As of March 5, 2011 to start a lawsuit in matters listed in Annex should be previously experienced, on pain of preclusion of the proceedings, a compulsory attempt at mediation (at the request of the plaintiff and a maximum duration of 4 months) disputes precisely more frequent and recurring such, eg., those concerning the building, leases, insurance policies and other note at the bottom.
The entry into force of Legislative Decree n. 28 of 4/3/2010 requires necessarily by all the professional actors a considerable effort to change both in terms of training that in terms of culture and customs.
In practice may be some hesitation, in some ways understandable and logical as it is a historic revolution and “mental” of Italian justice. It must be changed radically and this reversal of behavior and optical involves all classes, unless the judges, the lawyers and more, in condominium, very directors.
For some time it is requested that the Director has an increasingly specialized and professional format as its tasks and its management becomes increasingly challenging and costly.
And now also the mediation involves the obligation for the Chief of further preparation and “dedication”.
If it is true that every year about 200,000 cases are initiated only in relation condominium, it must then wait and then mediations 200,000 200,000 Directors across Italy who are the protagonists.
Considering that it is this heavy load causes condominium is one of the reasons that prompted the legislature to introduce the institution of mandatory mediation: is precisely because of their high number and the fact that the forced cohabitation and that continuously occurs in a building lends itself to an attempt of “pacification”, more easily than in other human relations and legal by nature occasional or less durable.
But in those Monthly coexistence forced co-owners recommended, if not imposed, the search for solutions “facilitative”, making it possible to restart and maintain a tolerable coexistence condominium beyond the decision of the individual temporary problem.
Facilitative solutions through mediation where the mediator is not (unlike the Judge) tightly bound to the principle of supply and can find solutions to the dispute that look precisely the overall, broader and lasting relationship between the parties. The broker that is not limited to regular past issues, tending rather to a redefinition of interpersonal relationships in the future.
And better then can act as said in the ‘scope of those claims in which the relationship between the parts is intended, for the most diverse reasons, to extend in time beyond the definition of the individual case, as they by definition in the condominium.
In other ways, however, the matter condominium is one that presents instead of the major difficulties in applying the new institution as the subject for participating in mediation for the condominium is not part personally, as in other cases, but only one representative: the Administrator.
And as in all ranks there is the sensitive issue of the limits of the powers and scope of the mandate.
Immediate first problem is thus the transfer of those powers to the Assembly, linked to the need to convene quickly and, in some cases, close several times, even though (especially in condominiums where there are like second homes in resort Tourist) is not always easy to have the majorities necessary to resolve, once all ‘year.
But even more than the urgent need to hold assemblies more quickly and to get in the ‘sphere of the same availability to a solution out of court, which is not always there, a sensitive issue for the success or otherwise of the process of mediation is the ability Administrator .
He, in fact, received the powers and instructions of the Assembly, not in front of the Mediator beyond its role of mere formalistic and bureaucratic spokesman of the condos since the assumption of the institute, on the contrary, a degree of flexibility and the effort of the parties find alternatives to the lawsuit pending in order to unblock the dispute.
Mediation is that the administrator request for flexibility and an ability to interpret the spirit of the meeting’s decisions and to avoid reducing the procedure to a mere formality, a priori without possibility of negotiation.
More and more it claims therefore from ‘Administrator not only knowledge of the facts and the condo but also a specific legal competence and also a certain psychological capacity in dealing with the other party, in addition to’ inevitable taking great responsibility.
It ‘should therefore be included in intensive training courses for directors the study of mediation in all its aspects, legal and not.
In fact the matter condominium, beyond the economic aspects sometimes minimal, is among those where the problems of law are among the most common and controversial. Also because of the wide and varied jurisprudence sometimes wavering evolving, despite the regulatory framework dates back to the Civil Code of 1942 and has remained virtually unchanged since escaped at that ‘scent of legislative action that has deeply innovated many other subjects, in some cases in an uncoordinated manner.
The latest evidence is the two judgments of the Supreme Court with deposited in ‘August 2010, concerning a revision of the tables thousandth (n. 18477 of 08.09.10) and one on the powers of representation of the judicial’ administrator (n. 18331/10 dd. 6/8/10) that they have radically altered the previous law “in that field”, acknowledging surprisingly openly guidelines as previous minority.
The first ruling established that contrary to what was previously said monolithically over 60 years the approval of tables thousandth not require the unanimous consent of all buildings, being only a qualified majority referred to ‘art. 1136 cc, c. 2 (“I apply the resolutions approved with a number of votes representing a majority of the interventions and at least half of the value of the building”). Subverting so the traditional opposite principle on which most did not doubt.
The second sentence is just as “revolutionary” because it requires the Administrator to be sued in the courts in all matters falling outside its powers requires the prior authorization or ratification by the pool.
The Administrator therefore, according to the provisions of art. 1131 cc, c. 2 and 3 (“It can be sued for any actions concerning the common parts of the building; he shall be notified of the administrative measures which relate to the same object.
If the quote or the order is content that goes beyond the powers of the Director, it is required to inform without delay all news’ Assembly of the condos “) may appear in court and appeal against unfavorable rulings without prior approval in the Assembly but must If so get the necessary ratification of its work by the Assembly to avoid the judgment of inadmissibility of incorporation or of the appeal.
It is therefore not easy for either the Administrator or for the intermediate address and resolve in the very limited time foreseen four months (among other things no plans to suspend the working terms) a problem of home ownership where this is (as is often ) complex and not easy to solve. So much so that it is argued that the ombudsman can facilitate an amicable settlement, and thereby prevent its causes as it relates to disputes over the fact, or merely economic, than in those where there are questions of law to prevail.
Finally, it is common experience that there are also cases where the litigation to ‘inside of a block might serve as an instrumental purpose of emulation by those neighbors who sometimes seem more interested and inclined to a former conflict if it terminated. In this regard they have even been incidents of “stalking” and that of “persecution” of criminal activity under relevant 2009 law.
Or, more simply, it pretends to say at all costs a law invoking the cd. “Issues of principle”. Or to be always right, rejecting a priori any attempt at mediation in which the inherent, feared and loathed by many, the concept of “mutual concessions”.
And ‘for this not uncommon context of forced cohabitation that sometimes we hear – trivializing – that in some ways it’s almost easier to divorce a spouse who by some neighboring condominiums: who have not chosen but which can make, in extreme cases , family life so unbearable to get to want to move.
On the other hand the court settlement of disputes (such as mandatory mediation) currently comes to light as the only practical means groped to dispose of a load and speed up justice critic and not more bearable by the property.
The success of the institution in the field condominium requires special training of the Directors and their membership in the sense of the level of responsibility that you assume they and their associations: will then, for better or for worse, protagonists and share responsibility for change justice system of which our country has the absolute and urgent need.
With the entry into force of the mandatory mediation Administrator condominium position it is intended to take more responsibility as it will have the honor and responsibility to represent the condominium in a proceeding before a mediator. A role, as I said, that can not be limited to that of mere bureaucratic “nuncius” instructions and the will of the Assembly but that requires flexibility and careful knowledge of the problem both in fact and in law.
And some creative interpretation in the mediation because, as noted, the objective is aimed more to the real interests of the parties that their rights.
In mediation that tends to overcome the typical logic of the judicial process of the CD. “Win-loose” (one side wins and the other loses consequently) in favor of the CD.
“Win-win”: that is, both sides can come out victorious to the extent that – thanks to the facilitation of the mediator – exceed their rights opposed to agree on common interests that can satisfy all ‘and two.
It follows from this approach the most dynamic of the position of ‘Ammministratore is called before the mediator to interpret what the interests rather than the rights of the building in an attempt to overcome the opposition.
A change of mentality is necessary, therefore, for which adequate and specific training and a consequent professionalism “challenging”, which was not inherent or congenial to all Directors.
“Challenging” in the sense of challenging but also exciting, powerful: and why not? too competitive.
Happen -for example – that to consider the appointment of a Director and his “skills”, which today can no longer regardless of the labor market, will be taken into account his ability to manage a mediatory process. As well as his “palmares”, ie the number of mediations that the Director has concluded favorably avoiding the apartment block long, especially expensive cases, which savings will be a “trump card” in favor of the most skilled professional to mediate, compared to colleagues less distinguished themselves in particular.
Moreover, this brilliant and skillful new position of Director (who then will not have to lack the elasticity) is now forced to move in a legal scenario in which his role was made more rigid by the judgment of Sections Unte n. 18331 of 6/8/10 that in some of his “obiter dicta” resizes (or demansiona?) With new limitations to his powers: “The essence of the functions the Administrator is inextricably linked to the decision making of the Assembly is the ‘Assembly of the deliberative body of the building and the body responsible for taking decisions in the administration of the same, while the Chief Executive plays a role of mere perpetrator of the resolutions passed in the Assembly. No decision-making power or management body lies with the Chief of the condominium as such and that unlike what happens in the company, both for people and capital, where the Chief competing powers proper management “.
“It follows that, even in proceedings procedural, decision-making power rests exclusively to ‘Assembly.
Such a decision-making power is no match to the ‘Director who, by nature, is not a decision-making body but merely the executive block “
Avv. Francesco Massimo Tiscornia
“The mediation process must be experienced, on pain of preclusion (to complain in the first defensive act by the defendant or by the Judge not after the first hearing), in case of disputes relating to:
- building; real rights; division; hereditary succession; leasing; loan; rental company; damages resulting from the movement of vehicles and boats; damages resulting from medical liability; compensation
the damage caused by defamation by the press or through latro
advertising; contracts of insurance, banking and financial services.
The institute of mediation may not involve:
- proceedings for an order, including the opposition, until the ruling on the applications for the granting and suspension of the provisional execution; procedures for validation of license or eviction, until the change of rite of art. 667 Code of Civil Procedure; proceedings owners, pending delivery of measures under Article. 703, paragraph 3, Code of Civil Procedure; the opposition proceedings or incidental knowledge, the enforcement; proceedings in closed session; the civil action in criminal proceedings. “