THE LONG MARCH, AND VICTORIOUS, OF COLLABORATIVE LAW IN ITALY
A FIRST COMMENT TO THE LAW n. 162 of Nov. 11th 2014
By Marco Calabrese, Attorney, First and Former President of IICL (Italian Institute for Collaborative Law)
Italy can be regarded as one of the Countries where ADR methods have been early experimented: the use of Centers for Family Mediation in Civil Matters was first mentioned by the Law n. 154 of 2001.
In parallel this Country is certainly the place where ADR Methods have achieved scarce or no effect over the last decade: their declared ambition was to reduce the number of pending civil cases, but these have unfortunately reached the staggering figure of four millions, to date.
The reasons for such a crushing defeat are many, and complex, far beyond the intent and competencies of this brief article and of its author.
I only deem opportune to recall the numerous regulations promoting ADR in Italy which came to a major turning point in August 2013 (Law n. 98 of 2013) providing mandatory & assisted pre-trial mediation. This recent “tool” was in fact extremely similar to a “collaborative practice”: it consisted in a form of mediation, with the presence of both lawyers and the parties, along with the presence of the mediator (s.c. “five way meetings”)
This new and revolutionary ADR method has not been appreciated, as it should have, from the Law Society. As a result, it has been hitherto boycotted by the Lawyers (or by their Clients?) who simply refused to show up when summoned to mediation in the majority of the cases, soon leading the new experiment to an inglorious end.
To tell a long story short, fewer than 10% of the cases which had been brought into “assisted mediation” have reached an extrajudicial agreement, making the impact of this new Law socially irrelevant.
Again -for the fifth or sixth time in four years- the Italian Parliament on November 11th, 2014 is now trying to solve the dramatic situation of civil justice by approving the Law n. 162 of 2014 which has introduced the Assisted Negotiation. This is just another name for the “Collaborative Law” in its purest, original form: as we are going to show in a while.
Let alone the many other civil areas to which the Assisted Negotiation is applicable, I would like to narrow down this article on the applicability of the Regulation n. 162 to the Family Law sector, to which a whole article of the Law (number 6) is dedicated.
In fact, this is the actual novelty of ADR in Italy where never before, such a pre-trial method had been made applicable also to Family Matters, which had been insofar traditionally confined to the “free choice” of the parties and never regulated by Law.
Some preliminary considerations will help us clarify the differences and similarities, where existing, between Collaborative Law and Assisted Negotiation in Italy, with regard to Family Matters.
In the majority of cases, Divorce in Italy is the outcome of a three-year separation period (art. 3 of Law n. 898 of 1970).There are, however, instances where divorce is granted immediately (incestuous relationships; total incapacity of the spouse(s); change of sex, life imprisonment etc.): but these seldom occur, fortunately.
As a matter of fact the dissolution of marriage comes as a result of two different lawsuits taking place one after the other, the second (divorce) being often a mere photocopy of the first (separation): though not as legal fees are concerned, which are doubled in fact!
The New Law regulating the “Negoziazione Assistita” (Assisted Negotiation) has offered no remedy to this convoluted & outdated Italian situation: though -at least- the parties can now get away with the two proceedings of separation and divorce without even entering a Court’s gate, through a negotiation taking place with their lawyers in an easy, and I would say, more civilized way.
What in fact is Collaborative law? Collaborative Law is an out of Court proceedings whereby:
- The parties sign a collaborative participation agreement describing
the nature and scope of the matter;
- The parties voluntarily disclose all information which is relevant and
material to the matter that must be decided;
- The parties agree to use good faith efforts in their negotiations to reach
a mutually acceptable settlement;
- Each party must be represented by a lawyer whose representation
terminates upon the undertaking of any contested court proceeding;
(definition taken from the site of IACP www.collaborativepractice.com)
The Collaborative Law procedure, as the practitioners know well, consists in particular of:
- A letter from the Lawyer of one party to the other spouse/partner informing that s/he’s been instructed to seek separation/divorce/custody and this purpose can be reached as well through Assisted Negotiation. The letter must indicate precisely the object of the negotiation and be undersigned by the Lawyer and the Client.
This letter is regulated in details by article 4.1 of L. 162: no shorter than a 30 day period must be given to the other party in order to respond to the invitation.
- The stipulation of a participation agreement by the parties and their lawyers to negotiate loyally and in good faith
These duties (of the parties and their lawyers) are regulated in details by art. 2.1
- The agreement to participate must include a time limit for the Negotiation beyond which the settlement will be considered as not reached.
This is expressed by art. 2.2 a). The time needed to complete the the four ways meetings cannot be shorter than that of one month.
- Confidentiality: in the collaborative process all parties pledge not to introduce, as evidence in Court, proposals disclosed during the collaborative law process; they will not introduce as evidence in Court information disclosed during the process, they will not attempt to depose either attorney or neutral expert or ask or subpoena either attorney or any neutral to testify in any Court proceeding with regard to matters disclosed during the Collaborative Law process, and they will not require the production at any Court proceeding of any note, records, or documents in the attorneys possession (Ron Ousky p. 199 Collaborative Way to Divorce)
These obligations are accurately stated by art. 9 points 220.127.116.11.
- Finally: the disqualification clause. After the termination of the Collaborative Law Process, whether by settlement or termination before settlement, neither attorney shall represent his or her Client in a subsequent non Collaborative matter against the other party (Ousky: ibidem).
The case of termination by settlement is expressly regulated by art. 5.4: neither lawyer can challenge a settlement that s/he reached through Assisted Negotiation.
For the different case of the breakdown of negotiations without reaching a settlement the disqualification is not mentioned directly by the Law. However, the duties of loyalty as regulated by art. 88 and 96 of Civil procedure code, and by article 5.4 and 9 points 18.104.22.168 of Law 162 make representation by the same Lawyer in a subsequent non collaborative matter virtually impossible without infringing both the Law and the Lawyers’ ethic rules.
The Long March, that we started in the year 2009, is over: we have provided the Italian Justice System with the most advanced of the A.D.R. methods which is, besides, applicable by law to all civil matters, not only to Family Law. No more excuses are admissible in Civil Courts for the excessive length of lawsuits: Lawyers, you are warned!
Marco Calabrese, attorney