The conciliation model in the CTU

The facilitative model: dialogue, interests, solutions

In relation to what has been stated, it is important to dedicate the concluding reflections of this contribution to the model proposed for carrying out the conciliation experiment by the office technical consultant. In truth, there are no specialist studies or treatments on the topic and much is referred to practices linked to entirely personal behaviours, frequently gained from experiences disconnected from respect for effective methodologies in the conflict context.

On the other hand – as we have observed – the CTU itself, like other actors involved, suffers from a cultural deficiency in alternative and complementary procedures for composing the conflict. And on the other hand there is a varied series of approaches and methodologies that accompany the intervention of the judicial auxiliary in the conciliatory action, many of which are characterized by poor knowledge of the typical dynamics of the conflict and its specific management methods.

The model proposed here takes inspiration from the field of facilitative dispute resolution methodologies. These consider a conciliator who supports and stimulates communication between the parties, encouraging the exchange and research of the interests underlying the conflict, all to allow them not only a constructive dialogue but also a guided introspection of their own interests and needs, in order to identify a satisfactory solution of agreement. In short, a solution based on needs and interests, and not on the claims and positions of the dispute.

The evaluation model: proposal based on data

The model adjudicative (also called evaluative), instead, directs the conciliator to evaluate the validity of the parties’ claims, in order to formulate a proposal whose content, obviously, is based on the opinion that he has formed regarding the parties’ positions. This determines the attitude of the parties in the proceedings: each of them will bring the useful arguments to influence the judgement, in order to obtain the most favorable proposal, and, correlatively, the conciliator will seek the solution right of the dispute; his proposal will be based on the opinion he has formed of the validity of the opposing positions of the parties.

Comparing models and application practices

As is well understood, the first model is the antithesis of the second. In the first, the validity of the claims is not relevant, but the satisfaction of the interests and needs of the contenders. The fundamental advantages of the facilitative mediation model are precisely those of enhancing the atypical nature of the autonomous resolution of the dispute and in making the agreement become the “fruit” and elaboration of the two parties. For this reason it becomes respected and long-lasting, since the strength of that agreement is given by the parties themselves who recognize it as the best possible agreement.

There is no doubt that instead – as was observed – the ideas of conciliation linked to the intervention of the official technical consultant are very different, however they all have in common the idea that, essentially, he must suggest (or in some cases, worse, impose) the elements of the agreement on the basis of his idea of ​​the agreement itself.

These basically find inspiration in the model adjudicative where, ultimately – as already observed – the conciliator formulates “his” proposal for an agreement. On the other hand, one cannot help but observe how the legislator also seems to want to refer to this model in the content of art.696 – bis of the Civil Code. Preventive technical consultancy for the purposes of settling the disputewhen it indicates “before filing the expert report, the consultant attempts – where possible – to reach a conciliation between the parties “, thus making it clear how the consultant should be inspired in his conciliatory action by the expert findings.

In this sense, the decision on the agreement would therefore fall within the scope of the technical decisions taken by the consultant and not so much in the will of the parties, provided that the expert witness is not so skilled and prepared as to lead, in any case, the parties to discuss this level following a complete investigation into their interests and needs. Even if in general the model distances itself from the more philosophical (perhaps fundamentalist) one of conciliation, for those who base their daily experience in judicial matters, one cannot fail to observe how in practice this approach, in several cases, has its own usefulness and must therefore be followed.

This is particularly true in circumstances where the consultant is asked to determine or express specific data. In fact, we cannot fail to recognize that there are expert assignments where the “data”, the “number”, becomes essential to provide the “third” element and the term of reference to the parties who, otherwise, would remain inexorably anchored to their own ideas and claims.

Think of the determination of the border between two properties: how could the disputing parties take advantages and disadvantages into consideration or rather study alternative solutions and options for improving their idea, if the third party did not first express itself by outlining the results of the investigations and specifying the actual position of their property limit? But having said this, thinking about the consultant-conciliator who provides the “number” does not necessarily mean thinking about the transaction model: indeed that element essentially represents the measure from which we start (we could say the means) but, be careful, not the one we arrive at (the result)!

Technical data is not the solution

And this is precisely the operational discriminant that the office technical consultant must fully understand: even if he is forced to (or wishes to) formulate the “data”, he must, immediately after, shift the attention of the protagonists and their discussion on the implicit and hidden aspects, on the most intimate issues of the dispute, constituted by the interests, expectations, fears and needs of the parties, broadening the dialogue and offering a different perspective of the conflict.

In short, the data serves as a starting point – we could say as a pretext – for the conciliator, but it is not the point of arrival (and cannot be the point of arrival). You can also start with a “number” but the conciliator’s secret is not to “divide it” by decreasing its size, but to “multiply” it to increase its quantity. Otherwise the result achieved would be a transaction (division of quantities) and not a conciliation (satisfaction of interests): we would essentially have limited ourselves to resolving the dispute rather than extinguishing the conflict.

Conduct methodically, sensitively and effectively

On the other hand, the consultant’s experiment is conducted and regulated by him, both in the modulation of the times and in the management, through the best techniques capable of proposing an operational framework of effectiveness and serenity to the subjects involved, always taking care to put at the center of attention what is not seen in the conflict rather than what is evident in the eyes of the contenders.

In this sense, in conclusion, we could therefore say that the conciliation of the office technical consultant must mainly be proposed and attempted in a “neutral” context, i.e. not conditioned in any way by the expert findings, since these are the ones that weigh on him and his conciliatory work. But even when the consultant is in the conditions, or believes that he cannot avoid the expression of the “data”, the conduct to be followed is the one we have examined.

For these reasons it is therefore essential to entrust tasks with conciliatory purposes to trained and qualified individuals who are able to implement an approach devoid of approximation – or even worse, superficiality – and allow the parties to have the opportunity to carry out a serious and professional experiment. On the other hand, despite not having its own ritual structure, the attempt at conciliation during a technical consultancy must meet the requirements of functionality, effectiveness and professionalism, conditions of which the technical consultant is the guarantor.

In conclusion

The office technical consultant performs an important function for the judge, providing the specialist knowledge essential to allow him to reach a decision. But today the work of the auxiliary is enriched with a further value, which we could define as substantial, in the objectives that the jurisdiction assigns, both in the context of the procedure art.696-bis cp.c. and through established practices in judicial offices.

All this means that the consultant is prepared to propose and manage a particular and complex phase to lead the parties from the imposed order to the negotiated order, from the plan of rights to the plan of interests, to achieve a shared, lasting and respected conciliatory result. By doing so not only the interests of the litigants, but also that of the public jurisdiction, which has long placed the deflation of the judicial load at the center of all the process reform initiatives of recent decades.

The system of negotiated (or non-adversarial) order is an alternative to that of imposed (or adversarial) order in the regulation of conflicts. While in the system of imposed order the parties rely on a third party who decides on the basis of law, in the system of negotiated order the parties retain the decision-making power and work together with a cooperative attitude to seek a solution based on their interests and needs.