ITALY Trends and Developments Contributed by: Simone Barnaba, Deborah Borghi, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
business lease, compensation for damages arising from medical and healthcare liability and from defa- mation through the press or other means of public- ity, insurance, banking and financial contracts, joint venture, consortium, franchising, service contracts, network contracts, supply contracts, partnership and subcontracting contracts). Moreover, if the contract, the statute or the articles of association of a public or private entity contain a clause that provides for media- tion as a means for dispute resolution, it constitutes a condition of admissibility for the bringing of legal proceedings. If a party files an application before the court without having previously attempted to initiate mediation, the defendant may object to such failure, as may the judge ex officio. In this case, the judge postpones the hearing in order to allow the parties to attempt to resolve the dispute through a media- tion procedure. If the mediation procedure has still not commenced at the new hearing fixed by the judge, the application before the court is declared inadmissible. Voluntary In this case, the parties voluntarily decide to attempt The judge orders the parties to attempt mediation during the proceedings on the merits, considering it appropriate after assessing the nature of the case, the conduct of the parties and any other relevant cir- cumstances. Mediation procedure The procedure is as follows. mediation. Delegated • One of the parties submits a mediation request to a mediation body, which is a public or private entity enrolled in a register kept at the Ministry of Justice). • The head of the mediation body appoints a media- tor (who may work individually or collectively) and schedules the first meeting between the parties. In cases where mediation is compulsory, the parties must be assisted by lawyers. • The procedure is conducted without formalities, also by telematic means and, if necessary, with the support of an expert.
• If the parties request it, the mediator is required to formulate a conciliation proposal. They communi- cate in writing their acceptance or rejection of such a proposal. • The parties and the mediator are bound by an obli- gation of confidentiality with respect to statements made and information acquired during the proce- dure. The mediator is also bound to confidentiality towards the parties about the statements made and the information acquired during the separate sessions. It is also forbidden to use statements made and information acquired during the proce- dure in court, and the mediator cannot be called to testify about it. The outcome of the mediation procedure Mediation may end in one of the following outcomes. The reaching of an agreement The mediator shall draw up a report, to which the agreement shall be attached and, if the parties are assisted by a lawyer, the agreement constitutes an enforceable title for compulsory execution as well as for the registration of a judicial mortgage (otherwise, the agreement acquires enforceable effect only if it is approved by the court upon request of a party). Failure to reach agreement In this case, the mediator shall draw up a report of failure to reach such an agreement and may formulate a conciliation proposal to be attached to the minutes. When the decision that concludes the judgment fully corresponds to the content of the proposal, the judge excludes the reimbursement of expenses incurred by the winning party who rejected the proposal, referring to the period after the proposal was made, and orders the winning party to reimburse the expenses incurred by the losing party for the same period. Negotiation Assisted by Lawyers Negotiation assisted by lawyers (regulated by Decree Law 132/2014 (converted by Law 162/2014)) is a pro- cedure aimed at resolving a dispute with the assis- tance of lawyers. The negotiation assisted by lawyers is based on an agreement by which the parties agree to co-operate in good faith and fairness to settle a dispute. Lawyers have the ethical duty to inform their
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