Overview on family and civil mediation’s law and others methods of alternative justice in Italy Avv. Cinzia Verucci

 Law n. 28/2010 and law n. 180/2010 discipline the mediation as an alternative instrument for the resolution of the civil and commercial disputes.

 The mediation is an opportunity to resolve friendly a dispute in the most satisfying way, with the help of a neutral subject: the mediator;  The mediation is based on the will to cooperate of interested subjects: they are not obliged to reach an agreement and they are free to interrupt the mediation in every moment;  The reconcilement is the contractual agreement that the subjects reach with mediation’s success. This reconcilement is writed in a report which will be recognised by the Court, located in the city of the mediation organism;  The mediation trial, occours on a mediation organism: this is a pubblic or private corporation, recognised by Ministry of Justice.

 From 20 th march 2011, it is compulsory to approach at the mediation, everytime a controversy concern: real rights, division, heritage, family acts, lease, firm rent, damage compensation of medical responsability and press or advertising defamation, ensurance and bank or financial contract;  From 20 th march 2012, it is compulsory to approach at the mediation, everytime a controversy concern: condominium and damage compensation of veicle’s circulation.

 Lacked partecipation at the mediation without justification is negatively valued by the judge, particulary when he has to decide on the payment of the process exepense;  Moreover the refusal of mediator’s proposal can have other negative effects if the judge final decision is exactly the same of the one proposed by the mediator in the beginning: condemnation at the payment of the process expense.

 The family mediation is not compulsory;  Law 54/2006 “separation and shared custody of children” modified the art. 155 and at the art. 155 sexies decided that the judge – before adopting the sentence – can delay the adoption of the sentence, if there is the opportunity, after listening the spouses and after their assent. So he can send the spouses to the mediation for reaching an agreement, with the help of expert (mediator), in particular for the interest of their children.

 It is a method to face the conflicts between spouses/parents when they want to separate and to try to look for the difficulty of the couple;  It is a personal decision of the spouses/partents which decide to address at a neutral and expert subject, for find the most satisfying life project for them and their children;  In the family mediation the spouses/parents are each one the main parts and they have the responsability of their decisions concerning their life and the future of their children;  The spouses/parents can address to expert mediator by theirseIf or under advice of lawyers, judges and pubblic service;

 Mediation consists in several meeting between parents and a qualified operator who works out of the justice system, in a neutral place, confortable and confidential;  The mediator helps spouses to find realistic solution and to elaborate a suitable agreement on the troubles concerning their separation;  The project is negotiated and choosen by the parents but not imposed by the mediator and it is not a proof;  The mediator doesn’t meet the underage, but, meeting the parents, he helps indirectly them to improve their condition of life and to exceed the tragic moment of the separation of their parents, avoiding that they can be used in the conflict.

 The family mediation is an intervention that the family can use just before or during the separation or the divorce, for the organization of the family relationship;  So it is not a technical consulence for the judges and it has not the aim to give information on the relationship between children and parents or on the parent’s ability (to decide who is the best entrust);  It is not a therapy, because it is an occasional intervention, on common and defined objective, and it has a limited duration, decided at the beginning of the project;  It is not a family consulence. The family mediation is activated on troubles related to separation and divorce.

 Collaborative law has the aim to help pairs that are separating to decide their future, discussing every aspect of their separation;  Collaborative law is addressed to people who accept to modify their behaviour, leaving the conflictual logic and adopting the collaborative logic, for the resolution of their problems;  Collaborative law is based on the collaboration of experts (collaborative team) which work on the different step of collaborative process;  The collaborative team is composed by: laywers, financial expert, pshycologic expert; coach which work for the same aim and wich protect the collaborative process.

 The aim is reaching shareable satisfying agreement for both spouses;  Emotions and feelings are important part of the collaborative process and so they has not to be neglected but they has to be managed with skill;  The professional man and woman are expert in settling conflicts and in driving negotiation;  Legal disputes is the last chance and it’s usually preferred the extrajudicial/collaborative context;  The spaces and the environment are comfortable in order to create a round communication;  Sharing with the client all the aspects of the separation and involvment of the client in the comprehension of the law during the proceedings.

 Step 1: fix the aim through dialogue and listening.  Step 2: take information and identify problems.  Step 3: create options.  Step 4: valuate options, contemplating interests of the clients and of the family.  Step 5: negotiation and acceptance of decision.  Step 6: production of document.

 Spouses and lawyers sign a contract in which it’s written the engagement to find a shareable solution, through the collaborative pratice;  Lawyers undertake not to resort a judge for composing controversy and to find a right solution for all the parts of the dispute;  Judge’s intervention will be only targeted at the validation of the agreement;  Lawyers help clients to find informations and documents that can allow to identify quickly the matter;  Negotiations are private. Any information exchanged during negotiations can be revealed during the trial;  Both parts can withdraw the collaboration’s contract communicating that, to his own lawyer and undertaking not to resort to the Court, for 30 days after the negotiations’s end.

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