Access to a better justice: chronicle of an announced breakthrough - Lorenza Morello & Alberto Mascia

A justice system based solely and exclusively on a litigious approach is destined to die. That statement, which recalls a famous novel by Gabriel García Márquez 'Chronicle of a Foretold Death ', seems more than ever to incontrovertible.
The book tells the story of the death of Santiago Nasar announced at the hands of two brothers accused of stealing the honour of their sister, the story of the process in our legal system know it all. In either case we are dealing with a novel, but inspired by a real story, in which the will to kill Santiago is professed throughout the country in which the characters live, a will be accompanied by a fate that can not help but lead to death the accused, despite the killers, exhibits, as if to be stopped, another is the justice system too often cumbersome and in the tragicomic judicial dimension to ask almost help, to call for a targeted intervention, a move that may give think of an improvement at a turning point.
The combination, for nothing ventured between literature and history, shows an interesting juxtaposition of moods, feelings, moods, hopes, expectations of those requesting a loud voice the sunset of a certain understanding of justice. The latter, too often inappropriately supported by an absolute predominance of the law on the will of the individual has reached primate anything but edifying.
This premise to focalise the mind of every manoeuvre that should think, playing as evidenced by the Keeper  Alfano at the inauguration of the judicial year 2010, the interest of citizens, who are the ones to which every politician is accountable to their actions and their actions. Peremptory statement, which must be followed by a content policy and concreteness.

But let's step back. The whole debate on justice, has its origin in the more recent Directive 2008/52/EC of the European Parliament and Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters. This Directive, the need and desirability of a strong serious intervention in justice and articulate the various EU member states, sought to lay the important goal, mentioned among others in recital 5 of 'ensuring a better access to justice, as part of EU policy to establish an area of freedom, security and justice 'that include' access to judicial and extra judicial methods of resolving disputes, particularly as regards the availability of mediation services' .
Since these early indications, we understand the need for an approach that prefers multiple tools and methods of operation that can accommodate the important challenge of a justice who can offer itself to tailoring, adapting each time to conflict situations experienced.
It is this chameleon-like character, so to speak, but still weighed on the people who live the conflict, that the justice system should show consistently in any capacity whatsoever, judicial or extra judicial. The approach is not judicial definition of conflict is included in the proxy statement contained in. 60, l. No 69/09, concerning mediation and conciliation of civil disputes and trade, recently implemented in the key of the legislative decree approved by the Council of Ministers on 28 October 2009. The expiration of the delegation is scheduled for March 5, 2010, according to the extension provided in the cited art. 60, paragraph 1, l. 69/2009.

The figures given by the Minister Alfano's report on the Administration of Justice in 2009 are so pompous as to arouse wonder, even before concern. Here are some indications of what might be described, without fear of being denied, a slow agony
-Lawsuits pending: over five million and a half and over three million civil proceedings and criminal.
-Magistrates and staff employed: 9080 gowned judges (6402 judges and prosecutors in 2090); 3513 magistrates; 40456th unit of court employees, 1399 employees in the field of children; 46662nd of Prison employees.
-Notification: 28 million to service manuals every year - equivalent to 112,000 alerts per day - of which over half the lawyers for persons by 5183 employees (around 12%).
-More than 30,000 requests made by ordinary citizens, through appropriate proceedings to obtain compensation for the unreasonable length of proceedings (equitable relief). The result of these actions is equally substantial: tens of millions of euros received as compensation.
The agony is the best time culminating in the synthesis of what it costs the justice system: eight billion annually, amounting to nearly thirty million euros for each working day.
Head-spinning, no longer mere crisis, but full emergency, a death foretold, exactly.
In the paper delivered at the inauguration of the judicial year 2010, Carbon apps you are biting tone talked, among other things, just on the tools of court settlement of disputes, pointing out that: "Why promote reconciliation? If the condition was a hopeless inefficiency of trial Civil Justice State and the purpose was to "bring the settlement of disputes outside the classroom record ", as sometimes we hear so simplistic, if that was the prospect of placing a piece in the design of the privatisation of civil justice, then, frankly, would agree to abandon the reconciliation of its actual results, rather poor: there is much talk of conciliation, but finishing a few conciliation, except in niche areas, such as telecommunications, which does not care a strategic role in developing institutions compatible ". Clearly, then, that we can not talk about alternative conciliatory, as the application of the tool just because the court assumes the contours of farce or operational inefficiencies. Instead, as shown clearly on the same coal, more efficient civil justice the state is "the greater the chance that unfolds at a propitious use of conciliation designed to fill those spaces that state administration of justice, while efficient, inevitably leave open. " Area expected to continuous and interwoven, with full respect for difference and purpose between the two instruments, both in terms of promoting reconciliation, says the President, in parallel with efforts to improve the efficiency of state civil justice system, both to enable greater use of conciliation and consciously delegated.
The overall analysis of the justice system, which would require a more careful and thorough consideration, it deserves, given the valuable comments of prominent leaders mentioned in the focus of the tool can provide, as evidenced by the recital 6 of the Directive, a redress 'convenient and quick' disputes in civil and commercial matters.
Processes, therefore, lean and economically sustainable, which are designed 'according to the needs of the parties'. In other words, processes which could restore the justice system an important feature, its operational efficiency, ie the ability to function properly, building on principles for meeting the needs, expectations, concerns and protection of all ordinary citizens, first users of the various 'alternative' through which to face the situations of conflict.
And it is for 'alternative' that you must speak when you identify the tools to manage and resolve a dispute. Alternatives that have different characteristics and functions and there are never relegated to a schematic and unnecessary hierarchy between instruments B Series . The traditional configuration of the process as the main instrument, as it were a natural remedy for the management of conflict (in fact a tool set) and others (negotiation, conciliation, mediation, arbitration) as a mere alternative is often perceived as residual (means to B Series ) is completely contradicted by the figures above, but first by the moods that daily throng the courtrooms.
The perception that ordinary people have their own grievances and their reasons for opening the debate topic is sensitive and far-linear. It is very symbolic to note that, although there is a positive perception about using the case and in general on a litigious approach, sending a letter by a lawyer for the attention of the person who persists in not Love us as we recognize it (often at our sole discretion) has still a strong weight in the daily life of every person involved in any situation of conflict. If you try to make everyone think about the possibility of starting a confrontation with serious and responsible in our minds what is in effect our 'enemy', whom we believe intends to take away something, you go to trigger a whole series of reactions almost automatic process, not least the fear of being seen as losers if we agree to negotiate an amicable solution, maybe side by side and that ( 'hear hear') could satisfy even both litigants.
As emphasized Carbone, just by working on goals and results that come out of court and the court's approach, "the civil trial, with its island looking for a cake and a reason in the past, often results in irreparable fracture, while the reconciliation it lends itself better to broaden the perspective and preserve the future relations between the parties, as has already been sensed by the Civil Code of 1942, where it expects the transaction to create, modify or terminate relationships different from those at issue. "
Obviously, as stated in Directive 2008/52/EC, the agreements resulting from mediation are certainly more likely to be met for various factors such as the will that is at the heart of them, the possibility of preserving the relationship , participation and sharing in the entire conflict management and resolution of that, trust in a tool that ensures confidentiality and professionalism, quality and control, impartiality and competence, independence and efficiency. That efficiency is too often used as an ornament to be used in debates, conferences, but little has turned into concrete actions, manoeuvres aimed able to affect the lives of ordinary people and to forget the many, too many expectations of a justice that has always satisfied the needs of an entire country.
Well-being measures of efficiency, they are welcome to propose and implement the goals, I welcome the commitment of the backlog, particularly in civil law, provided that such interventions do not forget the absolute necessity of changing the cultural approach to questions of life, way of life relationships, how to start commercial synergies, to invest in relationships, and do not become - in the presence of contrasts, often human and natural - during a pointless quarrel fiercer.
This change should not only be symptomatic of a constant search for growth, modernization and development of our country, but must be a clear commitment that, as EU member state we have assumed, giving recognition not only to domestic sources of law, but also and especially to supranational sources, which deserve to be the important lights in the construction of a new beginning in terms of access to justice.
Incorporate the contents and rationale of Directive 2008/52/EC is an act of considerable media coverage and before operating, do it with consciousness and awareness is an act of profound maturity, especially when you are unable to translate that content into a reform that gives efficiency justice system and space (finally) to the citizens.
As evidenced by the Keeper of the path is full of lights and barriers, approval and shadows. It is the proof of facts that must not betray the expectations and this should arrive having acted with dedication, competence, professionalism, diligence and sacrifice. The reality, on the design of the Minister Alfano, needs concrete answers, palpable change in direction, a development, quality and organization services to offer. On these items measure the success of a project and the degree of satisfaction or dissatisfaction general.
In this last respect few comments on the draft legislative decree, about to be finally approved, which contains most of the content of the conciliation of the future.
Some operative indications included the greater breadth and uniformity of materials for which he planned to attempt conciliation mandatory as a condition of admissibility. The choice of these materials has been the focus of many lively exchanges of views, opinions, who have sought to identify a link between different areas and quite articulate. A Word from the legislature for further observation.
A brief notation deserves the duty of the lawyer to inform his client groped in advance about the possibility of mediation. Shadows are identified in the forecast (withholding exaggerated) for revocation of the mandate, the uncertainty of when the information to give, in the real effectiveness of a well structured information. Indeed, major concerns are the upstream and intertwine the aforementioned discourse on knowledge and perception (culturally speaking) the instrument of conciliation, as the forecast has a real chance of being effective, where there is a widespread and drumming of the trail conciliatory.
More criticism has raised doubts and the prediction of a conciliation evaluation in the absence of an agreement of the parties and prior to testify to the failure of the attempt. The lack of the much-desired formula 'at the joint request of the parties' - among others present in the legislation of Article. 40, Leg. 5 / 2003, mentioned in the draft legislative decree - has greatly affected the judgments on the figure of the third conciliator who tend to be a facilitator of communication could become an assessor in spite of himself, with all the consequences imaginable especially in terms of credibility and functionality of the instrument of conciliation.
As we see, the arguments are many and others merit consideration.
Be careful, though, to load the instrument of mediation of exaggerated expectations. This is not to be the miraculous ointment that can reverse the 'pathologic' tendency to belligerence and to avoid clogging the courtrooms.
Like the idea of a citizen-user, who is really aware of its role as a recipient of a service must have the characteristics of efficiency, speed, quality and responsiveness to their needs and interests. Therefore, we need to reclaim this role and structure a justice system calibrated to the needs of the user, as an act of deep responsibility and sense of duty.

A gloss finish. Plutarch, in Tips for politicians '' underlines that' the politician must try to harmonize the different trends in guiding people towards the better, but without haste and without agitation, as if keeping them gently by the hand to change the mentality of a people, fact, is long and laborious undertaking ''. But surely the journey began.

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