Legal aspects of the cross-border mediation process

Authors: Cristiana Marucci and Claudia Covata

 

The research carried out by FOMENTO Project focuses also on the legal aspects linked to mediation process in cross-border disputes, analyzes the impact of the EU Regulation on succession cases and investigates possible interdependencies and links of the Regulation No 650/2012 with Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters.

In particular, the Mediation Directive aims to introduce mediation in the European Union as a cost-effective method that offers a quick extra-judicial resolution of disputes, particularly in cross-border conflicts. Indeed, the Directive covers cross-border disputes – those disputes in which at least one of the parties is domiciled or resident in a Member State different from that of any other party. However, the Directive leaves to each national State the decision to implement the Directive’s rules also in internal disputes.

In order to implement the Directive, the Italian legislator enacted Legislative Decree no. 28/2010, making full mediation a precondition to the trial in certain subject matters. So Italian legislator has chosen to extend the rules and principles laid down by the Directive to internal mediation law and has foreseen mandatory mediation for disputes in a large number of categories. Due to the implementation of this Directive, in some countries a legislative process was initiated (e.g. Germany), in others the already existing mediation systems have been developed (e.g. Austria, Poland).

Due to the principle of free movement of persons and to the absence of borders that people have known for centuries, procedures of handling hereditary matters had become increasingly difficult to manage. The European commission identified the problem of cross-border disputes in hereditary matters in the increased mobility of persons  and implemented ‘Regulation No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession’ in 2012.

One of the main re-adjustments defined by the Succession Regulation is that it is no longer the principle of the deceased’s citizenship to determine the applicable law, but that of his/her habitual residence. Another elementary reform is that of the choice of law, which enables individuals to choose the law applicable to their inheritance before their death. Furthermore, the European Certificate of Succession has been introduced, harmonizing national differences in the inheritance administration.

 

About the Authors:

Cristiana Marucci is an Italian lawyer and mediator, President of the mediation network Resolutia. Gestione delle controversie

Claudia Covata is an Italian lawyer and mediator. Accredited trainer at the Ministry of Justice for the training of mediators in civil matters and in negotiation and mediation techniques.

 

Useful links:

FOMENTO Research Report: Mediation in cross-border succession conflicts and the effects of the ‘Succession Regulation’

FOMENTO Research Summary: Mediation in cross-border succession conflicts and the effects of the ‘Succession Regulation’

The implementation of the EU Mediation Directive into Italian mediation practice

International mediation: conducting a succession conflict assessment

Guidelines for professionals: Succession conflicts with a cross-border impact

European Code of Conduct for Mediation Providers