The Italian model of civil and commercial mediation

Abstract

Mediation is, both in common law and civil law countries, one of the main instrument to stem the crisis of civil justice and to deflate the workload of the courts. However, despite the regulations introduced at the state level, the statistical studies over the use of this institute not always appear positive. A recent study sponsored by the European Parliament identifies the lack of adequate «pro-mediation policies, whether legislative or promotional» as the central factor of the modest use of the mediator’s activity and suggests to promote its use through the introduction of procedures based on a «mitigated form of mandatory mediation». In this regard, the Italian regulatory experience is indicated as a positive example of “mitigated compulsory”, able to promote the use of mediation. A global examination of the Italian statistics shows, nevertheless, some problems such as the lack of participation of the parties to the proceedings and the difficulty of reaching an agreement even in front of a mediator. The implementation of the sanctions, the extension of the reporting duty of the mediator, the identification of new ways of conducting information session and writing the verbal mediation are some of the possible reforms to bring to Legislative Decree no. 28/2010.