ITALY Trends and Developments Contributed by: Simone Barnaba, Deborah Borghi, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
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 mediation procedure. If the media- tion procedure has still not commenced at the new hearing fixed by the judge, the applica- tion before the court is declared inadmissible. • Voluntary: In this case, the parties voluntarily decide to attempt mediation. • Delegated: 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 circum- stances. The procedure The procedure is as follows: • 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 mediator (who may work individually or collectively) and schedules the first meet- ing between the parties. In cases where mediation is compulsory, the parties must be assisted by lawyers. • The procedure is conducted without formali- ties, also by telematic means and, if neces- sary, with the support of an expert. • If the parties request it, the mediator is required to formulate a conciliation proposal. They communicate in writing their accept- ance or rejection of such a proposal. • The parties and the mediator are bound by an obligation of confidentiality with respect to
statements made and information acquired during the procedure. The mediator is also bound to confidentiality towards the parties about the statements made and the informa - tion acquired during the separate sessions. It is also forbidden to use statements made and information acquired during the procedure in court, and the mediator cannot be called to testify about it. The outcome of the mediation procedure Mediation may end in: • The reaching of an agreement: The mediator shall draw up a report, to which the agree- ment shall be attached and, if the parties are assisted by a lawyer, the agreement con- stitutes an enforceable title for compulsory execution as well as for the registration of a judicial mortgage (otherwise, the agree- ment 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 pro- posal, 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 procedure aimed at resolving
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