For a sustainable and co-existential justice

April 29, 2020
Editorial Focus Ripresa
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The versatility of the Italian system of civil justice that emerges from the analysis of the regulatory and jurisprudential evolution of the last decade is the result of a path not always aware of the potential achievement of a virtuous balance between mediation and judicial proceedings (in light of what established by article 1.1 of Directive 2008/52/CE).

The progressive consolidation of an integrated system of dispute resolution methods has freed mediation from a vision ancillary to the process, helping to enhance the amicable settlement of civil disputes, in addition to the physiological rebalancing of litigation rates, while restoring efficiency and effectiveness to jurisdiction.

In this context, the emergency situation presented by Covid-19 has led to the temporary suspension of ordinary procedural activity and, therefore, a substantial blockage of civil justice. The problem would remain unsolved in case of further extensions of blockage and even in the intermediate phase of resumption of activities with the use of remote communication systems for the conduct of hearings (the organization of which has been transferred to the heads of the individual judicial offices).

Undoubtedly, the gridlock determined by at least two months of suspension will be unavoidable, as will the further delays and deferrals associated with the intermediate phase. Furthermore, continued interruptions provide difficulties while managing recovery (considering the summer holiday suspension in August), the start of new processes (which are now on stand-by), and also the emergence of new litigation arising from contractual and non-contractual matters stemming from the emergency situation. As a result, a funneling effect will be created before judges, and cases will be distributed over time with delays stretching to a period of at least two years.

Nonetheless, the risk of a real “litigation explosion” is not solely a judicial problem to be faced with organizational tools within the administration of justice but underlies the deep economic and social crisis the country will face in the coming months whose dimensions cannot be properly estimated yet.

Innovative solutions that look at the problem in its complexity, offering prompt answers in a perspective of coexistence are obviously vital. In this critical phase, the country is becoming aware of the need for responses that draw on the so-called complementary justice, and in particular on mediation and negotiation tools. To this purpose, the “Manifesto of Complementary Justice to the Jurisdiction”* aims to give “a concrete response to the economic and social emergency”, without forgetting the dimension of potential post-emergency structural profiles for efficient, effective and sustainable civil justice.

Hence, we have been assisting the development of awareness that it is appropriate to support and promote the implementation of out-of-court methods, either preventive or subsequent to judicial proceedings, necessary for social pacification. It is essential, at this stage, to promptly adopt agile, rapid, flexible, effective, incentivized instruments that can enable us to deal adequately with the accumulation of pending cases and the threat of an exponential increase in the demand for justice. Above all, it is essential to set up systems that strengthen social cohesion at a time when fragmentation of the social fabric imposes consensual, and not adversarial systems. Moreover, mediation and negotiation (negotiation by lawyers before trial, ed.) have not stalled, but continue, thanks to video conferencing systems, to ensure the settlement of disputes without disruption.

Now is the time for mediation because now is the time for cohesion. This is the time when each person has a duty to make a fair, responsible, and co-existential contribution in terms of competence and participation.

Every person is therefore called to cooperate and collaborate for the rebirth of the country, especially at a time of inevitable crisis, when conflicts are likely to be exacerbated in the critical moment of social and personal relationships, in a perspective of solidarity that draws on the constitutional values that most deeply permeate our country.

In 1931, Albert Einstein wrote “Let’s not pretend that things will change if we keep doing the same things. A crisis can be a real blessing to any person, to any nation. For all crises bring progress. Creativity is born from anguish, just like the day is born form the dark night. It’s in crisis that inventiveness is born, as well as discoveries made and big strategies. He who overcomes crisis, overcomes himself, without getting overcome”.

We should work in these times of crisis not only to overcome the emergency phase, but to improve our world by the time this crisis becomes only a dramatic memory.




*The proposal of the Manifesto was born from the group of experts part of the “Technical Panel on extrajudicial procedures in civil and commercial matters” (of which the author is a member) established with the ministerial decree of December 23, 2019, by the Ministry of Justice. The ministerial initiative arose from the need for a thorough systematic recognition of existing out-of-court procedures and their possible increase in order to contribute to the deflation of judicial litigation and to the improvement of access to justice for all citizens. The aim of the Manifesto is to encourage reflection and discussion in a structural perspective, but also to coagulate ideas, proposals, and initiatives to be submitted to the Technical Panel of the Ministry to offer potentially useful solutions to the Government during this particularly critical phase.

Ministerial Panel on Extrajudicial Proceedings in Civil and Commercial Matters

The author

Marco Marinaro is a Lawyer Honorary Judge at the Court of Appeal of Naples, Arbitrator, Mediator. Professor of Mediation Law and ADR at the Department of Law – Luiss “Guido Carli” University, Rome.