Introduced New Case Of Required Initial Mediation

With the intent of favouring the alternative resolution of disputes that, predictably, will be, more and more, in the near future, numerous due to the epidemiological emergency from Covid-19, the Italian legislator, with the Law Decree 28/2020, has introduced a new case of compulsory mediation by inserting a new paragraph (6 ter) in art. 3 of the Law Decree 6/2020 (converted into Law 13/2020).

Such paragraph reads as follows: “In disputes concerning contractual obligations, in which compliance with the containment measures set forth in this decree, or anyway ordered during the epidemiological emergency by Covid-19 on the basis of subsequent provisions, may be assessed pursuant to paragraph 6-bis, the prior initiation of the mediation procedure pursuant to paragraph 1-bis of Article 5 of Legislative Decree no. 28 of March 4, 2010, constitutes a condition for the admissibility of the request“. We remind the reader that paragraph 6 bis (of Law Decree 6/2020) provides that compliance with the measures for the containment of the epidemic shall always be assessed for the purposes of excluding the debtor’s liability (pursuant to articles 1218 and 1223 of the Italian Civil Code).

Among the disputes that fall within the application of the new paragraph in question, there are, for example, actions for termination of contract due to the impossibility to provide the service and due to excessive onerousness arising out from the containment measures.

The provision also covers all disputes arising in connection with contracts that have not been performed or have been performed incorrectly due to emergency regulations. It should be noted in this context that, if a creditor initiates legal proceedings without prior initiation of mediation especially when he might not be made aware of the defence arguments of the defendant, the latter shall object that he was unable to comply with the contract due to the containment measures and the judge shall, therefore, set the parties a deadline for initiating the mediation procedure.

In fact, it is clear that some disputes affected by the assessments referred to in paragraph 6 bis concern matters already devolved to mediation pursuant to art. 5, paragraph 1 bis, of the Legislative Decree n. 28/2010 (such as lease contract or lease of business as-going-concern) or are already subject to the additional condition of admissibility represented by assisted negotiation (for example, requests for payment for any reason, provided they do not exceed € 50,000).

The condition of admissibility will in any case be deemed to have been met if the mediation has been unsuccessful or if, following proper notification of the request for mediation to the other party, the latter has not shown up or has not agreed to participate.

Alexander Gebhard

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Contributing Advisors