Policy e Vision

The Facilitate Conciliation (CONCILIAZIONE FACILITATA)

by Gian Marco Boccanera

 

Go To:


 

The Facilitate Conciliation (CONCILIAZIONE FACILITATA), in the intention of the writer, is an innovative procedure for the prevention or resolution of disputes. Through it the parties in conflict meet, accompanied by their trusted advisors, who have the function of promoting reconciliation, and by facilitators, looking for a possible convenient deal for each of them.

The facilitator or negotiator, as an expression of pax-appeal, wants to get an agreement,  in any case, in order to protect the maintenance of customer relations and common interests, and plays a key role because he promotes reconciliation, assists his client as a negotiator and directs the flow of Reconciliation to accredited dispute resolution service that he considers the most suitable for the subject matter. In this moment (April 29, 2010) it’s considered that in a medium-term future the number of Centers organized as Reconciliation organs that have obtained accreditation from the Ministry of Justice  is higher and it’s believed that they will compete  in the same market (market-place). So preferring the relationship with the facilitators will allow us, in strategic way,  to direct more or less effectively the flow of Reconciliation to the most suitable Conciliation Centre. It is expected (this is an expectation made on May 3, 2010 by Il Sole 24 Ore) that, from the entry into force of the law regarding the Conciliation as a condition of admissibility for subjects with high density of litigation (March 20, 2011), there will be about 1 million Conciliations to administer. This amount  should be managed not by traditional methods that are at risk of blocking Conciliation Centre, but with remote computerized systems, through which the facilitator will be the reference point  for his  clients and for the profession to which he belongs  by addressing the flow of conciliation. The facilitator is a MUCH MORE STRATEGIC FIGURE than the Mediator, because the latter manages the conciliation procedure, ONLY after it  has been activated. The facilitator is the trigger and the fuel of Reconciliation. The Mediator is the brazier and the combustive agent. The two figures are fully separate and distinct.



The " trusted facilitators” have the freedom to explore proposals or solutions. The Center for Conciliation chosen by the parties acts as a link , start-up and "trigger" of Reconciliation, through centralized services of tutoring, recovery and reference, networking, indication of possible "OPEN SOURCE"  solutions to be developed by the facilitators. The facilitators of the parties help to develop the bases of the agreement, assisting their respective parties and customers.



The Mediation Center provides its own mediator /tutor who will work ONLY in computerized way through digital document exchange  and video conferencing with facilitators and with the parties themselves via web. The parties at the Studio of their facilitators and the mediator at his Studio. Without physical movements of the parties nor their advisers nor the conciliator, the  physical limit of the Centre for Conciliation size is over as well as the time limit of the sequence of events in the Centre. The mediator then, recovering precious time, can effectively carry out his work in multitasking way, operating simultaneously on more Reconciliations. The minutes of the final agreement  are submitted and signed by the parties and their facilitators by PEC (Certified e-mail) with or without a digital signature and have a specific date of subscription. This final phase of conciliation, in order to avoid the prohibition of celebrating all the trail in digital way, as appears to be provided form the  Regulatory Decree (September 2010), can be effectively performed at the Center for Reconciliation "de visu” between the parties. Only in this final stage, then, the parties may well meet "live" to subscribe, along with their facilitators and the conciliator, the minutes of the Statement of Reconciliation. You will immediately understand that this activity can be easily scheduled on the agenda of the center, being a purely formal stage, which was reached with the precious preparatory work carried out remotely by the facilitators (along with their parties) and the mediator, all from their Professional Studies. This last phase implies a standardization of acts and behavior that has no parallel with the preparatory stages of the agreement which for nature aren’t budgeted in terms of duration and number of required meetings. By doing the most activity remotely through the Professional Studies, the center will work only on the formalization of the agreement, assigning to each Conciliation a standard time, so easy to program with no surprises, no shifting.


It will be understood then, as conceived in this way, Reconciliation can be quite pervasive because it  will be immediately  implemented  from the professional studios  because it  needs , along with the basic training of professionals, facilitators, just a PC, a web cam, an ADSL broadband connection, a low-cost or even free (like Skype) software of interconnection.  These basic structures are already  in professional studies. Or at least in those of younger people. The opportunities in terms of compensation and professional development, given the huge market, are of great interest. If these opportunities  could then find  place in the subsequent enactment of legislative decrees implementing Law 69/2009, they would have a high value also on the political side, without sources (ZERO social cost), and as directed in favor of a category, that of professionals, who can count on less than others on alternative forms of welfare and support in time of severe economic crisis that erodes significant percentages of professional fees. This category, in this moment, has more than two million members.



The timing of the Conciliation facilitated vary, depending on the value of the agreement, between 1 and 30 days. The facilitators of the parties, as trusted advisors, will be paid by the same professional fees or by  lump sum pre-arranged in advance. The Center for Reconciliation and the mediator will be paid according to fees settled by the Centre, subject to the possibility of recovering the tax benefit for both parties, as required by Law 69/2009 and Decree No. 28 of 04.03.2010.

The Facilitate Conciliation then, can be effectively activated ex-ante, before the dispute arises, when it begins to show the first signs. At this point the work of the professional facilitators becomes even more important, since they are the ones that operate, in a preventive way, CRASH TEST of the Agreement and improve its hold on a shared way.

Prevention is better than cure. The Conciliation facilitated so is better.

With an effective metaphor it’s observed then that the facilitators, together with their clients, operate on the success of the Agreement (= resilience), by means of CRASH-TEST (stress test), which may indicate the consequences that can be produced in a rupture and subsequent address modification of the conditions, as real AIR BAG to be decided - in a strategic manner and with the required professional help - where, how, why and when to place.

I think that in the “hypothesis” of the "de iure condendo" we have to think about this.

Gian Marco Boccanera