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PENAL DEFENCE
Wednesday, 07 December 2011 12:06

1) According to the Italian Criminal procedure code, it is compulsory to hire a professional defender.

 

2) According to Italian laws, a verdict (as conclusive act in the penal process) can involve:

 

-         for a natural person (charged with a violation): a prison sentence up to three years in case of culpable personal injury committed in violation of the laws regulating vehicle circulation and a prison sentence up to seven years in case of culpable homicide committed in violation of the laws regulating vehicle circulation. In some specific cases, driving licence suspension is also possible.

-         for the company which is held civilly liable for the damages: payment of compensation for all damages suffered by the victim of the violation.

 

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MEDIAZIONE

Hereafter we publish an article appeared on site cobx.org written by dr. Re of U.C.I.:

 

Mediation aimed at the conciliation of disputes

(by Stefano C. Re, UCI, Italian Bureau)

 

The Italian Parliament approved in March the Law decree n. 28, effective on 20/03/2010, which introduces mediation (aka, ADR, Alternative Dispute Resolution) as a countermeasure to the increasing number of legal proceedings brought to the Italian Courts, be it Giudice di Pace or Tribunale. The aim of mediation is to reduce the load of Italian Courts in reason of at least one million legal proceedings per year and provide citizens with the possibility to quickly solve their disputes. To reach this goal, the law decree includes a very wide range of civil and commercial disputes on subject matters about any “disposable right”, including cross‐border litigation.

 

This article will try to provide a short introduction to this important news in Italian legislation, from the point of view of MTPL.

 

 

Mandatory precondition

Also the long‐lasting experience of the USA can tell that ADR is more successful when people is obliged to make an attempt in front of a mediator, before to go to Court. In matter of accidents arising from the circulation of motor vehicles and boats ADR will be a mandatory precondition to legal proceedings starting as from March 21st 2011.

 

Tax credits and incentives

To further encourage people to avail their selves of ADR, the Law decree foresees that no document, be it acts or agreements, shall be taxed or charged in any way. Moreover, the costs of the mediation procedure – which must be paid by each party – are granted a tax credit up to 500 euro (reduced to 250 if the mediation is not successful).

 

Referral to mediation

As far as the pending cases are concerned, the Judge can refer the parties to mediation at any stage of the legal proceedings, if he/she thinks that this may help a settlement before his/her final Judgement.

 

Register

To ensure a fair, trustworthy, experienced, independent mediation, the Law decree and special ministerial decrees fix the rules according to which a Mediation Provider Organisation (MPO) can be accepted to provide ADR and officially recorded in a Register by the Ministry of Justice. Both public agencies and private bodies can constitute an MPO and, provided that they meet the requirements foreseen by the law, be entered in the Register. However, any MPO shall write its own regulations which must include some general rules but is allowed to personalise others. Mediators Also mediators are to be registered with the Ministry of Justice, provided that they have attended and passed a special 40 hours training by institutions accepted and authorised by the Ministry of Justice, in the attempt to raise the mediation success rate. Each MPO must cooperate with at least 5 mediators and any mediator cannot work for more than 5 MPOs.

 

Confidentiality

Mediators are bound to confidentiality, they can discuss with the parties separately and cannot reveal anything to the other party, unless expressly authorised. Mediators cannot be called to Court to testify and the information collected by them cannot be used in Court.

 

MTPL

As said, an attempt to mediate is a precondition to access the Court, in case of a dispute about the settlement of the loss in MTPL claims. Potentially , the Italian motor insurance Bureau UCI OR the correspondents of foreign Insurers will be a party in each of the ADR procedures concerning claims arising from accidents occurred in Italy in which a vehicle registered abroad was involved.

 

Let"s now take a look on the development of an ADR procedure.

 

Starting the procedure

Any of the parties involved can start the procedure, either the claimant, the insured, or the insurer, and any of them can be asked to take part to the mediation as well as the drivers, if different from the claimant and the insured. The party which starts the procedure chooses the MPO, in any place of Italy, no matter neither where any of the party lives or is based nor where the accident occurred. As most MPOs will be specialised only in some subject matters, any of them is allowed to develop its own internal procedural rules and some eventually MPOs may obtain better results than others, the party who wishes to start the procedure shall take all this into consideration at the moment to choose the MPO: the activity of the lawyer is basic at this stage as he/she is supposed to know the “better” MPO.

 

Duration and limits

As one of the aims of ADR is a quick solution of disputes, the Law decree allows a maximum duration of the mediation process of 4 months.

 

The Mediation Provider Organization schedules the date of the first, and potentially last, meeting within 15 days from the date of the request and informs by any means the other party/ies (be it the insurer, or an handling agent, or the Bureau, and optionally the insured or the driver). The Law decree does not provide any formal rule or limitation in dispatching communications.

 

Also, there is no limit in the value of the dispute which is practically unlimited.

 

No‐show

The party invited to mediate is not obliged to take part to it. However, the failure to appear may be used against the party in the following legal proceedings, especially if not justified. If allowed by the internal rules of the interested MPO, the mediator may also release a mediation proposal (see below) based only on the elements provided by the party who requested the mediation.

 

Agreement

If both parties appear in front of the mediator, the latter collects all the information from the parties, oral or written, examines them, discusses with the parties all together or separately; the meeting may last all day long; the mediator is also allowed to defer the parties to another day to let him examine the case or, if necessary, to charge an expert for an independent expertise on material loss or personal injuries. However, as the aim is to solve cases quickly and with mutual satisfaction, the mediators are trained to use more common sense than legal basics.

 

The mediation process may result in an agreement between the parties. In this case the lawyers are requested to draw a Settlement agreement which will be issued by the mediator and signed by the parties. This document becomes a writ of execution, deemed to be enforceable and placing a judicial lean on the party"s assets.

 

Proposal

When it"s not possible to reach an agreement, the mediator is allowed to make a written proposal which the parties may accept or not. If both parties ask for it, the mediator is obliged to write a proposal.

 

To refuse a proposal is possible, but it may have serious consequences in the following legal proceedings: if the proposal corresponds with the subsequent Court judgement, the winning party that rejected the proposal may be excluded from the recovery of the costs incurred (which are usually supported by the losing party).

 

When the proposal corresponds only in part to the subsequent Court judgement, fees recovery may be reduced.

 

It is uncertain, and only legal practise will show, what is meant by “corresponds (totally or in part) to the subsequent Court judgement”. It is also questioned what influence may have on legal proceedings a proposal made by the mediator inaudita parte, in the absence on the party who did not appear.

 

Fees

This procedure has of course a cost. A ministerial decree fixed both the administrative costs as well as the fees for the mediator. Adjustments are supposed to be issued periodically.

 

Each party must first pay Euro 40,00 as administrative cost to the MPO.

 

The mediator"s fees vary according to the value of the dispute and are determined by ministerial decree for public agencies whereas private organisations can fix their own fees. The decree foresees that, for both public and private, in subject matters where ADR is a mandatory precondition to legal proceedings, the mediator fees are reduced by at least 1/3.

 

If the mediator makes a proposal his fees are increased by 20%; if he is able to lead the parties to an agreement, his fees are increased up to 20%; he is also allowed to ask +20% in particularly difficult cases which demand a peculiar effort.

 

Eventually, in case of no show of the party invited to mediation, the mediator fees are reduced by 1/3.

 

The following table shows, in an MTPL case, the amount of the fees to be paid by each party to a mediator who cooperates with a public agency (fees determined by ministerial decree) bearing in mind that private Organisations are free to fixe their own fees:

 

value of the dispute mediator basic fee (in mandatory ADR cases) mediator fee in case of a proposal is issued mediator fees in case of no show of the party
€ 0‐1000 € 43 € 52 € 29
€ 1001‐5000 € 87 € 104 € 58
€ 5001‐0.000 € 160 € 192 € 107
€ 10.001‐25.000 € 240 € 288 € 160
€ 25.001‐50.000 € 400 € 480 € 267
€ 50.001‐250.000 € 667 € 800 € 444
€ 250.001‐500.000 € 1.333 € 1.600 € 889
€ 500.001‐2.500.000 € 2.533 € 3.040 € 1.689
€ 2.500.001‐5.000.000 € 3.467 € 4.160 € 2.311
over € 5.000.000 € 6.133 € 7.360 € 4.089

 

 

Final considerations

In the daily claims handling practice, the highly relevant costs of legal proceedings in Italy are well known. Such costs are increased by the delay of the Courts, the frequent deferral of hearings due to missing or overburdened Judges. In some cases, ADR would considerably reduce the costs for litigation, whereas in others it would only represent a further cost to be reimbursed in case of negative judgement.

 

Insurers, claims handling agents, loss adjusters and lawyers frequently discuss about the opportunity to take part to ADR, in consideration of the risk of charges in case of no show, or on the contrary if it"s opportune to be party which starts the mediation process.

 

ADR supporters rely on the mediation process introduced by the Law decree n. 28/10 as an epoch‐making event in Italian legal world.

 

It is clear that mediation procedure will, in some cases, lead the Italian Bureau and the correspondents of foreign Insurers to settlement solutions, proposed by the mediator, which do not strictly stick to the technical evaluation of the loss. On the other hand, this should have the positive effect of a reduction in legal proceedings and of the relevant costs.

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