The Assisted Negotiation Procedure in Italy - another form of ADR

The Italian government’s enactment of Decree No. 132/2014 is envisaged to address significant shortcomings in the Italian civil judicial system.

On 6 November 2014, the Italian government granted its final approval to Decree Law No. 132/2014.  The Decree was introduced primarily to:

• accelerate civil proceedings and reduce the ever-growing backlog of pending civil lawsuits, currently estimated to be in the region of 5.5 million;
• end the nation’s violation of the "reasonable time" requirement for a fair trial  (Article 6(1) of the European Convention on Human Rights); and
• resolve Italy’s economic crisis. The reduction in the length of time taken to obtain a decision in civil cases would make Italy more attractive to foreign investors.

Effective 9 February 2015, it will become mandatory for matters relating to consumer protection, road or marine accidents and debt collections of €50,000 or less, to follow the assisted negotiation procedure, providing a forum for amicable resolution pre-litigation. This involves a face-to-face negotiation between the disputing parties, with the compulsory assistance of legal counsel.  Assisted negotiation is not a mandatory step for a number of special proceedings, in particular:

• injunctive proceedings
• preemptive technical expertise directed to settle the dispute,
• oppositions against enforcement proceedings
• camera proceedings
• actions for damages in criminal proceedings, which may be directly initiated by the interested party.

The Bill requires that a request to engage in assisted negotiation must be responded to within 30 days, after which the condition precedent will be considered satisfied and each party can proceed to court. 

It is worth noting that, under Article 4 of the Decree,  the court may negatively evaluate a party's refusal to opt for assisted negotiation and take this conduct into account when deciding on the allocation of legal fees.

A negotiation agreement must specify the term within which the amicable resolution should be reached. This term cannot be less than one month.  A settlement agreement reached through assisted negotiation is immediately enforceable and considered a title for levying execution.  An ethical breach of the lawyers' code of conduct would arise if the same lawyers that contributed to the creation of an agreement also attempted to enforce it.

In the event of parties not reaching an agreement, their lawyers would be required to provide and certify a ‘declaration of failure to agree.’ The interested party would then have to propose legal proceedings within 30 days from the declaration of failure to agree.

Article by Alessandro Gravante, Partner and head of Litigation & Dispute Resolution. For more information on 'The Assisted Negotiation Procedure in Italy - another form of ADR' or if you have any Litigation & Dispute Resolution enquiry please contact here.