Beijing Law Review, 2012, 3, 184-197
http://dx.doi.org/10.4236/blr.2012.34024 Published Online December 2012 (http://www.SciRP.org/journal/blr)
The Management of a Mediation Organization A cco rding
to the Italian Law
Piera Pellegrinelli
Università degli Studi di Bergamo, Bergamo, Italy.
Received September 24th, 2012; revised October 25th, 2012; accepted November 5th, 2012
ABSTRACT
The article follows the aim to explain the management of a mediation organization according to the Italian law. Rules
and regulations concerning mediation organizatio n s are briefly and con cisely ou tlined in item III, Legislative Decree No.
28 of 4 March 2010, which is the main measure. Italy has than introduced different rules which provide a better defini-
tion of the running of a mediation organization: Ministerial Decree No. 180 of 18 October 2010; Regulation of 4 No-
vember 2010; Ministerial Circu lar of 4 April 2011; Ministerial Circ ular of 13 June 2011; Ministerial Decr ee No. 145 of
6 July 2011; Ministerial Circular of 20 December 2011. The work analyzes the bodies involved in the mediation: the
Ministry, the mediators and the parties.
Keywords: Mediation; Conciliation; Civil and Commercial Matters; Rules; Min istry; Mediators; Parties
1. Introduction
Article 60 of L a w No. 69 of 18 June 2009 delegated power
to the Italian government to issue one or more Legisla-
tive Decrees on mediation and conciliation in civil and
commercial matters1 [1], on the basis of the directive cri-
teria provided in Article 60 of the same Law [2,3], in
order to conform Italian legislation to the principles es-
tablished by the European Union.
Rules and regulations concerning mediation organiza-
tions are briefly and co ncisely outlined in item III, Legis-
lative Decree No. 28 of 4 March 2010.
One of the fixed points, from which the regulation of
mediation organizations originates, is a register2 [4]. In
order to be entered in the register, mediation providers
must apply to the Ministry of Justice (executive body
whose duties are also register control and examination of
the organization’s reliab ility and efficien cy3 [5]) and sub-
mit their code of ethics, as well as the rules of proce-
dure containing charts for indemnity payment to the or-
ganizations and guarantees4 [6].
The formulation of specific technical rules concerning
the “Creation of the register and its revision , registration
suspension and removal of members, the introduction of
separate sections within the register to record cases
which require special competences, including in con-
sumer and international disputes, as well as the defini-
tion of the indemnity due to mediation organizations” is
delegated, under Art. 16 of Legislative Decree 28/2010,
to special decrees issued by the Ministry of Justice in
agreement with the Ministry for Economic Development.
Before analyzing responsibility and obligations estab-
lished by rules and regu lations gradually introduced, it is
relevant to mention which requirements a mediation or-
ganization must meet as a consequence of what Legisla-
tive Decree No. 28 of 4 March 2010 states.
Indeed, in Article 16 of Legislative Decree 28/2010 it
is pointed ou t that “Public bodies or private en tities with
the required reliability and efficiency” are authorized to
set up organizations which will manage the mediation
process.
These requirements are certainly fulfilled by Bar
Councils, which have the right ex lege to set up media-
tion organizations and to be entered in the register of the
4“Besides the application for registration, the Organization submits its
rules of procedure and its code of ethics to the Ministry of Justice and
shall communicate any subsequent change. In accordance with what
established by this decree, the rules shall include computer procedures
used by the organization; in this way it is possible to guarantee com-
munication protection and respect of confidentiality of data. Charts con-
cerning indemnities due to organizations set up by private bodies shall
be enclosed to the rules of procedure and submitted for approval confi-
dentiality of data, in accordance with Article 17. The Ministry of Jus-
tice considers the suitability of the rules in order to decide the Regis-
tration of an organization”.
1“Someone cosiders it as one of the most ‘subversive’ of the recent re-
forms”.
2“Organizations shall be entered in the register”.
3“Register is controlled by the Ministry of Justice, and also by the Mi-
nistry for economic development, in accordance with the section o
f
p
aragraph 2 concerning how to deal with consumer matters”.

The Management of a Mediation Organization According to the Italian Law 185
Ministry of Justice “by means of simple application5 [7]”,
but also by Councils of other professional orders, as re-
gards matters within their competence, and by Chambers
of Commerce, Industry, Crafts and Agriculture6 [8].
In truth, the explanatory report in Legislative Decree
No. 28 of 4 March 2010 states that as far as Councils of
professional orders and Chambers of Commerce are con-
cerned, although the public law nature of these bodies
offers guarantees of reliability and efficiency, the Regis-
tration of Organizations is subj ect to the authorization by
the Ministry of Justice, which checks the fulfillment of
the minimum requirements “which allow the organiza-
tion to carry out the activity”.
Besides these preliminary requirements, a set of rules,
which prov ide a better definition of the running of a me-
diation organization, was introduced through subsequent
regulations: Ministerial Decree No. 180 of 18 October
2010; Regulation of 4 November 2010; Ministerial Cir-
cular of 4 April 2011; Ministerial Circular of 13 June
2011; Ministerial Decr ee No. 145 of 6 July 2011; Min is-
terial Circular of 20 December 2011.
Given this set of rules, it is possible to identify, with
reference to the bodies, a series of requirements and ob-
ligations towards the Ministry 1), the mediators them-
selves 2) and, of course, towards th e parties wh ich turn to
them for mediation.
2. Obligations of the Mediation
Organization: Towards the Ministry
2.1. Registration
Under Article 16 of Legislative Decree No. 28 of 4 Mar-
ch 2010 “the organizations must be entered in the Regis-
ter”.
Rules and regulations concerning the register are out-
lined in Article 3 of Ministerial Decree No. 180 of 18
October 2010, which institutes the reg ister of the organi-
zations authorized to provide mediation service at the
Ministry, within the human, financial and instrumental
resources already present at the Department for justice
affairs. Moreover it points out an organization of the re-
gister into parts and sections7 [9] and makes it compul-
sory for the person in charg e to update it regularly and to
manage it by computer8 for a fast elaboration of inserted
data.
The responsibility for the register lay at first with the
General Director of the Civil Justice Office, who was
empowered to delegate the register-keeping only to a
person with managerial qualification in the field of ge-
neral directio n.
As a consequence of Article 1 of Ministerial Decree
No. 145 of 6 July 20119 it is possible to delegate the re-
gister-keeping also to persons who have the qualification
of judge and to have recourse to the general Inspectorate
of the Ministry of Justice in order to perform the task of
register control.
In truth, the reform simply authorizes, through an ad
hoc legislative provision, a practice which has already
established at the Ministry, considering that the so-called
“judge in charge” has always dealt with the organization
and coordination of the ministerial offices to which re-
gister control is entrusted.
These changes show the importance attached to the ac-
tivity of control by the administration, as further tools
were introduced to simplify the concrete examination of
the activity of mediation during the preventive phase
(that is on applying for registration, when correctness and
fulfilment of the prescriptive requirements are checked)
but also during the following phases (by checking the
regular fulfilment of requiremen ts and the respect of pri-
mary and secondary legislative provisions , as well as Mi-
7“The register is organized so as to include the following sections: part
1): public bodies; section A: list of mediators; section B: list of media-
tors expert in matters concerning consumer relationships; part 2): pri-
vate entities; section A: list of mediators; section B: list of mediators
experts in international matters; section C: list of mediators experts in
matters concerning consumer relationships; section D: list of members,
associates, managers, representatives of the organizations”.
8It seems useful to stress that the list of registered organizations can be
found on the website www.giustizia.it, in the section “Tools”, where
these Organizations are ordered according to the number of registration.
Moreover it is possible to search using parameters like town or mu-
nicipal district where they work. It seems important to point out that on
the list there are Organizations at a preliminary stage of registration as
well (identified by means of a particular code) because they regularly
submitted the application and after the deadline established to check the
fulfilment of requirements on the part of the administration, the general
direction registered them without checking and only because of the
effect of implied assent. Anyway, the final registration will be reached
only after checking the fulfilment of requirements.
9The provision has been filed: “Rules which modify the Decree of the
Ministry of Justice No. 180 of 18 October 2010, about the determina-
tion of criteria and modalities for registration, the keeping of the Regis-
ter of mediation organizations and the list of teachers for mediators, as
well as approval of indemnities due to organizations, under article 16 o
f
the Legislative Decree No. 28 of 4 March 2010”.
5“Bar Councils can set up organizations in every court, availing them-
selves of their staff and using venues placed at their disposal by the
p
resident of the court. Organizations are registered in courts by means
of simple application, in accordance with criteria established by decrees
referred to in Article 16.”
6“1. Councils of professional ord ers can set up special organizations, for
matters within their competence and by previous authorization of the
Ministry of Justice, availing themselves of their staff and using venues
at their disposal. 2. Organizations described in paragraph 1 and orga-
nizations set up under article 2, paragraph 4 of law No. 580 of 29 De-
cember 1993 by Chambers of Commerce, Industry, Crafts and Agri-
culture are registered by means of simple application, in accordance
with criteria established by decrees referred to in Article 16”. For com-
p
leteness reasons, the text of Article 2, paragraph 4 of Law No. 580 o
f
29 December 1993 (Reorganization of Chambers of Commerce, Indus-
try, Crafts and Agriculture) is quoted: “Article 2 (Tasks and functions).
1 - 3 (Omissis); 4. In order to reach their goals, Chambers of Commerce
p
romote, realize and manage structures and infrastructures of general
economic interest at a local, regional and national level directly or
through the contribution of other publi c or private bodies, in accordance
with the laws of the Civil Code, for organizations or associations. 5-9
(Omissis)”.

The Management of a Mediation Organization According to the Italian Law
186
nisterial Directives, on the part of bodies and mediators)
[10].
In confirmation of what stated above, it seems useful
to emphasize that the Ministerial Circular of 20 Decem-
ber 2011 [11] specifies the great importance attached to
the so-called minimum quality stan dards concerning pro-
fessionalism, efficiency and suitability of mediation or-
ganizations, which are considered as necessary requi-
sites in order to manage to provide a proper mediation
service. Furthermore the Ministerial Circular provides a
first exemplification of the concrete examination proce-
dure: Evaluation of failure to comply with communica-
tion rules imposed to the organization; check of the pos-
sible lack of minimum capital required, of minimum num-
ber of mediators, of biennial update for mediators, of
timeliness of communications and timeliness in fixing the
fist sessions, as well as examination of the respect of
criteria for assignment of tasks.
The necessary criteria for registration, as well as their
detailed description, are provided in Article 4 of Ministe-
rial Decree No. 180 of 18 October 2010, which entrusts
the examination of applicants’ professionalism and effi-
ciency to the person in charge. The criteria are the fol-
lowing:
1) Financial capacity and organizational capability of
the applicant, as well as compatibility of the activity of
mediation with the legal structure or membership pur-
pose. The first requirement is met if applicants are able to
prove that they own a capital which is not lower than the
amount of money necessary to set up a limited com-
pany10. As far as the second requirement is concerned,
applicants must certify that they are able to provide me-
diation service in at least two Italian regions or in at least
two provinces of the same region. This can also take
place by means of the agreements referred to in subse-
quent Article 7, paragraph 2, letter c), that is by means of
agreements with other bodies which envisage the sharing
of facilities, staff and mediators, provided that this is in-
cluded in procedure Rules11 [12].
2) Availability, on the part of the applicant, of insu-
rance covering any an d all liabilities pertaining to the ac-
tivity of mediation for a minimum of €500,000.00;
3) The requisites of good repute concerning members,
associates, managers or representatives of the above-men-
tioned bodies, in line with those establish ed in Article 13
of Legislative Decree No. 58 of 21 February 199812;
4) The administrative and accounting transparency of
the entity, including the legal and business relationship
between the organization and the body it might belong to
as department, in order to prove to have the necessary
financial and functional autonomy;
5) The guarantee of independence, impartiality and con-
fidentiality during the mediation process, as well as the
conformity of rules with the law, also as far as the legal
relationship with mediators is concerned;
6) The number of mediators, at least five individuals,
who declared themselves willing to perform the functions
as mediators for the applicant;
7) The venues of the organization.
Besides the above-mentioned requisites, other require-
ments, concerning only mediators who belong to these
organizations, must be met. The mediators must:
1) Have a level of education which corresponds to
completed university studies of at least three years or be
registered in a professional order or college;
2) Have a special training and a two-yearly training
update. The previous formulation of Article 4, paragraph
3, letter b) of Ministerial Decree 180/2010 established,
by means of the reference to Article 18 of the same rule,
a basic training course lasting at least 50 hours and a
two-yearly training update of a total duration of not less
than 18 hours. Th ese cou rses are theory and practical and
deal with national, EC and international regulations con-
cerning mediation and con ciliation, with methodology of
negotiation simplifying procedures, with techniques for
dealing with situations of conflict and communication
interactions, also with reference to mediation ordered by
the judge. These courses are also about effectiveness of
mediation and conciliation contract clauses, about struc-
ture, content and effects of the application for mediation
12The requirements of good repute were provided for by appropriate
rules established by the Ministry of Economy and Finance, in agree-
ment with Banca d’Italia and CONSOB. The rules were implemented
b
y means of Ministerial Decree No. 468 of 11 November 1998. The
requirements are: a) the absence of conditions of ineligibility or loss
described in Article 2382 of the Civil Code, such as disqualification,
failure or conviction to a punishment which implies the disqualification
also temporarily, from public offices or the impossibility of working as
manager; b) the absence of precautionary measures imposed by the
legal authority under law No. 1423 of 27 December 1956 or under law
N
o. 575 of 31 May 1965 and subsequent modifications and additions,
except for the effects of reinstatement; c) the absence of irrevocable
j
udgments, except for the effects of reinstatement: 1) prison sentence
b
ecause of one of the crimes outlined by regulations about banking,
financial, movable and insurance activity and by regulations concerning
market and movable values, means of payment; 2) prison sentence
b
ecause of one of the crimes described in section XI of book V of the
Civil Code and in the king’s decree No. 267 of 16 March 1942; 3)
p
rison sentence for a minimum period of one year because of a crime
against public administration, against public loyalty, against assets,
against law and order, against public economy or because of a crime in
tax matters; 4) prison sentence for a minimum period of two years for
any crime committed with malice aforethought.
10Under Article 2463 of the Civil Code, 2nd paragraph, n. 4) the amount
of capital which is necessary to set up a limited company cannot be less
than €10,000.
11“The organization can include in the rules: […] c) the chance of avai-
ling of structures, staff and mediators of other organizations with which
it has reached an agreement to that end, also for the single mediation
matters, as well as the chance of using the results of joint negotiations
based on the agreement protocol between associations recognized under
Article 137 of the Consumer Code and companies or their organizations
and dealing with the same dispute” .

The Management of a Mediation Organization According to the Italian Law 187
and of conciliation agreements, and, finally, about the me-
diator’s duties and responsibility [13].
The inappropriateness of these measures for training,
stressed by many authors [14] in the legal field13 [15], led
to a change of the regulation by means of Ministerial
Decree No. 145 of 6 Ju ly 201114 [16], in order to guaran-
tee a proper and effective training for mediators.
Indeed the necessity of guaranteeing not only the me-
diator’s theoretical education and professional training,
but also a practical training whose aims are learning how
other mediators manage the mediation process during its
various phases and enriching the mediator’s experience,
even though indirectly, was recognized.
To that end the new text requires, besides the fulfil-
ment of the requirements already established, the media-
tors’ participation in twenty cases handled by the Regis-
tered bodies, which will be considered as assisted train-
ing.
The Circular for the interpretation of the corrective
measures specifies that this “participation” must corre-
spond to sheer assistance to the mediator with its activity,
without providing further help to resolve the dispu te.
The reason for this formulation lies in the necessary
mutual trust between mediator and parties, who must be
able to identify the mediator in charge of all phases of the
procedure, even if a further subject (that is the trainee
mediator) deals with them. For the same reason the par-
ticipation of no more than one trainee mediator in each
phase is suggested, but not explicitly regulated, and,
therefore, it relies on the consideration on the part of the
mediation organization, which should take into account a
series of organizational aspects (concerning time and place)
and reconcile this need with the features and work of the
organiz at ion [10].
Even with reference to the twenty cases in which the
trainee mediator must take part, some doubts concerning
the way the twenty procedures should be counted were
raised.
In particular, the regulation does not specify if “par-
ticipation in the procedure” means the participation in a
single phase or in the whole mediation process; moreover
it is not stated explicitly if the so -called “non-active pha-
ses” (that is the cases in which, as a result of the me-
diation application of a particular party, a negative report
is written because of the failure of the other party to par-
ticipate) are considered as valid moments of assistance
for the training.
By means of the interpretation provided by the Minis-
terial Circular of 20 December 2011, a solution to the
above-mentioned doubts was provided. This text states
that a preference must be given to the approach accor-
ding to which “participation” also means presence du-
ring a single phase of the mediation procedure and reco-
gnizes that, despite the necessity of the trainee’s partici-
pation in the active phase, because it is more consistent
with the educational purpose of the regulation, “until the
extrajudicial mediation reaches […] a more frequent
participation of the party which is invited to take part in
the mediation procedure”, the presence of the trainee
mediator to the writing of the negative report, written
under Article 7, paragraph 5 of Ministerial Decree No.
180 of 18 October 2010, must be considered as valid.
Finally, it is important to mention that the regulation
concerning training has been in force only since 26th Au-
gust 2011 (that is since the date when the Ministerial
Decree No. 145 of 6 July 2011 came into force) and,
therefore, the two-year period within which the training
must be completed begins at that date for already regis-
tered mediators, while it starts at the time of registration
for those who registered in the relevant lists after 26th
August 2011.
It has been remarked that during this initial phase of
application of the mediation procedure, completing the
training required could be difficult and that a postpone-
ment of the coming into force of the training would have
been appropriate: it is clear, indeed, that during this
phase the number of mediation practices started is not
enough to guarantee all mediators the participation in
twenty mediation cases, despite the expedient of consi-
dering the participation in non-active phases as valid for
the final count.
3) Fulfill the requirements of good repute, as follows:
1) not to have been condemned because of a crime which
was committed with malice aforethought, nor to im-
prisonment which has not been suspended yet; 2) not to
have been disqualified from holding public offices tem-
porarily or permanen tly; 3) not to have undergone safety
or precautionary measures; 4) not to have undergone dis-
ciplinary sanctions different from warning.
4) Have the required documents which attest language
skills for mediators who are going to register in the sec-
tion of the register for experts in international matters.
2.2. Application for Registration
If public and private bodies and their respective orga-
nizations are able to guarantee the fulfilment of the above-
mentioned requirements, they can apply for Registration
in the form outlined in the Regulation of 4 November
2010 provid ed by the General Dir ector of the Ministry o f
Justice and according to the modality described in Arti-
cle 5 of Ministerial Decree No. 180 of 18 October 2010.
13There are opposite opinions of people who think that the mediator’s
role should not be burdened with a heavy compulsory training, with
reference to the task of taking part in disputes without the power to take
compulsory decisions for the parties.
14“2) Mediators shall be provided with a specific training and specific
two-yearly update by training bodies under article 18 and shall take part
during the two-yearly update as well as during the assisted training, in
at least twenty mediation cases handled in registered o rg a n i z a ti o n s ” .

The Management of a Mediation Organization According to the Italian Law
188
In particular it is possible to identify three application
forms15.
1) A first application form for the registration of me-
diation organizations when the application is submitted
by private entities. This form requires: the explicit indi-
cation of the deed of partnership of the body, from which
it is possible to evict that th e mediation activ ity is chara-
cteristic of the applying body16; the precise specification
of the places where the mediation service will be pro-
vided, in conformity with what is stated in Article 4,
paragraph 4, letter a) of Ministerial Decree No. 180 of 18
October 2010; the indication of the requisites established
by regulations and concerning both organizations and
mediators. For each registered mediator there is a form to
complete and, if necessary, to complement with a self-
certification or appropriate documents (in case of media-
tors who are expert in internatio nal or consumer matters)
as well as with the indication of the organizations for
which the mediator is willing to work and the specifica-
tion of not having declared to be willing to perform his/
her functions to more than five mediation organizations.
2) A second application form for the registration of
mediation organizations when the application is submit-
ted by public bodies and en tities. The peculiarities of this
form essentially depend on the differences, provided for
in the rules, concerning the Chambers of Commerce and
professional orders and imply the request only of the
requisites therein outlin ed.
3) A third application form for the request of authori-
zation to set up special organizations; this form corre-
sponds to the one prepared to set up organizations on the
part of professional orders which are different from the
order of lawyers, as stated in Article 19 of Legislative
Decree No. 28 of 4 March 2010.
The peculiarity of the forms lies in the indication of
the matters within the competence of the professional
order: this limits the number of disputes which can be en-
trusted to the organizations.
Besides the application form, organizations must sub-
mit the rules of procedure, the so-called evaluation form
and charts for indemnity payment.
This is laid down not only in Article 5 of Ministerial
Decree No. 180 of 18 October 2010, but also in the pre-
vious Article 16 of Legislative Decree No. 28 of 4 March
2010, which regulates the technical features which chara-
cterize these documents.
2.3. Rules of Procedure
The above-mentioned measures17 [17] clarify that rules
of procedure consist of a so-called necessary part, which
contains elements that, according to law, cannot be ex-
cluded from the regulations, and a so-called optional part,
which contains rules of procedure whose inclusion in the
regulations relies on the consideration of the organiza-
tion.
The necessary part includes: 1) “The indication of the
place where the procedure takes place”18 [18] as well as
the indication of the possibility of derogating from this
with the consent of th e parties, of the mediator and of the
manager of the organization; 2) “Computer procedures
the organization might use” which, if used, must be
characterized by guarantees concerning communication
protection and confidentiality of data, but they cannot
constitute the only way to access the mediation proce-
dure19 [19]; 3) The subordination of the beginning of the
procedure to the signing of the impartiality declaration20
[20] on the part of the appointed mediator; 4) The provi-
sion for delivery of the evaluation form; 5) The possibi-
lity, for the parties, of appointing the mediator jointly.
Besides the above-mentioned rules, through the changes
made to Article 3 of Ministerial Decree No. 145 of 6 July
2011, two further rules of procedure were added and
must be provided fo r in regulations as follows: 4) in case
of compulsory mediation, the arranged meeting for medi-
ation must take place even if the other party does not turn
up or declares explicitly that it will not p articipate21 [21].
In this case it is important that the inviting party takes
17The fact that the legislative decree implementing Article 60 of law o
f
18 June 2009 already dealt with some provisions delegated to subse-
quent ministerial decrees had already been remarked in Jurisprudence.
Indeed before the coming into force of implementation rules, it was
argued that if these rules did not include any provision about confiden-
tiality of procedure, its length, mediators’duties, use of computer pro-
cedures and preparation of rules of procedure, these rules could and
should find their source in the Legislative Decree No. 28 of 4 March
2010.
18“The process is carried out without formalities at the venues of the
mediation organization or at the place pointed out in the rules of pro-
cedure of the organization”.
19“Rules shall include […] computer procedures used by the organiza-
tion; in this way it is possible to guarantee communication protection
and respect of confidentiality of data” while in Article 7, 4th paragraph
of Ministerial Decree No. 180 of 18 October 2010 it is established that
“The rules cannot state that access to mediation is carried out only by
computer”. Criticism on this aspect was shown and the opportunity o
f
introducing a brief regulation about computer procedures in require-
ments of rules of procedure was str e ssed, bu t it did not ha ve e ffec t.
20“The mediator has the duty of: a) writing, for each matter he is asked
to deal with, a statement of impartiality using words established by the
rules of procedure, as well as further requirements provided for by the
same rules”.
15In conformity with rules just referred to, which provide for various
obligations of the Ministry, in particular for the appropriate communi-
cation of decisions concerning mediation, the form can be easily found
on the website www.giustizia.it with the clarifying note prepared by the
General Direction for Civil Justice of the Ministry of Justice, which
briefly describes its purposes and content.
16This implies that in case the deed of partnership does not explicitly
p
rovide for mediation activity, it is necessary to complete it. This has
two main functions: On one hand to guarantee the correct setting of the
application as far as the indication of the activity is concerned; on the
other hand to make the body understand that mediation service he/she is
going to provide shall be considered as a central moment in the activity
of the body.

The Management of a Mediation Organization According to the Italian Law 189
part in the meeting with the mediator, that the failure of
the called party to participate is recorded in the report,
that the mediator writes a report on unsuccessful media-
tion and that, finally, this provision is included in the
rules of proced ure.
This modification simply gives legal expression to what
had already been noticed through practice. The first clari-
fications about Ministerial D ecree No. 180 of 18 October
2010 provided by the General Director of the Civil Jus-
tice Office considered as incorrect the introduction, in the
rules of procedure, of a provision according to which the
secretary of the organization could issue a written state-
ment of procedure conclusion due to the failure of the
called party to participate, without the inviting party’s
effective turning up before the mediator in a summons
session22.
This is the result of the fact that mediation has been
provided for as a condition for the admissibility of civil
proceedings, which implies that the procedure must take
place concretely and that a negative report must be writ-
ten by the only subject (the mediator) authorized to check
that the called party did not turn up [22]; (vii) the provi-
sion for predetermined and binding criteria for the en-
trustment of the activity of mediation23 [23].
At the discretion of the organization, a series of rules
of procedure, which were already pointed out in the
Ministerial Decree No. 180 of 18 October 2010, can be
included, such as: 1) the provision for personal appea-
rance before the mediator. It is not really clear what the
legislator meant with this provision: on one hand it is
thought that it may point out to the power of the organi-
zation to entrust appearance before the mediator only to
the personal party, without the involvement of a defence
lawyer; on the other hand, and maybe more correctly, a
literal interpretation is provided and it seems that the
provision allows the mediator to hold separate sessions
for each party, as in this way he can reach a better under-
standing of the interests of the parties he has to recon-
cile24 [24].
2.4. The Evaluation Form
In accordance with Ministerial Decree No. 180 of 18 Oc-
tober 2010, rules of procedure must also contain the form
for evaluation of the mediation service25 [25].
An empty copy of the evaluation form employed by
the organization must be enclosed to the regulations. The
modalities for its submission to each party using media-
tion must be explained as well.
To that end, regulations must provide indications of
the way to fil l in the for m, to sign it, to provide the ne ces-
sary information and to send it by computer to the per-
son in charge, so that receipt can be ensured.
By way of an example, it seems useful to stress that
regulations usually provide for direct delivery of the
form to the mediator, who deposits it in the organiza-
tion’s secretariat, which must deliver it by computer to
the person in charge of the register of the organizations.
However in some cases the mediator directly burdens the
parties with the delivery of the form to the Ministry of
Justice.
2.5. Charts for Indemnity Zayment
Charts for indemnity payment correspond to the schema-
tization of the amounts charged to the parties for the use
of mediation service provided by the organizations [26]
and must be enclosed to the rules of procedure, as this is
a provision included not only in Ministerial Decree No.
180 of 18 October 201026 [27], but also in Legislative
Decree No. 28 of 4 March 201027 [28] .
The subject of indemnity, immediately associated with
the topic of costs, has always been impo rtant in rules and
regulations governing mediation. Article 17 of Legisla-
tive Decree No. 28 of 4 March 2010 points out the re-
ductions and tax exemptions from which the parties us-
ing mediation can benefit and describes the effects of com-
pulsory mediation on costs28 [29].
21“In cases provided for in Article 5, 1st paragraph of the Legislative
Decree, the mediator meets the applying party even in case of failure o
f
the called party to participate in the session, and the secretariat of the
organization can issue a certificate of procedure conclusion only when
the report of failure of the called party to participate and of failure to
reach an agreement is written by the mediator under article 11, 4th
p
aragraph of the legislative decree”.
22This occurred during the first applications of the procedure also to
solve a damaging situation concerning the applying party: the failure o
f
the called party to participate implied that the applying party had to pay
not only fees for the start of the procedure, but also subsequent fees and
this just to get a report on unsuccessful mediation. In order to avoid this
expensive disadvantage, some organizations agreed that in case the
counterparty did not want to participate, the mediation attempt could be
considered carried out when application was submitted and fees to start
the procedure were paid, and that in this c ase the mediation rep ort could
b
e written without having to go before the mediator and, therefore, the
applying party would not have to pay further fees.
23“Binding criteria for the assignment of mediation matters which are
p
reconceived and compliant with the professional competence of the
appointed mediator, implied also by the type of university degree
he/she has”.
A complete formulation of rules and regulations is
provided in Ministerial Decree No. 180 of 18 October
2010, which was subsequently modified by the Ministe-
24Moreover, the chance of separate sessions is explicitly included: “As
far as statements and information acquired during separate sessions are
concerned and unless agreed by the party in question, the mediator has
the duty of confidentiality towards the other parties”.
25“Rules shall in any case state: […] that, at the end of the mediation
p
rocess, each party is given an appropriate form for the evaluation o
f
the service provided; the empty copy of the form shall be enclosed to
the rules and a copy of the form with the signature of the party and its
p
ersonal details shall be delivered by computer to the person in charge,
using methods which guarantee its receipt”.
26“To the question is, in any case, the rules of procedure attached with
[…] the list of the expenses set out with the criteria in the article”.
27“Charts concerning indemnities due to organizations set up by private
b
odies shall be enclosed to the rules”.

The Management of a Mediation Organization According to the Italian Law
190
rial Decree No. 145 of 6 July 2011, as a consequence of
the objections raised by the best jurisprudence authors
about procedure costs and in the perspective of the en-
hancement of organizations which reach a resolution of
their disputes more easily.
From the first formulation, indemnities include: 1) fees
for the mediation procedure start and 2) mediation fees.
The first ones are the sums that the applying party
must pay when it starts mediation, each corresponding to
€40.00. These sums correspond to the minimum amount
which makes possible the receipt of the application, the
vision on the part of the secretariat, the activity of Regis-
tration and fascicle arrangement, as well as initial com-
munication.
Besides the payment of the fixed sum, it is provided
for the payment, charged to each party, of a sum which
varies according to the value of the dispute29, susceptible
of increase or reduction according to the nature of me-
diation required or to the success or failure of mediation.
Ministerial Decree No. 145 of 6 July 2011 has the pur-
pose on one hand of redu cing mediation costs, and on the
other hand of avoiding that the applying party is bur-
dened with the whole costs in case of failure of the other
party to participate30.
As far as increases or reductions are concerned, the
sum belonging to a particular value bracket can vary be-
cause of:
-A provision for an increase up to a fifth due to the
particular importance, complexity or difficulty of the
case;
-A provision for a compulsory application of an in-
crease up to a fourth, in case of successful mediation31;
-A provision for a compulsory raise of a fifth if the
mediator draws up a proposal by joint request of the par-
ties involved. This aspect, which was not modified by
Ministerial Decree 145/2011, emphasizes, once more,
one of the main aims of the decree, that is reaching an
extra-judicial resoolution of disputes, which does not rely
on a model oriented against the opposing party, but
which is instead a synthesis of the different claims, ac-
cording to the deflationary logic of the judicial conten-
tious procedu r e [30];
28“1. Implementation of Article 60, paragraph 3, letter o) of Law No. 69
of 18 June 2009 imply that tax relief provided for in the same article,
p
aragraphs 2 and 3, and by article 20, is part of the purposes of the
Ministry of Justice which can be financed by means of a part of money
received by the “Fondo Unico di Giustizia” and assigned to the said
Ministry, under paragraph 7 of Article 2, letter b) of decree law No. 143
of 16 September 2008, converted with modifications by Law No. 181
of 13 November 2008, and under paragraphs 3 and 4 of Article 7 o
f
Decree No. 127.2 of 30 July 2009 of the Ministry of Economy and
Finance. All acts, documents and measures concerning mediation pro-
cess are exempt from tax and from any cost. 3. The report concerning
the agreement is exempt of register fee within the limit value of €
50,000, otherwise the fee corresponds to the amount in excess. 4. The
Decree referred to in Article 16, paragraph 2 lays down: a) the mini-
mum and maximum indemnity due to public organizations, the cal-
culation method and the modalities for al location among parties; b)
criteria for approval of indemnity charts proposed by private entities; c)
maximum increase of due indemnities, which cannot be over twenty-
five percent, in case of successful mediation; d) minimum reduction o
f
due indemnities in case the mediation is a condition for admissibility to
court proceedings, under Article 5, paragraph 1. 5. When mediation is a
condition for admissibility of application under Article 5, paragraph 1,
no indemnity is due to the organization by the party which fulfils re-
quirements for admission to defence provided and paid by the State,
under Article 76 of the text of regulations concerning justice costs
referred to in the Decree of the President of the Republic No. 115 of 30
May 2002. To that end the party shall submit the written statement
replacing the affidavit to the organization, which can be authenticated
by the mediator himself/herself and shall provide necessary documents
to prove the truthfulness of what declared, if the organization requires it
otherwise it will not be admitted. 6. The Ministry of Justice carries out,
within its institutional activities, monitoring of mediations concerning
subjects exempt from payment of mediation indemnity. The results o
f
the monitoring will be used to establish the indemnity due to public
b
odies as referred to in the decree, Article 16, paragraph 2, so as to
cover the costs of services provided to subjects who are entitled to
exemption. 7. The amount of indemnity can be reconsidered every three
years in relation to the variation, checked by the National Institute o
f
Statistics, of the consumer price index for families of employees and
clerks, which characterized the previous three-year period. 8. The ex-
p
ense deriving from provisions in pa
r
agraphs 2 and 3, estimated € 5.9
million for 2010 and € 7.018 million starting from 2011 is covered
through corresponding reduction of the amount belonging to the
“Fondo unico di giustizia” referred to in Artile 2, paragraph 7, letter b)
of the Decree Law No. 143 of 16 September 2008, converted, with
modifications, by Law No. 181 of 13 November 2008 which, to that
end, is still acquired at the definition of the Budget. 9. The Ministry o
f
Economy and Finance carries out the monitoring of obligations estab-
lished in paragraphs 2 and 3. In case of changes compared to estimate
p
rovided in paragraph 8, the further amount of money which is neces-
sary to cover the further expense burdening on the sum of the “Fondo
Unico di Giustizia” referred to in paragraph 8, is still acquired at the
definition of the Bud
g
e
t
”.
29Mediation expenses are reckoned on the basis of value brackets
shown in chart A enclosed to Ministerial Decree No. 180 of 18 Octobe
r
2010, which establishes the following amounts: for disputes with a
value up to €1000.00 a sum of €65.00 shall be paid; for disputes with a
value between €1001.00 and €5000.00 a sum of €130.00 shall be paid;
for disputes with a value between €5001.00 and €10000.00 a sum of €
240.00 shall be paid; for disputes with a value between € 10,001.00 and
€
25000.00 a sum of € 360.00 shall be paid; for disputes with a value
between €25,001.00 and €50000.00 a sum of € 600.00 shall be paid; fo
r
disputes with a value between € 50,001.00 and €250,000.00 a sum of €
1000.00 shall be paid; for disputes with a value between € 250,001.00
and €500,000.00 a sum of € 2000.00 shall be paid; for disputes with a
value between €500,001.00 and €2,500,000.00 a sum of €3800.00 shall
be paid; for disputes with a value between €2,500,001.00 and €
5,000,000.0 0 a su m of € 5200.00 shall be paid; for disputes with a value
over €5,000,000.00 a sum of €9200.00 shall be paid.
30It is worth mentioning that European legislation, whose implementa-
tion has led to the regulation of mediation in our laws, has always sup-
p
orted the aspect of gratuitousness or, at least, the acceptable onerous-
ness of alternative dispute resolution procedures; on order not to forget
p
ossible unconstitutional profiles which can derive from subordination
of access to justice to the onerous attempt to reach agreement before the
mediator. The Constitutional Court No. 67 of 29 November 1967 de-
nies the possibility of subordinating the access to justice to the pay-
ment of a sum of money, and allows the subordination of the process
only to judiciary fees.
31On this aspect a modification was made through Ministerial Decree
N
o. 145 of 6 July 2011, which raised the amount of the premium (from
“one fifth” to “one fourth” of the initial amount) due to the organization
in case of successful mediation. This seems to be in opposition with the
objective of cost reduction which led to the reform, but it benefits bo-
dies which are able to reach successful mediation.

The Management of a Mediation Organization According to the Italian Law 191
-In case of mediation concerning compulsory subjects,
a provision for a compulsory reduction of one third for
disputes whose value belongs to one of the first six brac-
kets (that is up to €250,000.00), while reduction will
correspond to a half for the other value brac ket s.
This provision further reduces the amount to be paid
for compulsory mediation compared to pre-existing rules
and regulations, which provided for a single reduction,
corresponding to a third of the due indemnity, for all re-
ference bracket s32 [31];
-The provision for a reduction up to €40.00 for dis-
putes belonging to the first value bracket or up to €50.00
for the others, in case of failure of the called party to par-
ticipate in the procedure.
Besides the so reckoned amounts, actual and docu-
mented expenses borne by the organization for each as-
pect of mediation can be charged to the parties [32]. Un-
der no circumstances, instead, the payment of further
sums assignable to the mediator’s fee shall be requested,
because, in accordance with the explicit prescriptive pro-
vision, this is already included in the so-called mediation
fees paid according to the established criteria. This ap-
plies even in case: of change of mediator from one ses-
sion to the other one, of appointment of a board of me-
diators or in case of increase in the number of sessions
which take place in the presence of the mediator [33].
At the discretion of organizations, it is possible to de-
rogate from the minimum sum established for each refe-
rence value bracket [34].
As far as assessment of the dispute value is concerned,
there is an explicit reference to the laws of Code of Civil
Procedure and, therefore, it must be reckoned in accor-
dance with Article 10 and following articles of Code of
Civil Procedure.
The organization is empowered to decide at its discre-
tion the value of the dispute in case of indeterminate,
indeterminable value or when the parties disagree about
its estimate.
As far as this is concerned, it was remarked that this
right allows the organizations to ev ade the ordinary crite-
ria for assessment of dispute value, as they have great
discretionary powers and could, therefore, increase their
revenue [35].
Limits to this discretionary power were set by means
of the reform carried through by Ministerial Decree No.
145 of 6 July 2011, which introduced two substantial li-
mitations: on one hand it established the maximum value
assignable to the dispute on the part of the organzation,
which corresponds to €250,000.00 and, on the other hand,
it introduced a sort of safeguard clause which states that
if at the end of mediation procedure the value of the dis-
pute is different from the sum initially established, the
amount of indemnity to pay depends on the reference
value bracket33 [36].
In case of non-payment, regulations do not explicitly
provide neither for the possibility of suspending the pro-
cedure, nor for the po ssibility of refusing to carry ou t the
mediation attempt.
It is true, however, that some jurisprudence authors
[35] links this case to the “justified reason” which, as sta-
ted in Ministerial Decree No . 180 of 18 Octob er 201 0, al-
lows the organization not to carry out mediation34 [37] .
The possibility of refusing, which is abstractly admis-
sible in cases where mediation is not compulsory, be-
comes feasible with difficulty in cases in which the me-
diation process is a condition of admissibility: compul-
sory mediation could unlawfully disadvantage the subject
who does not pay indemnity and jeopardize the protec-
tion of a right guaranteed by the Constitution.
On the basis of the same principle, the legislator estab-
lished that who is in a condition to receive legal repre-
sentation paid by the State [38], does not have to pay any
indemnity to the organization in order to start the media-
tion process in compulsory mat t e rs.
The application for the registration of a mediation or-
ganization, accompanied by all documents established by
the regulations, must be sent to the Ministry using me-
thods which guarantee its receipt.
The moment when the application is received is par-
ticularly important, because the forty-day period estab-
lished by the legislator, within which the registration pro-
cedure must be completed, starts from that date35.
Rules state that after the deadline the organization is
entered in the register all the same, although the person
in charge has not checked that requirements are met and
has not completed the registration.
Indeed, through this provision, rules and regulations
about implied assent, described in law No. 241 of 7 Au-
gust 199036 [39], are brought about. The subsequent
33“Paragraph 8 [of article 16, Ministerial Decree No. 180 of 18 October
2010] is replaced by the following text: “if the value is undetermined,
or cannot be determinedor there is a great divergence between the
p
arties about its estimate, the organization decides the reference value
up to the limit of €250,000 and it communicates this value to the par-
ties. In any case, if at the end of the mediation process the value is
different, the amount of due indemnity corresponds to the one provided
in the reference bracket”.
34“After registration, organization and appointed mediator cannot refuse
to provide mediation service, unless for good reasons”.
35Article 5, 3rd paragraph, Ministerial Decree No. 180 of 18 October
2010, where it is provided for the possibility of suspension of the dead-
line in case the Person in charge needs supplements to the application
or respective attachments. In this case, from the moment when supple-
mentary documents are received by the Ministry, a twenty-day term is
established.
32“In paragraph 4, letter d) is replaced with the following text: “amounts
described in Article 5, paragraph 1 of Legislative Decree, shall be re-
duced of one third in the first six brackets, and of a half for the other
brackets, except for the reduction provided for in letter e) of this para-
graph, and no other raise will be applied among those provided for by
this article except for the raise provided for by letter b) of this para-
graph”; the previous text simply stated: “Shall be reduced of one third,
in the matters outlined in article 5,
p
ara
g
ra
p
h 1 of Le
g
islative Decree”.

The Management of a Mediation Organization According to the Italian Law
192
rules37 clarified that if on one hand rules and regulations
about implied assent cannot be b rough t about also in av e-
rage conciliation, on the other hand, also as a conse-
quence of the possibility of founding the application on
self-certification, not just of the act of filing an applica-
tion, the effects are the same as those of implied assent:
there must be, therefore, a perfect correspondence be-
tween declarations and reality and a perfect fulfilment of
requirements established by law38 [40].
Moreover administration is always empowered to pro-
ceed to the revocation of the act if, after its coming into
force (and therefore even in case of implied assent), new
facts occur and cause the act not to be effective any
longer. People in charge to supervise organizations are
entitled to check, at a later time, the lack of requisites
imposed, their failure or the conflict between rules and
primary or secondary laws, as well as the conflict be-
tween rules and primary laws or regulations.
2.6. Obligations after Registration
Through registration, each Organization is assigned a num-
ber, which identifies it unequivocally and constitutes its
identification element.
Indeed, the first obligation which derives from Regis-
tration corresponds to the duty of providing this number
in all acts, communications and advertising carried out in
the forms allowed by law [41].
Besides this ob ligation, there is a series of d uties which
are indissolubly linked to the regular fulfilment, on the
part of the organizations, of the requirements checked on
applying.
In this perspective, each ch ange in requisites, data and
lists provided fo r the registration, in cluding those concer-
ning the fulfilment of the obligation of training update
for mediators [42], must be immediately communicated
to the keeper of the reg ister.
Indeed, if new facts occur or are remarked and if be-
fore the registration the organization would not have been
allowed to be entered in the register because of these
facts, measures like suspension or removal from the regi-
ster may be taken by the keeper of the register.
Likewise suspension or removal from the register can
be decided in case of repeated violation of the mediator’s
obligations.
Besides these first situations, Article 10 of Ministerial
Decree No. 180 of 18 October 2010 d escribes a case which
leads ex lege to the removal from the register: having
carried out less than ten mediatio n procedures within two
years.
Even to that end, the supervision of the keeper of the
register is very important: a decisive contribution is pro-
vided by the General Direction of Statistics of the Minis-
try of Justice, thanks to which the keeper of the register
can monitor mediation pro cedures carried out by the sin-
gle organizations.
This monitoring activity, at first established in order to
check the financial availability of the State for the tax
credit awarded to whom used mediation successfully or
in order to cover expenses for the activity carried out for
subjects free from indemnity payment [43], concerns not
only the numerical flow of participations, but also pieces
of information described in procedures concerning out-
comes, matters considered and applying subjects.
36It’s particularly relevant as far as this aspect is concerned: “If the
p
rocess must start after request, that is it must be formally started, pub-
lic administration has the duty of ending it by means of an explicit
p
rovision” but also article 20: “Except for application of article 19, in
p
rocedures linked to the request of the party for administrative provi-
sions, the lack of answer on the part of administration is equivalent to a
p
rovision for granting a request, without the necessity of further re-
quests or warnings if the administration itself does not communicate to
the party in question, as outlined in article 2, paragraphs 2 or 3, a mea-
sure of denial, under para g raph 2”.
37Circular of 13 June 2011 of the General Director of Civil Justice—
Activity of keeping the register of mediation organizations and the list
of entities providing training. Indications about applicability of rules
concerning implied assent.
38“1. As outlined in Articles 19 and 20, enclosed to denunciation or
application the party in question shall provide a written statement certi-
fying the fulfilment of requirements established by law. In case o
f
mendacious statements or false declarations the setting up of the acti-
vity and its effects for law or the act of indemnity provided for by the
same articles are not allowed, and the declaring party is punished with
the sanction outlined in Article 483 of the Criminal Code, except for the
case in which the fact is more serious. 2. Sanctions provided for when
mediation activity is carried out without authorization of administration
or in a different way are applied even towards those who start providing
mediation service under articles 19 and 20 without fulfilling require-
ments or in contrast with laws in force. 2-
b
is. Assignment of tasks o
f
p
revention, control and supervision on activities subordinated to au-
thorization on the part of public administration provided for by laws in
force is still valid, even if mediation activity started under articles 19
and 20”.
The General Direction of the Ministry of Justice recom-
mends a profitable participation on the part of the Or-
ganizations in this kind of activity, because the failure to
take part actively in the monitoring may be co nsidered as
indicative of inactivity and lead to the suspension or re-
moval from the register.
If necessary, through a special circular, the General Di-
rection of Statistics of the Ministry of Justice provided
the “monthly form” for the recording of mediation flows,
where the procedures carried out by the Organization are
classified according to the reference month, and the “me-
diation form”, which contains specific and summarizing
information about each procedure completed in the refe-
rence month. These forms must deal with monthly acti-
vity of each organization and must be reach the General
Direction of the Ministry of Justice by 5th of the follow-
ing month.
The possibility of suspension or removal of the Orga-
nization from the register is not so remote; therefore rules
of procedure must provide a specific set of rules concer-
ning the effects of suspension or removal from the regis-

The Management of a Mediation Organization According to the Italian Law 193
ter on procedures in progress [44]. Indeed, if an orga-
nization is removed from the register, it will not be al-
lowed to enter the register again for a year from the date
of the taken measure [45].
Finally, it is relevant to mention that preservation of
requisites implies preservation of the effects that law ac-
knowledges to procedure: th e validity of the report as do-
cument of execution39 [46] and the validity of the proce-
dure for admissibility of court proceedings [47].
If parties turn to a non-authorized organization or to a
suspended or re moved organizatio n, the report written by
their mediator will not have the effects acknowledged to
reports written by regularly registered Organizations .
3. Obligations of the Mediation
Organization: Towards the Parties
Among aspects explicitly regulated by law there is the
relationship between parties and mediation Organization,
that is the relationship from which procedures to carry
out average conciliation, in the strict sense of the word,
before the mediator start off.
3.1. Application for Mediation
Parties which want to use mediation must submit a spe-
cific application to one of the registered organizations40.
There are no formal obligations, on condition that all
data requested in the regulations are included in the ap-
plication, so that the Organization, the parties, the object
and the reasons for the request can be correctly identi-
fied41 [48].
To that end all Organizations so far registered filed the
empty copy of their application form, which shall be
filled in with the data requested by the current regulations
and by further regulations included in their own rules of
procedure.
The choice of the Organization for application is en-
trusted to the first party which commits itself to start the
mediation procedure. Indeed there are no rules for terri-
torial competence which bind to start the procedure in a
particular place. The only provision for this aspect con-
cerns the place where the first and the other sessions be-
fore the mediator shall take place when the process has
already started. The decree of implementation and the
rules state that in rules of procedure of each Organization
the place where sessions will take place must be expli-
citly pointed out and that the place can be changed
only by previous agreement between the parties42 [49].
The delivery of the application, which can be car-
ried out by mail or by hand to the secretariat of the
O rg an iz a tion, constitutes a fundamental moment to esta-
blish the time of application43 [50].
This has two aims: on one hand to let the party define
which organization will provide mediation service in case
of delivery of more than one application to as many me-
diation Organizations. The criterion, in this case, is the
following: the first Organization to which the applica-
tion was delivered, deals with the dispute. On the other
hand the aim is to set the deadline within which the pro-
cedure must be completed by the Organization44 [51].
To that end, on receiving the application, the secre-
tariat of the Organization records the communication, as-
signs a progressive number to it and writes not only this
number, but also the identifying data of the parties, of the
object and of the assigned mediator in a particular regi-
ster45 [35].
Afterwards, the overall duration of the procedure and
its outcome will be written near these data [52 ].
3.2. The Procedure File
When a party applies for mediation, the Organization
39“1. The report on successful mediation, whose content is not against
law and order or mandatory rules, is validated at the request of the party
and through the check of formal regularity, by means of a decree of the
p
resident of the court which is located in the same district as the venues
of the organization. In across-the-
b
order disputes outlined in Article 2
of the Directive 2008/52/CE of the European Parliament and Council,
of 21 May 2008, the report is validated by the president of the court in
whose district the agreement must take place. 2. The report referred to
in paragraph 1 constitutes the executive title for compulsory acquisition
for enforcement in the specific form and for judiciary mortgage”.
42“The mediation process takes place without formalities in the venues
of the organization or at the place pointed out in the rules of procedure
of the organization”.
43“In case of more applications concerning the same dispute, mediation
is carried out before the organization to which the first application was
submitted. In order to establish the time within which application must
be completed, importance is attached to the date in which the first ap-
p
lication was received”.
44There is someone who thinks that the moment of pending suit of the
application should coincide with the moment when the mediation pro-
p
osal is communicated to the party called to take part to the procedure.
45Jurisprudence often stresses the positive aspects of this provision,
which makes the register of Organizations similar to the General Role
of judicial venues, although it has a non-innovative character, conside-
ring that Ministerial Decree No. 222 of 23 July 2004, that is rules for
determination of criteria and modalities for registration as well as for
keeping the register of mediation organizations outlined in Article 38 o
f
Legislative Decree No. 58 of 17 January 2003, which was abrogated,
contained a similar formulation.
40The list of registered organizations can be found on the website:
www.giustizia.it, in the section “Tools”, where these Organizations are
ordered according to the number of registration. It’s also possible to
search an organization using parameters like town or municipal district
where they work. It seems important to point out that on the list there
are organizations at a preliminary stage of registration as well (identi-
fied by means of a particular code) because they regularly submitted the
application and after the deadline established to check the fulfilment of
requirements on the part of the administration, the general direction
registered them without checking and only because of the effect o
f
implied assent. Anyway, the final registration will be reached only after
checking the fulfilment of requirements.
41The 1st paragraph states that “Application for mediation concerning
disputes outlined in article 2 is submitted by means of delivery of an
application to an organization […]”.The 2nd paragraph “The applica-
tion shall point out the organization, the parties, the object and reasons
for the request”.

The Management of a Mediation Organization According to the Italian Law
194
must create a real procedure file, because it is compul-
sory to keep a copy of the documents concerning the pro-
cedures for almost three years from the date of their con-
clusion.
This obligation is laid d own by means of explicit refe-
rence to a law of the Civil Code, that is Article 1961 of
the Civil Code, which exonerates registrars, arbitrators
and lawyers from providing documents concerning dis-
putes decided or ended over three years before the re-
quest46.
Article 7 of Ministerial Decree No. 180 of 18 October
2010 provides for a further and precise duty on the part
of the Organization towards the parties: keeping an ap-
propriate file, which must be properly registered and
numbered in the register of mediation matters, so that
parties can have access to it at any moment if they need
to examine or take out a copy of the docu ments depo sited
therein during joint sessions, or to their own documents
deposited during a possible separate session decided by
the mediator.
In connection with these data, the duty to protect con-
fidential information therein contained seems almost
natural47 [53]. It is an aspect to which the legislator has
always attached great importance, considering that even
the implementation decree po ints out the duty for all em-
ployees of the organization and for people involved in
the mediation procedure to keep all information received
during the mediation process confidential. This concerns
both information about the parties and statements made
by the parties during separate sessions [54].
In virtue of this duty, mediators benefit from special
treatment: in case they are called to make statements be-
fore the legal authority or any other authority, they are
not bound to give evidence on the statements made and
information acquired during the mediation procedure.
3.3. Carrying out the Procedure
Through the submission of the application and the crea-
tion of the file, the procedure for the resolution of the
dispute, with which the parties requested the mediator to
deal, begins. Therefore obligations and guarantees arise
and Organizations must guarantee them to the parties as a
consequence of rules established by Organizations them-
selves, in accordance with laws and regulations in force.
The procedure outlined in Article 8 of Legislative De-
cree No. 28 of 4 March 2010 lays down fundamental and
indispensable elements that each Organization must
guarantee during the procedure and, as a consequence, to
the parties involved in th e procedure.
The manager of the Organization, on submitting the
application, must appoint the mediator and arrange the
first meeting between the parties within fifteen days from
the submission of the application.
Regulations do not explicitly state if the Organization
is bound to communicate the mediation request to the
party called to take part in the conciliatio n or if this obli-
gation must be fulfilled by the applying party. What is
certain is that the applying party is not burdened with
notification obligation under the laws of the Code of
Civil Procedure: the only obligation is that communica-
tion must be carried out “through every means which is
appropriate to guarantee its receipt, also by the applying
party [55]”.
At a literal level this seems to provide an indirect in-
dication about the subject burdened with communication,
that is the Organization, but it also provides for the pos-
sibility that the applying party might carry out commu-
nication. Certainly the ch oice of one of the two possibili-
ties shall be clearly stated in the rules of procedure estab-
lished by each Organization. As far as documents are
concerned, as stated in the implementation decree, there
are no particular formalities [56]. This choice on the part
of the legislator seems to be based on the purposes of the
procedure, which aims for a resolution of the dispute
which implies reciprocal concessions to the counterparty,
under the mediator’s direction: therefore, the exclusion
of formal obligations means avoiding procedural excep-
tions about the form of the documents burdening on dis-
pute resolution.
After the first session in the presence of the parties and
of the mediator, subsequent meetings can take place. An
appropriate report shall be written about the meetings
and kept, with the other documents, in the procedure file.
However the legislator decided that the procedure must
be completed within four months48 [57].
4. Obligations of the Mediation Organization:
Towards the Mediators
The main relationship in mediation procedure is the rela-
tionshi p be t ween parti e s and medi at o r.
This relationship can lead to the estab lish ed goal of the
procedure, which corresponds to writing a report which
is appropriate in order to reconcile the different needs of
the parties and has deflationary effect on the legal argu-
ment, if the regulation of a secondary relationship, as
fundamental in average conciliation as the above-men-
tioned main relationship, occurs. The secondary relation-
48Great importance is attached to the specification, provided by subse-
quent article 7 of Legislative Decree No. 28 of 4 March 2010, that time
necessary for mediation cannot be relevant for the calculation of the length
of the process, because this stage constitutes a procedure, sometimes
compulsory, which lies outside the jurisdictional phase of the disput e .
46The reference to Article 2961 of the Civil Code can be found in Arti-
cle 12, 2nd paragraph, Mi nisterial Decree No. 180 of 18 October 2010.
47“Collected data are used in accordance with provisions of Legislative
Decree No. 196 of 30 June 2003, quoting “Code for the protection o
f
p
ersonal data”.

The Management of a Mediation Organization According to the Italian Law 195
ship is the relationship between mediation Organizations,
to which parties apply for mediation, and mediators, who
provide their service for these organizations.
4.1. Registration
This relationship is so important that, from the applica-
tion onwards, it is regulated through obligations of the
organization towards its mediators, as well as duties con-
cerning mediators, which the organization must control.
Among obligations concerning the Organization, there
is the duty to enclose the list of mediators who are will-
ing to provide the mediation service for it, to the appli-
cation for regist r ation [5 8 ] .
In virtue of this regulation, each Organization shall: 1)
Make each mediator sign a statement of willingness to
provide his/her service. This is also useful in order to
check whether the limit of five organizations for which
mediators can declare themselves willing to perform their
functions is respected; 2) Get a concise CV of each me-
diator, with the qualification requisites provided for in
Article 4, paragraph 3 of Ministerial Decree No. 180 of
18 October 201049; 3) Get a certificate from mediators
which proves the fulfilment of requirements of good re-
pute outlined in Article 4, paragraph 3 of Ministerial De-
cree No. 180 of 18 October 2010; 4) Get documents which
attest that mediators who want to be registered in the list
of mediators who are expert in international matters have
the necessary language skills.
The keeper of the register must check that mediators
provide the above-mentioned written statements and that
these ones correspond to reality. He/she must communi-
cate any anomaly to the relevant bodies of the register in
which mediators were entered, because violations can
constitute criminal offences and can therefore be sanc-
tioned as provided for in the respective ethical laws.
Besides these written statements, further obligations
introduced by the legislative decree for implementation
of average conciliation [59] are established for mediators.
First it is forbidden to assume rights and duties directly
or indirectly linked with matters dealt with and to be paid
directly by parties. The other obligations are: 1) To write
a statement of impartiality for each dispute he/she is
asked to resolve, using the wo rds established in the rules
of procedure; 2) To inform immediately the Organization
and the parties about the reaso n why original impartiality
has been compromised during mediation process.
As far as these obligations are concerned, the manager
of the organization has the duty to control and he/she is
empowered to provide for possible replacement of the
mediator at the request of the party.
4.2. Entrustment of Mediation Matters
After the submission of the application for mediation to
the secretariat of the Organization, this one must pro-
vide for the appointment of a mediator following the cri-
teria that must have been introduced in the rules of pro-
cedure delivered to the Ministry of Justice50 [60].
This has two main goals: it allows the Organization to
keep autonomy required by Law No. 69 of 18 June 200951
and guarantees the professional expertise of mediators,
so that the mediator’s professional ability as suitable as
possible for the nature of the dispute to resolve.
It is necessary that these criteria are explicitly stated
and deal with the special technical knowledge provided
by studies at university or by professional activities. On
the basis of these criteria the Organization is expected to
divide its mediators into categories and to establish the
modalities to assign a dispute to a particular category of
mediators.
Then the mediator shall receive a formal communica-
tion concerning the assignment of the dispute and shall
write a statement of impartiality, on which depends the
beginning of the mediation procedure52 [61] and without
which the procedure cannot start.
For this reason, this written statement shall be inclu ded
in the procedure file too and shall be at disposal of the
parties for consultation.
Derogation from the criteria for the assignmen t of me-
diation matters is not possible unless the parties want it:
rules can provide for the po ssibility of joint cho ice of the
mediator for his/her appointment on the part of the Or-
ganization, as explicitly stated in Article 7 of Ministerial
Decree No. 180 of 18 October 2010.
Replacement of the mediator can be requested also by
a single party by means of a specific request to the Mana-
ger of the Organization, who shall provide for it [62].
A further guarantee of impartiality is provided by Ar-
ticle 15 of Ministerial Decree No. 180 of 18 October 2010,
which forbids to Organizations to assume rights and du-
ties linked with matters handled by mediators who pro-
vide service for themselves or for other organizations in
accordance with collaboration agreements made.
50The rules of procedure shall include: “Mandatory criteria for the allo-
cation of business mediation predetermined and respectful of the pro-
fessional competence of the mediator appointed, also derived from the
type of university degree h el d” .
51Delegated law burdened the government with the drawing up of a
regulation which provided for mediation service carried out by profess-
sional and independent bodies, providing conciliation service steadily
(Article 60, 3rd paragraph, letter b). The Circular of 20 December 2011
laid down by the General Director of Civil Justice offices, states that
the provision for the predetermination of assignment criteria corre-
sponds to a direct application of the principle.
52“The mediator is requested to: a) write, for each matter he is asked to
deal with, a written statement of impartiality using words established by
the rules of procedure, as well as further requirements provided for by
the same rules”.
49On this aspect see 2.1, where a description of the requirements that
mediators must fulfill so that the Organizations can be registered is pro-
vided.

The Management of a Mediation Organization According to the Italian Law
196
4.3. Mediators’ Duties
The relationship between the Organization and its me-
diators is associated with a contract of intellectual pro-
fessional service, according to which the mediator pledges
himself/herself, for payment, to resolve the dispute arisen
between the parties who turned to the Organization.
It is important to remark that parties are no t allowed to
have any direct relationship with the mediator, except
during sessions held for dispute resolution. Moreover the
mediator must not be directly paid by the parties [63].
Therefore the mediator binds himself/herself only to-
wards the Organization by means of an obligation con-
cerning means (and this is confirmed by the fact that the
mediator is paid even in case of unsuccessful mediation)
and provisions are laid down to establish the mediator’s
liability in case of in correct condu ct during the mediatio n
process53 [64].
Mediators are bound, of course, by the same duty of
confidentiality as Organizations.
Whoever (mediators, secretaries, collaborators) provides
his/her service in the organization or during the media-
tion process has a specific duty of confidentiality im-
posed by Article 9 of Legislative Decree No. 28 of 4
March 2010. The mediator cannot use statements made
or information acquired during the mediation process to
avail himself/herself of it or to testify in favour of other
people in other proceedings concerning the same subject
or in court proceedings following unsuccessful mediation,
unless explicitly autho rized by the party in question.
Besides these obligation s, duties linked to the function
as mediator in the dispute are described in Article 11 of
Legislative Decree No. 28 of 4 March 2010. At the end
of the mediation process the mediator has the duty of
writing a report which certifies that an out-of-court agre-
ement has been reached or he/she shall draw up a pro-
posal in case of failure to reach an agreement or of joint
request of the parties. The only limitation to the activity
of the mediator is the respect of law and order and man-
datory rules. However the only means of checking the
respect of this limitation is the subsequent judgment of
suitability on the part of the President o f the cour t, which
is provided only at the request of the party. For this rea-
son someone pointed out the chance of consulting the
Manager of the Organization or a lawyer in order to exa-
mine the proposal that will be delivered to the secretariat
of the Organization.
The Organization is held responsible if the party, on
implementing the propo sal, cannot reach a recognitio n of
validity becau se of a conflict between the report and ma-
ndatory rules or law and order.
In all cases the mediator shall sign the text prepared
and ensure that the parties which accept it and enclose it
to the report, also sign it.
If no agreement is reached, the mediator shall write a
negative report, indicating his/her proposal and any fail-
ure to participate in the procedure by one of the parties as
well as getting the present parties to sign it.
After getting the signature of the parties on the report,
the mediator shall deliver it to the secretariat of the Or-
ganization, which provides a copy of the document to
parties which require it.
Article 8 of Ministerial Decree No. 180 of 18 October
2010 states that the Manager of the Organization shall
provide a copy of the report to parties if they want to
request its validation.
REFERENCES
[1] G. Dosi, “La Mediazione Civile Come Condizione Di Pro-
cedibilità Della Domanda Giudiziale (Ma Non Più Nel Rito
Del Lavoro),” Famiglia Persone e Successioni, Vol. 5,
No. 5, 2011, pp. 327-345.
[2] I. Lombardini, “Considerazioni Sulla Legge Delega in
Materia Di Mediazione e Conciliazione Nelle Contro-
versie Civili e Commerciali,” Studium Iuris, Vol. 1, 2010,
pp. 8-16.
[3] F. P. Luiso, “La Delega in Materia Di Mediazione e Con-
ciliazione,” Rivista di Diritto Processuale, Vol. 5, 2009,
pp. 1257-1265.
[4] Legislative Decree No. 28 of 4 March 2010, Article 16,
1st paragraph.
[5] Legislative Decree No. 28 of 4 March 2010, Article 16,
4th paragraph.
[6] Legislative Decree No. 28 of 4 March 2010, Article 16,
3rd paragraph.
[7] Legislative Decree No. 28 of 4 March 2010, Article 18.
[8] Legislative Decree No. 28 of 4 March 2010, Article 19.
[9] Ministerial Decree No. 180 of 18 October 2010, Article 3,
3rd paragraph.
[10] I. Ambrosi and M. D’Auria, “La Mediazione: Circolare
Interpretativa Sui Criteri e Sulle Modalità Di Iscrizione e
Tenuta Del Registro Degli Organismi Di Mediazione
Nonché in Materia Di Indennità Per il Compimento Del
Servizio Di Mediazione e Conciliazione,” Famiglia, Per-
sone e Successioni, Vol. 2, 2012, pp. 157-158.
[11] Circular of 20 December 2011.
[12] Ministerial Decree No. 180 of 18 October 2010, Article 7.
[13] M. Gorga, “Mediazione e Formazione,” Scriptaweb, 2010.
[14] A. Contaldo and M. Gorga, “La Mediazione Civile e Co m-
merciale Alla Luce Del d.m. 180 Del 4 Novembre 2010,”
Corriere Giuridico, Vol. 2, 2011, pp. 5-34.
53Some of the possi
b
le cases in which the mediator is held responsible
are: failure to inform the Manager of the Organization in case of dis-
p
utes which require specific technical competences and, in particular,
the mediator's behavior dur in g th e s es si on s w it h th e p arties.
[15] L. Ansaldi, “Le Recenti Novità Legislative in Materia Di
Mediazione,” Contratti, Vol. 2, 2012, pp. 207-211.
[16] Article 2 of Ministerial Decree No. 145 of 6 July 2011.

The Management of a Mediation Organization According to the Italian Law
197
[17] F. C. Ulloa, “Decreto Legislativo 4 Marzo 2010, No. 28
Attuazione Dell’Articolo 60 Della Legge 18 Giugno 2009,
No. 69, in Materia Di Mediazione Finalizzata Alla Con-
ciliazione Delle Controversie Civili e Commerciali,” Giu-
ffrè, 2010.
[18] Article 4, 3rd paragraph, Ministerial Decree No. 180 of
18 October 2010.
[19] Article 16, 3rd paragraph, Ministerial Decree No. 180 of
18 October 2010.
[20] Article 14, 2nd paragraph, letter a) of Legislative Decree
No. 28 of 4 March 2010.
[21] Article 7, 3rd paragraph, letter d), Ministerial Decree No.
180 of 18 October 2010.
[22] Circular of 4 April 2011, General Director of Civil Jus-
tice.
[23] Article 7, 3rd paragraph, letter e), Ministerial Decree No.
180 of 18 October 2010.
[24] Article 9, 2nd paragraph, Legislative Decree No. 28 of 4
March 2010.
[25] Article 7, 5th paragraph, letter b), Ministerial Decree No.
180 of 18 October 2010.
[26] Article 1, letter h), Ministerial Decree No. 180 of 18 Oc-
tober 2010.
[27] Article 5, 1st paragraph, Ministerial Decree No. 180 of 18
October 2010.
[28] Article 16, 3rd paragraph, Legislative Decree No. 28 of 4
March 2010.
[29] Article 17, Legislative Decree No. 28 of 4 March 2010.
[30] Article 11, Legislative Decree No. 28 of 4 March 2010.
[31] Article 5, letter b), Ministerial Decree No. 145 of 6 July
2011.
[32] Ministerial Circular of 20 December 2011.
[33] Article 16, 10th paragraph, Ministerial Decree No. 180 of
18 October 2010.
[34] Article 16, 14th paragraph, Ministerial Decree No. 180 of
18 October 2010.
[35] A. Castagnola and F. Delfini, “La Mediazione Nelle Con-
troversie Civili e Commerciali,” Cedam.
[36] Article 5, 1st paragraph, letter d), Ministerial Decree No.
145 of 6 April 2011.
[37] Article 9, 2nd paragraph, Ministerial Decree No. 180 of
18 October 2010.
[38] Article 76, Decree of the President of the Republic No.
115 of 30 May 2002.
[39] Article 2, 1st paragraph, Law No. 249 of 7 August 1990.
[40] Article 21, Law No. 241 of 7 August 1990.
[41] Article 9, Ministerial Decree No. 180 of 18 October 2010.
[42] Article 8, 1st paragraph and Article 20 of Ministerial De-
cree No. 180 of 18 October 2010.
[43] Articles 17 and 20, Legislative Decree No. 28 of 4 March
2010.
[44] Article 7, 3rd paragraph, Ministerial Decree No. 180 of
18 October 2010.
[45] Article 10, 3rd paragraph, Ministerial Decree No. 180 of
18 October 2010.
[46] Article 12, Legislative Decree No. 28 of 4 March 2010.
[47] Article 5, Legislative Decree No. 28 of 4 March 2010.
[48] Article 4, Legislative Decree No. 28 of 4 March 2010.
[49] Article 8, 2nd paragraph. Legislative Decree No. 28 of 4
March 2010.
[50] Article 4, Legislative Decree No. 28 of 4 March 2010.
[51] G. Buffone, “Mediazione e Conciliazione,” Giuffré, 2010.
[52] Article 12, Ministerial Decree No. 180 of 18 October 2010.
[53] Article 7, 8th paragraph, Ministerial Decree No. 180 of 18
October 2010.
[54] Article 9, Legislative Decree No. 28 of 4 March 2010.
[55] Article 8, Legislative Decree No. 28 of 4 March 2010.
[56] Article 3, Legislative Decree No. 28 of 4 March 2010.
[57] Article 6, Legislative Decree No. 28 of 4 March 2010.
[58] Article 6, Ministerial Decree No. 180 of 18 October 2010.
[59] Article 14, Legislative Decree No. 28 of 4 March 2010.
[60] Article 7, 3rd paragraph, letter e), Ministerial Decree No.
180 of 18 October 2010.
[61] Article 14, 2nd paragraph, letter a), Legislative Decree
No. 28 of 4 March 2010.
[62] Article 14, 3rd paragraph, Legislative Decree No. 28 of 4
March 2010.
[63] Article 14, 1st paragraph, Legislative Decree No. 28 of 4
March 2010.
[64] S. Tommasi, “Brevi Riflessioni Sulle Responsabilità Del
Mediatore Nella Mediazione Civile,” Il Fisco, Vol. 45,
2011, pp. 7333-7348.