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Civil and commercial mediation in italy

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Presentation for my masterclass in Minsk, 3 November 2018. Features and trends of mediation in Italy and insights on mediation between paradox and opportunity

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Civil and commercial mediation in italy

  1. 1. Civil and Commercial mediation in Italy Mediation of the Future 2018 Minsk – 3rd November 2018 Maria Francesca Francese
  2. 2. Historical perspective The Italian State was unified as the Kingdom of Italy, a constitutional monarchy, in 1861. m.francescafrancese@gmail.com 2
  3. 3. Historical perspective “Conciliation may take place when the parties have the ability to dispose of the objects on which the dispute is based and when it is not about a matter in which transactions are prohibited.” Art. 1, par. 2 m.francescafrancese@gmail.com 3
  4. 4. Historical perspective . 1922-1943 The fascism wanted to provide a strong image of the state m.francescafrancese@gmail.com 4
  5. 5. Historical perspective . Mediation fell into oblivion for over 50 years but was still part of the Italian legal and juridical culture m.francescafrancese@gmail.com 5
  6. 6. Historical perspective . The law n. 580 of 1993 established that every Chamber of Commerce had to set up an Arbitration and a Conciliation Chamber m.francescafrancese@gmail.com 6
  7. 7. Historical perspective . From the 90s to 2016, Italy has undergone five different mediation regulatory phases: 1) Voluntary mediation with no regulation of mediation service providers (up to 2004) 2) Voluntary mediation before mediation providers for commercial matters, in particular corporate issues (2005-2011) m.francescafrancese@gmail.com 7
  8. 8. Historical perspective . 3) Mandatory mediation on certain civil and commercial matters. In order to implement European Directive 2008/52/EC the Italian legislator enacted Legislative Decree 28/2010 making mediation a condition precedent for trial in certain matters – in place from 4 March 2011 to 20 October 2012. 4) Voluntary mediation as a result from an October 2012 decision by the Italian Constitutional Court holding that Legislative Decree 28/2010 was inconstitutional for procedural reasons. m.francescafrancese@gmail.com 8
  9. 9. Historical perspective . 5) A required initial mediation session, the so called informative session, from 20 September 2013 to present. The Italian Legislator amended the original Legislative Decree 28/2010 reintroducing a mitigated mendatory mediation provision limited to the first informative meeting for a number of civil and commercial matters m.francescafrancese@gmail.com 9
  10. 10. Historical perspective . 5) A required initial mediation session, the so called informative session, from 20 September 2013 to present. The Italian Legislator amended the original Legislative Decree 28/2010 reintroducing a mitigated mendatory mediation provision limited to the first informative meeting for a number of civil and commercial matters m.francescafrancese@gmail.com 10
  11. 11. Historical perspective . Up to 2004 2005-2011 2011-2013 2013 2013- now Five Phases VOLUNTARY VOLUNTARY MANDATORY VOLUNTARY MANDATORY m.francescafrancese@gmail.com 11
  12. 12. Historical perspective . Legislative Decree 28/2010 amended by Legislative Decree 69/2013 m.francescafrancese@gmail.com 12
  13. 13. State of the art . In 2009 the pending civil cases in Italy were almost 6 million (5.826.440). As of 31 December 2017 3.252.953 pending civil cases. m.francescafrancese@gmail.com 13
  14. 14. State of the art . • Economic crisis • Exponential increase of Court fees • Mediation and other ADR m.francescafrancese@gmail.com 14
  15. 15. State of the art How mediation works today in Italy. . *Legislative Decree 28/2010 • mediation can only concern alienable rights diritti disponibili - art. 2* • the mediation proceedings must be completed within 90 days from the beginning, unless the parties agree otherwise - art. 6* • there are tax relief for parties involved in mediation and these tax benefits double if an agreement is reached - art. 17* m.francescafrancese@gmail.com 15
  16. 16. State of the art How mediation works today in Italy. . • Compulsory lawyers’ assistance to the parties througout the mediation - art. 1bis* • duty of lawyers to inform their clients of the existence and functioning of the mediation process, on the condition that the contract between the client and the lawyer can be canceled - art. 4* m.francescafrancese@gmail.com 16
  17. 17. State of the art How mediation works today in Italy. . • Accredited mediation providers must be chosen within the territorial jurisdiction fo the Court over which the judge presides art. 1* • the mediators according to the legislative decree 28 work through mediation bodies under the control of the Ministry of Justice m.francescafrancese@gmail.com 17
  18. 18. State of the art How mediation works today in Italy. . • the mediators do not have the power to make binding decisions. However, the mediator can make a written proposal when requested by the parties or even by a single one, when the other party did not appear in mediation. Once the mediator has formulated the written proposal, the parties have 7 days to accept it. In the subsequent judgment, if the decision is found to be the same as the proposal of the mediator, the claimant has to pay all costs of the trial art. 11* m.francescafrancese@gmail.com 18
  19. 19. State of the art How mediation works today in Italy. . • mediation is a confidential procedure art. 9* • the final agreement is enforceable if it does not violate mandatory regulations or if It is not contrary to public policy art. 12* • mediation that can also be requested by the judge, the so-called delegated mediation, in disputes over all alienable rights art. 5* • Interim and preventive procedures are axempt from the mandatory attempt at mediation art. 5* m.francescafrancese@gmail.com 19
  20. 20. State of the art How mediation works today in Italy. . Mediation is a condition precedent for trial in the following matters – art. 5 bis*: •rights in rem •condominium •division of assets •inheritance •family estates •lease •gratuitous loans •business lease •civil liability for medical malpractice In all forms of healthcare malpractice •defamation in the press and other media •Insurance, banking, and financial contacts m.francescafrancese@gmail.com 20
  21. 21. State of the art How mediation works today in Italy. . • Legislative Decree number 28 of 2010 also recognises the existence of voluntary negotiation and peer mediation in civil and commercial disputes complaint procedures for service users and to other kinds of ADR in the banking and financial sector such as “arbitro bancario finanziario” and “camera bancaria di conciliazione”, two independent bodies: the former of the bank of Italy,the latter of the Italian security and exchange commission CONSOB. m.francescafrancese@gmail.com 21
  22. 22. State of the art How mediation works today in Italy. . (The National Bar Council established a minimum 15 hours trainings for lawyers) All Italian lawyers are ex lege mediators m.francescafrancese@gmail.com 22
  23. 23. State of the art How mediation works today in Italy. . How do you become an Italian accredited mediator? m.francescafrancese@gmail.com 23
  24. 24. State of the art How mediation works today in Italy. . In Italy certified mediators are required: 1) to hold a BA degree in any subject or a membership in a Professional Association; 2) to complete a 50 hour training course on theory and practice with a 4 hour final test (a written test and a simulation); m.francescafrancese@gmail.com 24
  25. 25. State of the art Statistics . m.francescafrancese@gmail.com 25
  26. 26. State of the art Statistics . m.francescafrancese@gmail.com 26
  27. 27. State of the art Statistics . m.francescafrancese@gmail.com 27
  28. 28. State of the art Statistics . m.francescafrancese@gmail.com 28
  29. 29. State of the art Statistics . m.francescafrancese@gmail.com 29
  30. 30. State of the art Statistics . m.francescafrancese@gmail.com 30
  31. 31. State of the art Statistics . m.francescafrancese@gmail.com 31
  32. 32. State of the art Statistics . m.francescafrancese@gmail.com 32
  33. 33. State of the art Statistics . m.francescafrancese@gmail.com 33
  34. 34. State of the art Statistics . m.francescafrancese@gmail.com 34
  35. 35. State of the art Statistics . m.francescafrancese@gmail.com 35
  36. 36. Paradox and Opportunity . Put yourselves in my shoes. How can the paradox of mandatory mediation become your most trusted ally? m.francescafrancese@gmail.com 36
  37. 37. Paradox and Opportunity . By observing it! m.francescafrancese@gmail.com 37
  38. 38. Paradox and Opportunity . Art. 8 - During the first meeting the mediator clarifies the role and modalities of the mediation to the parties. The mediator, always in the same first meeting, then invites the parties and their lawyers to express themselves on the possibility of starting the mediation procedure and, in the positive case, the mediator proceedes accordingly. m.francescafrancese@gmail.com 38
  39. 39. Paradox and Opportunity .•What is mandatory? •Is that first meeting already part of the mediation process? •Are you a mediator when you sit in that first meeting? m.francescafrancese@gmail.com 39
  40. 40. Paradox and Opportunity .•What is mandatory? •Only the first informative meeting •Is that first meeting already part of the mediation process? •Yes for the mediator •No for the parties m.francescafrancese@gmail.com 40
  41. 41. Paradox and Opportunity . MEDIATOR’S SPEECH This is a voluntary proceedings! Here you start building trust, asking for commitment, generating a working atmosphere, decreasing the conflict, empowering the parties, giving them back the freedom to choose… m.francescafrancese@gmail.com 41
  42. 42. Paradox and Opportunity .•You can work by opposing terms •It’s mandatory it’s your free choice •It’s not my responsibility you need to be committed to mediation •This is just a wast of time. Well, only if you want it to be. •And so on… m.francescafrancese@gmail.com 42
  43. 43. Paradox and Opportunity .Preparatory phase/first informative meeting 1) gathering information 2) let yourself be known m.francescafrancese@gmail.com 43
  44. 44. Paradox and Opportunity .1) gathering information (random and incomplete list) •What is the dispute about •How have they negotiated so far •What is their inclination towards conflict •All the logistics and personal data •Who they are (individuals or entities of some kind) •To whom you will be dealing with •Authority check •Conflict check (your own) •Your fees •Confidentiality •Mediations Schedule •Time limit period •Actual venue for the mediation meetings (neutrality? Confidentiality? Costs?) m.francescafrancese@gmail.com 44
  45. 45. Paradox and Opportunity . • Introductions? • Small talks? • Your CV • A presentation on mediation? “let yourself be known” What does it mean? m.francescafrancese@gmail.com 45
  46. 46. Paradox and Opportunity . absence of judgment The absence of judgment in the base for : start building trust, asking for commitment, generating a working atmosphere, decreasing the conflict, empowering the parties, giving them back the freedom to choose, leading them to the effort of mediation, … m.francescafrancese@gmail.com 46
  47. 47. Paradox and Opportunity .What is, in fact, “absence of judgment”? It’s the ability to “switch” from judgment to observation. The absence of judgment is, in fact, observation. m.francescafrancese@gmail.com 47
  48. 48. Paradox and Opportunity . He doesn’t seem to believe you. OBSERVATION OR JUDGMENT? You are always late! You don’t trust me: that’s a fact! I have observed that he doesn’t believe you. m.francescafrancese@gmail.com 48
  49. 49. Paradox and Opportunity .DISTINCTION BETWEEN FEELINGS AND OTHER FORMS OF COMMUNICATION I feel that you don’t love me. I am sad because you are leaving. m.francescafrancese@gmail.com 49
  50. 50. Paradox and Opportunity .Being able to recognize our feelings, and to express them properly, allows us to see more clearly. Developing a vocabulary of feelings allows the mediator to recognize his own feelings and those of the others and to make a proper distinction between observation and judgment. m.francescafrancese@gmail.com 50
  51. 51. Paradox and Opportunity .Mediation is a matter of the heart. m.francescafrancese@gmail.com 51
  52. 52. m.francescafrancese@gmail.com 52 Adress via Carlo Torre 29 20143 Milano – Italia m.francescafrancese@gmail.com

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