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Mediation and international arbitration

Alternative Dispute Resolution (ADR) through mediation

We support you in all ways of alternative dispute resolution (ADR). Both in Italy and Germany, Dolce Lauda has lawyers who have undergone mediator training and have the relevant practical experience, whether the mediation is voluntary or compulsory and whether it takes place inside or outside the courtroom.

Representation in arbitration proceedings

The less efficiently the ordinary judiciary can resolve conflicts, the more attractive arbitral tribunals are. Especially in international matters, mixed arbitration tribunals can offer parties solutions that better meet their expectations than purely nationally staffed benches. Our specialized colleagues have experience with representation before institutionalized arbitral tribunals, such as the ICC in Paris, but also with freely constituted arbitral tribunals. In addition, we have acted as arbitrators ourselves, benefiting from our binational training.

Specialized in Alternative Dispute Resolution

There are so many ways to resolve a conflict through ADR (Alternative Dispute Resolution) that the experience and training of the mediator or arbitrator is only the first prerequisite for a successful outcome that satisfies both parties. In addition, the mediator's creativity and ability to interact must be able to lead the parties to a solution that saves them an exhausting and costly legal dispute. But the arbitrator will also attempt to unite the parties at every stage of the proceedings. We can pridefully assert that we have often succeeded in doing so.

Our mediation and arbitration services in detail

In Italy, mediation is mandatory for many fields of law, otherwise a subsequent action in court is inadmissible. These include classic fields affecting private individuals, such as inheritance law and tenancy law, but also corporate matters, such as corporate leases, which are very common in Italy. Since mediation negotiations can now also take place by video conference, we can often "save" our German clients the trip. In Germany, mandatory mediation plays a much smaller role. Depending on the federal state, this applies to small amounts in dispute or in neighborhood law.

Out-of-court conflict resolution procedures based on the principles of voluntariness, personal responsibility and commonality can often lead to creative solutions that would otherwise be difficult to achieve within the framework of tried and tested mediation techniques. The mediator does not act here as a lawyer or counsel for one of the parties, but as an independent and neutral third party. However, the mediation solution reached is then binding and, if necessary, enforceable in court.

Arbitral tribunals may adopt their own rules of procedure, but arbitrators may also choose national rules of procedure. In order to ensure successful representation, the lawyer must not only be familiar with substantive international law, but also have experience in various procedural rules. Fluent negotiation skills in English are a prerequisite that all lawyers at Dolce Lauda fulfil. In order to be able to pick up on the "in-betweens" in negotiations, a command of other languages is very helpful. Our lawyers all speak German, English and Italian, most also French and some Spanish.

If you are looking for a party arbitrator, especially in a German-Italian case, or if you have already been appointed as a party arbitrator and are looking for a chairman, our office has experienced colleagues who are characterized by a cooperative and constructive attitude towards all parties to the case. If you should be interested, we can gladly offer references.

Italian specifics on mediation and arbitration

Mandatory mediation

Mediation is mandatory in the following areas of law in Italy; it is a prerequisite for admission to court proceedings.

  • Residential property
  • Rights in rem
  • inheritance matters
  • so-called family agreements concerning the transfer of a business to descendants, possibly with payment of other potential compulsory shares (patti di famiglia)
  • rent
  • loan
  • business lease
  • medical liability
  • Liability arising from defamatory reporting in the press or other medium
  • Insurance, banking and financial contracts

Costs of arbitration

If the parties agree to apply Italian law, there are often surprises for German parties at the end of the arbitration when it comes to the allocation of costs. Although the arbitral tribunal has granted the German company's arbitration claim in full, the costs are set off against each other. This means that the German claimant is left to bear his costs even though he has prevailed in full. This can be explained by the Italian legal practice (so also many courts), which in more difficult cases wants to confirm to the losing party the necessity of its legal defense costs, possibly also out of pity for the loser.

German specifics on mediation and arbitration

Judicial mediation

In Germany, the catalogue of compulsory mediation is very manageable. Depending on the federal state, it only applies to very small amounts in dispute and to special areas of law such as neighborhood law. For these, German procedural law offers judicial mediation; at any stage of the proceedings, the parties can ask the court to have mediation conducted. This means that the judge responsible for deciding the dispute will then forward the file to a special mediation judge. In the judicial mediation process, the parties are then free to present anything without fear that it will be used against them in the litigation. The court also has its own resources and rooms for mediation, which suggest voluntariness to the parties and are set up differently from court rooms.

Enforcement of arbitral awards

Both Germany and Italy are signatories to the New York Convention of 10 June 1958, so the losing party cannot usually hope that the award will not be enforceable in its own country. The respective national judge who has to grant the enforcement clause will have to check whether the national ordre public has not been violated by the award. This is hardly conceivable between Germany and Italy. Questions may arise as to the validity of the underlying arbitration agreement and the inclusion of third parties (guarantors or partners) who have not signed an arbitration agreement themselves. We can provide competent assistance with these questions as well.

Frequently asked questions from our clients

Absolutely. Your neighbor must attempt mediation as required by law. It may be that he has committed formal errors, which can then benefit you in your defense against the claim, but it may be that mediation can actually resolve the dispute. If you do not want to go to Italy yourself, we can arrange mediation for you by video.

A response is highly advisable. If you receive a claim from a court that is only written in German (and you do not speak German), you can have it returned immediately without fearing any disadvantages. In an arbitration action, the legal situation is not so clear. If you remain passive, you risk the German plaintiff having an arbitrator appointed for you.

Consultation?

Let us talk about your specific concerns.