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Law Firm Avvocato Cecatiello, specializing in Family Law International Family Law
studio@cecatiello.it
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Assisted negotiation in separation and divorce

The Law Firm Cecatiello has a twenty-year experience in the field of family law; whenever possible, an attempt is made to favor the out-of-court settlement of disputes, in particular, for the cases of separation and divorce the procedure of assisted negotiation.
Assisted negotiation is a method, required by law, for the alternative dispute resolution that consists of a contract also called a convention, with which the parties undertake to resolve a dispute amicably with the assistance of lawyers. The lawyers of the Law Firm Cecatiello, trained to negotiate and to the most modern procedures of ADR, apply the new institute of assisted negotiation.

Assisted negotiation consists of the agreement (so-called negotiation agreement) through which litigants agree "to cooperate in good faith and loyalty", in order to resolve a dispute amicably, through the assistance of lawyers, regularly registered at the Bar.

The convention must contain, pursuant to art. 2 del dln 132 / 2014, both the deadline agreed by the parties for the completion of the procedure, which can not be less than one month and more than three (except extension of 30 days upon request by the parties), and the object of the controversy, which can not, as expressis verbis the rule, concern neither the unavailable rights nor matters of work.

The agreement must be drafted, under penalty of nullity, in writing and must be concluded with the assistance of one or more lawyers, who certify the autograph of the signatures affixed to the agreement under their own professional responsibility.
The proceeding begins with an information from the lawyer to his client about the possibility of using the assisted negotiation agreement.

The party who chooses to rely on the new procedure sends to the counterpart, through its legal counsel, a letter with an invitation to enter into the negotiation agreement. This invitation must be signed and must indicate the subject matter of the dispute and the warning that in case of non-reply within thirty days or refusal this will constitute grounds for assessment by the judge for the purposes of charging the court fees, the sentence to compensation for reckless litigation pursuant to art. 96 cpc and provisional execution pursuant to art. 642 cpc

Another main effect is to interrupt the course of the prescription and forfeiture.
If the invitation is accepted, the real negotiation process is reached which, in any case, can have both positive and negative results. In the latter case, the lawyers in charge will have to draw up the declaration of non-agreement. In the first case, however, when the agreement is reached, the same must be signed by the parties and lawyers who assist them certifying both the autograph of the signatures and compliance with the mandatory rules and public order.

The agreement is enforceable and for the registration of a legal mortgage and must be fully transcribed in the precept pursuant to art. 480, 2 ° paragraph, cpc
The law also provided for mandatory assisted negotiation assumptions for actions concerning compensation for vehicle and boat damage and for payment claims for any amounts, provided they are not exceeding 50.000 euro and not concerning disputes subject to the so-called "Mandatory mediation".

In the aforementioned cases, the art. 3 of the dnn 132 / 2014 states that "the experiment of the assisted negotiation procedure is a condition of procedurality of the judicial request".

Returning to the family law the art. 6 of the II head of the justice decree is dedicated to the particular hypothesis of assisted negotiation in matters of separation and divorce. Deeply modified at the time of conversion, the law provides that through the assisted negotiation agreement (at least one lawyer per part) the spouses can reach a consensual solution of personal separation, termination of civil effects or dissolution of marriage (in cases of in Article 3, 1 ° paragraph, No. 2, letter b) of the ln 898 / 1970), as well as the modification of the previously established separation or divorce conditions.

The procedure is applicable both in the absence and in the presence of minor children or of adult children, incapable, severely disabled or economically non self-sufficient.

In the first case, the agreement reached as a result of an assisted negotiation agreement is subject to examination by the public prosecutor before the competent court, which, if no irregularity is found, communicates the law to the lawyers.

In the second case, on the other hand, the public prosecutor to whom the agreement concluded within 10 days should be transmitted, authorizes it only if it is in line with the interests of the children.
If, on the contrary, the public prosecutor considers that the agreement does not correspond to the interests of the offspring, it shall transmit it to the president of the court within five days, who shall present the parties, within the maximum term of thirty days, providing delay.

Once authorized, the agreement, in which the lawyers must acknowledge that they have attempted to reconcile the parties, informing them of the possibility of resorting to family mediation, is treated as equivalent to the judicial measures that define similar proceedings in this area.

After the signing of the negotiation agreement, the lawyer of the party has the obligation to transmit certified copy with the relative certifications, within 10 days to the officer of the civil status of the Municipality where the marriage was registered or transcribed for all subsequent fulfilments .
The assisted negotiation gives a decisive role to lawyers, to whom certain powers are conferred and assigned a series of obligations to be scrupulously adhered to in order not to incur deontological and disciplinary offenses.

We highlight the obligations, provided for by art. 2, paragraph 7, which states that "it is the ethical duty for lawyers to inform the client at the time of assignment of the possibility of using the assisted negotiation agreement", both from art. 9 (precisely, entitled "Obligations of defenders and protection of confidentiality") that explicitly sets the duty for lawyers (as well as for the parties) to behave according to loyalty and to keep confidential the information received during the procedure, not being able to use in the eventual judgment having (in whole or in part) the same object, neither being able to constitute the object of deposition by the defenders.

The violation of the provisions constitutes a disciplinary offense, while it constitutes a deontological offense for the lawyer to challenge an agreement in which he was drafted.
The Law Firm Cecatiello, through its lawyers trained with the latest negotiation techniques, is able to assist clients in the best procedural choice for the protection of their interests.

Avv. Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.