World of Collaborative Practice > The Genesis of Collaborative Practice In Italy

Posted on July 26, 2013


From Marco Calabrese, Italian Lawyer:

In November 2009, in order to drink at the fountain of new developments in Europe, a delegation from the Italian Institute for Collaborative Law travelled to London to examine local developments in Family Mediation and the brand new discipline called Collaborative Law or Collaborative Practice.

The version brought back to our country was slightly modified from the already existing model described above.

Not only is the consent of the lawyers necessary in order to begin the collaborative proceeding but necessary as well is the undersigning on their part of the same agreement signed by the parties: with however, a fundamental difference from mediation.

The difference arises from the clause requiring the lawyers to withdraw from the case in the event of a failure of the mediation process (the essence of Collaborative Practice).

This proceeding, which is very similar to the Italian formulation of professionally balanced co-mediation, had already existed for many years in the United States and was just being introduced into Europe: it was called – as we said above – Collaborative Law (or Collaborative Practice) and could not/would not be relegated to the sphere of family law, being as it was a technique that could be applied in all civil disputes relating to human relationships in which it was foreseen that the relationship of the parties concerned would continue over time.

Thus, within the space of a few months from the end of 2009 the Institute was founded and associated to the International Academy for Collaborative Practice which started up courses and activities leading to awareness of collaborative law among hundreds of Italian lawyers.

Early studies and daily practice show differences – at times even important ones – between the Anglo-American model of collaborative practice and the continental type. In Anglo-American practice, in fact, the interpretation of marriage as a “partnership” to some extent conditions the collaborative proceeding, where a predominant part is established with the division of the family assets. Such problems exist only in part in Continental Europe, where the different juridical culture establishes more precise provisions for purchases iure successionis – and all purchases made by the spouses before and during the marriage in general.

There is also a greater tendency to dissolve the matrimonial bond in Protestant countries, which makes the Continental approach to Collaborative Practice even more dissimilar. In fact, the theme of a “fresh start” -relocation, new life, new job, new family- is strictly intertwined with Anglo-American culture (mainly American), as the feeling of “independence” is a deep component of that social structure.

These themes are nearly unknown in Catholic Societies, where families frequently have dwelled in the same geographical area for centuries. As a result, a pure “fresh start” is hardly thinkable through the depths of our conscience (i.e. see “The Moral Basis of a Backward Society” by E.C. Banfield, 1958 – about the concept of Amoral Familism in Post War Southern Italy). The studies upon Familism, as the great American Sociologist noticed, lead European Sub-Cultures to influence in a deep manner all the activities of new couple, even their own destiny as a family. As a matter of fact, the new house, the job, the network of r relationships will be provided by the families of origin, in many Non Protestant Countries.

However, the current Anglo American romantic ideal of a “fresh start” rather recalls the idea of a “social suicide” on this side of the pond. This peculiar attitude can deeply affect also the emotional acceptance of the consequences of divorce, while paradoxically the financial and legal consequences can be handled more easily (i) because division of assets is pre-settled, (ii) because the divorced spouse is more likely to return under the umbrella of the family of origin than in the US/UK.

The Collaborative Practice aims at reducing the emotional consequences of a divorce and minimizing the harm for the children, in its original model. I am persuaded that this concept will survive also in Europe, albeit in a different form. Perhaps the interest of the children of the couple will be prevalent whilst the emotional consequences of the divorce itself will be underestimated, compared to US/UK proceeding.

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