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2019•SSRN Electronic JournalOpen access

Problem-Solving Justice and Alternative Dispute Resolution in the Italian Legal Context

Giuliana Romualdi

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Abstract

Over the last 20 years, the Italian legislature has invested in alternative dispute resolution (ADR) methods with the aim of reducing the workload of the courts. Despite the progress of the ADR movement in Italy, it very soon became clear that ADR could not become a true alternative to traditional litigation: the parties and their lawyers still appear to prefer the court. This essay will initially provide an overview of the recent developments of ADR in Italy, especially mediation, as a means of problem-solving justice. This will be followed by an analysis of why the mediation process has failed and how mediation should be enhanced by judges (judicial conciliation). Then, the paper will conclude by attempting to synthesise the links between judicial mediation and the principle of therapeutic jurisprudence.

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What this paper is about

Over the last 20 years, the Italian legislature has invested in alternative dispute resolution (ADR) methods with the aim of reducing the workload of the courts. Despite the progress of the ADR movement in Italy, it very soon became clear that ADR could not become a true alternative to traditional litigation: the parties and their lawyers still appear to prefer the court. This essay will initially provide an overview of the recent developments of ADR in Italy, especially mediation, as a means of problem-solving justice. This will be followed by an analysis of why the mediation process has failed and how mediation should be enhanced by judges (judicial conciliation). Then, the paper will conclude by attempting to synthesise the links between judicial mediation and the principle of therapeutic jurisprudence.

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Available abstract

Over the last 20 years, the Italian legislature has invested in alternative dispute resolution (ADR) methods with the aim of reducing the workload of the courts. Despite the progress of the ADR movement in Italy, it very soon became clear that ADR could not become a true alternative to traditional litigation: the parties and their lawyers still appear to prefer the court. This essay will initially provide an overview of the recent developments of ADR in Italy, especially mediation, as a means of problem-solving justice. This will be followed by an analysis of why the mediation process has failed and how mediation should be enhanced by judges (judicial conciliation). Then, the paper will conclude by attempting to synthesise the links between judicial mediation and the principle of therapeutic jurisprudence.

Key concepts: Conciliation, Alternative dispute resolution, Mediation, Political science, Economic Justice, Jurisprudence, Dispute resolution, Context (archaeology)

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