ITALY Trends and Developments Contributed by: Simone Barnaba, Deborah Borghi, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
Eversheds Sutherland Via Privata Maria Teresa, 4 Milan Via del Plebiscito, 112 Rome Italy Tel: +39 02 8928 71
Email: simonebarnaba@eversheds-sutherland.it Web: www.eversheds-sutherland.com/en/italy
Main types of ADR Procedures The main types of ADR procedures are: • mediation (regulated by Legislative Decree No 28/2010); • negotiation assisted by lawyers (regulated by Law No 162/2014); • arbitration (regulated by the Code of Civil Proce- dure and by special legislation); • preliminary technical advice for settlement purpos- es (regulated by the Code of Civil Procedure); • contract of settlement (regulated by the Civil Code); and • conciliation (regulated by the Code of Civil Proce- dure and by special legislation). Mediation Mediation procedures are aimed at reaching an ami- cable agreement and are carried out by a neutral third party, the mediator, who assists the parties in reaching such an agreement. Mediation procedures can only concern disposable rights in civil and commercial dis- putes. Types of mediation There are three types of mediation: compulsory, vol- untary and delegated. Compulsory Mediation is compulsory and constitutes a condition of admissibility for the subsequent bringing of legal proceedings in cases expressly determined by the law (condominium, rights in rem, division, inheritance succession, family agreements, lease, loan for use,
Preamble One of the most important developments in the Ital- ian legal system in recent years is the increasing use of alternative dispute resolution (ADR). This trend has been driven partly by legislative reforms designed to promote ADR and partly by a rising preference among private parties to use these methods, even in situa- tions where they are not mandatory. ADR ADR refers to procedures that provide alternatives to litigation for resolving civil disputes outside the court- room. As a result, the following disputes are excluded from the scope of ADR procedures: • criminal disputes; • disputes reserved to the administrative courts; and • disputes reserved to a special judge (eg, those reserved to the tax jurisdiction). Generally speaking, ADR procedures can be divided into two categories: • “autonomous”, if the parties, with or without the support of lawyers, come to an agreement and resolve the dispute (eg, negotiation assisted by lawyers); and • “heteronomous”, if they involve the participation of a neutral and impartial third party who will encour- age the parties to reach an agreement or directly resolve the dispute (eg, mediation and arbitration).
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