In a previous article, we discussed South Africa's bold move to introduce mandatory mediation in civil matters before the South Gauteng High Court. Whilst this move is certainly bold from a local perspective, it is not unique.
Italy stands out as arguably the first contemporary Western country to introduce compulsory civil mediation in 2010, making it a condition precedent for civil proceedings in certain matters. This bold move was a direct response to a severe and long-standing civil court backlog, with nearly 6 million cases pending in 2009.
The initiative initially encountered significant hurdles, including "furious opposition from lawyers" and "benign neglect from the judiciary." A primary criticism was the perception that "mediation does not belong to the Italian legal tradition". A major setback occurred in December 2012 when the Italian Constitutional Court, with its decision no. 272 of 6 December 2012 declared the mandatory mediation provisions unconstitutional. However, this ruling was based on "over-delegation" - the government exceeding its delegated powers in issuing the legislation - rather than on an infringement of the fundamental right to defence or access to justice.
Learning from this experience, a new law in 2013 "rebooted" mandatory mediation, reformulating its content and scope. This revised framework established an "opt-out" model, requiring parties to attend an initial information session with a professional mediator before pursuing court action. The presence of legal counsel is mandatory during this initial session, ensuring parties are well-informed about their rights and options. Following this session, parties retain the choice to proceed with full mediation or opt out and pursue litigation.
Since its re-implementation, Italy has achieved remarkable success. It now boasts a mediation utilisation rate six times higher than the European average. The number of mediations has seen a substantial increase, rising from just over 60,000 in 2011 to between 150,000 and 200,000 annually, with exceptions in 2013 (due to the Constitutional Court decision) and 2020 (due to the COVID-19 pandemic). By 2023, participation rates in these initial sessions reached an impressive 60%, with over half of the participants choosing to proceed with full mediation. The settlement rate in these mediations has also shown consistent growth, increasing from 43.5% in 2014 to 50.1% in 2023. Furthermore, between 2011 and 2022, there was a strong annual increase in both mediation proceedings (+14%) and mediated settlement agreements (+12%). Even though the mediation is mostly used to resolve cases which value and legal complexity are not particularly high, it is true that it has helped to reduce the courts' workload and, accordingly, increase the legal system efficiency.
A 2025 Italian court ruling further affirmed that mediation is not an obstacle to the constitutional right of defence, reinforcing its legal standing.
The Italian model also incorporates significant economic incentives and tax exemptions for parties who choose mediation. These include provisions for legal aid to cover representation costs and tax credits for both mediation and legal fees, encouraging broader adoption and participation.
Italy's journey serves as a powerful testament to the resilience of legal reform in the face of substantial initial resistance and even a constitutional invalidation. The 2012 Constitutional Court ruling, by focusing on procedural over-delegation rather than the substantive concept of mandatory mediation, provided a clear pathway for the government to reintroduce the measure with a corrected legislative basis. The subsequent successful re-implementation with an "opt-out" model, coupled with robust financial incentives, demonstrates the critical importance of learning from challenges and adapting the implementation strategy to align with legal traditions and constitutional requirements. This case study offers valuable lessons for jurisdictions contemplating or implementing similar reforms, emphasizing that initial setbacks are not necessarily fatal, and that a well-designed, adaptive, and incentivized approach can lead to successful integration and a significant cultural shift towards Alternative Dispute Resolution.
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