The instrument of assisted negotiation in the Italian legal system: mandatory application in transport matters and advantages

What does “assisted negotiation” mean?

Assisted negotiation is an institution introduced into the Italian legal system by Law no. 162 of 10 November 2014, defined as a conciliation procedure carried out through the assistance of lawyers, by which it is intended to implement a procedure co-managed by the lawyers of the parties involved in the dispute, in order to reach a conciliatory agreement.
It is possible to place assisted negotiation within the category of alternative dispute resolution (ADR) instruments: instruments aimed at finding ways of settling a dispute outside the court process.
This instrument contributes to enhancing the role of the professional lawyer since the assisted negotiation agreement, which regulates the procedure, can only be concluded with the assistance of a registered lawyer, or an ‘established’ lawyer who also has the power to authenticate the signatures affixed to the agreement, for which the written form is required, on penalty of nullity.
As far as the scope of application of this instrument is concerned, there are three types of “assisted” negotiation: the mandatory and the optional in the civil sphere and the optional in the family sphere, to which is added another form of “free” negotiation.

Cases of compulsory used of assisted negotiation

Compulsory negotiation is a burden on the parties, as a condition for proceeding, before bringing an ordinary action aimed at obtaining the payment of sums with a value not exceeding fifty thousand euros or before bringing an action to obtain compensation for damage caused by the circulation of vehicles and boats, and finally for disputes concerning transport and sub- transport.
This is therefore a case of conditional jurisdiction. Inadmissibility must be objected to by the defendant, under penalty of forfeiture, or detected ex officio by the judge, no later than during the first hearing.

The mandatory nature of assisted negotiation in transport matters

As of 2015, a condition for bringing an action relating to a dispute concerning a contract of carriage or sub-carriage is the institution of a negotiation procedure assisted by one or more lawyers.

The procedure for conducting assisted negotiations

As regards the procedure, it begins with an invitation to conclude a negotiation agreement, which specifies the time limit agreed by the parties for completion of the procedure, in any event not less than one month and not more than three months, which may be extended for a further thirty days by agreement between the parties.
This is because we are in a phase prior to the presentation of the reciprocal positions; we are in a preliminary phase, in which, essentially, the counterparty is asked whether it is willing to undertake the assisted negotiation process in an attempt to reach a conciliatory agreement with reference to a given dispute.
The invitation must also be signed by the party, although the act is formulated by the lawyer. The law is silent as to how the invitation is to be sent to the other party. It does not therefore appear that the rules of the Code of Civil Procedure on the notification of deeds should be called into question.
The provision then goes on to state that from the time of communication of the invitation to conclude an assisted negotiation agreement, or the signing of the agreement, the effects of a court action are produced on the statute barred; in other words we have two consequences: -the statute barred is interrupted and the period of time-barring starts to transpire again when the negotiation will be finished.
– the term to start an action is suspended for the period of the negotiation and starts to transpire again after the negotiation will be finished.
The invitation may be accepted or not, and non-acceptance occurs in the event of failure to reply within thirty days of receipt, or of explicit refusal, and the declaration of non-agreement must be certified by the appointed lawyers.
This refusal to join the invitation to negoziazione assistita may then be assessed by the judge for the purposes of court costs.
In the event of a positive outcome, the agreement reached constitutes an enforceable title and can be used to register a judicial mortgage.
The lawyers are obliged to maintain all the information and documents received during the negotiation as strictly confidential. This means that it is not possible to use them during the claim if the interested part does not decide to present them to the Court.

What are the costs involved?

With regard to the costs of the procedure, it should be noted that, given the mandatory assistance of a lawyer, the parties will be charged the fee for the professional services provided by the lawyer, the quantum of which has already been defined by means of specific parameters made available to lawyers for the settlement of fees:
Disputes with a value from Euro 0.01 to Euro 1,100.00 Activation phase: Euro 60
Negotiation phase: Euro 120
Conciliation: 180 Euros
Disputes with a value between Euro 1,100.01 and Euro 5,200.00 Activation phase: 270 euros
Negotiation phase: 540 euros
Conciliation: 810 Euros
Disputes with a value between Euro 5,200.01 and Euro 26,000.00 Activation phase: 420 euros
Negotiation phase: 840 euros
Conciliation: 1260 Euros
Disputes with a value between Euro 26,000.01 and Euro 52,000.00 Activation phase: 510 euros
Negotiation phase: 1020 Euros
Conciliation: 1530 Euros
Disputes with a value between Euro 52,000.01 and Euro 260,000.00 Activation phase: Euro 960
Negotiation phase: 1920 Euros
Conciliation: 2880 Euros
Disputes with a value between Euro 260,000.01 and Euro 520,000.00 Activation phase: Euro 1305
Negotiation phase: 2610 euros
Conciliation: 3915 Euros

The experience of Gioffredi law firm

We have a quotation of nearly 100% of acceptance of the negotiation in transport matters. This depends probably by the matter of fact that lawyers acting in this field are mostly specialized. It is possible that past experiences showed them that a good settlement that brings to the client a fair and quick solution is better then long claims that, in the best case, oblige the client to pay big amounts for legal fees and Court costs for many years. The possibilities to close the file with negotiation depends on a lot of factors:
–  the documents that the promoter of negotiation offers.
–  the fact and applicable jurisprudence to solve the question of being there a case of gross
negligence or willful misconduct or not.
–  last but not least, the empathy between lawyers.
Avv. Arturo Gioffredi
Studio legale Gioffredi
Viale Monte Nero 50 Milan – Italy

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