ITALY Trends and Developments Contributed by: Simone Barnaba, Deborah Borghi, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
Preamble One of the most important developments in the Italian legal system in recent years is the increas- ing 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 situations where they are not mandatory. ADR ADR refers to procedures that provide alterna- tives to litigation for resolving civil disputes out- side the courtroom. 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 agree- ment and resolve the dispute (eg, negotiation assisted by lawyers); and • “heteronomous”, if they involve the partici- pation of a neutral and impartial third party who will encourage the parties to reach an agreement or directly resolve the dispute (eg, mediation and arbitration). 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 Procedure and by special legislation); • preliminary technical advice for settlement purposes (regulated by the Code of Civil Procedure); • contract of settlement (regulated by the Civil Code); and • conciliation (regulated by the Code of Civil Procedure and by special legislation). Mediation Mediation procedures are aimed at reaching an amicable agreement and are carried out by a neutral third party, the mediator, who assists the parties in reaching such an agreement. Media- tion procedures can only concern disposable rights in civil and commercial disputes. There are three types of mediation: compulsory, voluntary 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, inherit- ance succession, family agreements, lease, loan for use, business lease, compensation for damages arising from medical and health- care liability and from defamation through the press or other means of publicity, insurance, banking and financial contracts, joint venture, consortium, franchising, service contracts, network contracts, supply contracts, partner- ship and subcontracting contracts). Moreo- ver, if the contract, the statute or the articles of association of a public or private entity contain a clause that provides for mediation as a means for dispute resolution, it con- stitutes a condition of admissibility for the
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