Substantive Power of Attorney in Mandatory Mediation Proceedings
Abstract
This article examines the recent ruling of the Italian Court of Cassation concerning party representation within mandatory court-ordered mediation proceedings. The decision reaffirms that personal attendance represents the foundational pillar of alternative dispute resolution, allowing delegation only through a substantive power of attorney granting disposal rights over the disputed claims. Counsel lacks statutory authority under Article 83 of the Code of Civil Procedure to authenticate the principal's signature on substantive powers of attorney. Consequently, in summary order opposition proceedings, attendance by counsel lacking validly authenticated authority results in non-fulfillment of the statutory procedural condition and the final dismissal of the creditor's claim.
Key Legal Takeaways
- Centrality of personal attendance: Mandatory mediation requires genuine direct engagement between the substantive parties in order to bring to light the underlying interests behind the dispute.
- Autonomy of transactional delegation: A special power of attorney must unequivocally confer authority to dispose of the contested substantive rights and cannot coincide with a mere litigation mandate.
- Lack of certifying authority: Legal counsel has no statutory power to authenticate a client's signature affixed to a substantive power of attorney granted in counsel's own favour or to third parties for mediation proceedings.
- Fatal procedural inadmissibility in summary order proceedings: In litigation arising from opposition to a summary payment order, any defect in valid appearance falls upon the respondent creditor, entailing revocation of the payment order.
