ITALY Trends and Developments Contributed by: Simone Barnaba, Deborah Borghi, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
a dispute with the assistance 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 client, at the time of their appointment, of the possibility of resorting to negotiation assist- ed by lawyers. There are three types of negotiation assisted by lawyers, as outlined below. • Voluntary: In this case, the parties spontane- ously agree to enter into a negotiation agree- ment. • Compulsory: Negotiation assisted by lawyers is compulsory and constitutes a condition of admissibility for the subsequent 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 parties a period of fifteen days for the communication of the invitation to enter into the negotiation agreement). When the negotiation assisted by lawyers is compulsory, the condition of admissibility is satisfied by notifying the opposing party with an invitation to enter into the assisted negotiation agreement, regard- less of the actual outcome of the procedure. In this respect, the failure to fulfil such condi- tion may be challenged by the defendant or detected directly by the judge up to the first appearance hearing. • Negotiation assisted by lawyers for con- sensual solutions: This involves negotiation assisted by lawyers for consensual solutions of separation of the spouses, termination 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. The procedure This agreement must: • be drawn up in writing under penalty of inva- lidity; • contain the deadline agreed upon by the par- ties for the completion of the procedure (no less than one 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 Cartabia reform has extended the appli- cation of negotiation to labour disputes. The agreement may also indicate: • the possibility of obtaining statements of third parties on facts relevant to the subject matter of the dispute; • the possibility of obtaining statements from the counterparty on the truth of facts unfa- vourable 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 con- tain 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.
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