Il ruolo del professionista forense e la rilevanza degli obblighi informativi nel procedimento conciliativo

In Italy, the civil and commercial mediation has experienced, in recent years, a significant regulatory developments, with the provision for certain matters exhaustively listed, a filtering system compulsory pre-litigation that affects the exercise of the judicial action. The mechanism chosen by the conditor iuris has been under the scrutiny of the Constitutional Court which declared it unconstitutional in excess of legislative delegation. The Law of 9 August 2013, n. 98, has reintroduced the mandatory mediation, exercising a specific option of legislative policy in favor of voluntary mediation as a means of settlement of disputes. After conducting a survey of rulemaking that marked the introduction, and the fundamental evolutionary stages of mediation, the work explores the role and competencies of the professional forensic in the conciliation process, with the provision for legal aid compulsory justified by ‘need to guide and advise the parties, in case they need to make proper evaluations and decisions of technical and legal. After conducting a survey of rulemaking that marked the introduction, and the fundamental evolutionary stages of mediation, the work explores the role and the competencies of the professional forensic in the conciliation process, foreseeing a legal assistance mandatory, justified by the need to guide and advise the parties, in case they need to make proper evaluations and decisions of technical and legal nature. Particular attention is paid to the analysis of the disclosure requirements and protective incumbent on the lawyer in the mediation process. For the purposes of a correct reconstruction of the origin and applied implications of the institution of mediation, the work closes with a comparative look at the model of common law (U.S. and UK) and, between the models of civil law, the French system, which has a strong tradition-court mediation.