Known as the Neapolitan philosopher Giambattista Vico, who lived at ‘the beginning of 1700, argued “that some events are repeated in the same way even after a long time; and this is not by chance, but according to a precise plan drawn up by Divine Providence.

According to this theory it was made ​​then to Providence (“or rather” the prudent foresight of the Legislature) by the re-introduction of the institution of mediation now reintroduced 21/09/2013 (after the interruption caused by the ruling of the Constitutional Court n. 272, 6 / 12/12 early from the press 24/10/2012 – who has removed from ‘the previous rules and regulations) aimed at reconciliation of civil and commercial disputes.

And, as noted, entails such requirement again, for those wishing to pursue court action relating to certain disputes, to experience beforehand (this time with the assistance of a lawyer) a special procedure: with a maximum not higher (subject to extension on the ‘agreement of the parties) to three months (compared to the four previous arrangements) starting from the submission of the application at a mediation body (a public or a private member of a special registry at the Ministry of Justice) to aim precisely to make a friendly settlement and that the court settlement of the dispute.

The obligation was reintroduced by the DL 06/21/2013 n. 69 called “Making of” converted into Law 08/09/2013 n. 98 entitled: “Urgent measures for economic recovery”, published in Official Gazette No. 194 of 20.08.2013.

II) THE NEW ‘NEW MEDIATION BY 09.21.2013

Known as the European Union, faced with the crisis of the Italian Civil Justice, he has long urged our country to the adoption of the “ADR” (“Alternative Dispute Resolution”) under the first EU directive no. 52 of the 21/05/2008 (article 3, paragraph 1, letter A) that more and more in the future will enter the legal system and culture also Italian for degiurisdizionalizzare litigation, for the purpose of deflation. In ‘perspective of reducing the rate of litigation and rebalance, to levels more bearable by the system, the demand for justice by offering sustainable and therefore efficient.

Yet recently the 05.21.2013, the EU adopted a second resolution (No. 11) on the subject of ADR, this time specifically for consumer disputes (and not so between businesses and companies) to be transposed by Member States within the 07/09/2015.

The new discipline of mediation in many ways follows the previous one (still, however, must be updated ex art.16, c. 2, Legislative Decree cited. Interministerial its Regulation n. 180/2010) and was introduced in an experimental version and then temporary for the duration of only four years, that is until 09.21.2017. After the first two years will be triggered by the Ministry of Justice to monitor the outcomes of the trial (art. 5, c. 1 bis of Legislative Decree 28/10).

Many, however, are the changes from the discipline in 2010, such as:

1) It ‘was once again changed (art. 77 DL 69/2013) the Code of Civil Procedure to include the new Article 185a (already in force since 08.21.2013): “Proposal for a reconciliation of the judge.

The judge, at the first hearing, or until it is exhausted education formula the parties where possible, given the nature of the judgment, the amount in dispute and the existence of issues of easy and prompt resolution of law, a proposal settlement or conciliation. The proposed settlement does not constitute grounds for recusal or abstention of judge.

According to an initial interpretation of the Court of Milan (order of July 4, 2013, Judge Simonetti) the new item must be considered immediately applicable in the absence of transitional rules, even to the processes already pending from the date of its entry into force.

The main difference with the previous Article 185 of Code of Civil Procedure (which remains in force:

“The judge, in the case of a joint request by the parties fixed the appearance of the same in order to question them freely and to cause their reconciliation. The judge also may fix the above mentioned hearing of staff in accordance with art. 117 Code of Civil Procedure. “) Is that with the new law, the judge may also issue directly a proposed settlement (ie involving reciprocal concessions of the parties) or conciliatory (defining judgment without waivers), solely on the basis of the case files. Ie without the need to hear the parties and to carry out the attempt at conciliation art. 185 Code of Civil Procedure.

(In case law the first ever application of this new article appears to be the order of the Court of 27.8.2013 Nocera Inferiore:

“PQM Judge formula to share the following proposed settlement or conciliation: with payment to the opposing party the sum of € 8,000.00 to ‘actuality, after compensation of their reasons and the full definition of the dispute. All this, with full compensation of the costs of litigation between the parties and with partition dell’espletata CTU expenses paid by the bank.

Fixed, to take note of the positions of the parties on this proposal, the hearing of 15.07.2014; To this end, the parties are invited to confer promptly with their patients, eliciting any special power of attorney for the formal acceptance of the proposal.

It reserves all ‘outcome for the possible continuation of investigations (in particular assignment of supplementary charge at CTU “).

It ‘obvious that the proposal of Judge sides can argue his idea on the dispute and consequently predict the maximum the final decision which the court, state, and prone.

The parties will have an interest to accept the proposal of the judge to prevent a similar judgment. Or challenge it: and then the last paragraph of the new Code of Civil Procedure 185a provides appropriately that “the proposed settlement can not be grounds for disqualification (Art. 52 CPC: in cases where the judge is obliged to abstain, either party may propose the disqualification) or abstention of judge (art. 51 CCP: the court has the duty to refrain when he gave advice in the proceedings).

This prediction on the one hand makes it clear the judge to make use of this option, from ‘other prevent the parties or one or the other to challenge thus the continuation of a trial that is taking on one of them a turn for the worse having known the proposal (and the idea) the Judge.

2) The Institute of mediation is now redefined as an activity “designed to assist two or more parties in finding an amicable settlement to the settlement of a dispute, even with (and no longer” be in “) the formulation of a proposal for the resolution of the same.

This change accentuates the facilitative Institute, that is largely aimed at the joint research of an amicable agreement based on the interests of the parties: against which the proposal is to plan the next, less important. And anyway possible.

3) The compulsory mediation (130,000 lawsuits to ‘year from March 2011 to December 2012) was eliminated for actions relating to liability from damage by traffic accident (which had found the lower adhesion of the parties invited for the insurance companies tended not present in 90% of cases) and extended (instead confirmed all other matters) the responsibilities as well as medical also health: that appears to clarify the terminology that a new subject (art. 5, c. 1a., D Lgs cit.).

4) It ‘been resolved conflict of interpretation arose in Law in the previous phase of enforcement expressly specifying (Article 5, c. 4, letter c, Decree cit.) The procedures of preventive technical advice for the settlement of lite art. 696 bis cpc are excluded from mandatory mediation, as well as those ordered by the court.

5) the local jurisdiction is established: the request must be submitted to a mediation body present at the place of the judge responsible for the dispute (Art. 4, c. 1, Decree cit.).

In the case of applications relating to the same dispute, the mediation takes place in front of the ‘Body territorial jurisdiction from which was the first application. To determine the time of application you have regard to the date for making the application.

6) It is also made ​​mandatory the aforementioned assistance of a lawyer during the entire procedure: at the first meeting and in subsequent years, the parties must attend with a lawyer.

7) One of the changes from the previous guidelines which will take on greater importance is the opportunity (at any time, assess the nature of the case, the state of education and the conduct of the parties) attributed (even on appeal) to judge by the new wording of Article. 5, c. 2, cited Decree. to “have” (in the previous legislation, the judge “invited” the parties to proceed to mediation but needed the consent of the same: “If the parties adhere to the ‘invitation’. And in practice, there had been great application) the experiment of mediation as a condition of admissibility of the question even during the proceedings. Provided that prior to the hearing at which the conclusions or discussion of the case, the parties of the fifteen-day period for submission of the request for mediation.

This is the standard that will impact more on practice and then on social custom: because the judge may order mediation not only to the specifications set out in Decree cited disputes mandatory. but also in other respects (but always in ‘scope of rights available).

Therefore, if the new rules of the mediation on the one hand it weakens the binding character initial pre-trial, from ‘another corollary strengthens and extends the applicability during the proceedings.

8) During the first meeting (set from ‘Body 30 days – art. 8, c.1, cited Decree. – From filing of the application: the first was 15. And the maximum duration of the procedure is now limited to three months – art. 6, c.1, cited Decree. – than the previous four. Always unenforceable suspension working, art. 6, paragraph 2, of Legislative Decree cit.) the mediator clarifies the parties function and a timetable for the mediation. And invites the same and the lawyers to comment on the possibility of starting the procedure. Continuing with the holding only if feedback.

If the process is interrupted immediately, however experienced you consider the purpose of the condition of admissibility of the claim (art. 5, c. 2a Decree cit.). And no compensation (excluding the sun-pocket expenses and start-up, for example those of notification) is due to ‘Body mediation (art. 17, c. 5b, Decree cit.).

9) If a party fails to appear without a valid reason to the mediation process. the judge can condemn, once it is before the court, to pay a sum equal to its unified tax (art. 8, c. 3, Decree cit.).

(According to data of the Ministry of Justice in litigation condominium the average value of the dispute is € 5,000 which means only € 85 unified taxes. But as in the case of inheritance divisions and the average rises to € 90,000 with resulting in a contribution of € 660).

In addition, the Magistrate may take evidence on the absence pursuant to art. 116, par. 2, Code of Civil Procedure.

In conclusion, the new framework is intended to induce the defendant to participate in any event at least at the first meeting: on the one hand because its basically free (except for the costs of the lawyer) and from ‘other the risk of sanctions (Article 8 c. 4a Decree cit.) for the non-attendance without justification.

This is because past experience has shown that the failure of the procedure is to “re ipsa” in cases of non-participation “retroactive”; if instead the parties should meet at least once and the mediator is able to initiate a dialogue between their initial, to establish contact, a communication channel, the possibilities for a definition conciliatory take on more concrete.

With the new regulations, therefore there will be a higher presence at the first meeting of the parties invited: although reluctant and only in order to avoid each adverse consequences in the course of proceedings.

10) or when the procedure continues after the first meeting, the mediator helps the parties to resolve the dispute by an amicable resolution that, if achieved, is also signed by lawyers and attached to the minutes prepared by the mediator.

The agreement is also signed by lawyers shall be enforceable by the forcible expropriation, execution for delivery and release, and the obligations to do or not do as well as the recognition of judicial mortgage.

With their subscription lawyers (art. 12, c. 1, Leg. Cit.) Certifying conformity with the mandatory provisions of the agreement and to ‘public order: those mandatory by private individuals (see. Art. 1343 CC).

Failing approval and certification is done by a decree from the President of the Court, on application, as in the prior regulations.

11) It is also now directly transcribed (art. 84 bis of Legislative Decree 69 of 21/6/2012) the signing of a mediation agreement that ensures the adverse possession if authenticated by a notary public or other public official authorized to do so under an amendment to the Civil Code which added to the ‘purpose the paragraph 12a to’ art. 2643 CC (“Acts subject to transcripts”).

12) All lawyers are registered with the mediators of law (art. 16, c. 4 bis of Legislative Decree 28/2010), but the ones registered to Undertakings for mediation must be formed

properly in the field, and keeping up to date in this regard under the Code of Legal Ethics: “Art. 55-bis (Mediation).

The lawyer providing the function of mediator must comply with the obligations imposed by the legislation and the provisions of Regulation body of mediation, to the extent that such provisions do not conflict with the provisions of this code.

I. The lawyer should not assume the role of mediator in the absence of appropriate expertise.

II. You can not assume the role of mediator lawyer:

a) takes being or has had in the past two years professional relationship with one of the parties;

b) when one party is to be assisted or been assisted over the past two years as a professional associate him or associated with him or who practices in the same premises.

In any case constitutes condition impediment to ‘appointment as mediator the anniversary of one of the cases referred to’ art. 815, first paragraph, of the Code of Civil Procedure.

III. A lawyer who has held the post of Ombudsman may not maintain a professional relationship with one of the parties:

a) if at least two years have elapsed from the definition of the procedure;

b) if the object is not different from that of the proceedings.

The prohibition extends to the professional members, associates or exercising in the same premises.

IV. It is prohibited to allow the body to the lawyer’s mediation is established, for any reason, at his office or the latter is established in the body of mediation. “

13) In the mediation process in the compulsory subjects become applicable

(Art. 17, c. 5a Decree cit.) The legal aid at state expense for the indigent: the part that is on deposit with the conditions in its body a special substitutive declaration of ‘ affidavit whose signature can be authenticated by the mediator and must produce to be admissible, if the body requires it, appropriate justifications.

III) DISPUTES CONDOMINIUM.

Here they will make only two brief references to the preliminary necessary coordination between the new discipline of mediation and the appeal court of the resolutions of the condominium art. 1137 CC.

With the first, we report that has not changed the provision pursuant to Art. 5, c. 6 Decree cited. under which communication to block the request for mediation prevents (for once) the loss of the end of the 30 days to appeal the court pursuant to Art. 1137 DC .; in the absence of agreement, however, this must always be introduced within 30 days, starting from the filing of the minutes at the negative organism.

With the second, we note that Article. 5, c. 3, cited Decree. – Unchanged – specifies that during the mediation process does not preclude the granting of interim measures is therefore possible, also it initiated the mediation process, propose to judge the request for suspension of the contested decision according to the new condominium last paragraph of art. 1137 CC, where it just reinforces the protective character art. 669 bis et seq. CPC.

Returning to the discipline of mediation for the condominium, nothing in particular can be traced in the cd. DL “Making of”: its specificity is found in ‘art. 71c Implementation of the Provisions of the CC that was introduced by the ad hoc Reform Law Condo of December 2012 (n. 220 of 11/12/2012, in force since 06.18.2013). And not expunged from the text of the Reformation despite / 11 12/2012 had already acted the judgment 272 of 12.06.12 the Constitutional Court which had eliminated Ordinamento, for excess of legislative delegation, the Law on Mediation in then in force.

Accordingly, Article 71c DC, thought before the Court, was left a residue meaningless (to date): only because the House and Senate were forced not to further amend the text of the bill already voted to avoid that the early end of the term of the end of 2012 should still slip Reform condominium awaited.

The article, however, was not obviously applicable without the mediation. And he returned suddenly to make sense on 21/09/13 for unexpected revival of the Institute of mediation that, after almost one year of the Constitutional Court, has taken on that date its course. And an appeal, as argued Vico.

The first paragraph of art. 71c avail. att. CC specify what is meant by “disputes block” with regard to the mediation process: ricomprendendo in them all matter condominium including matters relating to the responsibility of the administrator (art. 1130-1133c.c.), The ‘appeal of shareholder resolutions, collection of contributions Monthly

(Art. 63 disp. Att. DC), table editing Monthly (art. 69 disp. Att. CC), the infringement of the house rules (art.70 avail. Att. Cc).

The second paragraph introduces the local jurisdiction for the mediation process for the block stating that the application must be submitted under penalty of inadmissibility at a body of mediation within the territorial jurisdiction of the Court in which the condo is located.

(Arrangement in December 2012 that he had anticipated the same principle, already examined, introduced by the new legislation on mediation, art. 4, c. 1, Decree cit .: “The application is made ​​by the deposit of instance in the place of judge territorial jurisdiction “).

A similar but not identical because in certain matters there can be – in accordance with the Code of Civil Procedure – more Judges to a competent territorial dispute, the cd. Alternative holes which: for example, Article. 20 CCP .: “(optional for the court cases relating to the rights of bond) For cases relating to the rights of bond is also the competent court of the place which has been or is to be performed the obligation in question”.

In such a case then there will therefore be more competent bodies of mediation art. 4, c.1, cited Decree.

But no matter condominium for which the local jurisdiction is immutable because Article. 71c, disp. att. DC, should be considered a special rule derogating from the general.

(Both standards are to be coordinated with the new Art. 23 Code of Civil Procedure as amended by the Reform Law Condo that stated explicitly that also causes between condominiums and condo is the competent Court of the place where the goods are common or most of them: just adding the words “or between condos and apartment block” to implement the principle by the United Sections of the Supreme Court 18/09/06 n. 20076).

As for the conduct of the mediation process on the third paragraph of Art. 71c avail. att. CC. for the administrator is entitled to participate in the first meeting but only with the approval and subsequent ad hoc meeting resolution; and with the high quorum referred to ‘art. 1136, c. 2, CC: at least the majority of the speakers and half the value of the building.

Among other things, in that case it will be necessary to appoint necessarily the lawyer, whose technical assistance from the first meeting has now become mandatory, as has been seen. The fourth paragraph then states that the mediator has, at the request of the Condominium, a reasonable extension of the deadline for the first appearance of the parties; since it is well known that when the block is agreed it is not easy to obtain in time the AGM resolution that legitimizes the administrator to participate: known as the Body of mediation is required to set the meeting not later than 30 days (and not more 15) the filing of the application (Art. 8, 1 c., Leg. cit.).

The fifth paragraph of art. 71c Civil Code specifies that for the ratification of the draft final mediation need another condominium meeting, again with the majority of those present and at least half the value of the building. Failing that, the proposal is considered not accepted, even if the agreement has already been reached by ‘administrator during the mediation process.

This prediction, however, an obstacle emerges practical (as noted by ‘lawyer. Pierluigi Amerio the 18.09.2010 in Piacenza at the 20th Meeting of the Coordination Office of the Confedilizia): the difficulty of achieving the necessary (and timely) majorities the ratification of the resolution. Especially in the case of very many condominiums or resort: bearing in mind that in ‘period of three months to a maximum duration of the mediation will be necessary to convene a meeting several times and quickly.

Finally, the last paragraph of art. 71c cc discipline – given the peculiarities of the subject condominium – the consequences of the possibility for the Ombudsman to formulate a proposal for conciliation office (art. 11, c. 1, Decree cit.) Where the parties do not reach each other an agreement or when the same make him joint request at any time during the proceedings.

In this case the proposed settlement should be communicated to the parties in writing and the same, always in writing, must deliver to the broker the acceptance or rejection within a maximum of seven days. Again the proposal is considered rejected (Art. 11, 2 c., Decree cit.) In the absence of timely response.

These times not feasible in a condominium dispute: therefore assists last paragraph of art. 71c cc derogating art. 11, c. 2 Legislative Decree cited. It ruled that in these cases is the mediator to secure the most appropriate term in this case to get feedback on the proposal, taking into account that the Administrator of the need to carry a special shareholders’ resolution, with the consequent timing.

Despite this prediction and also the one examined in the previous paragraph four of art. 71c cc, still remaining strong doubts on ‘operation in practice of mediation in ownership, especially in the presence of a large number of condominiums or apartment buildings with a high number of non-residents and that of second homes.

And ‘well-known fact that it is not a straightforward matter to the convening rapid and frequent meetings, especially in recent cases. There is reason to fear that it is difficult to reach the majorities required by law, in light of the fact that the Reform of the Condominium has established as a known (art. 67, c. 5, Avail. Att. CC) that the administrator can not be given the power to participate in any meeting.

The risk therefore is that the institution of mediation in condominium, instead of getting the high results deflationary effective litigation typical of these disputes (and therefore more than others who need it), then finish by overburdening, with a further procedure unproductive (with more time and cost), the free exercise of rights and jurisdiction.

Even if the matter condominium that year there is perhaps an excess: the 09/19/2013 the President of the Court of Cassation, Giorgio Santacroce, also about widespread hostility towards the institute especially among lawyers, has invited to reflect on “how many expenses are behind a lawsuit by 30 euro. When I say it’s a matter of principle I say that you can not take matters of principle of this kind clogging justice.

Abroad they look like Martians because quarrels condominium not get to court. “

Avv. Francesco Massimo Tiscornia