Alternative dispute resolution - Italy
You can find an overview of alternative forms of dispute resolution on the ADR - General Information webpage.
The various types of ADR in Italy are:
Italian legislation provides for various types of ADR. Broadly speaking they can be described as follows:
- amicable settlements, as provided for in Article 1965 of the Civil Code;
- mediation: the parties turn to an independent third party to settle their dispute and reach an agreement;
- judicial or extrajudicial conciliation (as provided for by sections 183, 320 and 322 of the Code of Civil Procedure);
- arbitration as an alternative means of dispute resolution to a court decision, as provided for by section 806 of the Code of Civil Procedure.
Non-adversarial forms of conciliation may take a more voluntary form, not regulated by the State. Examples of this are the Telecom Italia conciliation and arbitration councils and the banking ombudsman.
Other non-adversarial forms of conciliation provided for by special laws are:
- Act No 108 of 11 May 1990 providing for extrajudicial conciliation in issues of labour law (collective and administrative) as a condition for instituting legal proceedings in cases involving dismissal;
- Act No 580 of 29 December 1993 on the setting-up of arbitration and conciliation boards attached to Chambers of Commerce;
- Act No 192 of 18 June 1998 on conciliation and arbitration for subsupply disputes in industry;
- Act No 320 of 2 March 1963 providing for compulsory conciliation prior to the initiation of proceedings in agricultural matters.
The forms of judicial conciliation are:
- Section 185 of the Italian Code of Civil Procedure: provides for an optional conciliation attempt that may be renewed during court proceedings (it may be attempted by the judge at the first court appearance of parties "when the nature of the case permits", section 183 of the Code of Civil Procedure). When seeking to reconcile the parties the judge must not pressurise them nor act on his or her own view of the case but simply investigate and explain the possibility of reaching agreement without playing an active role (in order to safeguard his or her own position as an impartial third party). If an agreement is reached, the parties sign a conciliation report before the judge. This report constitutes an enforceable order; the case is then deleted from the court's case list.
- Section 420 of the Code of Civil Procedure: a labour-court judge may always attempt conciliation between the parties during proceedings, regardless of whether the right at issue is alienable or not.
- Section 447bis of the Code of Civil Procedure: provision is made for a conciliation attempt in rental disputes.
- Act No 320 of 1963: provision is made for a conciliation attempt in agricultural disputes.
- Sections 707 and 708 of the Code of Civil Procedure: in cases of legal separation of spouses the President of the Court is required to attempt conciliation between the parties.
- Act No 1766 of 1927: provision is made for a conciliation attempt in cases involving customary law.
- Act No 17775 of 1933: provision is made for a conciliation attempt in cases involving public waters.
The forms of conciliation described above are applicable for dispute settlement in all the situations cited.
For non-adversarial forms of conciliation the services of a lawyer are optional and not compulsory, expenses are low and there is no legal aid, and any agreement can be executed immediately.
In adversarial forms of conciliation, however, a lawyer is required and if the party obtains legal aid for the court case it is also granted for the conciliation process.
Conciliation bodies may generally be trusted also to observe confidentiality, a principle to which they are held under the Italian law on the protection of privacy.
Parties may make provision in a contract they draw up for recourse to conciliation before turning to the courts.
Such clauses may not, however, preclude recourse to the ordinary courts.
The agreement by which the parties settle their dispute following conciliation is binding on them. If it is not adhered to voluntarily, it can be enforced.
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