Mediation in Commercial and Corporate Disputes
Legal framework, historical development and practical profiles of commercial mediation
Mediation is the structured procedure through which two or more parties to a dispute work towards reaching a settlement with the assistance of a neutral third-party mediator who has no decision-making power.
The mediator, neutral and impartial, facilitates communication between the parties and assists them in finding a solution, but has no power to impose an outcome or to substitute his or her own judgment for theirs.
In Italy, mediation aimed at settling civil and commercial disputes is governed by Legislative Decree of 4 March 2010, No. 28, implementing EU Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters.
The Decree has been amended on several occasions. The most significant reform was introduced by the so-called Cartabia Reform (Legislative Decree No. 149/2022), which came fully into effect in 2023, and by the subsequent corrective Legislative Decree of 27 December 2024, No. 216, which updated the framework and introduced, among other things, online mediation and certain procedural adjustments.
On the operational side, Ministerial Decree of 14 October 2023, No. 150 established:
- the requirements for mediation bodies;
- the training standards for mediators;
- the fees applicable to proceedings commenced on or after 15 November 2023.
Historical development of corporate and commercial mediation between private autonomy and the public function of justice
Mediation belongs to the broader category of Alternative Dispute Resolution (ADR), which developed in common law jurisdictions from the 1970s onwards and subsequently spread across Europe through the impetus of EU legislation. This mechanism for resolving disputes outside the court system has revived a long-standing theoretical debate among legal practitioners around the concept of the privatisation of justice.
Critics of mandatory mediation view the progressive expansion of matters removed from the jurisdiction of state courts as a risk to the principles of equality and effective access to judicial protection guaranteed by Article 24 of the Italian Constitution.
Supporters of the institution, by contrast, prefer the term assisted self-composition, emphasising that the parties do not waive their right to judicial protection — which remains available at all times if no agreement is reached — but rather exercise their private autonomy to settle consensually a dispute concerning available rights.
Mediation does not replace state justice: it complements it, relieving the court system of disputes that do not necessarily require judicial intervention.
The Italian legislature, in line with the European approach, has adopted a pragmatic position:
- it has introduced mandatory mediation for specific categories of disputes;
- it has provided fiscal incentives to encourage voluntary use;
- it has maintained judicial protection as a residual remedy, always available.
In Italy, the first comprehensive regulation of out-of-court settlement in corporate matters came into force in 2003 (Legislative Decree of 17 January 2003, No. 5), which introduced a mandatory conciliation attempt for certain corporate disputes. In 2010, Legislative Decree No. 28/2010 extended the institution to all civil and commercial matters, introducing mandatory mediation as a procedural precondition for bringing certain categories of claims before the courts.
The Cartabia Reform marked a significant turning point. The preliminary informational meeting — previously used in practice as a mere formality — was abolished and replaced by the principle of effectiveness, under which the parties are required to engage genuinely with the procedure and address the substance of the dispute from the very first session, assisted by their respective legal counsel.
The Court of Cassation confirmed this approach in Order No. 9608/2026, clarifying that the admissibility condition is satisfied only where the first session has actually taken place and at least one party was duly represented.
Civil and commercial mediation is a broad and evolving field. In the coming weeks we will publish further contributions on domestic mediation and its operational profiles, as well as a post on international mediation.
