The obligation to initiate mediation only applies to the act initiating the main proceedings and not to counterclaims.
This was decided by the United Chambers of the Supreme Court in its recent judgment no. 3452 of 7 February 2024.
During the first mediation, the parties would be free to discuss and decide on any counterclaims that might arise in the subsequent litigation.
The case from which the Supreme Court derived this legal principle stems from a question raised by the Court of Rome in a lease dispute to determine the termination of a lease agreement (a matter subject to mandatory mediation). In the course of the proceedings, a counterclaim was raised by the tenant requesting the return of the deposit paid, a claim on which no mediation procedure had taken place, but which is itself one of the ‘compulsory’ matters under Article 5(1) of Legislative Decree 28/2010.