MEDIATION AND CONCILIATION

WHAT IS CIVIL AND COMMERCIAL MEDIATION?

In legal terms, mediation is an out-of-court process by means of which a third party, a mediator, helps parties to resume dialogue with an end to settling a dispute. It is in fact a form of ADR or Alternative Dispute Resolution, which is conducted to safeguard the parties concerned in complete confidentiality.

It does not involve any specific procedures, and anything emerging in the course of the process may not be produced in subsequent legal proceedings.

Conciliation is not part of ordinary legal proceedings and involves free determination by the parties with the help of a professional, the mediator. The work of the latter is of a reserved nature in that he or she is qualified to do so, is enrolled in the lists of the Ministry of Justice, and must operate within the framework of a mediation body such as CAMOIM.

With Legislative Decree no. 28/2010, the term conciliation has also acquired the meaning of the potentially positive outcome of civil mediation, which in accordance with article 1372 of the Civil Code, has legal value for the parties concerned; if approved by the Presiding Judge of the Court of Jurisdiction, it constitutes an instrument of enforcement.

MEDIATORS

Who they are

Mediators help parties reach an agreement to a dispute. They must meet the following requirements:

they must be independent, impartial and neutral
they must have expertise in conflict management techniques

What they do

help parties find a shared solution to the problem
facilitate dialogue, creating a climate of greater trust
help parties, in specific meetings held on a separate basis, to set out their own interests
encourage parties to develop new points of view, and new alternatives around which an agreement can where possible, be reached
bring the respective positions of the parties and their interests closer to one another, with the aim of improving reciprocal relations, enabling them to work together to reach an agreement
guarantee the confidentiality of the procedure externally, and that the mediation itself remains between the parties concerned.

What they do not do

they must not and indeed cannot impose a decision
they cannot give technical opinions on the events under discussion

HOW TO BECOME A CAM-OIM MEDIATOR

All those meeting the training requirements described in Ministerial Decree no.180, dated 18 October 2010, are entitled to register for enrolment in the list of mediators of the mediation organisation of the Arbitration and Mediation Body of the Order of Engineers of Milan. Calls for the selection procedure are announced periodically as per the Organisation’s requirements.