Everybody, Italians and foreigners, knows that one of the most serious problems afflicting our country is that of civil justice. In fact, all the governments that have followed in recent years have made justice reform one of the main themes of its election campaign. Nevertheless Italy is still today one of the latest countries in the ranking drawn up annually by the European Commission in terms of durability and efficiency of trials.

Probably aware of the inefficiency of the Italian justice, governments have attempted to avoid the recourse to the justice as much as possible by developing tools with which to make the use of the courts as a last resort. The achievement of this goal has been started in 2010 when the legislator has introduced the mediation process as mandatory for some subjects listed exhaustively. Although a difficult start, but definitely lucrative, the first setback was suffered in 2012 when the Constitutional Court declared the unconstitutionality of the Legislative Decree 28/2010, albeit for “procedural” reasons, i.e. to misuse of power. Solved the procedural obstacle, the legislator of 2013 reintroduced the mandatory mediation procedure albeit for a limited period: paragraph 1-bis of Article 5 of the said Decree, in fact, expressly provides that the experiment of the mediation process, as a condition of admissibility of the claim, is effective only for four years; therefore, in the event that no new regulations will be issued, from the month of September 2017, a trial will be begun even without having previously completed the mediation process.

A further step in the project for lightening the load of the Courts was definitely made by the legislator on 2014 that, with the Decree Law no. 132, converted with amendments by Law 162/2014, called precisely “Misure urgenti di degiurisdizionalizzazione ed altri interventi per la definizione dell'arretrato in materia di processo civile" introduced two major innovations: the transfer in arbitration at the request combined parties of pending proceedings relating to inalienable rights and assisted negotiation with one or more lawyers.

Article 2 of the same Decree, at the first paragraph, defines the assisted negotiation as “an agreement by which the parties agree to cooperate in good faith and loyalty to solve the dispute amicably with the assistance of lawyers”. The following articles of the legislative Decree indicate in detail all the requirements that the agreement must have to be considered valid and effective. First of all the legislator of 2014 has identified time limits: the procedure, in fact, must take place in a period of between one and three months, which may be extended only once for an additional 30 days. With regard to the matters that may be the subject of assisted negotiation procedure, it is necessary to make a distinction as for some matters the above procedure constitutes a condition of admissibility of the judicial trial. In particular,  Art. 4 of Decree Law no. 132, entitled precisely "inadmissibility", indicates two areas for which the assisted negotiation becomes a prerequisite to the exercise of the demand in court:

i)  disputes relating to compensation for damages caused by cars and boats;

ii) all claims for payments up to Euro 50,000.00. This procedure is not mandatory in injunction of payment proceedings, including the relevant op position, in preliminary technical expertise proceedings, in challenges of the execution proceedings or ordinary proceedings commenced by the challenge, in proceedings in chambers (in the meaning of “camera di consiglio”), in civil proceedings performed in criminal trials.

Another key aspect of the said procedure is related to the effectiveness of the agreement that is eventually reached between the parties. According to art. 5, in fact, the agreement settling the dispute shall be enforceable title for the recognition of judicial mortgage and title to proceed to the transcript in case might be contracted or committed acts provided in art. 2643 of Italian Civil Code (acts subject to transcription), after authentication of a public official authorized to do so.

From the brief discussion of this new institution introduced only a few months ago and came fully into force only from February 9^th 2015, it is clear that a key role is primarily entrusted to lawyers of the parties, which, even defending its client, seek to settle the dispute in order to avoid a trial long, expensive and above all uncertain.

The reactions expressed in the aftermath of the introduction of this procedure have been varied: on the one hand there are those who have welcomed this news, hoping a streamlining of justice in Italy, on the other hand have witnessed individuals who, already critical of the introduction of the institution of mandatory mediation, have “protested” stating that every good lawyer before taking a legal action, in his small, and without any obligation imposed by law, tries to negotiate with the other party and, only after having lost all hope on the amicable settlement of the dispute, goes to the competent court.

Regardless of criticism, we must admit that in recent times governments are trying in every way to solve the problem, altogether just the passage of time will tell if these interventions were helpful or have resulted in a further loss of time and stiffening of procedures for access to justice.