ITALY Trends and Developments Contributed by: Simone Barnaba, Deborah Borghi, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
client, at the time of their appointment, of the pos- sibility of resorting to negotiation assisted by lawyers. Types of negotiation There are three types of negotiation assisted by law- yers, as outlined below. Voluntary In this case, the parties spontaneously agree to enter into a negotiation agreement. Compulsory Negotiation assisted by lawyers is compulsory and constitutes a condition of admissibility for the sub- sequent bringing of legal proceedings in case of (i) disputes relating to compensation for damages caused by vehicles and watercraft and (ii) claims for payment for any reason of any amount not exceeding EUR50,000. The inadmissibility of the claim must be raised by the defendant, under penalty of forfeiture, or noted ex officio by the judge (which assigns the par- ties a period of fifteen days for the communication of the invitation to enter into the negotiation agreement). When the negotiation assisted by lawyers is compul- sory, the condition of admissibility is satisfied by noti- fying the opposing party with an invitation to enter into the assisted negotiation agreement, regardless of the actual outcome of the procedure. In this respect, the failure to fulfil such condition may be challenged by the defendant or detected directly by the judge up to the first appearance hearing. Negotiation assisted by lawyers for consensual solutions This involves negotiation assisted by lawyers for con- sensual solutions of separation of the spouses, termi- nation of civil effects or dissolution of marriage, modi- fication of separation or divorce conditions, custody and maintenance of children born out of wedlock, and their modification, and alimony.
month and no more than three months; the parties may agree to extend it for a further 30 days); and • indicate the subject matter of the dispute, which cannot concern non-disposable rights; the Carta- bia reform has extended the application of negotia- tion to labour disputes. The agreement may also indicate: • the possibility of obtaining statements of third par- ties on facts relevant to the subject matter of the dispute; • the possibility of obtaining statements from the counterparty on the truth of facts unfavourable to it and favourable to the party in whose interest they are requested; • the possibility of conducting the negotiation through telematic means; and • the possibility of conducting meetings through remote audiovisual connections. The negotiation assisted by lawyers commences with an invitation from one of the parties to enter into the agreement. The invitation should contain the subject of the dispute and the warning that refusal or failure to respond within 30 days may be assessed by the court for the purpose of costs of litigation. The effects of the invitation to enter into a negotiation agreement or the conclusion thereof are: • the interruption of the statute of limitation; and • the impediment, for one time only, of the forfeiture; however, if the invitation is refused or not accepted within the term of thirty days from its receipt, the application in court must be submitted within the same forfeiture term starting from the refusal, the non-acceptance within the term, or the declaration of non-agreement certified by the lawyers. The procedure is conducted without formalities and both the parties and the lawyers have the duty to act with loyalty and to keep the information confidential. The statements made and the information acquired during the procedure cannot be used in a trial with the same or partially the same subject. The parties’ lawyers and those who participate in the procedure
Negotiation procedure This agreement must:
• be drawn up in writing under penalty of invalidity; • contain the deadline agreed upon by the parties for the completion of the procedure (no less than one
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