Supreme Court: Mandatory sanctions for skipping mediation are ex officio

1. The facts

   The case originated from a banking dispute regarding a current account contract, as reported by Il Sole 24 Ore. During the proceedings on the merits, mandatory mediation was ordered, but one of the parties (the banking institution) failed to attend the first meeting without providing a valid justification. The case reached the Supreme Court specifically to challenge the legality of the financial sanction imposed by the trial judge.

   The core of the dispute concerned whether the magistrate could apply the sanction on their own initiative. The issue was referred to the Joint Sections to resolve a conflict in case law: some interpretations suggested the sanction required a motion from the interested party, while others argued for its automaticity. In the final ruling, the Supreme Court clarified that the duty to sanction unjustified absence is an obligation of the judge aimed at protecting the justice system.

2. 

   The laws in focus

   The main regulatory reference is Art. 12-ter D.Lgs. 28/2010, which stipulates that two distinct consequences arise from failure to participate in the first mediation meeting without a justified reason:

   1. the judge may draw inferences (arguments of proof) from the party's conduct pursuant to Art. 116 c.p.c.;
   2. the judge must order the absent party to pay a sum equal to the court fee (contributo unificato) due for the proceedings.

   Art. 116, paragraph 2, c.p.c. allows the magistrate to evaluate the procedural behavior of the parties to form their conviction. The financial sanction, however, is not compensatory toward the opposing party but constitutes a financial penalty payable to the State, aimed at discouraging the abuse of procedural tools and promoting the reduction of the judicial workload.

3. What the case law says

   The case law of the Supreme Court has definitively clarified that the sanction for absence in mediation is subject to ex officio detection. This means that the judge has the power and duty to impose it as soon as the unjustified absence is noted in the mediator's report, without waiting for the other party to request it.

   Another fundamental principle expressed by the court concerns the autonomy of the sanction relative to the outcome of the dispute. Since the rule protects the public interest in the proper execution of settlement procedures, the sanction must be applied even if the absent party later wins the case on the merits. The established orientation emphasizes that unjustified absence constitutes harm to the efficiency of the judicial system, regardless of the validity of the party's substantive claims.

5. Analysis drafted and verified with edit.legal

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8. What it teaches professionals

   1. The importance of informing clients about the non-optional nature of mediation and the related sanctions.
   2. The necessity of analytical documentation of impediments to prevent absence from being deemed unjustified.
   3. The scope of the judge's power and duty to detect the infraction ex officio even if the opposing party remains silent.
   4. The role of personal participation or participation by proxy as a prerequisite to avoid negative financial and evidentiary consequences.

References: D.Lgs. 28/2010Art. 116 c.p.c.Cass. SS.UU. n. 24414/2024

Editorial oversight: Avv. Federico Papa·ICAMUpdated 13 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction