Dalla giurisdizione alla conciliazione. Riflessioni sulla mediazione nelle controversie civili e commerciali

Translated title of the contribution: [Autom. eng. transl.] From jurisdiction to conciliation. Reflections on mediation in civil and commercial disputes

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Abstract

[Autom. eng. transl.] The essay examines the new discipline of mediation in civil and commercial disputes with particular attention to the relationships between jurisdictional activity and private autonomy. From this perspective it is excluded that the mediation procedure is a merely preparatory phase of the subsequent and possible litigation process. It follows - as a corollary - that the conventional choice of the conciliation body does not constitute an exception to the jurisdiction of the judicial authority and must not be specifically signed if it is also included in the general conditions of the contract. This stipulation, on the other hand, becomes vexatious only if it actually results in a significant imbalance of rights and obligations for the consumer. On the other hand, the purposes of mediation, different and complementary to those of the process, can legitimize the provision of a mandatory attempt at conciliation, even if it is burdensome, provided that, in its normative configuration, it is not set as a tool to deflate the judicial load, but as a means for finding solutions, which are not imposed from the outside, but are independently reached by the parties.
Translated title of the contribution[Autom. eng. transl.] From jurisdiction to conciliation. Reflections on mediation in civil and commercial disputes
Original languageItalian
Pages (from-to)237-253
Number of pages17
JournalEUROPA E DIRITTO PRIVATO
Publication statusPublished - 2012

Keywords

  • conciliazione
  • deroga competenza
  • legittimità costituzionale
  • mediazione
  • mediazione obbligatoria
  • processo

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