Transcript La Mediazione Civile e Commerciale. La

Overview on family and civil
mediation’s law and others
methods of alternative justice
in Italy
Avv. Cinzia Verucci
 Law
n. 28/2010 and law n. 180/2010
discipline the mediation as an alternative
instrument for the resolution of the civil and
commercial disputes.

The mediation is an opportunity to resolve friendly a dispute
in the most satisfying way, with the help of a neutral subject:
the mediator;
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The mediation is based on the will to cooperate of interested
subjects: they are not obliged to reach an agreement and
they are free to interrupt the mediation in every moment;

The reconcilement is the contractual agreement that the
subjects reach with mediation’s success. This reconcilement
is writed in a report which will be recognised by the Court,
located in the city of the mediation organism;

The mediation trial, occours on a mediation organism: this is
a pubblic or private corporation, recognised by Ministry of
Justice.
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From 20th march 2011, it is compulsory to approach at the
mediation, everytime a controversy concern: real rights,
division, heritage, family acts, lease, firm rent, damage
compensation of medical responsability and press or
advertising defamation, ensurance and bank or financial
contract;
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From 20th march 2012, it is compulsory to approach at the
mediation, everytime a controversy concern:
condominium and damage compensation of veicle’s
circulation.

Lacked partecipation at the mediation without
justification is negatively valued by the judge,
particulary when he has to decide on the payment of
the process exepense;

Moreover the refusal of mediator’s proposal can have
other negative effects if the judge final decision is
exactly the same of the one proposed by the
mediator in the beginning: condemnation at the
payment of the process expense.

The family mediation is not compulsory;

Law 54/2006 “separation and shared custody of
children” modified the art. 155 and at the art. 155
sexies decided that the judge – before adopting the
sentence – can delay the adoption of the sentence, if
there is the opportunity, after listening the spouses
and after their assent. So he can send the spouses to
the mediation for reaching an agreement, with the
help of expert (mediator), in particular for the
interest of their children.
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It is a method to face the conflicts between
spouses/parents when they want to separate and to try
to look for the difficulty of the couple;
It is a personal decision of the spouses/partents which
decide to address at a neutral and expert subject, for
find the most satisfying life project for them and their
children;
In the family mediation the spouses/parents are each one
the main parts and they have the responsability of their
decisions concerning their life and the future of their
children;
The spouses/parents can address to expert mediator by
theirseIf or under advice of lawyers, judges and pubblic
service;
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Mediation consists in several meeting between parents
and a qualified operator who works out of the justice
system, in a neutral place, confortable and
confidential;
The mediator helps spouses to find realistic solution
and to elaborate a suitable agreement on the troubles
concerning their separation;
The project is negotiated and choosen by the parents
but not imposed by the mediator and it is not a proof;
The mediator doesn’t meet the underage, but, meeting
the parents, he helps indirectly them to improve their
condition of life and to exceed the tragic moment of
the separation of their parents, avoiding that they can
be used in the conflict.
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The family mediation is an intervention that the family
can use just before or during the separation or the
divorce, for the organization of the family relationship;
So it is not a technical consulence for the judges and it
has not the aim to give information on the relationship
between children and parents or on the parent’s ability
(to decide who is the best entrust);
It is not a therapy, because it is an occasional
intervention, on common and defined objective, and it
has a limited duration, decided at the beginning of the
project;
It is not a family consulence. The family mediation is
activated on troubles related to separation and divorce.

Collaborative law has the aim to help pairs that are
separating to decide their future, discussing every
aspect of their separation;

Collaborative law is addressed to people who accept to
modify their behaviour, leaving the conflictual logic and
adopting the collaborative logic, for the resolution of
their problems;

Collaborative law is based on the collaboration of
experts (collaborative team) which work on the different
step of collaborative process;

The collaborative team is composed by: laywers,
financial expert, pshycologic expert; coach which work
for the same aim and wich protect the collaborative
process.
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The aim is reaching shareable satisfying agreement for both
spouses;
Emotions and feelings are important part of the
collaborative process and so they has not to be neglected
but they has to be managed with skill;
The professional man and woman are expert in settling
conflicts and in driving negotiation;
Legal disputes is the last chance and it’s usually preferred
the extrajudicial/collaborative context;
The spaces and the environment are comfortable in order to
create a round communication;
Sharing with the client all the aspects of the separation and
involvment of the client in the comprehension of the law
during the proceedings.

Step 1: fix the aim through dialogue and listening.

Step 2: take information and identify problems.

Step 3: create options.

Step 4: valuate options, contemplating interests of
the clients and of the family.
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Step 5: negotiation and acceptance of decision.
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Step 6: production of document.
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Spouses and lawyers sign a contract in which it’s written the
engagement to find a shareable solution, through the
collaborative pratice;
Lawyers undertake not to resort a judge for composing
controversy and to find a right solution for all the parts of
the dispute;
Judge’s intervention will be only targeted at the validation
of the agreement;
Lawyers help clients to find informations and documents
that can allow to identify quickly the matter;
Negotiations are private. Any information exchanged during
negotiations can be revealed during the trial;
Both parts can withdraw the collaboration’s contract
communicating that, to his own lawyer and undertaking not
to resort to the Court, for 30 days after the negotiations’s
end.
THANK YOU FOR YOUR ATTENTION