Turkish Law Blog

Assisted Negotiation according to Italian Law

Özgün Altop Özgün Altop/ Studio Legale Pollavini & Altop
23 January, 2019
367

1. Assisted Negotiation

Assisted negotiation is an alternative dispute resolution institution consisting of a contract (or agreement) by which the parties undertake to settle a dispute amicably with the assistance of lawyers who are duly registered in the bar or who are part of the public administration attorney's office.

The agreement must contain, both the deadline agreed by the parties for completion of the procedure, which may not be less than one month and more than three (unless extended by 30 days at the request of the parties by mutual agreement), and the subject of the dispute, which may not  concern either inalienable rights or matters of labor law.

The agreement must be drawn up, under penalty of nullity, in writing and must be concluded with the assistance of one or more lawyers, who certify the handwriting of the signatures affixed to the agreement under their professional responsibility.

2. The procedure

The procedure begins with the lawyer informing his client of the possibility of using the assisted negotiation agreement.

The party that chooses to apply to the procedure sends the other party, through its lawyer, an invitation to enter into the negotiation agreement. This invitation must be duly signed and indicate the subject matter of the dispute and the warning that in case of failure to respond within thirty days or refusal, this will be a reason for assessment by the judge for the purposes of charging the costs of the proceedings, the order to pay compensation for vexatious litigation under Article 96 of the Code of Civil Procedure and provisional enforcement under Article 642 Code of Civil Procedure.

Another main effect, starting from the communication of the invitation, is to interrupt the course of the prescription and the forfeiture; however, the latter is prevented for one time only and, in case of refusal, non-acceptance of the invitation or non-agreement, from this moment on, the time limit for the filing of the legal proceedings starts to run again.

If the invitation is accepted, the actual negotiation takes place, which may have a positive or negative outcome. In the latter case, the designated lawyers must draw up the declaration of non-agreement. In the first case, on the other hand, when the agreement is reached, it must be signed by the parties and by the lawyers assisting them, who certify both the handwriting of the signatures and the compliance with the mandatory rules and public order.

The agreement reached during the assisted negotiation has the same value as an order issued by a judge and constitutes (like a sentence) an enforceable title and for the registration of a judicial mortgage.

The lawyer who took part in the negotiations is prohibited from challenging the agreement reached; such conduct constitutes a disciplinary offence.

A copy of the agreement must be sent by the lawyers to the Council of the Bar of one of them or to the Council of the District Bar of the place where the agreement was reached, for the annual monitoring of the procedure and transmission of data to the Ministry of Justice.

3. Compulsory assisted negotiation

In addition to the optional negotiation, the legislator has also provided for the possibility of compulsory assisted negotiation for;

  • lawsuits concerning compensation for damage caused by the circulation of vehicles and boats;
  • for requests for payment of any kind of sums, provided that they do not exceed 50,000 Euros and do not concern disputes subject to the discipline of the so-called "compulsory mediation".

In the above cases, the assisted negotiation procedure is a condition to proceed with the judicial request.

The non prosecutability must be alleged, no later than the first hearing, by the defendant, under penalty of forfeiture, or considered ex officio by the judge.

In that case, if the judge:

  • notes that the negotiations have been started but not yet completed, he shall set a hearing at a later date than the expiry date indicated in the negotiation agreement and, in any case, beyond the thirty days provided for as the minimum legal deadline;
  • if, on the other hand, notes that there hasn’t been any invitation to negotiation, it assigns a period of 15 days for it to be formulated.

4. Cases in which assisted negotiation may not be applied

  • cases before the Civil Court of Peace with a value of less than 1,100 Euros, in which the party concerned is allowed to be in court in person;
  • proceedings for injunction and opposition to the injunctive decree;
  • cases concerning contractual obligations arising from contracts concluded between consumers and professionals (e.g. claims for damages arising from defective products);
  • cases of civil action in criminal proceedings;
  • proceedings in chambers of the council;
  • proceedings in which prior technical advice is asked;
  • labor cases;
  • opposition or incidental proceedings relating to enforcement procedures.

For the last two proceedings, any form of negotiation is excluded.

5. Differences between mediation

Mediation and assisted negotiation are not alternatives to each other, since they can certainly coexist even within the same dispute.

The real difference between the two institutions lies in the presence of an external, third party, unrelated and impartial subject - the mediator - who is called upon to facilitate the dialogue between the parties, restoring communication and facilitating the achievement of a settlement agreement.

Mediation, is activated with the request for mediation to the chosen body that is located in the jurisdiction of the competent court for territory. Lawyers in this case are not active parties to the proceedings but assist the parties; the proceedings are conducted by a neutral third party, the mediator.

As mentioned above, assisted negotiation is obligatory, i.e. a condition for prosecution in the matter of compensation for damage caused by the circulation of vehicles and births and for the payment of sums within 50,000 Euros, while mediation is obligatory in disputes concerning real rights (property, etc...), condominium, lease, commodatum, family pacts, medical and health responsibility, division, inheritance, business lease, defamation, insurance and banking contracts.

It should also be noted that the prior optional experiment of assisted negotiation does not affect the mandatory nature of mediation, in cases where it is provided for as such, since the condition of the prosecutability of the claim cannot be said to have been fulfilled.

The parties to the dispute are not in the position of necessarily having to carry out the two proceedings in question before they can proceed with the legal proceedings.

And, in matters where compulsory mediation is provided for, the possibility of first choosing the assisted negotiation remains unaffected.

However, if the attempted negotiation fails, the parties would still be forced to make the prior mandatory attempt at mediation before being able to apply to the court, given the condition of prosecutability.

These alternative means of dispute resolution can be used on an optional basis by the parties even when their compulsory experiment is not provided for, on the basis of their free choice and on the advice of the lawyer who represents them, who is required to inform them of this possibility.

 

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