In recent years, the Italian legislator – particularly following the introduction of the Cartabia Reform (Legislative Decree No. 149/2022) – has strengthened the use of mediation and assisted negotiation as a condition precedent for legal proceedings in various areas of civil law. This regulatory intervention has made the use of alternative dispute resolution (ADR) methods more structured and widespread, with the aim of reducing the burden on the judicial system and promoting faster and more collaborative solutions.
In this article, we will examine the cases in which choice to these instruments is mandatory and how they operate within the Italian procedural system.
Mandatory mediation, provided for by Legislative Decree No. 28/2010, is a tool aimed at resolving disputes through an impartial mediator who acts as a third party to assist the parties in reaching a settlement without bringing the matter before a judge. Mediation is successfully concluded when the parties reach an agreement – the so-called mediation agreement – which becomes binding upon them. Attempting mediation is a condition precedent for legal proceedings in several matters, such as, for example, rights in rem, condominium disputes, successions, leases, and – following the Cartabia Reform – also in cases involving contracts of participation association, consortium, franchising, contract for services, network contracts, supply contracts, partnerships, and subcontracting. This means that a party intending to claim a right before a court must first attempt to resolve the dispute through mediation, with the aim of reaching a mediation agreement. By law, mediation bodies are qualified entities authorized to perform this role and are entered in specific registers for the exercise of the profession.
Assisted negotiation differs slightly from mediation. Introduced by Decree-Law No. 132/2014, it is a procedure that promotes the seeking of an agreement between the parties through the mandatory assistance of their respective lawyers, and therefore without the involvement of an impartial third party. Assisted negotiation is a condition precedent for legal proceedings in cases concerning compensation for damages arising from the circulation of vehicles or vessels, as well as in claims for payment of amounts up to EUR 50,000, regardless of the legal basis. If the parties succeed in reaching an assisted negotiation agreement, this will also be binding upon them.
Where ADR attempts have been carried out but have not been successful, the claimant may proceed to file the claim before the court. In cases where the mandatory attempt to satisfy a condition of procedibility – namely mediation or assisted negotiation – has not been carried out, the judge, having ascertained the omission ex officio, may dismiss the claim or invite the parties to remedy the situation within a specified time limit.
The Cartabia Reform has undoubtedly consolidated the role of mediation and assisted negotiation as fundamental steps in Italian civil proceedings, with the aim of reducing the workload of civil courts.
Knowing when these procedures are mandatory and which process must be initiated in Italy allows companies and professionals to act with awareness, avoiding findings of inadmissibility and procedural delays. In a system increasingly oriented toward the amicable resolution of disputes, a proper approach to ADR can represent an important strategic advantage.
In recent years, the Italian legislator – particularly following the introduction of the Cartabia Reform (Legislative Decree No. 149/2022) – has strengthened the use of mediation and assisted negotiation as a condition precedent for legal proceedings in various areas of civil law. This regulatory intervention has made the use of alternative dispute resolution (ADR) methods
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