Negoziazione Assistita - a brief outline. Part 1

The Legislative Decree n. 132 of 12 September 2014 is a part of a series of measures recently adopted by the Italian legislator in the ADR field in order to deal with the huge backlog of the Italian civil courts. This Legislative Decree laid the foundation for a new institute in the Italian Legislation, a negotiation proceedings assisted by one or more lawyers, in brief “assisted negotiation”.

The law distingueshes:
  • ·         the agreement on the conduct  of an assisted negotiation;
  • ·         the negotiated agreement as a result af an assisted negotiation.

The agreement on the conduct of an assisted negotiation (convenzione di negoziazione)
As per art. 2 of the mentioned Legislative Decree, “The agreement on assisted negotiation (negoziazione assistita) is an agreement by which the parties agree to cooperate in good faith and with loyalty to resolve the dispute amicably through the assistance of lawyers .”
The agreement must specify:
  • ·         the agreed period for the application of the procedure  (between one and three month, but the period can extend for 30 further days upon the parties’specific agreement);
  • ·         the object of the dispute (labor disputes and inalienabile rights are excluded);
  • ·         the agreement must be in writing otherwise it is null and void;
  • ·         the agreement must be concluded with the assistance of one or more lawyers;
  • ·         lawyers certify the authenticity of subscriptions;

It is a deontological duty for the lawyers to inform their clients of the possibility to undertake an assisted negotiation.


Proceedings

  1.   The proceedings on assisted negotiation starts with the lawyer informing his client of the possibility to undertake an assisted negotiation.
  2.  Then an invitation to conduct an assited negotiation is issued and forwarded to the other party. This invitation must include: i) the signature of the sender; ii) the object of the dispute; iii) the notice that in case of refusal or if no response is received within a 30 days term, the judge can hold the refusing/silent party responsible of unreasonable conduct (lite temeraria) as per art. 96 of the code of civil procedure with consequences in terms of allocation of expenses (Court fees and Lawyer fees). Statute of limitation shall be saved from the moment when an invitation to sign an agreement to conduct an assisted negotiation is notified to the other party or when the agreement to conduct  an assisted negotiation itself is signed, untill the invitation is rejected or not responded to, within 30 days.
  3.  If the invitation to conduct an assisted negotiation is accepted, then the negotiations start. The outcome can be negative or positive.
·         In case of negative outcome, a declaration is issued by the lawyers stating that no agreement has been reached.
·         In case of positive outcome, the agreement is undersigned by the parties and their lawyers. By signing the agreement the lawyers also certify their clients’ signatures and the compliance of the agreement with mandatory rules and public order.
Finally a copy of the agreement is sent by the lawyers to the Bar Association, mainly for statistic purposes.

The agreement reached through an assisted negotiation is fully enforceable.

Mandatory Assisted Negotiation
The invitation to conduct an assisted negotiation is a condition for entertaining  an application in Court (condition of admissibility) in the following cases:

  • ·         disputes regarding a compensation for cars accidents, circulation of vehicles and boats in general;
  • ·         disputes deriving from payments of sums not exceeding € 50,000.
Disputes and cases regulated under the law on mediation (Legislative Decree 28/2010) are excluded  from assisted negotiation.
If the condition of admissibility is not fulfilled, both the respondant and the judge can rise an objection.
The judge can order the parties to issue an invitation to conduct an assisted negotiation, providing them with a term of  15 days to do so.
The condition af admissibility is considered fulfilled also in the case that an invitation to conduct an assisted negotiation was forwarded to the other party and no response has been received in a 30 days period, or when the response was negative.
This condition of admissibility does not apply in disputes involving consumers.

Assisted Negotiation in legal separation and divorce
Assisted negotiation can also be used for legal separation and divorce.
In the case that the couple has no children or if the children are legally adults and with full economic indipendence from their parents, the negotiated agreement is notified to the Public Prosecutor (Procuratore della Repubblica) for a formal check and then it is registered in the public registries of the general population (Marriages Registry – Birth Registry , and so on).

In the case that the couple has underaged children, or if the children have not a full economic indipendece from their partens, or if the children are severely disabled, after being notified to the Public Prosecutor for a formal check, then the agreement is transmitted to the Tribunal for the authorization to proceed. In this case the Tribunal sees that the rights of the children are granted and that their interests are met.

To be continued...

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