Civil Mediation: What is it and what advantages will ensure

Shall enter into force one of the most 'controversial measures in the field of civil justice: the art. 5, first paragraph, of Legislative Decree no. 28/2010, which provides: Anyone wishing to exercise judgment in an action relating to a dispute concerning a condominium, real rights, division, inheritance, family agreements, lease, loan, rental companies, compensation of damage arising from the use of vehicles and boats, from responsibility 'medical and defamation by the press or by other means of advertising' contracts, insurance, banking and finance, and 'held prior to experience the mediation process.

The decree Milleproroghe has postponed the entry into force of the mandatory civil mediation on condominium and compensation for damage resulting from the movement of vehicles and boats.

However, in the remaining matters referred to therein mentioned, as from today, anyone wishing to start an action is required to bring the mediation mandatory. The mandatory nature of the empowers all those involved in civil and commercial mediation.

The mediators, bodies, responsible, and why not, even the staff of the secretariats of the bodies, will face from now, a new world, not only for them but also for the user and for the professional categories (lawyers , accountants, employment consultants in particular) that normally deal with the assistance of the parties for the resolution of conflicts.

For all of them the hope is that you understand the meaning of this discipline, which aims to discover a way to make additional, different, and hopefully better to resolve legal conflicts.

The biggest failure of the civil and commercial mediation would be to be an unnecessary burden, wasteful and ineffective for the settlement of disputes, or worse, cause further delays and disputes.

The legislature wanted to invest heavily on the professionalization of the service, calling those who want to play as a mediator to form and prepare and update constantly. Mediators must demonstrate professionalism, impartiality, competence and concern to be able to form the basis of the solution and also the single most trivial conflict they handle.

These organizations will have to demonstrate the ability to manage a huge organizational effort to ensure reliability, efficiency and competence in an activity that is professional and business together and aimed at satisfying the interests of all parties involved.

It will be necessary to avoid the "abuse" of the tools that the discipline while grants to body and mediator, avoiding in the exercise of the activity, to override the will of the parties, to get easy money, because they would be short-lived.

This institute is in fact the biggest debut of a system of dispute management that places competition in the public sector and the private sector.

In the public sector the Bar Associations, Chambers of Commerce and other professional associations are entities that the legislature has called into question as major actors of mediation recognizing them - as though it was obvious that he was - some peculiar privileges for registration in the register of bodies. In this area is immediately distinguished from the spirit of initiative of the National Council of the Order of Chartered Accountants, which has gone so far as to set up a foundation dedicated to the ADR system.

The organizations of lawyers and their orders, though called by the discipline to play a role as main actors, being able to establish such entities, simple question, at the place par excellence responsible for the management of justice - the Court - no charge for this benefit logistics, have often looked with suspicion at the institute.

There have been, however, even among lawyers, strong initiatives to support civil and commercial mediation, even resulted in the formation of associations, groups, organizations themselves.

The distrust was motivated by fear of losing exclusive spheres of competence (not obligatory the lawyer in mediation) and the costs that the customer has to face to the mediation, which will inevitably affect the "budget" to be allocated to deal with a dispute, with a possible renunciation of protection of a right to the costs involved.

The enthusiasm was instead determined by the ability to assist the customer in a new and different way, allowing you to transform the conflict in comparison and therefore in building new relationships. So we have to dispel any misunderstanding.

The mediation shall not constitute a sterile repetition of reconciliation efforts already seen that have had no success.

The strangeness of the mediator and mediation to the process will allow the parties to freely express their views without fear that what emerged in mediation can influence who then judge in the event of termination proceedings.

Equally, those who carry out the mediation does for a living and not because I was called to this task incidentally in the performance of other functions (such as happened for example in UPLMO), unrelated to the conciliation of the dispute, with respect to which it has no real interest. The Ombudsman and the body have an interest in the reconciliation of the parties because it will claim through, on the market, their ability and their professionalism.

It 's the first time that the fact that an agreement is reached or not does not produce a result "indifferent" to those who manage the amicable settlement of the conflict. In this, absolutely positive stimuli to the public sector may be the possibility for individuals to be present in the market of mediation, undergoing the process of accreditation and registration in the Register of the body.

The intervention of the private sector should not, however, lend itself to easy speculation, but ensure, with the natural attitude of the sector efficiency, the presence of alternative conflict management in those gaps left empty (either by inefficiency, either for other reasons ) by the public sector.

This is another strong element of novelty in conflict management, where the private sector (albeit subject to strict control system) work together with the same dignity as the public sector in the management of alternative conflict settlement.

The best wishes to all players in the justice system, whether they are brokers, lawyers, judges, accountants, employment consultants and all other categories involved in the mediation is to find a system of affirmation of a new approach to the conflict, which is regulated by the supreme logic of common sense and mutual understanding of the reasons and expectations, even with respect to those parties - and, at least initially, will be many - who show skepticism towards the institute.

The best wishes to all users of the service of civil and commercial mediation is rather to be found in this institution a means not only to meet their own interests, but also to build and protect new, even in a logic of interaction with the different 'opponent, intended in mediation, to become a "partner".

22/03/2011

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Translated via software

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Source:

Italian version of CercaGeometra.it