Biology Reference
In-Depth Information
availability, of waiver of transfer, thus property rights in general). This method of
dispute settlement is indubitably of great significance because, even though it is
obligatory, it is not a substitute for the ordinary systems of justice. In other words,
although this procedural stage is obligatory, it must in no way
“preclude access to
justice.”
Indeed, even when the professional bodies that are in charge of it have a
requirement of independence (for example, judges) and offer conciliation/media-
tion services in the long term, they do not have the faculty to pronounce any
decisional sentence (which arbitration bodies may do). The only pronouncement
made by “
mediators”
that can produce juridical effects between the parties is the
“
Statement of Agreement
” that, once it has been examined by the presiding judge in
whose district the professional body is and has been found to be both formally and
substantially in order, may become an actual sentence by means of a decree of
homologation. It is of interest here to see what bodies may aspire to become an
“Organ of conciliation.” Article 16 of the Legislative Decree specifies that only
those public and private bodies that can guarantee efficiency and reliability will be
permitted to intervene in mediation; inclusion in a special register is also necessary.
It should also be noted that the councils of professional associations might, after
receiving authorization from the Ministry of Justice, establish special bodies from
their own staff and on their own premises to deal with matters relating to their
specific spheres of expertise. Another important innovation, which can also have a
useful deterrent function, is the provision of special rules concerning the payment
of court costs. In contrast to the rule that has the loser of the case pays the costs, the
regulations examined here contemplate the possibility that, in those cases where the
sentence pronounced in the ordinary proceedings exactly corresponds to the agree-
ment set out in the conciliation phase, the judge may decide not to recoup the costs
incurred by the winner if the latter rejected the agreement at the earlier stage and,
moreover, sentence him/her to repay the loser's costs and a further sum as a
contribution to court expenses. The possibility of being sentenced to pay damages
remains, if the judge decides that the party has undertaken a “reckless” lawsuit, as
well as a subsequent sentence to pay the fees of experts who may have assisted the
organs of conciliation in lawsuits where specific technical knowledge is required.
In the light of the innovations in civil proceedings relating to medical liability
disputes, the new institution of mediation should be welcomed as, in the future, it
could become a valuable instrument for the settlement of disputes. By taking a
constructive approach, mediation allows the parties involved to focus on the real
interests at stake and will, if time scales are evaluated appropriately, enable
favorable agreements for all parties to be reached without long delays. Above all,
this new institution will make it possible to avoid high legal costs, which are always
incurred when experts' reports or court-appointed technical consultancies are
involved. Now, therefore, it seems possible that doctors in general and veterinarians
in particular will have to face a significantly smaller number of court cases than in
the past also because veterinarians often face court action as a consequence of the
owner's pique or resentment at the loss of an animal, rather than as a result of
actual, tangible negligence on their part.
