On 9th February 2015 the obligation to resort to the assisted negotiation procedure with the assistance of a lawyer was introduced in the Italian legal system, under penalty of barring of the judicial claim; Legislative Decree n. 132/2014 converted into Law n. 162/2014 sets forth that such obligation must be fulfilled before filing the judicial claim in the disputes concerning the compensation of damages arising from road accidents and in the disputes aimed at obtaining the payment of amounts up to € 50.000,00 (except for the procedures for decreto ingiuntivo i.e. order for payment procedures).
Such obligation has been included in the 2015 stability law, whose para. 249 art.1, requires the negotiation procedure for all disputes concerning contracts of carriage or sub-carriage.
Through said procedure, which is handled directly by the parties’ lawyers, it is possible to reach a conciliatory agreement which has the value of an enforceable title, same as a judgment.
However, the assisted negotiation procedure must not be confused with the mediation procedure introduced by Legislative Decree n. 28/2010. They are two procedures which are not interchangeable, on the contrary they can interact.
Both procedures are an instrument of dispute resolution which is alternative to the judicial one, and are considerably different form one another due to the presence (in mediation) of an external and impartial third party: the mediator.
Indeed, the intervention of a third party in the mediation procedure justifies the reason why the legislator has deemed that the two procedures may coexist.
Therefore, the disputing parties do not necessarily have to resort to both procedures before being able to file the judicial claim.
However, it should be highlighted that in the cases where compulsory mediation has to be carried out, the parties can preliminarily choose to resort to the assisted negotiation procedure, with the warning that if the attempted negotiation fails, the parties will be in any case compelled to proceed with the (compulsory) mediation attempt before being able to go to Court, since otherwise the conditions set forth by Legislative Decree n. 28/2010 would not be fulfilled.
The law is too recent to allow a verification of its actual potential (also in terms of reducing the number of court cases in Italy): only in the future will it be possible to see if the win win strategy will really be a winning one for the resolution of disputes, also in terms of costs and time.
(Bologna Office – Federico Tassinari – +39(0)512750020)
