Mediation and conciliation

With a view to the reform of the civil rite, which provides for the introduction of mediation and conciliation procedures propaedeutics to the trial, the Cetraro Law Firm makes available to its customers the skills and professionalism required by the law on Mediation Conciliation.

These are effective out-of-court dispute resolution tools which, through the most modern negotiation techniques, favor the achievement of the agreement between the parties in a very short time and at certain and contained costs.

With the Delegated Law of 18 June 2009 n. 60, the Parliament delegated the government to prepare the regulation of mediation and conciliation in civil and commercial disputes, in accordance with EU legislation.

With the legislative decree of 4 March 2010 n. 28 the government, in implementing the delegated law, prepared the regulation of the matter, defining its limits, the methods of access and the procedural rules.

Mediation, originally introduced by Legislative Decree 28/2010, declared unconstitutional for excess of delegation, was reintroduced by Law 9 August 2013, n. 98 and has been in force since 20 September 2013.

Legislative Decree 28/2010, art. 1 letter a): “mediation is that activity, however named, carried out by an impartial third party and aimed at assisting two or more subjects in the search for a friendly agreement for the settlement of a dispute, also with the formulation of a proposal for the resolution of the same.”

The subjects in which Mediation is mandatory are those concerning:

  • Condominium
  • Real rights
  • Divisions
  • Hereditary successions
  • Family agreements
  • Leases
  • Free loan
  • Rental of companies
  • Compensation for damage deriving from medical and health liability and from defamation in the press or other means of advertising
  • Insurance, banking and financial contracts

Mediation is no longer a condition of admissibility of a judicial request and, therefore, is not mandatory:

  • in injunction proceedings, including opposition, up to the ruling on the requests for granting and suspension of the provisional execution;
  • in proceedings for license validation or eviction, up to the change of the rite referred to in Article 667 of the Italian Criminal Code;
  • in the preventive technical consultancy procedures for the settlement of the dispute, referred to in article 696-bis of the Italian Criminal Code;
  • in the proprietary proceedings, until the ruling of the measures referred to in Article 703 of the Italian Criminal Code;
  • in opposition or incidental cognition proceedings relating to forced execution;
  • in boardroom proceedings;
  • in the civil action exercised in the criminal trial

The institute of assisted negotiation is more recent, introduced with the decree law 132/2014, converted into law 10 November 2014, n. 162 and applicable from February 9, 2015.

D.L. 132/2014, art. 1: “The negotiation agreement assisted by one or more lawyers is an agreement by which the parties agree to cooperate in good faith and loyalty to resolve the dispute amicably through the assistance of lawyers (…)”

This procedure, therefore, is aimed at the amicable settlement of the dispute, with the signing of the parties, assisted by their respective defenders, of an agreement called negotiation agreement.

The obligation applies in the matter of compensation for damage from the movement of vehicles and boats, for those who intend to bring a request for payment in any capacity for sums not exceeding fifty thousand euros (art. 3 DL 132/2014) and now, with the 2015 stability law, also in the matter of transport or sub-transport contracts (art. 249 L. 190/2014). The legislator also provided for specific provisions on voluntary assisted negotiation for family matters (Article 6, Law 162/2014).