Legal Consultants FAQ
What are the steps I must take to begin a mediation procedure with ADR Center?
The mediation procedure generally provides for the following steps:
- One party, directly or through a lawyer, uses the GREEN FORM to authorize ADR Center to contact the counterparty and propose an effort at mediation
- A Case Manager from ADR Center Contactos the person indicated to determine the other party's willingness to participate in mediation
- The Case Manager provides the parties with information regarding the procedure and, after meeting with any of them on request, invites all parties to formalize the opening of a mediation case by signing the BLUE FORM
- Once the procedure is initiated, ADR Center assists the parties in choosing the mediator
- After being appointed by ADR Center, the mediator and the Case Manager, in cooperation with the parties, organize the mediation session
What happens if the parties cannot agree on a mediator?
The mediator is usually chosen by the parties from a panel of persons appropriately trained and certified to serve as third party neutrals, and is then appointed by ADR Center. ADR Center might, however, both choose and appoint the mediator, either at the joint initial request of the parties, or in the event that the parties wish to pursue mediation but do not succeed in jointly identifying an agreed individual.
What activities are required before mediation?
This depends on the circumstances and requirements of the parties. Normally, to use time most efficiently, the third party neutral will need advance statements ("mediation briefs") that describe the positions of the parties; these statements can be provided confidentially to the third party neutral or also disclosed to the counterpart. The exchange of other documents, such as technical reports, is subject to agreement by the parties and the mediator in order to balance the speed of the procedure with the need to furnish the mediator with an accurate picture of the situation.
What is the role of ADR Center in mediation?
Mediation is a procedure by which the parties and their lawyers use the skills of a third party neutral in order to reach a mutually acceptable solution to their dispute. The task of ADR Center, as a neutral organization that appoints and assists the mediator, is to create conditions that will allow the dialogue between the parties to proceed in the most efficient manner under the circumstances of the particular case.
Why use a third party neutral who does not have power to decide the dispute?
The third party neutral in the mediation procedure has the fundamental task of facilitating negotiation between the parties in a way that allows them to reach a solution to their dispute without external influence. Listening to the parties and communicating with them, both jointly and separately, the mediator is able to analyze the truly important aspects of the case, which often transcend the expressed legal positions. These aspects include particular concerns or needs that, if shared with the mediator, can help all parties reach solutions based on their real interests. Because parties are often reluctant to reveal their own priorities to the counterpart, without this help the parties may not be in a position to reach optimal agreements. Moreover, when speaking in front of someone who is primarily called upon to decide rights and wrongs, such as a judge or arbitrator, typical litigants will not talk about other considerations that are important to the amicable resolution of disputes, such as business concerns which do not affect the rights of the case but may be severely impacted if a creative agreement cannot be reached.
What assures me of the independence, impartiality, and neutrality of ADR Center?
Nearly a decade of work exclusively devoted to the Alternative Dispute Resolution field and the desire to maintain the position as market leader in Italy are the most obvious assurances of independence, impartiality, and neutrality we can provide to those who consult ADR Center. These are also the reasons a representative of ADR Center was among the ten international experts invited by the European Commission to draft the "European Code of Conduct for Mediators" (2004). All the professionals at ADR Center adhere to this well recognized Code. Finally, it is important to note that organizations dealing with extrajudicial resolution of disputes are subject to national and local rules and regulations for the further protection of their clients.
Who participates in the meeting with the mediator?
It is of fundamental importance that the parties personally participate, preferably with the assistance of their lawyers, so that in the event of a settlement a final agreement can be drafted promptly that takes all contingencies into account. With the consent of the parties and of the mediator, other people can be included, such as experts whose presence is thought necessary or helpful to resolving the dispute.
When a lawsuit is already pending, especially one that has been in existence for a long time, does it still make sense to attempt mediation?
Yes. The outcome of a case is always uncertain, and the decisional power of judges takes the control over the procedure, and especially over the final result, away from the parties and their lawyers. As is widely known, to enforce even a favorable decision is often difficult. The problem of parties not following agreements is largely eliminated by the direct participation of the disputants in crafting the solution; as statistics have repeatedly confirmed, agreements reached in mediation are much more likely to be conscientiously followed afterwards. (After all, any party unsatisfied with the mediation process can, instead of signing a settlement agreement, terminate the mediation procedure and turn to the court or, depending on the case, resort to arbitration.)
What is the legal value of agreements reached under a mediation procedure?
This depends on the applicable law. As a general rule, in Italy the agreement with which a mediation procedure is concluded operates as a contract. However, ever more numerous protections may provide additional value to these agreements. For instance, an agreement reached and recorded based on Article 40, Section 8 of D.LGS 05/2003, under corporate law, is a specific basis for an enforcement order for forced expropriation, for specific performance, and for the registration of a judicial mortgage.
What happens if the parties do not reach an agreement?
In a case where no agreement is reached, the parties are free to pursue any other procedure provided for by contract or by law. In the event that they have opted for the "on success" fee structure, the parties will not be obligated to pay fees to ADR Center.
How much of what was said or done during the mediation procedure can be disclosed?
A central element of the procedure is confidentiality, as prescribed by Article 11 of ADR Center's International Mediation Rules. In addition to those protections provided for by the rules which are contractual in nature, analogous protections of confidentiality are provided for by law (e.g., Article 40, Section 8, of D.LGS 05/2003).