ADR mediation in Italy
The concialiation as alternative to civil and commercial claim in front of court
The mediation conciliation as Alternative Dispute Resolution to civil and commercial claim in Italy
The civil mediation aims to make the parties find a settlement through the work of a mediator who is a qualified neutral third party who helps the parties to settle a dispute; the mediator assists the parties in order to find an amicable agreement for the settlement of a dispute and to formulate a proposal for resolution of the dispute.
The mediator must operate at a public or private organization controlled by the Ministry of Justice; the main task of the mediator is to lead the parties to find a friendly agreement, assisting them in confrontation and removing any obstacles which may prevent the achievement of a common solution. The mediator has no power to issue binding decisions for the parties, but is limited to manage the timing and phases of the same, allowing the parties to state the content of the final agreement.
The law provides that civil mediation (mediazione) is meant as the activities aimed to settle a dispute and that the conciliation (conciliazione) is the mere result of such activity.
The informality of the mediation process allows the parties to feel free to participate in the meetings as they deem most appropriate, allowing the mediator to play its role; the mediator can hear the parties separately in order to identify the most useful path for finding the best solution.
All the parties can expose all the facts and reply on those exhibited by the other. The mediation procedure, however, is characterized by the absence of formal rules.
Mediation is a rapid procedure, it must necessarily be completed within 4 months since the start (the mediation performed by the Chambers of Commerce in Italy is reached with a maximum duration of approximately 47 working days). Mediation is a cost-effective procedure, in fact the rates of professional mediators are pro-rated with the value of the dispute.
The civil mediation is basically divided into 3 categories:
1) voluntary mediation
2) delegated (or judicial) mediation
3) mandatory mediation
1) The voluntary mediation depends on the will of the parties which can chose it freely if they consider it profitable; the parties can voluntarily decide:
to participate in the meetings
find solutions they consider most appropriate for the resolution of the dispute
abandon the procedure
decide the terms and conditions for a conciliation agreement and sign it.
2) The delegated mediation (as per D. Lgs. March 4, 2010, n. 28) is when the judge (also the appeal judge) - and whenever it deems appropriate - may invite the parts to try a mediation; in order the mediation will start is necessary that all parties agree to the invitation of the court.
3) The mandatory mediation is stated by the law (ie in the case of telecommunications) or by virtue of a clause in the contract between the parties.
The costs of mediation services are:
start-up costs (for enrollment) that must be paid by the requesting party at the time of submission of the application and by the defendant party if the latter accept to participate in the attempt to settle the dispute; the startup costs are approximately € 40.00 excluding VAT
brokerage charges to be paid at least half in advance before the meeting takes place and second half at conclusion of the proceedings, before the release of the report of agreement between the parties.
The costs of the mediation procedure varies depending on the value of the object of the dispute as set out under the Civil Procedure Code:
up to € 1.000: € 65
from € 1.001 to € 5.000: € 130
from € 5.001 to € 10.000: € 240
from € 10.001 to € 25.000: € 360
from € 25.001 to € 50.000: € 600
from € 50.001 to € 250.000: € 1.000
from € 250.001 to € 500.000: € 2.000
from € 500.001 to € 2.500.000: € 3.800
from € 2.500.001 to € 5.000.000: € 5.200
over € 5.000.000: € 9.200
All afore amounts are net of VAT.
The maximum amount of the costs of mediation for each installment amount may be increased by not more than one-fifth (depending on the particular importance, complexity or difficulty of the deal) in case of successful mediation and in the case of the formulation of the mediation proposal to parties; the costs of mediation include the fees of the mediator for the entire mediation process, regardless of the number of meetings held and the outcome of the same.