Negoziazione Assistita - a brief outline. Part 2

The Department of statistics of the Ministry of Justice has yet to publish any statistics on assisted negotiation since the statistic sample that has been gathered so far would be too small, hence non-representative.
Nevertheless, on 3rd March 2016, during his speech before the National Bar Council, the Minister of Justice said[1] that a sample of 3.019 agreements successfully reached through an assisted negotiation proceedings attests to a good use of the new ADR instruments. The agreements regarding family law (separation, divorce and proceedings to modify the relevant conditions) represent the 75% of the agreements. 62% out of that 75% are agreements signed by childless couples.

In the year 2015 the Bar Association of Milan collected 470 negotiated agreements: 464 (99%) on family matters and 6 (1%) on other matters.
The Osservatorio sulla Giustizia Civile di Milano[2] together with the Milan Bar Association has sampled 244 agreements reached from the entry into force of the law (13th Semtember 2014) to December 2015.
187 out of the overall amount of the sampled 244 (87%) are about family law, the remaining 57 (33%) are about other matters. In particular, of these 57, 12 on matters of payment of professional fees, 6 third party liability, 5 commissions to commercial agents, 3 on contracts with insurance companies and banks, 2 on lease agreements, 2 transfer of company’s branch, 12 third party liability concerning car accidents and 12 on other matters. (8 agreements were on labor matters. Labor law has been excluded from the application of the assisted negotiation, with an amendment of the law of 11.11.2014).
From these partial data, the average duration of the proceedings is 71 days from the invitation to conduct an assisted negotiation to the negotiated agreement. Within these 71 days, 15 days is the average period of time between the signing of the agreement on the conduct  of an assisted negotiation (convenzione di negoziazione) and the negotiated agreement.
As far as the value of the negotiated agreement is concerned, 32% of the agreements ranks between € 1.000 and € 5.000, and 28% ranks between € 20.000 and € 50.000.
As far as the family law is concerned, the Osservatorio has studied 187 agreements, from 9 October 2014 to December 2015.
The negotiated agreements on personal separation amount to 117, which represent the 62,57% of the overall amount of the sampled agreements. The agreements on divorce amount to 57, which is 30,48% of the total. 10 agreements were about the modification of the conditions of the personal separation (5) or of the divorce (5).
112 are the agreements of couples with children, and 75 of childless couples.

Civil Matters
As of now, the Italian Supreme Court has yet to deal with assisted negotiation. The local tribunals, namely Mantua, Verona, Como and some other Courts in the north of Italy, among other things, have given judgments regarding the following matters:
  • ·        a non response to the invitation to an assisted negotiation is irrelevant to prove a debt[1];
  • ·     a non response to the invitation to an assisted negotiation is relevant in order to grant a provisional enforceability of an injunction[2];
  • ·   as far as the condition of admissibility is concerned, assisted negotiation and other mandatory requirements can sum up in the same judgment only to meet different judicial demands[3].

-          Family Matters
Decisions on assisted negotiation regarding family law are far more conspicuous. They mostly focus on the role and the authority of the Public Prosecutor and the Tribunal in dealing with custody of the children. It has also been established that non married couples cannot resort to assisted negotiation to deal with custodial matters[4].
A commission for the elaboration of a comprehensive reform of the ADR system was established in March 2016 by the Ministry of Justice. The goal of such commission is to harmonize the regulatory framework that currently develops through different forms of ADR tools[5].

Not later than October 2016 the Italian Lawyers have changed their official approach to ADR. In a National convention called “Justice without trial? The role of the lawyers”[6] a new relationship between Italian Lawyers and ADR methods has begun.

It is undeniable that lawyers have been given a central role in the display of the assisted negotiation. This form of collaboration between the lawyers in order to settle the disputes might be the key to their involvment and ultimately to the success of ADR. It is important to remember that the lawyers govern the process in the assisted negotiation and that besides their general deontological duties (duty of continuous education, duty to be informed, duty of diligence, duty of loyalty) the law on assisted negotiation provides the lawyers with a specific discipline as far as their duties are concerned: the duty to inform the client of the possibility to start an assisted negotiation; the duty to certify the signatures on the agreement; the duty to certify that the agreement complies with mandatory rules and public order; the duty not to challenge in court an agreement which the lawyer himself signed; the duty of confidentiality; the duty to notify the Local Bar Council with every agreement[7].

Because of assisted negotiation, the role of lawyers dealing with conflicts might undergo a dramatic change. In fact, except for family cases where two lawyers are needed, one for each spouse, in civil cases a single lawyer can provide an assisted negotiation for two opposing parties. It is clear that in the latter case such a lawyer must combine the legal expertise to advocate for each party together with communication skills, which are typical in mediation, and – in some way – arbitrator skills, since the lawyer’s goal is to reach a fair and legal agreement for both clients. 

Statistics are encouraging, the committment of the government and the change of heart of the Italian lawyers are even more encouraging. Assisted negotiation might be the ADR tool capable of starting a sensible cultural change in the Italian culture of ADR. 

[1] Tribunal of Mantua, Sezione 1 Civile, 24 September 2015.
[2] Tribunal of Verona, 2 May 2016.
[3] Tribunal of Verona, 12 May 2016.
[4] Tribunal of Como, Decree 13 January 2016.
[5] In addition to Legislative Decree n. 132/2014 on assisted negotiation, the most recent laws introducing ADR system are: Legislative Decree 28/2010 on mediation; Law 3/2012 on management and resolution of crisis due to overindebtedness; Law 247/2012 on the establishment of arbitral courts by every local Bar Council;
[6] “Giustizia senza processo? Il ruolo dell’avvocatura”
[7] the duty to inform the client of the possibility to start an assisted negotiation art. 2, par. 7 Legislative Decree 132/2014; the duty to certify the signatures on the agreement art. 2, par. 6, ut supra; the duty to certify that the agreement complies with mandatory rules and public order art. 5, par. 2, ut supra; the duty not to challenge in court an agreement which the lawyer himself signed art. 5, par. 4 ; the duty of confidentiality art. 9, par. 2; the duty to notify the Local Bar Council with every agreement art. 11, par. 1.

[1]Su un campione di 3019 accordi andati a buon fine attestano, infatti, un buon utilizzo dei nuovi strumenti, specie della negoziazione assistita, con particolare incidenza in materia di separazione, divorzio e modifica delle relative condizioni. Essi rappresentano da soli il 75% di tutti gli accordi di negoziazione conclusi con successo, di cui ben il 62% è relativo a coppie senza figli.”Minister Andrea Orlando
[2] Osservatorio sulla Giustizia Civile is an informal study group on civil justice formed by lawyers, judges and academics.

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