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.