Mandatory attempts to mediate suits: the Court of Cassation solves a conflict regarding proceedings related to injunctions of payment

29 Ottobre 2020

The Court of Cassation recently solved a long-standing conflict in lower courts regarding proceedings in opposition to injunctions of payment. The Court ruled that a mandatory mediation attempt shall be performed by the defendant in the opposition proceeding, i.e., the party that applied for the injunction of payment.

By virtue of Leg. Decree No. 28 of 2010, in some instances the party that starts a proceeding must attempt to mediate it first. The disputes where mediation is mandatory encompass a broad range of topics, including lease agreements, lease of business units, reimbursement of damages for medical malpractice, defamation in the press, and so on.

Failure to apply for the mediation attempt is sanctioned by an order from the judge declaring the inadmissibility of the proceeding.

The mandatory attempt to mediate a suit is not applicable to proceedings for injunction of payments. An injunction of payment starts with an ex parte petition addressed to the court, which quickly leads to an ex parte injunction issued by the judge without any hearing and without serving the alleged debtor. After the injunction is issued and served on the opposing side, the alleged debtor has a deadline to file an opposition to the injunction. The opposition starts a full proceeding on the merits and, if the latter falls within the categories encompassed by Leg. Decree No. 28, mediation is then mandatory.

As is well-known, in opposition proceedings the roles are reversed. The plaintiff in an opposition proceeding to an injunction of payment is the alleged debtor, and thus the defendant in the original dispute, while the defendant in an opposition proceeding is the alleged creditor, and thus the plaintiff in the original dispute.

Therefore, lower courts have been struggling to understand who is bound by the duty to apply for mandatory mediation. The Supreme Court of Cassation finally issued a landmark decision, ruling that the defendant in the opposition proceeding (i.e., the alleged creditor) shall apply for mediation if the suit falls into one of the categories where mediation is mandatory. The mediation attempt shall be performed after the first hearing in the opposition proceeding, when the judge has already ruled on the immediate enforceability of the injunction of payment.

Failure to do so will result in an order by the judge ruling that the suit is inadmissible and cannot move forward. As a result, the injunction of payment will be declared null and void.

The Court of Cassation’s decision is available here [URL:]

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