Mediation and State Civil Justice
Remo Caponi
University of Florence - Dipartimento di Diritto Privato e Processuale
Opinio Juris in Comparatione, Vol. 2, pp. 1-7, December 2011
Abstract:
The promotion of mediation is element of the access to the courts. Mediation should not be a remedy for inefficiencies of the state civil justice system, but should have an “added value” in relation to it, even tough the state courts work effectively and efficiently. Accordingly, mediation should not be encouraged in all cases, but only in those categories of disputes which are better suited than others to be resolved through mediation. One category is where the parties are members of a group or maintain a long-term social or economic relationship. The civil process is intended to ascertain the past and, as a rule, does not take into account the future. For this reason it often results in a conclusive breakup between the parties. Instead, mediation can broaden the perspective and help maintain future relations between the parties. Another category is that of small claims, often those of consumers. In these cases the average length of the civil procedure and the lawyer’s fees are disproportionate in relation to the small value of the dispute. So the consumer often does not claim his right before the courts. Mediation is an alternative that costs less than the civil procedure. Frequently, consumers injured by an illegal act are many and fall into a class. When there are questions of law or facts at stake which are common to the class, and the claims are typical, the most efficient solution is not an individual mediation but a class action eventually followed by a collective mediation.
The promotion of mediation is element of the access to the courts. Mediation should not be a remedy for inefficiencies of the state civil justice system, but should have an “added value” in relation to it, even tough the state courts work effectively and efficiently. Accordingly, mediation should not be encouraged in all cases, but only in those categories of disputes which are better suited than others to be resolved through mediation. One category is where the parties are members of a group or maintain a long-term social or economic relationship. The civil process is intended to ascertain the past and, as a rule, does not take into account the future. For this reason it often results in a conclusive breakup between the parties. Instead, mediation can broaden the perspective and help maintain future relations between the parties. Another category is that of small claims, often those of consumers. In these cases the average length of the civil procedure and the lawyer’s fees are disproportionate in relation to the small value of the dispute. So the consumer often does not claim his right before the courts. Mediation is an alternative that costs less than the civil procedure. Frequently, consumers injured by an illegal act are many and fall into a class. When there are questions of law or facts at stake which are common to the class, and the claims are typical, the most efficient solution is not an individual mediation but a class action eventually followed by a collective mediation.
Number of Pages in PDF File: 7
Keywords: Mediation, State Civil Justice
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1973735
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