Giustizia consensuale No 2/2024: Abstracts

The second challenge of 2024 of Giustizia consensuale (printed by Editoriale Scientifica) has simply been launched, and it options:

Tommaso dalla Massara (Professor at Università Roma Tre), Per un’ermeneutica della certezza nel processo civile romano: tra regula iuris e determinazione pecuniaria (For a Hermeneutics of Certainty within the Roman Civil Course of: Between Regula Iuris and Pecuniary Willpower; in Italian).

This contribution provides a mirrored image on procedural certainty, ranging from the Roman classical course of. Specifically, essential is the concept that, on this procedural system, certainty is to be associated to the rule of ‘condemnatio pecuniaria’. Thus, certainty is translated into the determinacy of the pecuniary sentence. What emerges is a peculiar manner of understanding judicial exercise, which is characterised by the alternativeness between the groundedness and groundlessness of the declare (si paret/si non paret oriented to a certum), versus the speculation by which the evaluation is left totally to the decide.

Beatrice Ficcarelli (Affiliate Professor on the College of Florence), L’acquisizione di informazioni e «show» nella negoziazione assistita da avvocati: la tessera che mancava (The Acquisition of Data and ‘Proof’ in Negotiation Assisted by Legal professionals: The Lacking Piece of the Puzzle; in Italian).

The current reform of ‘negoziazione assistita’ (attorney-assisted negotiation process) introduces throughout the process a so-called out-of-court instruction, by the acquisition of statements from third events on details related to the topic of the dispute and the request to the opposite get together to declare in writing the reality of details unfavorable and favorable to the requesting get together. This can be a hanging innovation that opens up new eventualities within the institution of details additionally for the aim of the potential future judgment in case of an unsuccessful negotiation. Absolutely the protagonists of the proceedings are the attorneys, on the unfailing prerequisite of the duties of fine religion and loyalty incumbent on them to amicably resolve their purchasers’ dispute. The principle objective of the brand new guidelines is to allow them to amass all the knowledge that may lead, in the easiest way, to the settlement of the dispute.

Antonio Maria Marzocco (Affiliate Professor on the Università degli Studi della Campania Luigi Vanvitelli), Tentativi obbligatori e facoltativi di conciliazione nell’ecosistema digitale regolato dall’AGCom (Obligatory and Optionally available Makes an attempt at Conciliation within the Digital Ecosystem Regulated by AGCom; in Italian).

Technological developments have broadened the competences of the Communications Authority (AGCom) and the extent of its conciliatory perform. This perform is now not restricted to the digital communications sector (particularly for disputes between customers and operators), however extends to different sectors of the digital ecosystem, similar to audiovisual media companies and video-sharing platforms. The essay identifies the primary sources which have assigned AGCom the duty of regulating procedures for extrajudicial dispute decision: the regulation establishing the AGCom (Regulation No. 249 of 1997), the digital communications code (CCE) and the consolidated textual content on audiovisual media companies (TUSMA). The Creator factors out that these sources characterize the premise of a number of obligatory or voluntary conciliation makes an attempt. Their regulatory self-discipline is converging in parallel with the technological convergence among the many numerous sectors of the digital ecosystem.

Alessandro Fabbi (Affiliate Professor on the College of Catania), Contratto e processo nella nomina congiunta dell’esperto ex artwork. 473 bis.26 c.p.c. (Contract and Course of for the Joint Appointment of an Professional Pursuant to Artwork. 473 bis (26)of the Italian Code of Civil Process; in Italian).

The article analyses the newly launched joint-appointed skilled, within the context of the proceedings for households and people, referred to in article 47 -bis(26) of the Italian Civil Process Code. The contribution offers with its operational features, notably centered on the core of the settlement, in addition to with – formulating proposals on – the doubtful nature of the device at challenge, positioned within the dynamical context of the civil course of, however undoubtedly representing a personal contract between the events and the skilled.

Observatory on Laws and Rules

Mauro Bove (Professor on the College of Perugia), La domanda di mediazione (The Petition for Mediation; in Italian).

The Creator examines the content material of the mediation request, evaluating it with the content material of the judicial utility, to establish structural variations and variations of their authorized ‘studying’. Ranging from the exclusion of the paradigm of invalidity from the sphere of mediation, sensible implications are drawn bearing in mind the completely different factors of view that the disaster of cooperation entails: whereas mediation appears to be like on the human relationship, searching for to fix its breakdown, judicial proceedings concentrate on the infringement of a substantive proper and the respective ascertainment.

Edoardo Borselli (Analysis Fellow on the College of Florence), Mediazione e processo civile riformato: quando il giudice dispone l’invio? (Mediation and the Reformed Civil Process: When Does the Decide Order the Case to Be Despatched to Mediation?; in Italian).

This text investigates the time frames by which a decide can order the referral to mediation, each when the events haven’t happy the procedural situation required by regulation and when the decide intends to make use of court-ordered mediation. Specifically, the article focuses on the likelihood that such a referral takes place, throughout the process launched by the Cartabia reform and amended by the Regulation No 164/2024, following the preliminary checks beneath Article 171-bis of the Italian Civil Process Code, when the decide finds that the procedural situation required by regulation has not been happy. The conclusion helps the admissibility of such a procedural strategy, selling a scientific and teleological interpretation of the introductory section of the trial, consistent with the choice No 96/2024 of the Constitutional Courtroom, prevailing doctrinal orientations, and practices developed inside judicial workplaces. Moreover, the article analyzes the connection between referral to mediation and opposition proceedings to injunction orders, and it concludes by discussing the keep of the trial through the extrajudicial course of.

Observatory on Practices

Silvana Dalla Bontà (Professor on the College of Trento), Silvia Toniolo (Coordinator of German language programs on the College of Trento Language Centre) and Federica Simonelli (Accredited mediator on the Chamber of Commerce of Bolzano, JAMS Variety Fellow), La mediazione come strumento di integrazione. Potenzialità e sfide dell’insegnamento interdisciplinare e bilingue della mediazione (Mediation as an Integration Device. Potential and Challenges of Interdisciplinary and Bilingual Mediation Instructing; in Italian).

The paper focuses on the ADR instructing expertise hosted on the Istituto di Diritto Italiano/Institut für Italienisches Recht (Institute for Italian Regulation) of the Universität Innsbruck. Provided in a singular context – i.e, within the context of the European Area Tyrol-South Tyrol-Trentino, a European Grouping of Territorial Cooperation with European authorized character – the course on Various Dispute Decision Mechanism, with a particular concentrate on Mediation, is bilingual (Italian and German). By adopting an interdisciplinary and practice-oriented strategy, the 2 lecturers of the course – one, a full professor of Civil Process; the opposite, a translator in Italian/German and skilled in cross-culture communication – walked college students by the complexity battle administration with a view to reaching a sustainable resolution through mutual settlement. Towards this background, on the one hand, data of efficient communication fundamentals and delicate expertise has confirmed important to take care of multi-linguistic and multi-cultural disputes. Then again, mediation has confirmed to be an efficient technique to foster cohesion and resilience in a society which is more and more advanced, multi-faceted and, thus, difficult.

Alessandro Triolo (Doctoral Candidate on the Università di Roma Tor Vergata), Tra decisione algoritmica e mediazione robotica (Between Algorithmic Determination and Robotic Mediation; in Italian).

By inspecting the theoretical functions of Synthetic Intelligence (AI) in civil justice, within the two ideas of ‘artificially clever judgment’ and ‘clever organisation of judgment’, this paper assesses AI’s applicability to the sphere of Various Dispute Decision (ADR). Beginning with the speculation of a ‘robotic mediator’ able to facilitating battle administration amongst events, the evaluation results in the irreconcilability of such a mannequin with the standard perform of mediation, thus highlighting the necessity for the re-humanization of dispute decision strategies. The potential extension of AI methods might be utilized to analysis instruments, which, though presently underutilized within the Italian authorized system, would possibly – in a de iure condendo perspective – encourage events to settle disputes extrajudicially based mostly on a forecast of the dispute’s final result, not directly contributing to the deflation of litigation.

Convention Proceedings

Matteo Lupano (Affiliate Professor on the College of Turin), Il futuro della mediazione familiare (The Way forward for Household Mediation; in Italian).

This paper attracts on the introductory remarks to the Convention ‘The Way forward for Household Mediation. The Obligatory Mediation in France and in Italy after the Cartabia reform of Civil Justice’, held on the College of Turin on 19 January 2024. The contribution highlights the effectiveness of household mediation in facilitating the consensual decision of conflicts, notably in circumstances of separation and divorce, by decreasing battle and safeguarding minors. The Creator summarizes the important thing features of the controversy on the obligatory nature of the method, emphasizing the necessity for correct coaching for attorneys and mediators and for making certain the standard of the service.

Marc Juston (Magistrat honoraire; formateur et médiateur inscrit auprès des Cours d’Appel de Nîmes, Grenoble et Aix en Provence), La mediazione familiare in Francia: sullo slancio della giustizia del XXI secolo (Household Mediation in France: On the Momentum of Twenty first Century Justice; in Italian).

Drawing on the speech delivered on the Convention ‘The Way forward for Household Mediation. The Obligatory Mediation in France and in Italy after the Cartabia reform of Civil Justice’, held on the College of Turin on 19 January 2024, the paper analyses the significance and use of household mediation in France as a part of Twenty first-century justice. It outlines the regulatory foundations of mediation, its voluntary nature, and, in some circumstances, its encouragement by the decide or compulsory implementation. The Creator highlights the function of the Juge aux Affaires Familiales and the effectiveness of mediation in resolving household conflicts, decreasing litigation, and selling the well-being of kids. The adoption of mediation is proposed as a basic step towards a extra humane judicial system, targeted on empowering the events and selling co-parenting.

Filippo Danovi (Professor on the College Milano Bicocca), Il presente e il futuro della mediazione familiare in Italia (The Current and Way forward for Household Mediation in Italy; in Italian).

Drawing on the speech delivered on the Convention ‘The Way forward for Household Mediation. The Obligatory Mediation in France and in Italy after the Cartabia reform of Civil Justice’, held on the College of Turin on 19 January 2024, the paper explores the current and way forward for household mediation in Italy, contextualising it throughout the framework of consensual justice. Following a authorized evaluation, together with the measures launched by the Cartabia reform, the Creator highlights the function of mediation in resolving household disputes by interdisciplinary and dialogic approaches geared toward rebuilding strained relationships. The dialogue delves into the constraints of mediation, similar to its inadequacy in circumstances of home violence, and descriptions prospects, emphasizing the necessity for structured coaching to make sure the effectiveness of this device in household disputes.

Isabella Buzzi (Researcher in Psychology, Pedagogist, Guide and Household Mediator), La mediazione familiare, come è diventata una professione (How Household Mediation Grew to become a Career; in Italian).

Drawing on the speech delivered on the Convention ‘The Way forward for Household Mediation. The Obligatory Mediation in France and in Italy after the Cartabia Reform of Civil Justice’, held on the College of Turin on 19 January 2024, this paper traces household mediation’s evolution as a career in Italy. It analyses historic roots and worldwide influences, notably from North America and Europe. It highlights the function of key rules in defining coaching requirements, ethics, and expertise. The Creator emphasizes its complexity, which requires authorized data, psychological expertise, and sensible skills, in addition to the significance of built-in and interdisciplinary coaching applications, in order to make sure the wanted skilled help to households, in a aware and respectful administration of their very own conflicts.

Chronicles

Elena Zucconi Galli Fonseca (Professor on the Alma Mater College of Bologna), Digitalisation of ADR: A New Class?

The paper analyses the influence of digitisation on different dispute decision (ADR). It begins from the pre-existing fragmentation of the ADR class, highlighting the variations between autonomous and heteronomous strategies. The arrival of digital, initially seen as a class in its personal proper (ODR), is now seen as a cross-cutting ingredient that modifies using ADR instruments, however doesn’t change their essence. New types of ADR are then explored, similar to blockchain-based ‘On-chain Dispute Decision’, with its benefits and downsides, and using synthetic intelligence (AI) to enhance the effectivity of ADR processes, whereas elevating moral and safety points. Lastly, it concludes by reaffirming the significance of the human issue (‘Human Dispute Decision’ or HDR) in dispute decision, regardless of technological development.

Roberta Tiscini (Professor on the Università di Roma Sapienza), La dialettica verità/certezza alla prova della negozialità nel processo (The Reality/Certainty Dialectic Put to the Check of Negotiability within the Course of; in Italian).

The Creator addresses the goals of the trial, within the perspective of the seek for materials fact, in keeping with new (applicative and normative) experiences that more and more place the negotiation within the dynamics of the trial itself. This occurs not solely within the framework of other dispute resolutions, but additionally by experiences, similar to these of contractualised justice or differentiated jurisdictional safety, contexts by which it isn’t a lot the achievement of the reality that constitutes the last word purpose, however the pacification of the contenders.

Lastly, this challenge options the next Guide Critiques

A e-book evaluation by Antonia Menghini (Affiliate Professor on the College of Trento): Valentina BONINI (a cura di), La giustizia riparativa (d.lgs. n. 150/2022 – d.lgs. n. 31/2024), Giappichelli, Torino, 2024, I-XX, 1-335.

A e-book evaluation by Rachele Beretta (Ph.D): William URY, Doable: How We Survive (and Thrive) in an Age of Battle, Harper Enterprise, New York, 2024, 1-368.

A e-book evaluation by Pietro Ortolani (Professor at Radboud College): Elena D’ALESSANDRO and Davide CASTAGNO, Handbook on cross-border litigation, Wolters Kluwer, Milano, 2024, I-XXV 1-238.