Maria Antonietta Foddai is an associate professor of Philosophy of Law at the University of Sassari, where she teaches Philoso- phy of Law, Mediation and Conciliation and Legal Ethics. She is Director of the University of Sassari’s Mediation Center. She is a member of the Quality Board of the University of Sassari and the Bioethics Committee on Animal Experimentation at the same University. She is a member of the scientific Committee of the Instituto de Resolución de Conflictos (IRC) of the University Castilla-La Man- cha. She is part of the Editorial Committee of the Anuario de mediación of the Universidad Complutense de Madrid. Her re- cent research interests include the concept of responsibility in the legal field, alternative conflict resolution methods and the phi- losophy of Hans Jonas. Among her publications: Sulle tracce della responsabilità. Idee e norme dell’agire responsabile, Giappichelli, 2005; Agire eticamente. Jonas e le nuove responsabilità, Sassari, Moderna, 2005; (ed.) Il Canada come laboratorio giuridico. Spunti di riflessione per l’Italia, Jovene, 2013. Contact: [email protected] PARTICIPATORY JUSTICE AND MEDIATION TOWARD A NEW MODEL OF JUSTICE G. Maria Antonietta Foddai (Università degli Studi di Sassari) DOI: 1017450/160208 Abstract This paper provides a brief description of the model of participatory justice that is emerging in Europe and in North and South American States. Participatory justice promotes new forms of conflict resolution, as does mediation, based on voluntariness and confidentiality, as well as the participation of all parties in the management of con- flict. In 2010, Italian legislators introduced mediation as an alternative form of dispute resolution in civil and commercial matters in order to reduce the burden of the Courts. This reform has not been successful so far because Italian lawmakers have introduced mediation into the civil justice system without reforming the framework of its under- lying principles. Keywords Participatory justice, mediation, access to justice, alternative dispute resolution. Resumen El presente artículo tiene como propósito realizar una breve descripción teórica so- bre el modelo de justicia participativa que está surgiendo en Europa y en los Estados del continente americano. La justicia participativa promueve métodos alternativos de 127 Soft Power  Volumen 4, número 2, julio-diciembre, 2016 resolución de conflictos, como la mediación, caracterizados por la voluntariedad, la confidencialidad y la participación de todas las partes en la gestión de conflictos que las dividen. En 2010 los legisladores italianos introdujeron la mediación en asuntos civiles y mercantiles para reducir la carga de los tribunales. La reforma, sin embargo, no tuvo éxito debido a que los legisladores italianos establecieron la mediación sin armonizar sus principios con los del modelo tradicional de justicia. Palabras clave Justicia participativa, mediación, acceso a la justicia, métodos alternativos de reso- lución de conflictos. 128 G. Maria Antonietta Foddai  PARTICIPATORY JUSTICE AND MEDIATION Paradigms of justice: from decision to participation All States observing the rule of the law are experiencing a crisis in their administra- tion of justice to varying degrees. The lowest common denominator in this phenom- enon is the discrepancy between social expectations and the judicial system the State offers. Both European and American citizens have expressed increasing disaffection towards judicial systems. They view as marred by slowness, burdensome costs, and in- adequacy in protecting their rights and interests. It has become clear that the problem is not merely a matter of organizational efficiency, although in some cases –such as in Italy– dysfunctions in the system play a major role in the breadth of the crisis1. The roots of the crisis have to do with the modern judicial system itself: it has lost its explanatory strength and it no longer adequately responds to the waves of radical change contempo- rary society is experiencing. This crisis in the modern legal universe is clearly evidenced by challenges to a political order centered around the State and a legal order based upon state law as an imperative and unilateral command. Jurists do not appear to have yet perceived the radical nature of these signs2. In order to explain the complex dynamics at play, Ost makes reference to Kuhn’s famous theory according to which the evolution of scientific progress does not occur in a progressive or gradual manner, but rather via abrupt changes that sweep away a paradigm and replace it with another that is considered more apt to adequately explain and regulate reality3. A paradigm expresses a framework of theories and principles that form the backbone of the scientific community’s consensus with regard to an explicative model of reality that provides researchers with solutions to emerging problems4. When- ever a paradigm is no longer capable of “containing” and explaining certain phenomena or resolving the problems these create, it experiences a crisis and is eventually replaced by a newer and more adequate alternative. According to Ost, a shift in the dominant legal paradigm is currently underway; a hierarchical, State-centered, positivist model is being challenged by a competing paradigm represented by the concept of “network”, which currently coexists with the prevalent framework5. In the emerging legal model: 1. V. Ferrari, “La giustizia come servizio. Centralità della giurisdizione e forme alternative di tutela”, in Studi di diritto pro- cessuale in onore di Giuseppe Tarzia, Tomo I, Giuffré, Milano, 2005, pp. 47- 66. 2. F. Ost, “Dalla piramide alla rete: un nuovo paradigma per la scienza giuridica?”, in Il tramonto della modernità giuridica, M. Vogliotti (Ed.), Giappichelli, Torino, 2008, pp. 29-48, p. 30. 3. T. Kuhn, The Structure of Scientific Revolution, Chicago, University of Chicago Press, 1970 2nd edition. 4. Ibid., p. 43. 5. F. Ost discusses the improper use of the theory in the humanities; however, he argues for its efficacy as it relates to the contemporary legal model, whose characteristics are universally recognized, F. Ost, “Dalla piramide alla rete: un nuovo 129 Soft Power  Volumen 4, número 2, julio-diciembre, 2016 The State is no longer the sole source of sovereignty; the will of legislators is no longer accepted as dogma; the lines between facts and rights are blurred; powers interact; judicial systems become muddled; knowledge of jurisprudence moves from methodological purity to interdisciplinary thinking; finally, the pyramidal concept of justice of yesteryear anchored by axiological hierarchies established by law is now viewed more in terms of balancing interests and values that are both varied and changeable6. Moving away from the authoritarian nature that has characterized the modern age, the law becomes more participatory in nature both in its lawmaking processes and in how it handles conflict resolution7. While the dominant paradigm of justice is based on the State’s monopoly and upon judicial decision-making as a preferred conflict resolu- tion tool, the emerging one is characterized by plurality in the legal order and use of consensual and alternative approaches. In this section, we will attempt to map out some of the emerging justice model’s characteristics and outline how they purport to more adequately respond to civil society that demands a “proximity justice”8 that is more flexible, swift and fair. To this end, we will briefly outline the access to justice movement and the rise in alternative conflict resolution tools, which have both reached transnational proportions and caught the attention of mainstream political and governmental institutions. The response to these consensual dispute resolution trends by different legal systems has shed interesting light upon the crisis that heralds a paradigm shift. In the Italian sys- tem, these alternative methods, particularly mediation, have been viewed as “anomalies” to be pigeonholed into conceptual categories belonging to the dominant judicial model rather than as an expression of a new consensual, participatory model of justice within an emerging new paradigm. paradigma per la scienza giuridica?”, p. 32. 6. Ibid. 7. Cfr. A. J. Arnaud, “Le sfide della globalizzazione alla modernità giuridica”, in Il tramonto della modernità giuridica, M. Vogliotti (ed.), pp. 77-94, (p. 79). 8. A. Wyvekens, “Justice de proximité et proximité de la justice. Les maisons de justice et du droit”, in Droit et Société, 1996, 33, pp. 1-23; J. L. Bilon, “La proximité de la justice, approche française”, in Revue de Prévention et réglementation des Diffé- rends, 4-3, 2006, pp. 33-46. 130 G. Maria Antonietta Foddai  PARTICIPATORY JUSTICE AND MEDIATION Access to justice and rights “Access to justice” can be understood as a theoretical and reform-driving movement that, beginning with the second half of the last century, has made its way across the Western world and been associated with reclaiming and protecting civil rights. Instead of focusing on the nature and content of said rights, the movement has concentrated on procedural and judicial mechanisms as essential conditions for exercising the rights themselves9. Over the last fifty years, the various economic, societal and organizational obstacles to the protection of rights that engender social inequality have become the subject of research, analyses and reforms mainly focused upon procedural and juris- diction-related aspects of the law in various nations. According to Mauro Cappelletti, one of the eminent scholars in the field, the “access to justice” movement is the greatest answer to the crisis of justice in the contemporary age because it is tantamount to a “Copernican revolution” in our way of conceptualizing the Law. In fact, there has been a shift from the traditional “Tolemaic” view wherein justice is seen from the viewpoint of those who produce or “manufacture” the law and focuses on their “product” (i.e., lawmakers and the law; public administrations and decrees, judges and sentences). The new paradigm turns attention towards the recipients of justice, “consumers of rights and law” –namely individuals, groups of citizens and society itself as a whole10. The many meanings that “Access to justice” expresses can be placed into two broad thematic categories: the first pertains to a set of legal theories; the second concerns the reforms that, albeit to different degrees, have affected most Western nations and brought about a series of relevant changes in the judicial process. A characteristic shared by the legal theories is a shift away from a dogmatic concep- tualization of law –one of the main features of formalist legal positivism– along with some features of American legal realism, which determines the validity of law on the basis of its effectiveness rather than its formal validity. However, while legal realism theories explore the institutional domains of jurisprudence by investigating the role of the judge as a lawmaker11, they also broaden their approach to a social analysis of law by taking into account the wide network of individuals, institutions and proceedings through which it develops, takes hold, and exerts its influence. 9. M. Cappelletti, Accesso alla giustizia, in Enciclopedia delle scienze sociali, Treccani, 1988, retieved from http://www.trecca- ni.it/enciclopedia/accesso-alla-giustizia_(Enciclopedia_delle_scienze_sociali)/ 10. M. Cappelletti, Dimensioni della giustizia nelle società contemporanee, Il Mulino, Bologna, 1994, p. 100. 11. See G. Tarello, Il realismo giuridico americano, Giuffré, Milano, 1962. 131 Soft Power  Volumen 4, número 2, julio-diciembre, 2016 Access to justice theorists make the case for a “contextual” conception of law and view its efficacy in terms of three parameters: the social needs the law intends to respond to, the identified legal solution to problems, and the social outcomes achieved12. This brings us to the second broad theme of access to justice: reform. The driving force behind this is the aim of abating economically driven social inequality (which re- duces marginalized populations’ access to justice), organizational issues (which hamper the protection of collective interest) and procedural problems (which render traditional judicial means inadequate in fully protecting rights). The Florence Project on Access to Justice The movement was conclusively defined and “consecrated” by a study coordinated by Mauro Cappelletti, entitled Florence Project on Access to Justice, published in 1978 and universally considered the broadest investigation of access to justice to date13. In addition to providing an impressive amount of empirical data regarding justice systems across the world, this study demarcated the theoretical underpinning of the movement through in- terdisciplinary methods and comparative analysis14. In the general introduction, Cappelletti and Garth argue that “access to justice” is a useful lens through which we can evaluate the health of contemporary democracies. The expression “access to justice” refers to the two main goals of a judicial system un- derstood as a means for people to defend their rights and resolve conflict in a state-sanc- tioned manner: first, the system must be equally accessible to all; second, it must aim for results that are both individually and socially just. Although the authors point out that research focuses on the first objective, they highlight that the two are intertwined: a system that aspires to social justice, as modern democracy demands, must provide all its citizens with equal chances to lay claim to and protect their rights15. After noting that the rules and tools of a judicial process serve a social function and that a trial ought not to be viewed in terms of form and structure but rather also as a socially relevant practice16, the authors discuss three “waves” in the access to justice movement in chronological order. 12. M. Cappelletti, Dimensioni della giustizia, p. 77. 13. M. Cappelletti (ed.), Access to Justice, Giuffré – Sijthoff, Milano – Alphen aan der Rijn, 1978. 14. V. Denti, “Accesso alla giustizia e Welfare State (a proposito del Florence Access to Justice Project)”, in Rivista Trimestrale di Diritto e Procedura Civile, 1982, pp. 618-626. 15. M. Cappelletti, B. Garth, “Access to Justice: the Worldwide Movement to Make Rights Effective. A General Report”, in M. Cappelletti (ed.), Access to Justice. A World Survey, vol. I, book 1, p. 6. 16. V. Denti, “Sistematica e post-sistematica nella evoluzione delle dottrine del processo”, in Rivista critica di diritto privato, IV, 1, 1986, pp. 469-492. 132 G. Maria Antonietta Foddai  PARTICIPATORY JUSTICE AND MEDIATION The first occurred after World War II until the late 1970s and mainly focused on the issue of providing legal assistance to economically disenfranchised citizens. Beginning in the early 1970s, a second wave of reforms followed, this time honing in on issues of collective interest; this change in traditional civil proceedings entailed a revolutionary shift from protection of individual rights towards collective action and the recognition of groups and sectors of society as holders of rights. Class action pro- ceedings are a prime example of this. Finally, the third wave occurred after the late 1970s and was characterized by an “ac- cess-to-justice-approach” focused upon both judicial and extra-judicial institutions and tools used for conflict resolution in public and private arenas17. In this third phase, attention shifted from the trial to the conflict and from the barriers preventing access to the Courts to the limitations of the judicial process itself insofar as it is inadequate in satisfying the interests of all involved parties in a dispute. Basing their argument on Frank Sander’s belief that conflict resolution tools must be tailored to different types of disputes18, Cappelletti and Garth made a case for alternate tools like arbitration, mediation and conciliation as means of improving access to justice. While the first two waves of the movement still held on to an im- plicitly normative and judicial orientation as evidenced by chosen legal assistance tools and the nature of the proposed reforms geared towards protection of collec- tive rights, the third wave expressed a new legal perspective that contemplates novel conflict resolution tools as an alternative to the traditional trial. This new concept of justice is termed “coexistent” by Cappelletti: “It can bring divergent positions closer to one another, lead to solutions in which there is not necessary a winner and loser but rather mutual understanding and bilateral behavioral change”19. Going back to Ost’s hypothesis, it is precisely in this third wave that the “anomaly” of extra-judicial tools comes to the forefront in ways the dominant legal model is unable to explain or conceptually integrate. 17. M. Cappelletti, B. Garth, “Access to Justice: the Worldwide Movement to Make Rights Effective. A General Report”, p. 49. 18. M. Cappelletti, B. Garth, This approach recognizes the need to relate and adapt the civil process to the type of dispute, p. 52. See also F. E. Sander, “Varieties of Dispute Processing”, in A. L. Levin and R. R. Wheeler, The Pound Conference: Perspectives on Justice in the Future. Proceedings of the National Conference on the Causes of Popular Dissatisfaction with the Administra- tion of Justice, West Publishing Co., St. Paul, Minnesota, 1979, pp. 65-87. 19. M. Cappelletti, Dimensioni della giustizia, p. 91. 133 Soft Power  Volumen 4, número 2, julio-diciembre, 2016 Alternative Dispute Resolutions Methods: a Transnational Model While the access to justice project was developing at the University of Florence, a great justice reform movement was rising in the United States. Its aims and programs were discussed and illustrated in 1976 during the Pound Conference on “The Causes of Popular Dissatisfaction with the Administration of Justice”20. It was at this event that Frank Sander, a law professor at Harvard University, proposed a way of improving the justice system that deeply impacted later reforms in the American judicial process. Sanders argued that each dispute is different and each resolution approach ought to be as well; the trial is not always necessarily the best option. Therefore, he proposed that the workload of the Courts could be lightened by using alternatives to the tradi- tional trial, such as mediation and arbitration21. The expression “Alternative Dispute Resolution Method” was coined in reference to a justice process that served as an alternative to the mainstream judicial system capable of reaching satisfactory, swift and inexpensive dispute resolution22. Over time, the “A” in Alternative also came to stand for Appropriate23 in order to indicate an integrated and complementary conflict resolution method as opposed to a bipolar one based on the opposition between the State’s judicial process and private or informal mechanisms24. Over the forty years that followed the Pound Conference, the expression “Alterna- tive Dispute Resolution” has been used to define a set of dispute resolution methods25 and to indicate a model of justice that is more flexible than traditionally rigid court proceedings, more in line with the people’s needs. It has come to represent a world- wide movement that, to varying degrees, has affected America, Europe, Australia and Asia26. In fact, ADR refers to a series of practices and methods that need little to no 20. A. L. Levin, R. R. Wheeler, The Pound Conference: Perspectives on Justice in the Future. 21. F. E. Sander, “A second way of reducing the judicial caseload is to explore alternative ways of resolving disputes outside the courts, and it is to this topic that I wish to devote my primary attention”, Varieties of Dispute Processing, p. 66. 22. S. Roberts, M. Palmer, Dispute Processes, ADR and the Primary Forms of Decision Making, Cambridge University Press, Cambridge, 2005, p. 46. 23. C. Menkel-Meadow, “Mediation, Arbitration, and Alternative Dispute Resolution (ADR)”, in International Encyclopedia of the Social § Behavioral Sciences, edited by N. J. Smelser, P. B. Baltes, Elsevier Science Ltd., Oxford, 2001, pp. 9507-9512. “The term ‘appropriate’ dispute resolution is used to express the idea that different kinds of disputes require different kinds of processes” (p. 9507). 24. See. P. Adler, “The Future of Alternative Dispute Resolution: Reflection on ADR as a Social Movement”, S. Engle Merry e N. Milner (Eds.), The Possibility of Popular Justice, A Case Study of Community Mediation in the Unites States, The University of Michigan Press, USA, 1993, p. 68. 25. A. J. Arnaud, J. P. Bonafé Schmitt, “Alternative (Droit) – Alternative (Justice)”, in Dictionnaire encyclopédique de théorie et de sociologie du droit, 2a ed., LGDJ, Paris, 1993, pp. 13-15. 26. R. Abel (Ed.), The Politics of Informal Justice, vol. I, Academic Press, New York, 1982; J. S. Auerbach, Justice Without Law?, Oxford University Press, New York – Oxford, 1983. N. Alexander (ed.), Global Trends in Mediation (second ed.), Kluwer Law International, Alphen aan der Rijn (The Netherland), 2006. 134 G. Maria Antonietta Foddai  PARTICIPATORY JUSTICE AND MEDIATION adaptation to the local national judicial system27. In this sense, it is a transnational model that goes beyond the confines of State sovereignty and moves into a global ju- dicial space supported by globalization and propelled by new challenges to those pol- icies still based upon said State sovereignty28. A comparative analysis highlights aims and factors that can bring common and civil law closer together in a shared effort to reform the justice system29. However, Alexander warns that because social practices must be understood in the context of specific cultures, beliefs and institutions, they play out differently in diverse justice systems. Therefore, along with the principle of universality we must also consider our differences, which heed a warning against ap- plying mediation practices in a homogenous, inflexible way across socio-geographical contexts30. Legal Mediation ADR includes a wide range of practices that even experts sometimes have trouble grouping under a common umbrella: they range from heteronomous ones like arbi- tration (wherein a third party chosen by the disputing subjects makes a decision based upon the law) to autonomous ones31 such as conciliation and mediation, wherein an impartial third party helps the disputing sides come to a resolution of common accord. Mediation is one of the chief expressions of ADR, not only because it affords flexibility in its practice and is quite adaptable to diverse contexts and legal orders, but also be- cause of the model of social justice and order it exemplifies32. Mediation can be defined as: A process in which the parties and their lawyers meet with a neutral mediator whose job is to assist them in finding a resolution to the dispute at hand. The me- diator facilitates effective communication and helps each party express its point 27. The European Union also welcomed the ADR acronym. In the European Commission’s Green Book on civil and commercial dispute resolution methods, published on April 19th, 2002, the Commission states : “The alternative methods of dispute resolution will therefore be referred to below by the acronym that is tending to be accepted universally in prac- tice, i.e. ‘ADR’”, COM (2002) Def., available from http://eur-lex.europa.eu/legal-content/IT/TXT/?uri=celex:52002DC0196 (viewed on June 25th, 2016). 28. See M. Cappelletti, Dimensioni della giustizia, p. 12; M. R. Ferrarese, “Il linguaggio transnazionale dei diritti”, in Rivista di diritto costituzionale, 5, 2000, pp. 74-108 (p. 74). 29. V. Varano, (ed.), L’altra giustizia: i metodi alternativi di soluzione delle controversie nel diritto comparato, Giuffré, Milano, 2007. 30. N. Alexander, Global Trends in Mediation, p. 3. 31. See P. Luiso, “La conciliazione nel quadro della tutela dei diritti”, in Rivista trimestrale di diritto e procedura civile, 58, 4, 2005, pp. 1201-1220. 32. For a broad analysis of ADR methods see M. Cicogna, G. di Rago, G. N. Giudice, La conciliazione commerciale, Santar- cangelo di Romagna, Maggioli, 2005, pp. 40 ss. 135