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GENEVA GROUP INTERNATIONAL
 World Conference - Rome, Italy
        October 19, 2012

   Att. Patrizia GIANNINI
ADR




                        VOLUNTARY           MANDATORY
 ARBITRATION
                         MEDIATION           MEDIATION
(Ritual Arbitration)
                       (Free Arbitration)    Act 28/2010
Ritual Arbitration (binding)
The right to engage in ritual arbitration arises out of a
                       CONTRACTUAL AGREEMENT
entered into by the parties before the dispute arose.
It is necessary for the parties to agree to submit to the authority of
     someone other than the court judge, in the event of a dispute.
In ritual arbitration,
                 THE ARBITRATOR ACTS AS A JUDGE.
His/her decision (called lodo) functions with
      THE SAME FORCE AND EFFECT AS A DECISION FROM A
                                   COURT,
and may be acted upon in proceedings supplemental.
In the ritual arbitration method, unless otherwise agreed-to by the
     parties, the lodo must be issued within 240 days (8 months).
Ritual arbitration is comparable to mandatory arbitration in Common
     Law’s Countries.
“Free” Arbitration (not binding)
The arbiter acts more like a mediator.
The resolution is accomplished more in the mode of an agreement,
   rather than a court order.
This method of dispute resolution may be requested after the dispute
   has arisen.
Free arbitration is similar to voluntary mediation in Common Law’s
   countries
Mandatory Mediation in Italy

The traditional methods of resolving controversies in the area of civil
    and corporate law, in Italy, do not always yield the most efficient or
    the most desirable results.
 In Italy, mandatory mediation (not to be confused with voluntary
    mediation) must be completed BEFORE a lawsuit can be filed.
If a lawsuit is commenced before mandatory mediation has been
    completed, the judge has the right to adjourn the entire case until
    the mandatory mediation has been done.
Since March 21, 2011, mediation has become mandatory in Italy in the
   following cases:
 real estate (including construction cases and cases involving
   distribution of property in an estate)
 division of property
 hereditary succession
 landlord-tenant disputes
 eviction
 shareholder disputes
 medical liability
 defamation
 insurance, banking, and financial contract disputes
One year later, on March 20, 2012, (due to the high volume of
  disputes in other types of civil liability cases) mediation became
  mandatory in:
 condominium disputes

 vehicular or nautical accidents
The Mediator
The mediator is an uninvolved 3° person who makes
                         RECOMMENDATIONS
to the parties, and the parties retain the right to agree or not.
In mandatory mediation, the parties must request a mediator from an
                  ORGANIZATION OF MEDIATORS
approved by the Minister of Justice.
ADR doesn’t delay all decisions

Even in cases where mediation is mandatory prior
  to obtaining a final court ruling, the parties retain
  the right to seek preliminary injunctions or rulings
  in matters requiring urgent attention.
The Demand for Mediation
The request for mediation begins with a formal demand to the
   mediation organization (approved by the M. of J.).
The request must contain the following specifications:
 The name of the Mediation Organization
 The names of the parties
 The nature of the case
 The basis and support in the law for the claim or defense.
The parties have complete freedom in their choice of Mediation
   Organization, HOWEVER, the Mediation Organization chooses the
   individual mediator.
Procedure
Once the mediator has been assigned by the Organization, he/she
   organizes one or more meetings between the parties with the goal
   of reaching an agreement.
Each mediation session is a group meeting involving all parties.
Rarely, parties may be separated & the mediator goes back & forth
   between the rooms.
Duration

The entire mediation process may take up to 4 months to complete.
However, if all parties agree, the mediation process may take up to 8
   months maximum.
Completion
The agreement reached during mediation, once signed by all parties,
   is binding, and if a party fails or refuses to honor his agreement, it
   will be enforced by the Court.
Signed mediation agreements are binding and enforceable.
The mediator’s recommendation
The mediator is required to provide the parties with his proposed
   resolution to the dispute.

If the mediator’s recommendation is accepted by one party, but not the
     other, the law suit may commence.

But at the conclusion of the litigation, if the outcome (from the Court) is
   the same as the mediator’s recommendation, the party who was
   found to have rejected that recommendation without justification, is
   required to pay all costs associated with the lawsuit.
Confidentiality
Nothing said, and no information exchanged, during the mediation
   process may be used in Court, unless the statement or document
   otherwise meets evidentiary requirements.

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Adr att patrizia Giannini 19.10.12

  • 1. GENEVA GROUP INTERNATIONAL World Conference - Rome, Italy October 19, 2012 Att. Patrizia GIANNINI
  • 2. ADR VOLUNTARY MANDATORY ARBITRATION MEDIATION MEDIATION (Ritual Arbitration) (Free Arbitration) Act 28/2010
  • 3. Ritual Arbitration (binding) The right to engage in ritual arbitration arises out of a CONTRACTUAL AGREEMENT entered into by the parties before the dispute arose. It is necessary for the parties to agree to submit to the authority of someone other than the court judge, in the event of a dispute. In ritual arbitration, THE ARBITRATOR ACTS AS A JUDGE. His/her decision (called lodo) functions with THE SAME FORCE AND EFFECT AS A DECISION FROM A COURT, and may be acted upon in proceedings supplemental. In the ritual arbitration method, unless otherwise agreed-to by the parties, the lodo must be issued within 240 days (8 months). Ritual arbitration is comparable to mandatory arbitration in Common Law’s Countries.
  • 4. “Free” Arbitration (not binding) The arbiter acts more like a mediator. The resolution is accomplished more in the mode of an agreement, rather than a court order. This method of dispute resolution may be requested after the dispute has arisen. Free arbitration is similar to voluntary mediation in Common Law’s countries
  • 5. Mandatory Mediation in Italy The traditional methods of resolving controversies in the area of civil and corporate law, in Italy, do not always yield the most efficient or the most desirable results. In Italy, mandatory mediation (not to be confused with voluntary mediation) must be completed BEFORE a lawsuit can be filed. If a lawsuit is commenced before mandatory mediation has been completed, the judge has the right to adjourn the entire case until the mandatory mediation has been done.
  • 6. Since March 21, 2011, mediation has become mandatory in Italy in the following cases:  real estate (including construction cases and cases involving distribution of property in an estate)  division of property  hereditary succession  landlord-tenant disputes  eviction  shareholder disputes  medical liability  defamation  insurance, banking, and financial contract disputes
  • 7. One year later, on March 20, 2012, (due to the high volume of disputes in other types of civil liability cases) mediation became mandatory in:  condominium disputes  vehicular or nautical accidents
  • 8. The Mediator The mediator is an uninvolved 3° person who makes RECOMMENDATIONS to the parties, and the parties retain the right to agree or not. In mandatory mediation, the parties must request a mediator from an ORGANIZATION OF MEDIATORS approved by the Minister of Justice.
  • 9. ADR doesn’t delay all decisions Even in cases where mediation is mandatory prior to obtaining a final court ruling, the parties retain the right to seek preliminary injunctions or rulings in matters requiring urgent attention.
  • 10. The Demand for Mediation The request for mediation begins with a formal demand to the mediation organization (approved by the M. of J.). The request must contain the following specifications:  The name of the Mediation Organization  The names of the parties  The nature of the case  The basis and support in the law for the claim or defense. The parties have complete freedom in their choice of Mediation Organization, HOWEVER, the Mediation Organization chooses the individual mediator.
  • 11. Procedure Once the mediator has been assigned by the Organization, he/she organizes one or more meetings between the parties with the goal of reaching an agreement. Each mediation session is a group meeting involving all parties. Rarely, parties may be separated & the mediator goes back & forth between the rooms.
  • 12. Duration The entire mediation process may take up to 4 months to complete. However, if all parties agree, the mediation process may take up to 8 months maximum.
  • 13. Completion The agreement reached during mediation, once signed by all parties, is binding, and if a party fails or refuses to honor his agreement, it will be enforced by the Court. Signed mediation agreements are binding and enforceable.
  • 14. The mediator’s recommendation The mediator is required to provide the parties with his proposed resolution to the dispute. If the mediator’s recommendation is accepted by one party, but not the other, the law suit may commence. But at the conclusion of the litigation, if the outcome (from the Court) is the same as the mediator’s recommendation, the party who was found to have rejected that recommendation without justification, is required to pay all costs associated with the lawsuit.
  • 15. Confidentiality Nothing said, and no information exchanged, during the mediation process may be used in Court, unless the statement or document otherwise meets evidentiary requirements.