PUBLISHED ON AMERICAN BAR ASSOCIATION REVIEW

Collaborative Practice in Italy: Statutory Law N. 162/2014

(a.k.a. Negoziazione Assistita)

By Marco Calabrese

Times were ripe for a change in family law in Italy when we set up the first Association for Collaborative Law in December 2009. Once a core group of us learned about Collaborative Practice, we realized it was a step in the direction Italy needed to preserve family relationships during and after divorce. It took us the next few years to set up a small, determined community of practitioners and (it still seems incredible to me) to get a statute on Collaborative Law passed by the Parliament in 2014. While Italian culture is not the same as North American culture and the reasons we have embraced Collaborative Law may not resonate quite the same way on the other side of the Atlantic, our experience might be of interest to North American Collaborative lawyers.

Some of the characteristics of Italian family law that made Collaborative Law such an attraction were:

1. 1)  Italy is a no fault jurisdiction: a spouse needs no special reason to get a divorce and gets no benefit from claiming that the other spouse was at fault except in very limited circumstances. Accordingly, if the parties agree on a divorce, they do not need to litigate and may apply for a Joint Divorce or Separation Order without assigning fault to anybody. These joint applications comprise over 90% of divorce cases. One party can apply separately as well, without the need of blaming the other party for the breakdown. Negotiation is therefore usually in the best interest of both parties.
2. 2)  Courts do not divide the assets of the couple when issuing a divorce/separation order, which makes our task incredibly easier than in Anglo-American Countries. In other words, when spouses apply for divorce, all they get from the court is a divorce order, without any reference to separate or marital property. Even if spouses have shared assets, a judge consideration a divorce has no statutory authority to do anything other than ignore them. One of the reasons this works in Italian society is that shared property seldom exists, mainly for tax reasons: developing separate assets over time is a natural result of separate calculations of each spouse’s income in order to reduce taxes. On the rare occasion that the marital house is a shared asset (less than 30% of cases), a further lawsuit must be filed to divide this asset. This lawsuit may be long and expensive, like in property division cases one might bring against a family member or a business partner. We have no such thing as equitable distribution or a “fair” division of assets in an Italian separation or divorce. As a result, one of the main areas of strife in a US divorce process is not something the parties have to negotiate.
3. 3)  The Court has the authority to decide only three things:
   1. Matters related to children. The normal decision is shared custody, with the mother acting asthe main caregiver. However, in extreme cases such as those involving domestic violence, the Court may order one spouse be granted sole custody. It is unusual for the father to be the main caregiver of children after divorce, representing only about 3 to 5% of cases.
   2. Monthly maintenance for the children. In cases in which the wife has limited or no job prospects due to age or other reasons there must be support for the wife, too. While it is not common for the husband to receive support, the statute is gender-neutral.
   3. Use (as opposed to ownership) of the marital home. Generally, the main caregiver lives with the children in the marital home until the children become [old enough to be] financially independent. After that, the house goes back to the person who is mentioned as owner on the property title: husband, wife, or both of them.

   Therefore, on the surface there do not seem to be not very many things to argue about in an Italian

divorce case.

However, people are people. We noticed that, despite the fact that many Consent orders follow such an easy pattern, former spouses were often returning to court for modifications within three or four years. Although the couples declared themselves as having an agreement on the terms of their divorce, many were clearly frustrated by the outcome. The lawyers had a hard time understanding why.

We then realized that the reason was anger and frustration. We thought we had created the most peaceful system for separation and divorce in the world, a system that disincentives litigation and in which there was not much to win if one chooses to litigate. But, frustrated couples will find a way fight anyway, even with a relatively peaceful, ready-made outcome. We also realized that the sort of divorce settlement enshrined in our statute comes from the court or from two lawyers, when what the parties really needed was to talk and find their own solutions.

In 2010, I was discussing the problems we were seeing with friends in London (Family Law in Partnership LTD – Covent Garden), who introduced me to the magic of Collaborative Practice. We then brought Collaborative lawyer Ron Ousky to Rome for an introductory training in the way Collaborative Law worked in other jurisdictions.

The family law bar in Rome was excited. Through the energy of many people, we succeeded in bringing Collaborative Law into Italy faster than any of us could have imagined through the adoption of a statute. Only four years after our first training, Parliament adopted a National Statute on Collaborative Law, which is modeled on the Collaborative Standards of the IACP (International Academy of Collaborative Professionals). There are now tens of thousands of Collaborative divorce cases in Italy every year, with a requirement for mandatory pre-trial ADR for civil cases involving less than 50,000 Euros as well.

Our Statutory Law reads like this.

• The procedure begins with a letter from an Attorney, asking the other party to retain a lawyer for an “Negoziazione Assistita,” an Assisted 4-way Negotiation.
• Since Collaborative Law is voluntary, if the other party agrees to participate there is an initial 4-way meeting at which the participants then sign a participation agreement. The minimum time provided by the law to close the whole negotiation is 30 days; the maximum duration of the procedure is 3 months, extendable to 4 months by agreement of the parties. The strict time limit places pressure on the parties not to get stuck. If the parties do not agree or the case goes on too long, the matter goes to litigation.
• As in North America, the Participation Agreement provides a requirement for mandatory transparency and confidentiality. It also contains a unique touch, a duty of loyalty to the other signatories to the agreement (including between lawyers!): not being loyal during the process can make the final agreement void (as happens in the case where the parties conceal their assets, or income, or hide documents). Both lawyers and clients sign the agreement.
• The Statute does not provide expressly for the “Golden Rule” (that both attorneys must withdraw if negotiation breaks down). It would be redundant. A lawyer who files suit against another party to a contract with whom he or she has signed a confidentiality agreement risks being disbarred under our National Bar Ethical Rules.
• The final settlement must be signed (within the above said timeframe) by the four participants after at least two 4-way meetings. A copy of the settlement must then be filed by the attorneys with the Court’s Archives, where it is rubber stamped. In case of violations of the interests of the children, the District Attorney may oppose to the settlement and recall the parties for a hearing before the Court. To my knowledge this has never happened to date.
• The parties never have to meet with a Judge in order to get the separation/divorce order and the marital settlement approved.The number of Collaborative procedures is rising by the day: we don’t have to struggle to convince the clients or the courts. It is not hard to foresee that in few years the Collaborative Process will mostly replace the litigation process, and court procedures will remain in use only for high conflict personalities.The one minor drawback is that lawyers can always find their way around a statute: some lawyers are using the statutory procedure in a way that undercuts Parliament’s intent. The lawyers negotiate between themselves without signing the participation agreement for fear of losing their clients if a matter has to be litigated, then all the parties meet together and sign the 4-way Participation Agreement. They then wait for 30 more days and meet again for the final settlement. Nobody can tell now how many of the Negoziazione

Assistita each year represent a shortcut, although anecdotal evidence, at least in Rome, is that it is a minority of cases.

You may note one difference between the Italian statute and the way Collaborative Practice is conducted in many jurisdictions: there is no provision for a coach, a mediator, a child expert or a financial neutral. The economics of divorce in Italy do not support this as a mandatory matter; since the litigation alternative is not nearly as expensive as in North America, not everyone would choose to do it. While I do believe that the full Collaborative Team approach is helpful in many cases, clients will not always adopt it voluntarily. As our practice evolves, we will see whether it appeals to more and more clients to use a bigger team. In the meantime, divorcing families in Italy are fortunate enough to have a statutory option.

Marco Calabrese, international family law attorney in Rome, shortlisted by the US Embassy, was the founder and first president of the Italian Institute for Collaborative Law. He acts currently as a Member and a Trainer at “Ronald D. Ousky Collaborative Practice Group.”