Therapeutic jurisprudence cellular benign fibrous histiocytoma in the mainstream blog

The inefficiency of civil justice is one of the main cellular benign fibrous histiocytoma issues of the current political and institutional debate in Italy. There are various reasons for this inefficiency: despite a high productivity in terms of courts’ output, the Italian civil justice system is characterised by a high cellular benign fibrous histiocytoma level of litigiousness compared to other European countries. Delay in the resolution of disputes is also caused by cellular benign fibrous histiocytoma limited resources (both human and economic) of the justice administration, by frequent legislative changes, the low court fees, and according to some authors, by the high number of lawyers. Since 1990, sectorial reforms of the civil process have succeeded year after cellular benign fibrous histiocytoma year, but the poor results are there for all to see. The length of proceedings is less serious in the criminal cellular benign fibrous histiocytoma justice system thanks to the Code of Criminal Procedure (issued in 1988), which represented an overhaul of the system, with the introduction of alternatives to trial.

Legislative Decree no. 28/2010 was issued by the Italian Government to implement the cellular benign fibrous histiocytoma EU Mediation Directive (2008/52/EC), which imposed on member states the introduction of mediation procedures cellular benign fibrous histiocytoma for cross-border disputes on civil and commercial matters. For the first time, Italy had a uniform regulation on mediation, without distinguishing between domestic and cross-border mediation, applied to claims involving rights which can be freely disposed cellular benign fibrous histiocytoma of by the parties (so-called ‘diritti disponibili’). To solve the serious judicial backlog, the legislator has introduced a mandatory extra-judicial mediation attempt (Article 5, paragraph 1). But in 2012, Article 5, paragraph 1 was challenged before the Constitutional Court, which stated the unconstitutionality of the mandatory mediation attempt. After a few months, mediation re-entered into force in the Italian legal system by Decree cellular benign fibrous histiocytoma no. 69/13, converted into Act no. 98/2013. So, today, the new Article 5, paragraph 1-bis Legislative Decree no. 28/2010 provides that those who want to bring action relating cellular benign fibrous histiocytoma to a dispute over joint ownership, rights in rem, division, inheritance, family agreements, renting and commodate contract, renting of a company, damages arising from medical malpractice and healthcare liability, defamation through the press or by other means of advertising, insurance, banking and financial contracts, are obliged to attend a ‘first meeting’ before a mediation body recognised by the Ministry of Justice.

Despite the mandatory mediation attempt the number of the mediation cellular benign fibrous histiocytoma processes is low, mainly because of cultural problems. In a system based upon the predominance of judgment and cellular benign fibrous histiocytoma authoritative decision-making, it makes more sense for the parties to let the cellular benign fibrous histiocytoma judge decide rather than try themselves to solve their dispute cellular benign fibrous histiocytoma with a mutually satisfactory interest-based agreement.

Recently, Law Decree n. 69/2013 added a Article 185-bis (entitled “Reconciliation Proposal by the Judge”) in the Civil Procedure Code: the current version of the Article provides that the judge, at the first hearing or before the termination of the cellular benign fibrous histiocytoma evidence-taking phase of the proceedings, may suggest to the parties a settlement or conciliation proposal cellular benign fibrous histiocytoma to the parties, bearing in mind the nature, the value of the dispute and the issues, which can be resolved easily and readily. In order to prevent the parties from filing a motion cellular benign fibrous histiocytoma for recusal based only on the fact that the judge cellular benign fibrous histiocytoma has made a settlement or conciliation proposal, Article 185-bis of the CPC provides that the judge’s proposal cannot constitute grounds for his or her recusal cellular benign fibrous histiocytoma or abstention.

Judicial conciliation shall be the way to increase the use cellular benign fibrous histiocytoma of alternative forms mediation in Italy: the conciliation conducted in a courthouse offers a via media, combining some of the legal and moral gravitas of adjudication cellular benign fibrous histiocytoma with the flexibility and adaptability of ADR. In a system based upon the predominance of judgements and cellular benign fibrous histiocytoma authoritative decision-making, courts might have a leading role in the development of cellular benign fibrous histiocytoma alternative disputes resolution.

The role of the judge as a problem-solver is not far from the idea of Therapeutic Jurisprudence. Therapeutic Jurisprudence and mediation are closely linked non-adversarial perspectives of law which have compatible aims and similar cellular benign fibrous histiocytoma values and share a common background. TJ practices require judges to use a problem-solving capacity, dealing as they do with human problems, but TJ also has been applied in an effort to cellular benign fibrous histiocytoma reframe the role of the lawyers because it requires lawyers cellular benign fibrous histiocytoma to practice with a particular ethic and care to the cellular benign fibrous histiocytoma psychological well-being of their clients.

It is clear to everyone that the trial might be cellular benign fibrous histiocytoma unable to provide the most therapeutic consequence for the parties cellular benign fibrous histiocytoma involved, but the judicial conciliation model, in which judges themselves act as mediators and work with cellular benign fibrous histiocytoma the principles of Therapeutic Jurisprudence will give to the parties cellular benign fibrous histiocytoma the same benefits that come with any other form of cellular benign fibrous histiocytoma mediation/conciliation, such as the possibility to achieve resolutions that are more cellular benign fibrous histiocytoma tailored to the particular dispute.

GIULIANA ROMUALDI is a lawyer and adjunct professor in mediation cellular benign fibrous histiocytoma and ADR procedures at the University of Siena. Her research focuses on the links between mediation, judicial conciliation, and the principles of Therapeutic Jurisprudence. Among his previous works: Problem-Solving Justice and Alternative Dispute Resolution in the Italian Legal cellular benign fibrous histiocytoma Context, Utrecht Law Review, (2018), Dall’abuso del processo all’abuso del sistema giustizia, (2013); La mediazione dei conflitti, Teoria e pratica dei metodi di ADR (2012); La conciliazione amministrata in Italia: esperienze e tendenze, in Rivista dell’arbitrato, n. 2 (2005).

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