The civil and commercial mediation is - in a nutshell - in the activity, however named, conducted by an impartial third party and aimed at assisting two or more parties in finding an amicable agreement for the settlement of a dispute.
He, in general, anyone who is part of a civil dispute (interpretation of available rights) You can freely try to resolve the dispute through this instrument, for some specific disputes the use of mediation is required by law (c.d mediation. compulsory): it comes to disputes concerning the matters (which shortly will be recalled) originally listed in Article. 5, comma 1 d.lgs. n. 28 of the 2010, and today, following the reform of the 2013, listed in paragraph 1-bis of the same article 5
Well, just in terms of mandatory mediation, with judgment 8473/2019 of the 17/03/2019 Civil Cassation Third Chamber has set out the following principles of law:
1) in the mediation process required under Legislative Decree. n 28 of the 2010 It requires the personal appearance of the parties before the mediator, assisted by defender;
2) the part can also be represented by an own substantial Representative, possibly in the person of the same defender who assists in the mediation process, provided with substantial appropriate proxy. It does not suffice, to delegate, a representative ad litem, single act authenticatable by the defender - in the present case, however, issued with a deed – although containing the power to settle. The proxy must be conferred by a substantial power of attorney referred to the specific object of the participation in the mediation, with the transfer of the power to dispose of substantive rights to which they refer.
The shape of the "substantial power of attorney" to mediate must be that of a private document is not authenticated. The need to authenticate by a notary the private deed of delegation to allow the deputy to participate in the mediation, where sign the minutes of mediation, which also has the form of non-authenticated private, It seems superfluous to say the least.
3) the condition of admissibility can be considered as realized at the end of the first meeting in front of the mediator, where one or both sides, requests by the mediator after being adequately informed about mediation, communicate its unwillingness to proceed further. It is thus quashed the case on the merits which he considered essential to improve the effective participation of the part in the meetings and the prohibition condition of admissibility for the part to be replaced by defense counsel. It 'also reiterated the concept that in order to perform prosecuted for simply participating in the first meeting only mediation.
Of note as the Court highlights that the mediation procedure has highlighted the need for new skills in the lawyer.
No longer just the lawyer who "represents" in court but also the lawyer who "assists" in mediation. A new professional figure, which requires the acquisition of additional human and relational competencies, including the ability to understand the interests of the parties beyond the legal claims advanced.