Autore
Conte, Giuseppe

Titolo
Cultura della iurisdictio vs. cultura della mediazione: il difficile percorso degli avvocati verso i sistemi di A.D.R.
Periodico
Osservatorio del diritto civile e commerciale
Anno: 2012 - Fascicolo: 2 - Pagina iniziale: 175 - Pagina finale: 202

The debate on mediation and ADR has become particularly intensein Italy, since the Italian Legislative Decree No. 28/2010 established, in certain areas of civil andcommercial law, that the judicial procedure must be mandatorily preceded by mediation proceedings.This legislation has attracted much criticism from all areas of the legal profession, confirmingthat it is not easy to remove mistrust and hostility ingrained in professional practice andin well-established cultural concepts. The recent intervention of the Constitutional Court seemsto mark a setback in the development of the Alternative Dispute Resolution movement in Italy.The Court, in Judgment No. 272/2012, found the mandatory mediation process to be unconstitutionaldue to a lack of legislation (a Legislative Decree is an act adopted by the Governmentby a delegation of Parliament). This article seeks to demonstrate, in the wake of the experienceof other countries, especially the United States, how the success of mediation does not dependonly on legislative solutions, but also has to pass through broader cultural processes that providegreater involvement of the professional category of lawyers. The presence of legal experts, whoassist the parties and chair the mediation process, is a necessary factor that enables the parties toaddress the ADR procedures in full awareness. From this point of view, the distinction betweenthe so-called «interest-based system» and the «rights-based system» of mediation should beconsidered improper, because this distinction suggests rights and interests are separate worlds.It is paramount that each mediation model always considers the legal implications of the disputeamong the other factors. Cultural processes require not only the professional training oflawyers, but also the adaptation of the legal training programs of law schools. This is the onlyway to overcome the primacy acquired over time by the state model of iurisdictio, which is«adversarial» since it provides that the dispute resolution is referred to an impartial third party.



SICI: 2281-2628(2012)2<175:CDIVCD>2.0.ZU;2-S
Testo completo: http://www.rivisteweb.it/download/article/10.4478/72687
Testo completo alternativo: http://www.rivisteweb.it/doi/10.4478/72687

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