What is mediated negotiation? Mediated negotiation is an alternative method for resolving disputes through a negotiation process in which the conflicting parties are assisted by lawyers.
Regulating mediated negotiation is Law Decree 132/2014 converted into Law No. 162 of 2014.
The law introduced mediated negotiation in Italy in 2014, defining it as an "agreement by which the parties agree to cooperate in good faith and with loyalty to amicably resolve the dispute with the assistance of lawyers enrolled in the bar, also in accordance with Article 6 of Legislative Decree No. 96 of February 2, 2001."
It represents one of the methods of alternative dispute resolution, known as ADR, which involves resolving disputes through friendly and out-of-court negotiations.
Advantages of Mediated Negotiation
In everyday life, it is quite common to seek the assistance of a lawyer to negotiate an agreement and avoid the delays of the court.
In general, mediated negotiation offers several advantages, including:
- It opens the possibility of reaching an agreement without the need to resort to a court.
- It reduces costs associated with disputes.
- It reduces time as it can expedite the conflict resolution process.
When Can Mediated Negotiation Be Used?
The use of mediated negotiation can be optional or mandatory.
It is mandatory, for example, in cases of compensation for damage caused by the circulation of vehicles (road accidents) and/or boats, as well as when seeking judicial recovery, for any reason, of amounts not exceeding 50,000 euros.
Mandatory procedure means that the transition to the subsequent judicial request is allowed only if mediated negotiation is unsuccessful. Failure to resort to mediated negotiation results in the inadmissibility of the judicial claim.
If mediated negotiation is optional, the parties can freely choose to use it, presenting an opportunity to resolve a dispute quickly and economically, avoiding the courtroom.
Optional mediated negotiation also applies to family matters.
Mediated Negotiation in Cases of Separation and Divorce
How The Mediated Negotiation Process Works?
Mediated negotiation follows a standardized procedure that starts with an invitation to enter into a negotiation agreement, sent by one party's lawyer to the counterparty or their lawyer.
The other party must respond within thirty days.
If they accept the invitation, the parties enter into a mediated negotiation agreement, agreeing on the basic rules of the procedure.
Negotiations ideally lead to another agreement, which is the ultimate goal of the negotiation and is signed by the parties and their lawyers.
This agreement holds the same value as a court judgment and can be used as an enforceable title. It can also be used for the registration of judicial mortgages.
In case of no agreement, either due to the rejection of the invitation or because the negotiation does not conclude positively, the party can directly approach the judge and initiate a proper legal case.
The Mediated Negotiation Agreement
The agreement governing a mediated negotiation process is called the "mediated negotiation agreement."
It is prepared by lawyers and signed by the parties, outlining the agreements and rules set for the procedure.
The agreement serves to resolve the disagreement out of court and must include, among other things:
- Indications regarding the duration of the procedure, which cannot be less than one month and more than three months. The only exception is a possible extension of thirty days, but only if agreed upon by the parties.
- The subject of the dispute (which cannot concern non-disposable rights or labor matters).
Changes introduced by the Cartabia reform
The Cartabia reform, approved in 2022 and effective from 2023, introduced some changes regarding mediated negotiation.
In particular, the reform:
- Expanded the scope of mediated negotiation.
- Introduced the possibility of resorting to remote mediated negotiation.
Differences Between Mediated Negotiation and Mediation
Both mediated negotiation and mediation are alternative dispute resolution systems to the court, or ADR.
The main difference between the two is that the entire mediation process takes place in front of a mediation body that the parties must approach, and the costs vary based on the value of the dispute.
Like in mediated negotiation, in mediation, the parties are required to be assisted by a lawyer.
Mediation is mandatory in cases involving:
- Condominium issues;
- Property disputes;
- Division of assets;
- Inheritance matters;
- Lease agreements;
- Loan for use;
- Business lease;
- Medical liability compensation;
- Defamation compensation through media;
- Insurance, banking, and financial contracts.
Why it is Important to Rely on a Lawyer?
Mediated negotiation is a complex process that requires the expertise and experience of a lawyer.
The lawyer must:
- Guide the parties through the negotiation process.
- Provide legal assistance and advice.
- Draft the initial agreements and those subsequently reached.
Seeking a lawyer's assistance is crucial to enable the involved parties to achieve a faster, effective, and efficient resolution of disputes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.