Mediation on Trial: Incongruencies within a Traditional Legal Paradigm

This paper seeks to demonstrate that the insertion of mediation into a traditional system of justice produces incongruencies that could be resolved by modifying the framework of the justice system itself. Over the last thirty years, the legal literature has tried to assimilate mediation into the justice system by transforming the alternative method of mediation into an adequate method, in line with the mainstream judicial values. However, there is evidence to suggest that madiation is a conflict resolution practice that presents itself as an anomaly (as argued in Kuhn's theory of paradigm shift) in the legal model of modernity. The underlying principle of participation and the features of the mediation process are at odds with the principle of authoritative decision-making and the formal process on which the traditional judicial system is based. An efficient strategy of legal harmonization requires a change in the general theory of justice as a process that makes rights effective and recognizes the citizen's interests.