Mandatory mediation in Italy: an opportunity not to be underestimated
In Italy, “going to court” often means facing long timeframes, unpredictable costs, and — above all — the risk of turning a negotiable disagreement into a permanent rupture.
Mandatory mediation exists precisely to fill that gap: not as a barrier to justice, but as an opportunity to check, before litigation, whether a faster, more confidential, and more sustainable solution is possible.
Approached with method, mediation can become a real conflict-management tool: the parties, assisted by their respective lawyers, can weigh actual risks, costs, and interests, often with more room to maneuver than a court ruling would allow.
It’s worth understanding, then, when mediation is mandatory — and, above all, why it can genuinely pay off.
What Is Mandatory Mediation?
Civil and commercial mediation in Italy is governed by Legislative Decree No. 28 of 4 March 2010, implementing EU Directive 2008/52/EC and the delegation under Article 60 of Law 69/2009.
Attempting mediation is a precondition for filing a lawsuit in a defined set of matters under Article 5 of Legislative Decree 28/2010: condominium disputes, property rights and other rights in rem, division of property, inheritance, family agreements, leases, loans for use, business rentals, medical liability, defamation via press or other media, and insurance, banking, and financial contracts.
The Cartabia reform (Legislative Decree No. 149 of 10 October 2022), whose mediation provisions took effect on 30 June 2023, strengthened the institution, coordinating it with the new civil procedure and expanding its scope to matters of direct commercial relevance: silent partnerships, consortiums, franchising, contract work, business networks, supply agreements, partnerships, and subcontracting.
A few key points:
The constitutional legitimacy of the requirement was confirmed by Italy’s Constitutional Court, which affirmed its case-reduction purpose within the limits of Article 24 of the Constitution. An agreement signed by all parties and their lawyers constitutes an enforceable title without the need for judicial approval, under Article 12 of the amended Legislative Decree 28/2010. The Joint Sections of the Court of Cassation, in a ruling of 8 February 2024, clarified that the procedural precondition applies to the original claim and does not automatically extend to counterclaims.
The Advantages
The benefits of mandatory mediation go well beyond reducing litigation volume. Its real value emerges when it’s treated as a tool of procedural and negotiating strategy:
- Reducing court litigation. Mediation channels a significant share of recurring disputes — banking, insurance, condominium, inheritance — toward ADR, easing the burden on the courts. This isn’t just a “systemic” benefit: for the parties, it also means avoiding a low-value dispute absorbing effort disproportionate to what can realistically be achieved.
- Lower time and costs. The procedure is relatively short and can now largely be handled online. The savings go beyond direct expenses and fees: an agreement removes the uncertainty of the outcome, the risk of appeals, and the “hidden” cost of the managerial or personal time spent on the dispute.
- Confidentiality and inadmissibility of statements. The confidentiality regime under Articles 9 and 10 of Legislative Decree 28/2010 encourages open exchanges of information and creative solutions that cannot be used in any later court proceedings. This is a decisive factor in disputes between businesses, where litigation can affect reputation, supply continuity, and future commercial relationships.
- Flexibility and negotiating autonomy. The parties can craft agreements that a judge, by definition, could never “invent”: payment deferrals, contract revisions, new guarantees, supply commitments, cross-claim exchanges, or hybrid solutions. In complex commercial disputes — franchising, subcontracting, business networks — this flexibility can be worth more than a formal win.
- Enforceability of the agreement. An agreement signed by the parties and their lawyers constitutes an enforceable title for forced expropriation, enforcement of delivery or release obligations, obligations to do or not do something, and registration of a judicial mortgage. In other words, mediation doesn’t just produce a “handshake” — it can generate an immediately actionable result.
- Tax incentives and access to the tool. The system provides tax credits linked to mediation fees and, in certain cases, to lawyers’ fees, along with specific rules on state-funded legal aid. This is a detail often overlooked, but one that can meaningfully affect the procedure’s overall value.
Mediation as an Opportunity
Mediation isn’t litigation’s “little brother,” and it shouldn’t be treated as a formality to get through quickly on the way to court. It is, instead, a real test of strategy: it forces the parties to ask themselves what they actually want to achieve, what risks they’re willing to bear, and what concessions could turn a dispute into a useful agreement.
For anyone managing litigation, family relationships, or complex business relationships, preparation makes the difference: arriving at the first session with organized documents, clear negotiating margins, and a realistic assessment of litigation risk significantly improves the chances of success.
The advice, then, is simple: don’t treat mediation as a mandatory detour, but as a different room in which to try to resolve the same dispute with more flexible tools. Sometimes the best solution isn’t the one that arrives last, after years in court, but the one the parties manage to build before the conflict becomes irreversible.
