The recent Legislative Decree no. 132 of September, 12, 2014 has introduced the “assisted negotiation agreement”.
The rules regarding the assisted negotiation are already applicable after the legislative decree no. 132/2014 and the law of conversion has been in force (respectively from September, 13, 2014 and November, 11, 2014). The rules related to the mandatory of the procedure as a condition of the action (Article 3) became applicable only after 90 days from the moment the law of conversion of the decree has been in force (November, 11, 2014) and, therefore, starting from February, 9, 2015. Differently from the mediation proceedings ruled by legislative decree no. 28, March, 4th, 2010, in the assisted negotiation the activity aimed to a friendly settlement of the dispute is not committed to a third and impartial person but directly to the parties’ defendants.
The assisted negotiation is a proceeding aimed at the extrajudicial resolution of the dispute. It’s based on the agreement by which the parties decide to honestly and loyally cooperate in order to find a friendly settlement of the dispute pending between them with the help of lawyers regularly registered (in case, also according to the Article 6 of legislative decree no. 96 of February, 2, 2001, i.e. the lawyers who has achieved the title abroad and want to practise permanently in Italy, the so called “established lawyers”).
The assisted negotiation can be optional (according to the Article 2 of the Law no. 162/2014) or mandatory (according to the Article 3 of the Law no. 162/2014). It is mandatory in case of dispute concerning: (i) the request for compensation of damages arising from service of vehicles and boats, regardless of the value of the dispute; (ii) the payment, for any reason, of amounts below 50,000 euros. In these cases the assisted negotiation proceeding is a condition of the action. The impossibility of the judicial action to continue has to be raised by the defendant or noticed by the Judge no later than the first hearing.
When the starting of the assisted negotiation proceeding is a condition of the action, the condition is considered fulfilled if the invite to negotiate is not followed by the acceptance or if it is followed by the refusal by 30 days from its receiving or, eventually, if passed the term decided by the parties for the completion of the proceedings (Article 3, paragraph 2).
The legislator has specified some cases in which, on the contrary, the assisted negotiation is not a condition of the action. These cases concern, besides the disputes between professionals and consumers:
- the order for payment proceeding (included the opposition);
- the proceedings of technical advise ruled by Article 696 bis of the Italian Civil Procedure Code;
- the summary proceedings;
- the civil action started in the criminal trial.
The Article 3, paragraph 4, provides that the starting of the negotiation proceedings in the cases when the procedure is a condition of the action does not preclude urgent measures.
The proceeding is the same for both the optional and the mandatory negotiation. The negotiation agreement has to specify: 1) the term decided by the parties for the completion of the proceedings that has to range between 1 month and 3 months, extensible to further 30 days, if parties agree; 2) the object of the dispute and the claims of the applicant (therefore, the petitum and the causa petendi of the following and eventual action) that can’t concern inalienable rights or labour law (Article 2, paragraph 2, of the Law 162/2014).
The agreement has to be drawn up in writing under penalty of nullity.
Regarding the role of the lawyers, they have to certify, under their responsibility, the authenticity of the signatures by the parties at the bottom of the agreement (Article 2, paragraph 6 Law no. 162/2014) and, in terms of ethic, when they take the mandate regarding one of the matters that can be friendly composed, they have to inform the client about the possibility to start the assisted negotiation proceedings (Article 2, paragraph 7).
Regarding the consequences linked to the lack of acceptance of the invitation to conclude the agreement, the Article 4 of the Law 162/2014 provides that the invitation has to specify the object of the dispute and the warning that the lack of answer within 30 days from the reception or the refusal can be considered by the judge for the purpose of the court fees and for the purpose of the condemnation to pay the damages coming from the misconduct during the dispute (according to the Article 96 of the Italian Civile Procedure Code) and, lastly, for the purpose of the execution of the order for payment (according to the Article 642 of the Italian Civil Procedure Code).
If the parties are not able to reach an agreement, this circumstance has to be certified by the lawyers.
If the negotiation proceedings successfully concluded, the agreement has to be signed by the parties and the lawyers who assisted them (who have to certify the authenticity of the signatures). The agreement, so formalized, is enforceable and allow the registration of judicial mortgage.
From the moment of the invitation to conclude an assisted negotiation agreement and from the signature of the agreement, the effects of the judicial action are applicable to the prescription. From the same moment the decadence is prevented, for one time.
Finally, regarding the lawyers’ confidential duties, Article 9 Law no 162/2014 provides that the lawyers can’t be appointed as arbitrator in the disputes with the same object or that are linked; they also have to behave loyally and keep confidential the information received and they can’t use the declarations or the information in other dispute with the same object. The breach of these duties is a disciplinary offense.