As is known, from March 21, 2011, for all civil disputes that are aimed at one of the cases described in art. 5 D. Legislative Decree No. 28/2010, you must bring the attempt at conciliation before submitting the dispute before the competent judge. With one thousand extensions famous decree has been established that disputes concerning condominium, damages resulting from the movement of vehicles and boats, the condition of admissibility contained in Article 5 of that order, will not apply from 21 March 2011 but with the one-year extension.
Here you do not want to enter into the decree, politically, but some questions requiring answer under the same legal scope.
I want to limit to only one aspect that has just escaped, and that concerns the hypothesis of a mediation request made by Tom, the common citizen, who is seeking compensation for damage suffered as a result of an operation performed by Dr . Caio, for which responsibility has been identified medical professional. Tom turns to his lawyer wanting to sue Dr. Caius. The lawyer, correctly, warns Tom that before we can proceed before the court of law, we must attempt to bring a civil mediation at a mediation bodies accredited list maintained by the Ministry of Giustizia. Così viene formulata la domanda di mediazione, alla quale il Dott. Caio ha interesse a rispondere difendendo i propri diritti, tra i quali rientra anche quello della copertura assicurativa della quale lo stesso beneficia.
Il Dott. Caio si rivolge al proprio legale affermando di avere comunque un contratto di assicurazione con la Societa X che copre la dichiarata responsabilità medica dello stesso. L'imbarazzo del legale è comprensibile, in quanto non è stata prevista nel decreto l'ipotesi di chiamata del terzo in garanzia. E l'imbarazzo sarà ancora piuù forte quando fra un anno anche le controversie che hanno come oggetto il risarcimento del danno derivante da sinistri stradali dovrnno essere risolte spesso with the call of the third.
In the silence of the law, we interpret the law and subject Members to the practical application of the rules that we can not combine the rules laid down in the decree instituting the civil mediation with the provisions of our code of ritual involving the parenchyma of the third guarantee and, even, the intervention of the third.
In the opinion of the writer Dr. Gaius can not play without the mediation can call their own insurance as collateral. In fact, if there was no call in the insurance brokerage, in establishing civil insurance will no longer be called, as it has not participated in mediation and had the opportunity to have access to a form of alternative dispute resolution with respect to the canonical in the Code of Civil Procedure. All this would also lead to the detriment of the doctor, if he were recognized medical professional liability insurance, will be sentenced to pay damages without being eligible for insurance coverage.
A significant problem since the spirit of the decree and mediation are manifested in the possibility of reducing the burden of this litigation in the courts and justices of the peace, but we can not guarantee effective protection and an effective right of defense against anyone who suffers a legal action.
A problem that, oddly, the legislature has not resolved or at least thought to solve this kind of litigation since that undertake insurance, are traditionally the ones who avoid clogging the courts and justices of the peace for the strong position of good-natured composition inherent in them.
Therefore it is obvious that the person called by a request for mediation may have the right to participate in their own insurance in respect of resolving the dispute without the need for a review, providing greater protection to those who ensuring it is preserved from his professional activities.
Otherwise I would say that D. Bye-law has ncostituzionalità's obvious both for what concerns the art. 3 of the Constitution for what concerns the art. 24. the same fundamental law.
The same concerns the intervention of the third. The question is whether the third person is introduced to the action in response to mediation or, if the judge should postpone the parties by the Ombudsman to bring in a comprehensive and coordinated attempt by the Decree. Strictly speaking the law, the answer can only be positive in the sense that if the judge finds that there is an intervention by the third or not to admit it, or, as he admits, can do so provided further experiment of the attempt at conciliation.
Queste sono delle semplici osservazioni che mi pongo e prospetto in attesa della concreta attuazione del decreto e del suo impatto con il procedimento civile, conscio che solo la giurisprudenza e la prassi potranno dare risposta a questi quesiti e non il legislatore.
Avv. Luca La Cava (da overlex.com del 2.3.2011)
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