THE GENESIS OF COLLABORATIVE PRACTICE IN ITALY

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The following developments are the important precursors to the development of the Institute:

  • The Courses for Family Mediators in the Legal Field, sponsored by the National Lawyers Association in the period 2001-2003

  • The work carried out at the Roman School for Family Therapy from around 1998 to 2005

  • The founding of the First Centre for Family Co-Mediation at the Academy of Family Psychotherapy which goes back to the middle of the last decade

  • The foundation of the National Association of Family Lawyers-Mediators

  • The experience of the Family Law Consortium: the first Professional Multidisciplinary Family Law Office in Italy founded in Rome, located in via del Babbuino, Piazza di Spagna, and operating from 2007 to 2010.

Among all these origins, the greatest credit in the development of law-integrated Family Mediation must undoubtedly go to the Family Law Consortium in London, from which we imported the Co-Mediation Model and the Multi-disciplinary method in the late 1990s: immediately described in the Family Mediation Code. [Battaglini, Calabrese, Saccu, Stampa – Giuffré 2001].

In all of the above-mentioned professional and associated experiences, long before the coming into force of Law 154/2001 (which in art. 342 ter c.c. establishes that the judge may, when deemed necessary, also order the intervention of the social services or a family mediation centre) and of Law 54/2006 reforming art. 155 of the civil code (which establishes in art. 155 sexies: “The judge may, when deemed appropriate and after having consulted the parties concerned and obtained their consent, defer the adoption of provisions set out in article 155 in order to permit the spouses to attempt mediation with the support of experts in the field in order to reach an agreement, with a particular view to the protection of the moral and material interests of the offspring”.) family mediation in Rome was moving within a multidisciplinary field. The form was no longer the transformative family mediation of psycho-social derivation and not yet a collaborative method rooted in negotiation aimed at settling legal disputes.

In actual fact, if it is still worthwhile to recall the debate of the late 1990s, each of the two “weltanshauung” just described sought to pigeonhole Family Mediation within its own world vision excluding the other from a sphere claimed as solely their own.

Therefore, both psycho-social and negotiation-based Family Mediation co-existed sealed off from one another, and the concept of multi-disciplinary Mediation had an existence fraught with difficulty.

Nevertheless, in Rome there had long been the awareness that without total trust and the participation without reserve of the lawyers in the proceedings no effective family mediation will be achieved, because it is the lawyers who are the true custodians of family law.

Fundamental to all the above-mentioned experiences, there was the idea that:

a) Mediation starts with a written pledge to resolve the dispute without resorting to the Judge’s decision. [Calabrese: Mediazione e Comediazione Familiare nel Processo Civile: in Persona e Danno, Rivista Telematica del Prof. Paolo Cendon, 11.1.2008] This pledge is called Agreement to Mediate, and is undersigned by the parties concerned in the presence of their lawyers, should proceedings between them be pending.

b) Mediation is by its nature inter-disciplinary and cannot be carried out effectively without reconciling the professional services of both a legal mediator and a mediator in the psychosocial field.

As we have seen, the above-mentioned ideas were developed a decade before their evolution in Italy, which at the time was still stuck in the concept of mediation’s absolute “freedom of purpose”, abstractly parallel to or at any rate disconnected from the legal separation proceeding (and thus ultimately useless or of very limited impact, socially).

In November 2009, in order to drink at the fountain of new developments in Europe, a delegation from the Italian Institute for Collaborative Law travelled to London to examine local developments in Family Mediation and the brand new discipline called Collaborative Law or Collaborative Practice.

The version brought back to our country was slightly modified from the already existing model described above.

Not only is the consent of the lawyers necessary in order to begin the collaborative proceeding but necessary as well is the undersigning on their part of the same agreement signed by the parties: with however, a fundamental difference from mediation.

The difference arises from the clause requiring the lawyers to withdraw from the case in the event of a failure of the mediation process (the essence of Collaborative Practice).

This proceeding, which is very similar to the Italian formulation of professionally balanced co-mediation, had already existed for many years in the United States and was just being introduced into Europe: it was called – as we said above – Collaborative Law (or Collaborative Practice) and could not/would not be relegated to the sphere of family law, being as it was a technique that could be applied in all civil disputes relating to human relationships in which it was foreseen that the relationship of the parties concerned would continue over time.

Thus, within the space of a few months from the end of 2009 the Institute was founded and associated to the International Academy for Collaborative Practice which started up courses and activities leading to awareness of collaborative law among hundreds of Italian lawyers.

Early studies and daily practice show differences – at times even important ones – between the Anglo-American model of collaborative practice and the continental type. In Anglo-American practice, in fact, the interpretation of marriage as a “partnership” to some extent conditions the collaborative proceeding, where a predominant part is established with the division of the family assets. Such problems exist only in part in Continental Europe, where the different juridical culture establishes more precise provisions for purchases iure successionis – and all purchases made by the spouses before and during the marriage in general.

There is also a greater tendency to dissolve the matrimonial bond in Protestant countries, which makes the Continental approach to Collaborative Practice even more dissimilar. In fact, the theme of a “fresh start” -relocation, new life, new job, new family- is strictly intertwined with Anglo-American culture (mainly American), as the feeling of “independence” is a deep component of that social structure.

These themes are nearly unknown in Catholic Societies, where families frequently have dwelled in the same geographical area for centuries. As a result, a pure “fresh start” is hardly thinkable through the depths of our conscience (i.e. see “The Moral Basis of a Backward Society” by E.C. Banfield, 1958 – about the concept of Amoral Familism in Post War Southern Italy). The studies upon Familism, as the great American Sociologist noticed, lead European Sub-Cultures to influence in a deep manner all the activities of new couple, even their own destiny as a family. As a matter of fact, the new house, the job, the network of r relationships will be provided by the families of origin, in many Non Protestant Countries.

However, the current Anglo American romantic ideal of a “fresh start” rather recalls the idea of a “social suicide” on this side of the pond. This peculiar attitude can deeply affect also the emotional acceptance of the consequences of divorce, while paradoxically the financial and legal consequences can be handled more easily (i) because division of assets is pre-settled, (ii) because the divorced spouse is more likely to return under the umbrella of the family of origin than in the US/UK.

The Collaborative Practice aims at reducing the emotional consequences of a divorce and minimizing the harm for the children, in its original model. I am persuaded that this concept will survive also in Europe, albeit in a different form. Perhaps the interest of the children of the couple will be prevalent whilst the emotional consequences of the divorce itself will be underestimated, compared to US/UK proceeding.

It is still too early to say whether these differences will lead to an autonomous model of Collaborative Practice, or only to a variant of the same.

What is certain is that the new creature can already avail itself of tremendous national and international energies: and the final form of the practice of Collaborative Law will be determined by the efforts of those most involved in practicing and promoting it.

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