note this and may formulate a conciliation proposal. The proposal for conciliation shall be formulated and communicated to the parties in writing, and the parties shall make their acceptance or rejection in writing within seven days, failing which the proposal shall be deemed rejected.
• The concluding minutes shall be signed by the parties, their attorneys and all participants in the procedure, then filed with the secretariat of the body.
• The secretariat of the body shall issue copies of the minutes to all the parties.

Family mediation consists of a series of meetings in the presence of one or both spouses, with competent private or public bodies, with the aim of drawing up an agreement document on post-crisis family management.

Starting/joining a mediation procedure has no relevant obstacles. Some mediation bodies use online web portals to conduct the proceedings, while others require the transmission of documentation by certified electronic mail.

The following are usually required for the mediation process: a copy of the identity document of the requesting or joining party, his or her fiscal code, any Chamber of Commerce report in cases of disputes with a company, and a power of attorney issued to the lawyer. A data form, generally prepared ad hoc by each body, is also necessary, which should include information such as the name of the mediation body, the parties involved, the reasons for requesting the initiation of/participation in a mediation process, and specification of whether the process was compulsory, voluntary or delegated by the judge. Sometimes useful documentation can also be attached.

If the mediation process is to take place in person, it will be necessary to attend the meetings and sign the minutes or agreement. If the process is conducted remotely, it will be necessary to connect to the meeting using the link sent by the mediation body and to digitally sign minutes and any agreement.

Even though it was introduced more than 14 years ago in Italy, mediation is still considered a “new” procedure, therefore, not everyone, especially those who are not legal practitioners, knows what it consists of, its benefits (including fiscal ones), or how it differs from assisted negotiation and arbitration.

For these reasons, mediation is sometimes perceived as unhelpful or even a “waste of time”, while others fear mediation because they are afraid of revealing too much although, in reality, information acquired or seen in the mediation must remain confidential.

Mediation is generally perceived as fast, less expensive and less formal, and as a way to find agreement in a less rigid and authoritarian context. Nevertheless, it is often considered to be a “weak” procedure.

In Italy, mediation proceedings of civil and commercial disputes can be carried out fully remotely, as expressly provided by Article 8 bis of Legislative Decree No. 28/2010. In compliance with that provision, each mediation body specifies precisely how the proceeding must be conducted, the digital platforms to be used, and how the minutes of mediation meetings and any final agreement are to be signed.

Currently, this Article provides that, when the mediation (with the consent of the parties), is conducted remotely, all the acts are conducted according to Digital Administration Code. It also states that, at the conclusion of the proceedings, the mediator shall create a computer document containing the minutes and any agreement to affix signatures by the parties who are required to sign them. Then the mediator, after the verification of the affixing, validity and integrity of the signatures, shall affix his/her signature and arrange for deposit of the document with the secretariat of the mediation body, which sends it to the parties and their attorneys, if appointed.

In addition to the above, Article 8 ter entitled “Mediation meetings by remote audiovisual mode” provides that, except in the cases governed by Article 8 bis, when the mediator is required to obtain the signatures of the participants for documents executed during a meeting in which one or more of the parties participate in the manner contemplated by this Article, with the consent of all the parties, the signatures shall be affixed in accordance with the provisions of the Code of Digital Administration and Article 8 bis. If there is no consent, the signatures of all participants shall be affixed in analogue mode before the mediator.

Since 2020, there has been a noticeable increase in the use of mediation in Italy, especially due to legal reform and the pandemic effect. COVID-19 led to the efficiency of operating remotely being investigated, and legal reform also promoted mediation by expanding the list of subjects that are required to undergo this procedure.

According to data reported by Giovanni Matteucci, in the period 2011/2022, there was a decrease in the number of trials and a 14% annual increase in civil and commercial mediation procedures, with a 12% annual increase in agreements reached by mediation. In 2022, the mediation success rate was only approximately 15%, but 2023 statistics again marked a positive increase.

AI use in the context of mediation is a topic of growing interest and great relevance, although it has not yet been put into practice.

According to Giovanni Matteucci’s analysis, Italy’s attention is focused on how AI could affect the predictability of mediation and the possibility of identifying disputes that can be dealt with and resolved in mediation. For example, in 2018, the “Simple Justice” project was initiated, with the goal of implementing a predictive algorithm relating to the “mediability” of court proceedings and the probability of results.

In this regard, some argue that AI may have the advantage of not being influenced by the emotions to which a mediator is inevitably subject. Others, however, argue that precisely this emotional detachment may hinder its ability to effectively guide the mediation procedure.

The mediator Gianfranco Mulas, in contrast, recently argued that AI could be helpful not only for all those repetitive and routine activities, such as data and document management, but perhaps in finding creative solutions, thus allowing the mediator to concentrate on the more decisive aspects.