With regard to mandatory mediation, we are once again witnessing a conflict of case law. Two recent decisions, one by the Consiglio di Stato and one by the Tribunale di Firenze, have adopted two different interpretations of the correct application of the institute. After reading the two judgments, one is naturally led to wonder whether the mediation attempts can be considered as having been correctly performed, even when the parties declare the non-existence of the conditions to proceed, or whether a concrete attempt to reach an agreement is necessary, regardless of the initial existence of will. This is also important when we consider that mediation is a mandatory requirement if the parties wish to start a Court action.
By means of ruling no. 5230 of 17 November 2015, the Consiglio di Stato, after having retraced the evolution of the institution of mandatory mediation (let us also recall the fact that a ruling by the Corte Costituzionale had stated the illegality of the mandatory nature of mediation and the subsequent legislative intervention aimed at the re-introduction of the institution) has limited the mandatory nature of mediation only to the first mediation meeting. In other words, the procedural requirement has to be considered as having been met even when the parties, during their attempt to find a solution through mediation, have only declared the absence of the conditions to settle the dispute amicably.
The approach adopted by the Court of Florence (judgement no. 3497/2015 of 15 October 2015) is rather different.
During an opposition proceeding to an order for payment, the Judge ordered the parties to initiate the mandatory mediation process. The meeting ended unsuccessfully because the parties had acknowledged that «the conditions to initiate the mediation process were not met», without however providing any specific and reasoned justification for not having started a real mediation attempt. Therefore, the Tribunale di Firenze declared that the claims brought by the claimant and by the opposing debtor were barred by virtue of Article 5 of Italian Legislative Decree no. 28/2010. In fact, the Judge felt that during the first mediation meeting the possibility to reach an amicable settlement of the dispute should actually be assessed. The fact that both parties agreed on not wanting to go through with the mediation procedure is pointless. According to the Court of Florence their discretionary choice does not have any relevance. With the above mentioned ruling, the Court of Florence remarked that the mediation attempt is a genuine conditio sine qua non for the subsequent legal action.
It is therefore clear that the two Judicial Bodies draw completely different evaluations: the Consiglio di Stato considers sufficient that the first meeting between the parties takes place, for the mere verification of the presence of the conditions for the mediation; while the Tribunale di Firenze deems that a real attempt at mediation is necessary, otherwise what the law defines as mandatory would become purely optional.
The two different interpretations are based on two different views. On the one hand there is a greater appreciation of the parties’ will (even if they prefer to resort to the traditional judicial protection), on the other hand the deflationary reasons aimed at reducing the Courts’ workload are taken into account. The preference for one of the two interpretations is not only linked to strictly technical and legal aspects and must necessarily be considered also in light of reasons of judicial politics.
In any case, although the use of mediation is desirable for the above mentioned reasons, it does not seem that the institution ‒as it is now regulated‒ is in itself sufficient to curb the “contentiousness” of the Italians and, therefore, their willingness to bring actions before the Courts.
(Trieste Office – Alberto Pasino – 0039 (0)40 7600281)
