COLLABORATIVE PRACTICE AND THE LAW What a difference a day makes…


(NOTICE FOR OUR DEAR ENGLISH READERS: this post was written in Euro-English which is …er… basically not English at all: please be patient, thank you)
Yesterday February 9, 2015 the collaborative proceeding under the name of Negoziazione Assistita has become a mandatory pretrial step before filing with the Courts for any controversy below 50.000 Euros, (Law 162/2014). Above the threshold of 50.000 E. the Assisted Mediation is mandatory instead (Law 96/2013) which is basically a 5 ways Collaborative Practice with the intervention of both lawyers and a Mediator.
Negoziazione Assistita (2014) is absolutely identical to the scheme of the 4 ways Collaborative Law. Confidentiality of sessions, the Signature of a preliminary Collaborative Agreement, Dismissal of Lawyers in case of the breakdown of negotiation are provided by the Law.
For Family Law cases, the Collaborative Proceeding is not Mandatory, as of yet, albeit skipping this passage can be dangerous and may lead to consequences (Court’s fines for vexatious action).
I have pushed so hard along the last 6 years for the adoption of Collaborative Law in Italy that I should now be as happy as a man can be for the enforcement of these two new regulations. Italy is one of the 10 largest industrial Countries in the world, home to 60 million people, and (alas!) 300.000 Lawyers.
In spite of this, I have the sensation of shooting my foot: why?
Until yesterday choosing the Collaborative method was an act of responsibility: I’d rather say an elitist choice to sort out controversies in a most civilized manner.
But today Collaborating in civil matters is (i) mandatory, or nearly mandatory: so it’s not a choice any longer; (i) I’ts a passage a passage for the masses, for everybody: not certainly for an enlightened minority. And not everybody would pick collaborative law, if they could choose.
Will the most advanced form of ADR in Europe (in the world?) be busted up pretty bad after the Italian experiment or will she survive? Do we have to change the skin, to make it palatable for everybody.
Big differences from yesterday….