Law Firm Avvocato Cecatiello, specializing in Family Law International Family Law
studio@cecatiello.it
+39 02 72022862

Assisted negotiation in separation and divorce

The Cecatiello Law Firm boasts twenty years of experience in the field of family law; where possible we try to favor the out-of-court solution of disputes, in particular, for cases of separation and divorce, the procedure of assisted negotiation.
Assisted negotiation is a method, provided for by law, for the alternative resolution of disputes which consists of a contract also known as an agreement, with which the parties undertake to amicably resolve a dispute 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 the disputing parties agree "to cooperate in good faith and loyalty", in order to resolve a dispute amicably, through the assistance of lawyers, regularly registered on the register.

The agreement must contain, pursuant to art. 2 of Legislative Decree 132/2014, both the deadline agreed by the parties for the completion of the procedure, which cannot be less than one month and more than three (unless extended by 30 days at the agreed request of the parties), and the subject of the controversy, which cannot, as the law expresses verbis, concern neither unavailable rights nor work matters.

The agreement must be drawn up, 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 procedure begins with the lawyer informing his client of the possibility of using the assisted negotiation agreement.

The party that chooses to rely on the new procedure sends the counterpart, through its lawyer, a letter with an invitation to enter into the negotiation agreement. This invitation must be signed and must indicate the subject of the dispute and the warning that in case of non-response within thirty days or refusal this will constitute grounds for evaluation by the judge for the purpose of charging the court costs, the conviction 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 actual negotiation starts 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, it must be signed by the parties and by the lawyers who assist them, who certify both the autography of the signatures and compliance with mandatory rules and public order.

The agreement constitutes an enforceable title and for the registration of a judicial mortgage and must be fully transcribed in the precept pursuant to art. 480, 2nd paragraph, cpc
The law also provided for hypotheses of mandatory assisted negotiation for actions concerning the compensation of damage from the circulation of vehicles and boats and for payment requests for any amount, provided they do not exceed 50.000 euros and do not concern disputes subject to the discipline of the so-called "Mandatory mediation".

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

Returning to family law, art. 6 of the II head of the justice decree is dedicated to the particular hypothesis of assisted negotiation in the matter of separation and divorce. Deeply modified during the conversion, the law provides that through the assisted negotiation agreement (by at least one lawyer on each side) the spouses can reach a consensual solution of personal separation, termination of civil effects or dissolution of marriage (in cases of pursuant to art.3, paragraph 1, n.2, lett.b) of Law 898/1970), as well as modification of the previously established conditions of separation or divorce.

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 subjected to scrutiny by the public prosecutor at the competent court, which, if it finds no irregularity, communicates the authorization to the lawyers.

In the second case, however, the public prosecutor to whom the agreement concluded within 10 days must be sent, authorizes it only if it is in 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, he transmits it, within five days, to the president of the court, who, within a maximum period of thirty days, orders the parties to appear, acting without delay.

Once authorized, the agreement, in which the lawyers must acknowledge that they have attempted conciliation between the parties, informing them of the possibility of resorting to family mediation, is equated with the judicial measures that define similar procedures on the matter.

After the signing of the negotiation agreement, the party's lawyer is obliged to send a certified copy with the relevant certifications, within 10 days to the registrar of the municipality in which the marriage was registered or transcribed for all subsequent necessary formalities. .
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.

The obligations provided for by both art. 2, paragraph 7, which state that “it is a deontological duty for lawyers to inform the client at the time of the assignment of the possibility of using the assisted negotiation agreement”, both by art. 9 (entitled, in fact, "Obligations of the defenders and protection of confidentiality") which explicitly establishes the duty for lawyers (as well as for the parties) to behave fairly and to keep confidential the information received during the procedure, not being able to use it in the eventual judgment having (in whole or in part) the same object, nor 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 participated.
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.