Collaborative Divorce as it works, where it works. Can you collaborate "perforce"?

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” www.familylawitaly.com [email protected]

In another article we have examined how Collaborative Divorce has been adopted in Italy through a National Statutory Law 162/2014- and how -as a result- collaborative cases are flowing in thousands (see: https://www.dhirubhai.net/pulse/collaborative-divorce-has-now-taken-hold-italy-status-marco)

In fact, the diffusion of Collaborative Law in my Country depends especially on the social/legal characteristics of the Italian legal system: the Parliament has made of Collaborative Law (a.k.a. Negoziazione Assistita) a mandatory pre-trial ADR for all the civil and commercial cases below 50.000 Euros and a non-mandatory -though extremely convenient- procedure for Family Law matters that completely spares the recourse to the Courts.

The advantages of the new procedure are so great and so many -especially for the family matters- that Collaborative divorce is quickly ousting the traditional joint applications for Separation and Divorce (which represented already over 90% of the applications for Divorces): the traditional Attorney’s Settlement is being replaced by the 4ways meetings that take place after a participation agreement

Briefly, the shorter duration of the new proceedings, the lower fees that need to be paid to the attorneys, the absence of a Court whatsoever (and consequently no Court’s fees to be paid) made of our Collaborative Proceeding -among the other advantages- a very popular resource during the last two years.

Another great advantage is the confidentiality of the proceedings especially as far incomes and taxes are concerned. No need to explain how much italian couples can be happy about this.

A collaborative divorce is often described as a procedure where -as the four ways negotiations progress and the parties find it necessary to do so- the partners may agree to hire counselors or experts to assist during discussion of support obligations and especially property division.

But in an Italian family law procedure like separation or divorce there is no room for property division. Couples can only argue on the child maintenance, whose custody is shared by default (except very grave cases where sole custody is to be adopted).

Wives hardly ever get a personal support, nowadays. Additionally, we live in a no-fault jurisdiction. There is very little to argue upon, as you can see.

Therefore couples go through Collaborative Divorce mainly because it’s cheaper, shorter and more convenient.

You may as well sign a 4way participation agreement, in fact, and the following 4way agreement without trusting in the procedure for a single minute.

You can talk of the weather all the time, while your lawyers will do the dirty job for the settlement over the phone.

It’s like an atheist who confesses his sins because he likes having a nice talk with the priest. (see the picture above)

You may say that sitting at the same table, even for a few minutes “is something, anyway”. But I cannot help the old question to occur to my mind.

Can you make ADRs mandatory?