2011 – Oua, Organismo Unitario dell’Avvocatura: mediation to be suspended – Second wave of protest by lawyers against compulsory mediation. After last month’s demonstration, in fact, the category took to the streets yesterday to call for the ‘urgent suspension’ of legislative decree no. 28/2010 (mandatory mediation), which came into force on 21 March and is now under the magnifying glass of the Constitutional Court … “Justice cannot be hostage by private interests and cannot be scrapped, mandatory mediation-conciliation is unconstitutional,’ said Oua president Maurizio de Tilla. 2…: we call for an immediate suspension of the measure, the closure of the private providers, we will initiate a class action to protect citizens who do not wish to participate in the mediation process and suffer the consequences, as well as the request for an autonomous action for damages”.1
2025 – TAR del Lazio – Lazio Regional Administrative Court – “ … the parties to the mediation proceedings are in no way prevented from accessing the judicial system. Recourse to the courts is always permitted for certain types of measures and mediation itself acts as a condition for proceeding conditional on the conclusion of the first mediation meeting.
“The fact that the institution has been made more effective, far from acting as an obstacle to the right of defence, reveals the right intention to make mediation not a mere (useless) procedural step, but a serious and well-considered dialectical moment between the contending parties, in which they can reach an agreement, without being precluded from going to court”. 2 …
In 2010, mandatory civil and commercial mediation was introduced into the Italian legal system. Strong opposition from lawyers, benign disregard from the judiciary.
In 2025,an Italian court states that mediation is not an obstacle to the right of defense, guaranteed by the Constitution, and that mediation is a procedure that can be useful.
What has happened in these 15 years? How has it influenced the Cartabia Reform (2022/2023)?3
We try to give an answer in three articles, summarised below:
Matteucci G. (2023) Mediation belongs to the Italian legal culture
Universidade de Coimbra, Boletin da Facultade de Direito, Vol. XCIX, Tomo I, 2023, page 351
https://www.academia.edu/128306029/Mediation_belongs_to_the_Italian_legal_culture
Matteucci G. (2024), Civil Process and Mediation in Italy – Ius Dicere et Litem Componere, Italiae Usus
Beijing Law review, Vol.15 No.3, September 2024
https://www.scirp.org/journal/paperinformation?paperid=136143
Matteucci G. (2025), Mandatory Mediation, the Italian Experience, a Case Study – 2025
Beijing Law Review, Vol.16 No.1, March 2025
https://www.scirp.org/journal/paperinformation?paperid=141343
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Matteucci G. (2023), Universidade de Coimbra, Boletin da Facultade de Direito, Vol. XCIX, Tomo I, 2023, page 351 https://www.academia.edu/128306029/Mediation_belongs_to_the_Italian_legal_culture
Summary
1 – Introduction
Among contemporary Western countries, Italy was, most likely, the first to introduce compulsory mediation, in 2010.
Mediation, a procedure of dispute resolution outside of court, was already present in the 20th century Italian legal system, but it was hardly used at all. …
31.12.2009: 5,826,440 pending civil litigation cases in courts (two-thirds of which had a value of less than euro 3,000); average days for a civil judgment in 1st instance court no. 960, in appeal no. 1,509; 1,210 average days for commercial debt recovery and court cost 30% of the value of the dispute.
D.Lgs. (Legislative decree) 28/2010 and D.M. (Ministerial decree) 180/2010 ruled compulsory civil and commercial mediation. Furious opposition by lawyers (a matter of culture and fear of Alarming Drops in Revenues) and benign neglect by judges (a matter of culture; mediation, a “Child of a lesser God”).
The main criticism was: mediation does not belong to the Italian legal tradition. History teaches the opposite.
The mandatory mediation came into force in 2011. Step-by-step it has started to be used but there is still a long way to go, because it is little known and, above all, very little taught in Italian universities.
2 – From the 7th century B.C. to 1861
The first written collection of laws in the Western world is attributed to Zaleuco of Locri Epizephyrii, who lived in the 7th century B.C. in Southern Italy, along the Ionian Sea, then a colony of Greece:
“Απαγορεύεται η έναρξη δικαστικής διαμάχης μεταξύ δύο προσώπων, εάν δεν έχει προηγηθεί προσπάθεια συμβιβασμού” – “It is forbidden to undertake a judgement between two people, if conciliation has not been attempted beforehand”.
In other words, mandatory mediation.
5th century B.C., Rome republic, Laws of the XII Tables: “Rem ubi pacunt, orato – If the parties come to an agreement, the judge issues the sentence”. …
In imperial Rome (1th – 5th century A.C.) there were the “Defensores civitatum – Defenders of the cities”, ‘a local, paternal, pacific, trustworthy magistracy, invested with a limited civil and penal jurisdiction, which can be said to contain the seed of the modern Conciliators’. …
The “jus mercatorum – merchant law”, which took shape in the territories of the Italian municipalities in the late Middle Ages (13 /14 th century A.C.) and then, in the wake of the merchants, spread to various European countries, played a not insignificant role in the settlement of disputes, outside of court proceedings. In the event of non-compliance and insolvency, this legislation provided for the bancum ruptum (bankruptcy) and very heavy financial and personal penalties. But a little “pietas – compassion”, as well as healthy pragmatism, began to make an appearance.
In Padua, northern Italy, at the beginning of the thirteenth century, through the intercession of ‘blessed friar Antonio’, corporal punishment (and the dishonourable practice of the ‘pietra del vituperio – stone of vituperation’) of bankrupts was replaced by the ‘cessio bonorum – handover of goods’). Then, in the various cities, safe-conducts (fida, affidatio) began to be granted more and more: the fugitive or banished bankrupt could re-enter the town without being thrown into prison, for a limited period, in order to come to an agreement with his creditors. …
… In the Venetian Republic (in the north of Italy) the recourse to agreements of a private nature (and their recognition by legislation) was even greater. In the Parte del Maggior Consiglio (the government of the Venetian republic) of March 28, 1395 it is specified that the fida MUST be granted if the behaviour of the bankrupt is free from malice, if he hands over his books and his belongings; all this without asking the opinion of the creditors and without them being able to oppose it. Moreover, if the parties did not reach agreement, the Sopraconsoli had to ensure that “toto suo posse de ponendo ipsum (debtor) in concordio cum suis creditoribus – The judges had to do everything possible to ensure that debtor and creditors reached an agreement”. In other words, court mediation. …
Grosseto (Tuscany), Statuto del Comune, 1421, page 112 c. 8v: “On the Election of the Paciari and Dispute Settlers – The Priors of the city of Grosseto are obliged, from the month of April each year, to choose from among the best they can find three wise and discreet men, who are and should be conciliators and resolvers of quarrels, disputes and hatreds between the citizens of Grosseto for insults and offences committed and in any case occurring between them”. …
In Italy, on February 1,1770, Pietro Leopoldo, Grand Duke of Tuscany, established in Florence the first chamber of commerce in Italy:
XVI “… in order not to cause the litigants unnecessary expenses and defatigations.”
XVII “To this end, it will be the duty of the Chamber to ensure on all suitable occasions that its Chancellors and other Ministers intervene with their mediation, in order to suggest amicable settlements to the Parties, and to facilitate their implementation, especially for cases of small importance; and if these do not take place, the Auditor will have to decide these cases, as long as they do not exceed the sum of thirty lire”. In other words: med-arb!
Settlement of disputes outside the courts was quite widespread in Europe. In the 18th century in Holland, it was compulsory for citizens to go before conciliators, without the assistance of lawyers, before going to ordinary courts. This had been pointed out by the philosopher Voltaire in a letter dated 1745. …
3 – 1861, the foundation of the Italian State
The Italian State was founded in 1861. In the first Civil Procedure Code (1865), the heading of the seven introductory articles was “Conciliation”. …
Court of Cassation of Turin. February 11, 1870 –
“Whereas in paragraph 5 of the government notification of March 2, 1824 it is stated: ‘the conciliation experiment will always be carried out in the office of the magistrate and on the designated day; each of the parties must appear, as a rule, in person and only in case of impediment through a proxy with a legal mandate also containing the power to compromise. This proxy must be an individual of the family, one of their employees, or even another honest person; in no case and under no pretext will the intervention of a lawyer be permitted, much less of any fixer’.
In 1880, the conciliators – Justices of Peace (“Giudici di Pace”) issued 70% of all judgments delivered in Italy.
According to Law no. 261/1892, the judge “in order to reach a conciliation, could call for the single party in a private hearing” (an ante litteram caucus). …
Before the first World War the Italian bankruptcy law (n.197/1903) also provided for negotiation agreements on the settlements of the debtor crisis, under the control of the judge, who, in small claims, could also act as a mediator (“amichevole compositore”). …
Moreover, the totalitarian regime carried out during the Fascist period (1922 – 1943) disliked conflict resolutions reached by private citizens; they must be managed by a public authority, the judges, through sentences. Since the 1930s, in Italy, mediation gradually lost its importance and it was no longer taught in universities for over seventy years.
Mediation was (and still is) part of the Italian legal tradition, but it was forgotten.
4 – After WWII
The Civil Procedure Code of 1942, art. 183, provided the possibility of conciliation managed by the judge in a pre-trial hearing; nevertheless it was always a pure formality.
Furthermore, the conciliation was provided by many laws. …
Outside the judicial system, Italy shyly started to do something organic for conciliation with the reform law of the Chambers of Commerce in 1993 (L. 29.12.1993, n.580, art.2 c.4): Arbitration and Conciliation Chambers were set up in each of them, with the task of providing the service for disputes between companies and consumers and users. The Harvard mediation procedure model was the reference. At a very slow pace ADRs started their way in contemporary Italy.
The Legislative Decree no. 5/2003 (in force since 2005) ruled voluntary conciliation, with the possibility for the parties to ask the conciliator for a proposed agreement, to become enforceable, in corporate, financial and banking controversies. Very broad topics, with a substantial number of disputes. Nobody (rectius, no lawyer) used it, and when I asked why, lawyers replied:
“Because it was not compulsory!!!”
In 2009, there were 5,922,673 pending civil litigation cases in the overall judicial system, the highest number ever reached. In 2010, compulsory civil and commercial mediation took off, it came into force in 2011, it was revoked in October 2012 and reintroduced in September 2013, with some innovations….
In 2022 there were:
In the 2011 / 2022 period there has been:
And according to the European Parliament, “Italy … uses mediation at a rate six times higher than the rest of Europe”.
But, in 2022, the ratio of:
Too little.
However, in the proceedings, where all parties were present and decided to go to mediation, following the first mandatory information meeting, the success rate in Italy was 47%. It is not so easy to “bring” parties to the mediation meeting, because of social and economic mindset (Italians do not appreciate innovations too much) and, above all, knowledge. As already mentioned, since the 1930s, in Italy, mediation was no longer taught in universities for over seventy years.
In 2022 and 2023, the Cartabia Reform introduced major changes in civil trial and mediation law in Italy. And the University and the Tribunal of Florence are working to use mediation and Artificial Intelligence in the civil process.
5 – Conclusions
… Social habits do not favour the development of mediation in Italy. However, knowledge is the essential prerequisite for this to happen. The study of ADRs (mediation, arbitration, early neutral evaluation and assisted negotiation) in universities will be decisive. And the knowledge of dispute resolution outside court techniques, in the jus mercatorum and in the management of trade in the Serenissima Republic of Venice, will help recover our roots and improve daily activity.
* * *
Matteucci G. (2024), Beijing Law review, Vol.15 No.3, September 2024 https://www.scirp.org/journal/paperinformation?paperid=136143
Summary
1 – Introduction
December 31, 2009, 5,826,440 pending cases in Italian civil courts, the highest number ever reached. Compulsory civil and commercial mediation was ruled in 2010 and came in force in 2011. Strong opposition by lawyers and benign neglect from judges. Two main criticisms:
“mediation is not justice!” true, justice is jus dicere (enforcing the law, proves one right, another wrong, but does not solve the conflict), mediation is litem componere (settles the dispute);
“mediation does not belong to the Italian legal tradition”; wrong, history teaches just the opposite!
2 – A Bit of History
… The basis of western law was laid in ancient Rome. Anyway, already in the XVI century A.C., in Italy, Francesco Guicciardini, a relevant philosopher and politician in Florence, complained about the administration of justice by the courts. …
The dislike of lawsuits by the Chinese population was alive in the XVI/XVII centuries A.C. Emperor Kangxi (1662/1722) is credited with the following statement: “Judicial disputes would incur in ordinate multiplication if the people were not afraid of the courts and trusted into find swift and perfect justice in them”.
A Chinese proverb well summarizes the concept: “Better to starve that to become a thief; better to be tortured to death than to sue”.
Also in England “Suffer any wrong that can be done you rather than come here, to the Court of Chancery!”, This was the Charles Dickens’ conclusion in the novel Bleak House, published in 1852-1853.
USA – 1906, Roscoe Pound’s (dean of the University of Nebraska College of Law) report entitled “The causes of popular Dissatisfaction with the Administration of Justice”, read at an American Bar Association conference. …
Dispute resolution outside the courts was quite widespread in Europe. In the XVIII century in the Netherlands it was mandatory for citizens to go before conciliators, without the assistance of lawyers, before going to ordinary courts. This had been pointed out by Voltaire in a 1745 letter.
That seems to have been well known to the members of the Constituent Assembly, born out of the French revolution. These, wishing to affect a radical change in the judicial system, adopted the idea of a “paternal” judiciary, which could adjudicate small claims disputes without formality. And also seek to maintain peace and concord by preventing litigation. Thus in 1790, justices of peace were established, the figure of which was brought to Italy by the Napoleonic army and, over the years, proved itself, especially in the Kingdom of the Two Sicilies (in the south of Italy).
All of this does not mean that the rule of law and the role of courts are not relevant.
Absolutely the contrary: the rule of law and tribunal activity are extremely important (“There are still judges in Berlin!”).
However, it is appropriate for there to be an integrated system of controversy solution (Sander, 1976), and this is what was decided to be done in Italy in 1865.
The newly established kingdom of Italy (1861) credited conciliation with no small relevance. In the first code of civil procedure, enacted in 1865, the preliminary title was called “Della concliliazione e del compromesso” (“Conciliation and consent”). …
December 31, 2009, 5,826,440 pending cases in Italian civil courts, the highest number ever reached. Compulsory civil and commercial mediation (D.L. 28/2010) was ruled in 2010 (in force from 2011) for disputes related to: condominiums, rights in rem, division, hereditary succession, family pacts, leases, comodato, business leases, compensation for damages from medical and healthcare liability, compensation for damages from defamation in the press or other advertising media, insurance, banking and financial contracts. Such disputes amounted to approximate the 8.5% of the Italian civil judicial disputes.
The judge could order mediation in disputes concerning ALL available rights.
The mediation agreement, omologated by the president of the court, was enforceable.
To become a mediator, the law prescribed an initial course of 50 hours (too few).
Strong opposition by lawyers (a matter of culture and ADR regarded as Alarming Drops in Revenues) and benign neglect from judges (a matter of culture: mediation as a Child of a lesser God!).
2012, according to the Constitutional Court the D.L. 28/2010 was affected by over delegation. No more compulsory mediation, only iussu iudicis mandatory mediation remained in force. There was an increase in the use of the voluntary one.
D.L. 69/2023: mandatory mediation back again, compulsory legal assistance to the parties in the mediation proceeding and lawyers mediators ope legis (15 hours training required)!!! At the beginning of the mediation procedure, an initial information meeting was scheduled, after which the parties, assisted by lawyers, could decide whether to abandon or start (OPT-OUT) the procedure, no longer compulsory but voluntary. The mediation agreement, signed by the parties and the lawyers, was in itself enforceable. According to the new Article 185-bis, of the Civil Procedure Code, the judge could make a conciliatory proposal, if not accepted he could order a referral to a mediation proceeding (arb-then-med). …
Step by step mediation continued on its way, with a major change: gradually judges realized the importance of mediation and lawyers, very slowly, began to follow. …
3 – Court Civil Proceeding and ADR Reform in Italy
… From 2009 to 2021 the backlog of civil cases in the courts had decreased, but not by a sufficient amount, while the duration of cases in courts was still too long. Therefore between 2021 and 2023 a sweeping reform of the civil process and ADR (mediation, arbitration and assisted negotiation) was implemented, rubricated under the name of the Cartabia Reform (named after the minister of justice in charge). …
“The first hearing and the activities preceding it will become more important during first instance proceedings. The goal is to encourage an immediate discussion between the parties and to avoid that at the hearing the judge merely sets the time limits for written pleadings, as it frequently happens at present.” …
Also, according to the government, another essential element for growing the use of mediation is the attention to the relationship between magistrates and ADR. “It is time to rethink the relationship between trial before the judge and mediation tools, including giving the judge the opportunity to encourage the parties towards conciliatory solutions, especially through the provision of reward measures”.
Between 2021 and 2022, the rules, called “Cartabia Reform”, were enacted …:
Another relevant reform, the digitization of the civil process and increased focus on ODR.
4 – Likely Interactions between the Civil Process and ADR New Rules
When compulsory mediation was ruled judges looked at mediation with a “benign neglect”, but since 2015 it is thanks to the judiciary that the use of mediation has been increasing in Italy: mediation proceedings delegated by judges were 3% (of all incoming mediation procedures) in 2012, 8% in 2014, 11% in 2016, 14% in 2018, 12% in 2020, 16% in 2022.
The Italian judges can order the litigants to undergo a mediation (delegated mediation) (ex art. 5, c.2, D.Lgs. 28/2010) or/and make a solution proposal based on equity (ex art. 185-bis civil procedure code), which the parties are free to accept or refuse (not binding arbitration), in all subjects related to alienable civil rights. If the proposal is not accepted, the judge can order a referral to a mediation procedure, managed by an external mediation provider (arb-then-med). …
“The Cartabia Reform set questions about the ADR/ASR tools and, mainly, about mediation.
“Will it benefit them? And if so, which mediation in particular? All of them without distinction, from voluntary to compulsory mediation, to court mandated to statutory mediation? Or instead to varying degrees? And if so, why?
“Will it be appropriate or necessary for mediation providers to refocus, based on the regulations and opportunities?
“And if so, how should providers and mediators do so? Is the reform likely to transform the generally unfriendly attitude toward mediation among judges for the better?
“Negative indicators in this regard could be the exponential development and success of the judge’s proposal under Article 185 bis, civil procedure code; the tight civil judgements timelines introduced by the Reform and the possible conflict with the mandatory calendar; and, perhaps among the most serious, the continued lack of understanding by the judiciary of the usefulness of mediation.
“Given the tight timelines of the procedural tasks involved in the first instance of the trial, and in particular the significance that the trial calendar is taking on, and the atmosphere of disvalue against any act that dilutes the trial time, one has also to wonder where and when the judge can enter conciliatory paths without facing violations that should even susceptible him or her negative measures in terms of discipline and career?”
5 – Conclusion
Mediation belongs to the Italian legal culture, but it has not been taught in the universities for almost one century. Therefore the contemporary jurists, judges and lawyers, have been trained in adversarial techniques, which have been used for decades. It is obvious that, at the introduction (2010) of mandatory civil mediation, very few professionals understood its essence and usefulness. …
The length of the initial courses to become mediator, 50 hours so far, has been too limited and they were generally focused on the procedural consequences of mediation into the civil process, and not on the mediation nature and techniques.
The Riforma Cartabia (2021/2023) has deeply innovated the civil process and ADR rules, focusing, among others, on the judiciary involvement in mediation and in the quality and duration (80 hours, still too little) of initial training. Forecasts aredifficult to be made. … Old habits die hard.
* * *
Matteucci (2025), Beijing Law Review, Vol.16 No.1, March 2025 https://www.scirp.org/journal/paperinformation?paperid=141343
Summary
1 – Introduction
… In 2010, compulsory civil mediation, i.e. a condition for civil proceeding, was introduced in Italy. Disputes, criticism, bewilderment. However, although at a slow pace, it has grown and most recently, in the Italian Official Gazette of 10.01.2025, Legislative Decree no. 216 of 27.12.2024, called “Correttivo”, was published. It brings interesting changes to Legislative Decree 10.10.2022, no. 149 (Cartabia Reform), which made changes to one of the basic acts of the Italian legislation on mediation, Legislative Decree 28/2010, already the subject of numerous interventions over the years.
Only one concern: the likely lawyerisation of mediation. …
2 – The Mediation in Italy from 1865 to 2020, a Synthesis
The Italian State was founded in 1861. The first Civil Procedure Code (c.p.c.) came into force in 1865 and in the first seven articles “Conciliation” was ruled. …
The efficiency of justice, at the end of the 19th, beginning of the 20th century, seems was not to be the maximum. According to Giovanni Giolitti, one of the most relevant politicians in that time, “in Italy, … justice is slow, expensive and without sufficient guarantees.”
A problem we will find over the decades, as well as other issues:
3 – Compulsory Civil Mediation Implemented in 2010
The backlog in the Italian civil courts has been a problem for a long time: 4,861,515 cases pending in 2005, 5,395,102 in 2010, 5,826,440 on 31.12.209, the highest value ever recorded, despite the fact that in previous years innovations have been introduced in the judicial system.
In 2010, Italy, probably the first country in the contemporary Western area, introduced mandatory civil mediation, a condition of admissibility, in matters, whose disputes amounted to approximately 8.5% of cases in civil courts. The judge could, and can, order the use of mediation in disputes relating to ALL available rights. The mediation agreement, approved by the president of the court, was enforceable. The weak point of all these innovations was training.
Three regulatory acts were approved: L. 69/2009, 18.06.2009, Legislative Decree 28/2010, 04.03.2010 and Ministerial Decree 180/2010, 18.10.2010.
The opposition from the lawyers was vehement. … On the part of the judiciary, there was a formal benign neglect, as mediation was considered a “Child of a lesser God”.
The main concerns on the part of the magistrates were:
However, a small number of judges immediately realized the potential of mediation … and the first initiatives began to be known by various magistrates and over the years they produced interesting results.
Another important element, for the initial spreading of mediation knowledge in Italy, was the CIM – Italian Mediation Competition in Milan, a competition between university students, who negotiate in front of a professional mediator. Initiative promoted … for the first time in 2013, repeated every year, and also proposed again in other cities, with enthusiastic participation from young people from many universities in Italy.
… the introduction of compulsory law was the last, only means to bring lawyers and the judiciary to use the procedure. But appeals to the Constitutional Court against the law began to pour in … and the Constitutional Court, at the end of 2012, declared unconstitutional part of legislative decree 28/2010 for (be careful) excess of delegated power with respect to law no. 69/2009, not for hindering access to justice.
… the government with a political decision reintroduced the compulsory mediation, whose numbers, according to statistics from the Ministry of Justice, began to rise: Law Decree 69/2013, known as “Del Fare”, with innovations of no small relevance.
To overcome the hostility of the lawyers, compulsory legal assistance to the parties was introduced (in practice useless, because in the vast majority of proceedings the parties were already previously accompanied by the lawyer of their choice) and lawyers became mediators ope legis, with a required 15-hour training (if 50 hours had proved inadequate, let alone 15!).
As far as the procedure was concerned, an initial information meeting was introduced, which was compulsory and free of charge (except for e.40 out-of-pocket expenses). At the end of the initial information meeting the parties, advised by their lawyers, could decide whether to START the procedure, which was then voluntary, or to abandon it. Procedure called OPT-OUT. The agreement, signed by the parties and the lawyers, immediately enforceable.
A further innovation was the introduction of the art. 185-bis of the Civil Procedure Code, according to which the magistrates could (and can) make a conciliatory proposal; if not accepted, they can send the parties to mediation (arb-than-med). In this way the traditional decision-making power of the judge was highlighted, expanding its perimeter. The magistrates, albeit slowly, began to use the tool at their disposal, placing the lawyers faced with the choice of whether to comply in a more or less adequate manner with the judge’s order. …
The quantitative results were lower than expected, knowledge of the institute was not widespread, lack of training at university level and the quality of the offer was not always adequate. …
4 – Cartabia Reform—2021/2023
… in 2021 a jurist of considerable competence, Prof. Marta Cartabia, was appointed Minister of Justice, who radically addressed the reform of the civil process and ADR. … The Cartabia Reform of the Civil Process and ADRs (civil, criminal and family mediation, assisted negotiation and arbitration) started and was completed between 2022 and 2023, with the following rules:
On 06.30.2023 the overall Cartabia Reform on mediation definitively came into force. From 11.15.2023 the new allowances due to mediation bodies and mediators have been applied.
The Cartabia Reform has affected not only mediation but also, and above all, the process. In 2023, there was a lot of bewilderment on the part of lawyers about the new rules for activating trials, and, in the uncertainty, they resorted a little more to mediation, the structure of which had not changed much. It is difficult to predict how much all these changes will interact with each other and within how long. Two interesting novelties: young lawyers are increasingly acquainting themselves with mediation, and magistrates are also increasingly taking an in-depth look at the subject. …
5 – Artificial Intelligence Applied to jussu judicis Mediation— 2024
As already mentioned, in 2010/2011 the judiciary accepted with benign neglect the introduction of civil mediation as a mandatory condition of admissibility in the Italian legal system. Some, very few, judges, however, realized the potential of the institute from the beginning and this awareness was then extended to many other magistrates. One detail has distinguished the Italian judiciary’s attention to mediation: the predictability of the latter. That is, identifying the type of disputes that could most likely be treated and resolved in mediation.
In two different Italian courts, methods have been developed to predict the outcome of a dispute, so that it is possible to understand in advance which cases, already started, can be resolved through an invitation/injunction from the judge to the parties to go to mediation and then return to court (and then apply these techniques also to out-of-court disputes):
– the Court of Modugno, a separate section of the Court of Bari, in 2011 Judge Mirella Delia started the “integrated conciliation” project; …
– the Court of Florence (Judge Luciana Breggia) and the University (Prof. Paola Lucarelli) worked on “simple justice”, … giving birth in 2009 to the Nausicaa Project. The Dpt of Engineering was then involved to implement a predictive algorithm of the “mediability” of a judicial proceeding and its probability of outcome. On 11.03.2024 the document Explainable Artificial Intelligence for Agile Mediation Propensity Assessment was published, artificial intelligence applied to jussu judicis mediation.
“Italian Justice has recently added mechanisms to exploit the mediation process. One of the most critical aspects is a reliable identification of litigations which can be successfully mediated outside court procedures. The decision is under responsibility of a judge/court who has to read hundreds of pages and several documents, to be able to take a decision on the basis of few statements. This paper describes both an artificial intelligence solution and a tool to provide a decision support system which could process documents and be capable to: (i) produce reliable suggestions, (ii) produce circumstantiated motivations, thus highlighting statements which could support identified suggestion focusing the work of any judge/court on actual statements and documents with relevant facts, and (iii) provide a web based tool producing suggestions and motivations on demand at service of the involved court and judges, compliant with privacy and security, as to data. To this end, AI and eXplainable AI technologies have been used and a solution has been obtained which meets the above-mentioned objectives and many other detailed requirements. Such a solution has been developed in the context of the research project ‘Giustizia Agile’, funded by the Italian National PON Governance and Institutional Capacity, and validated against real cases. The solution has exploited the Snap4City framework for data and AI/XAI management.”.
This tool not only facilitates the evaluation of mediation projects with 97% accuracy at the sentence level, but, more significantly, through the use of XAI, it clarifies specific clauses and paragraphs within the documents, which could affect the mediation. …
6 – The “Correttivo”—25.10.2025
In the Official Gazette of 10.01.2025, Legislative Decree No 216 of 27.12.2024, (long awaited and) called the “Correttivo”, was published. In fact, it introduces amendments to Legislative Decree 10.10.2022, no. 149 (Cartabia Reform), which made changes to one of the basic acts of the Italian legislation on mediation, Legislative Decree 28/2010, already the subject of numerous interventions over the years. …
7 – Conclusion
Compulsory civil mediation, introduced in 2010 into the Italian legal system, is beginning to be known and applied.
Dr. Maria Cassano, first president of the Court of Cassation, stated on 25.01.2024 “With specific reference to mediation, the interesting results inferable from ministerial data are worth mentioning. … especially in cases concerning succession, hereditary division, real rights, condominium, insurance, non-contractual liability.” …
The Legislative Decree 2014/216, named “Correttivo”, has made useful innovations, with a return to the past (pre-2013), that make the procedure smoother. But perplexities remain with regard to the regulations on remote, non-telematic mediation.
Moreover, in 2012 the average duration of procedures, with agreement reached, was 65 days, in 2022 it was 186. A procedure that should be lean and fast is taking longer and longer. Because the disputes analysed are increasingly complex or because of a progressive “lawyerization” of mediation? This trend has already been in place in the USA for some time.
The lawyerizaton of mediation will not be perceived by the general public but will be implemented step by step by lawyers and will reduce the efficiency and flexibility of the procedure. Much will depend on the conditions of the litigation “market”, also in relation to the rapidly evolving economic situation, even international.
The Cartabia reform has expanded the use of compulsory civil mediation, has increased its possibility of effectiveness by introducing procedural and fiscal incentiveness, has introduced the conditions for greater involvement of magistrates and has increased training obligations (even if not yet sufficient). The “Correttivo” has made the procedure a little simpler and more precise and has greatly reduced the uncertainty, a crucial problem, of the power of attorney from the party to the lawyer. Greater attention to the ODR.
Updated official statistics (2023/2024) will be needed to understand if all these innovations are effective.
In 2015 I wrote the article, Mandatory mediation, the Italian experience. The last words were: “Since 2010 Italy has become a very interesting laboratory to analyze the consequences of different types of ADRs. And I think we are just at the very beginning.”
Ten years later, with an 18% increase in agreements and more attention to training, not yet sufficient, I can still repeat: “We are just at the very beginning!”
Grosseto (Tuscany, Italy) 22.03.2025
Giovanni Matteucci
Conflicts of Interest Blog by Vivian Scott If you’ve ever had any kind of training in how to get along with others, you were probably taught some basic tactics to...
By Vivian ScottMany clients and junior attorneys view mediation as a single, high-stakes event—a marathon day of sitting in separate rooms while a neutral party shuttles back and forth with numbers. However,...
By Ed TimkenConsensus Building Approach by Larry SusskindStudents are marching in the streets to protest the recent killings of Black Americans. They want those in positions of power to acknowledge that these...
By Larry Susskind
