A unique feature of mediation is that any party can unilaterally decide to terminate mediation at any time if they feel the process is not productive, unlike arbitration, which requires joint approval to be interrupted. To be effective, mediation must be seen by the parties as an instrument or instrument that allows them to directly manage the settlement of their disputes between them. The emphasis is on their direct and active participation, in contrast to the increasingly distant role played by the parties in arbitration “led” by an arbitrator. Since mediation in Italy is new and is generally not regulated by the legislator, the parties sign a confidentiality agreement before the start of a mediation meeting. The pre-mediation confidentiality agreement has the power and effect of a contract in which confidentiality is recognized as an integral part of the mediation process. It used to be said that arbitration is faster than litigation. However, this has become less precise with the increasing involvement of lawyers in arbitration and the difficulties of convening a three-person tribunal. The process has now slowed down at a rate similar to that of the courts. Overall, it is now difficult to make a general comparison between the speed of arbitration and the speed of litigation, as this will depend on many factors. However, it is important to note here that if there is an appeal against a court decision, arbitration will be much faster than litigation, as there are few possibilities to appeal an arbitral award (see below for the purpose of the decision). Avv. Alessandra Sgubini LLMMs.
Sgubini is a professional mediator and an Italian lawyer with experience in the field of law, international law and dispute settlement. She obtained her law degree from the University of Milan (Italy) and is admitted as an Italian lawyer and member of the Milan Bar. She completed postgraduate studies in International Business Transactions at the University of San Diego, California (USA). In addition, she received her L.L.M Master`s degree in International and Comparative Law from the California Western School of Law in San Diego, California. She is a certified mediator in the United States and Italy. She is the founder and owner of Bridge Mediation LLC in San Diego, CA and B.M. SRL in Milan, Italy. She is a professional mediator specialising in a wide range of international and intercultural litigation and civil litigation. She is fluent in Italian and English.
Wife. Sgubini is Professor of Business Law, ADR, Mediation and Conflict Resolution at universities such as UCSD (University of San Diego, California), ISED (Istitute Superiore de Derecho e Economia) and CWSL (California Western School of Law) and The State Law School in Moscow, Russia. She is the public spokesperson for national and international organizations. Ms. Sgubini is the author of several articles on ADR and mediation. The main difference between mediation and arbitration is the process used to resolve your dispute. Both options will help you solve a legal problem outside of traditional court proceedings, but they use two different methods to get you from A to Z. By including contractual arbitration clauses, the parties agree to settle their disputes through a very simple procedure that is similar but not equivalent to the traditional method of procedural settlement. An arbitral award that concludes a dispute has the same value as a judgment of an ordinary court, provided that the parties proceed to the next formal stage of registration of that private decision with the Italian Court of Appeal. The term “split” or “hybrid” encompasses a variety of hybrid dispute resolution clauses, the most common of which is a clause that provides for both jurisdiction and arbitration in conjunction with a mechanism that gives one or both parties the right to determine the procedure as soon as a dispute arises. Such clauses are typically used when a party has a superior bargaining position, with the stronger party using the clause to optimize its position in a particular dispute. For example, the clause would provide for disputes to be settled in the English High Court, but Party A may also choose to have the dispute in question arbitrated.
Such clauses are increasingly appearing in financing contracts, particularly in international derivatives and credit transactions with counterparties in jurisdictions where decisions of English courts may not be easily enforceable. They have the obvious advantage that the strongest party can control where the proceedings are to be initiated, with the usual choice between arbitration or litigation. Caution should be exercised when considering such a clause. Although valid under English law, other jurisdictions may take a different approach. In some jurisdictions, division clauses may be considered invalid because they do not provide a reasonable reference to arbitration (if only one party has the right to refer the matter to arbitration) or because they are unfair and contrary to public policy (as they strongly favour one party). If your contract contains a separation clause, check the applicable law of the contract to make sure it recognizes its use and validity, and also review the law of a relevant jurisdiction, for example. B a court where the enforcement of a judgment or award could be sought. Clarity is essential in the drafting of such clauses.
Also think carefully about how the clause should work. It is important to clearly state the exact circumstances under which the option may be exercised and the extent of control of the strongest party. For example, does the stronger party have an effective veto, so that if the other party initiates proceedings in the specified forum, the stronger party can then intervene, those proceedings can be stayed and the proceedings can be initiated at the option of the party called? A jurisdiction clause should be included if the parties wish all disputes arising from their agreement to be decided by one or more national courts. A party who expressly submits to the courts of a particular jurisdiction will find it difficult to assert that these courts are not the appropriate place for the negotiation of disputes. In general, the rules of procedure for Italian arbitration are formal, but not as strict as the usual rules of procedure that govern the dispute. Technically, the arbitration ends with a decision called an “arbitral award” (lodo arbitral) and possibly an agreement to pay this amount within 180 days of the date on which the arbitrator accepted the dispute (I.C.P.C § 820). In reality, however, the conclusion of an arbitration dispute is a contentious issue because arbitrators can prolong the process for a long time. There are two types of arbitration in the United States rather than in Italy.
First, in “binding arbitration” (arbitrato rituale), the arbitral award (lodo arbitral) is comparable to a judicial and enforceable judgment in terms of damages of the parties. Second, in the context of a “non-binding arbitration” (arbitrato non-rituale) in Italy, the arbitrator makes a final decision similar to that of a contractual agreement; In particular, the parties owe each other an obligation, as they would in a contractual agreement. .