Processo, mediazione e modelli di giustizia

This paper aims to illustrate some of the characteristic of the participatory
justice that promotes new forms of dispute resolution, as does mediation,
based on voluntariness and confidentiality, as well as the participation of all
parties in the management of conflict. This model of justice defines the balance
between process and alternative dispute resolution methods oriented by
a principle of subsidiarity. According to this principle, the judicial process must
be regarded as the last way to use it when others have not led to the resolution
of the dispute. After a brief analysis of European policies and of the Directive
2008/52/EC introducing civil and commercial mediation for cross-borders
disputes, the article focuses on the choices of the Italian legislator, affirming
the priority of jurisdiction and configuring mediation as one of the phases of
the process. The models of civil justice theorized by US and Canadian doctrine
appear to be different, as they give priority to mediation and overturn
the relationship between the process and consensual dispute resolution tools
that we observe in Europe and in Italy.