This document discusses the history of mediation in Italy from the country's unification in 1861 to the present day. It describes how mediation fell out of use after 1941 but was gradually reintroduced starting in the 1990s through various laws establishing mediation programs. The document outlines the five phases of mediation regulation in Italy from voluntary mediation with no oversight up until 2004, to the current system established by Legislative Decree 28/2010, as amended in 2013, which mandates an initial informative mediation session for certain civil and commercial cases. The document concludes with an explanation of mandatory mediation in Italy as a voluntary process that aims to build trust and empower parties to choose whether to continue with mediation.

1. MEDIATING POWER RELATION
AND VIOLENT CONFLICTS
Mediating power in civil law matters
Avv. Maria Francesca Francese
5 December 2018

2. © M.Francesca Francese 2018
The Italian State was unified as
the Kingdom of Italy, a
constitutional monarchy, in
1861.
HISTORICAL PERSPECTIVE

3. © M.Francesca Francese 2018
“Conciliation may take place when
the parties have the ability to dispose
of the objects on which the dispute is
based and when it is not about a
matter in which transactions are
prohbiited.” Art. 1, par. 2

4. 1922-1943
The ideology of that period wanted to provide a strong image of
the State. A paternalistic state that decides for the citizens
and that showes them the benevolence and authority of the
State through the judicial system.
© M.Francesca Francese 2018

5. Mediation fell into oblivion for over 50 years
but was still part of the Italian legal and juridical culture
In 1941 a new code of civil procedure was issued and conciliation was wiped
out from te scene, except for a mere formal reference in art. 183.
© M.Francesca Francese 2018

6. © M.Francesca Francese 2018
The law n. 580 of
1993 established that
every Chamber of
Commerce had to set
up a Conciliation
Chamber.
A fragmented
legislation followed:
Franchising
Laundromat
Telecom
…

7. From the 90s to 2016, Italy has undergone five different
mediation regulatory phases:
1) Voluntary mediation with no regulation of mediation service providers
(up to 2004)
2) Voluntary mediation before mediation providers for commercial
matters, in particular corporate issues (2005-2011)
3) Mandatory mediation on certain civil and commercial matters. In
order to implement European Directive 2008/52/EC the Italian
legislator enacted Legislative Decree 28/2010 making mediation a
condition precedent for trial in certain matters – in place from 4 March
2011 to 20 October 2012.
4) Voluntary mediation as a result from an October 2012 decision by the
Italian Constitutional Court holding that Legislative Decree 28/2010
was inconstitutional for procedural reasons
© M.Francesca Francese 2018

8. From the 90s to 2016, Italy has undergone five different
mediation regulatory phases:
5) A required initial mediation session, the so called informative
session, from 20 September 2013 to present.
The Italian Legislator amended the original Legislative Decree
28/2010 reintroducing a mitigated mendatory mediation provision
limited to the first informative meeting for a number of civil and
commercial matters.
© M.Francesca Francese 2018

9. © M.Francesca Francese 2018
Up to 2004 2005-2011 2011-2013 2013 2013- now
Five Phases
VOLUNTARY
VOLUNTARY
MANDATORY
VOLUNTARY
MANDATORY

10. Legislative Decree 28/2010
As amended by Legislative Decree
69/2013
Is the fundamental law on civil
and commercial mediation
Today in Italy
© M.Francesca Francese

11. What is mandatory
mediation ?
© M.Francesca Francese

12. Legislative Decree 28/2010
Art. 8 - During the first meeting the mediator
clarifies the role and modalities of the
mediation to the parties. The mediator, always
in the same first meeting, then invites the
parties and their lawyers to express themselves
on the possibility of starting the mediation
procedure and, in the positive case, the
mediator proceedes accordingly.
© M.Francesca Francese

13. MEDIATOR’S SPEECH
This is a voluntary proceedings!
Here you start building trust, asking for commitment,
generating a working atmosphere, decreasing the conflict,
empowering the parties, giving them back the freedom to
choose…
© M.Francesca Francese

14. Thank you!
Maria Francesca Francese
m.francescafrancese@gmail.com