Il coordinamento nella mediazione civile e commerciale: l’emergenza di norme hayekiane e il percorso “protetto” verso l’ordine sociale

The mediation procedure, as outlined by D.lg 28/2010 and subsequent amendments, introduced in our legal system a new tool for coordinating the decisions of economic agents. The new civil mediation is proposed, therefore, as an instrument characterized by a different procedure and objectives from those of ordinary judgment. The evaluation of its efficiency requires the introduction of new theoretical tools that allow to evaluate the different aspects of social interaction in mediation. The traditional cost-benefit analysis proposed by the economic analysis of law, or simple considerations on Pareto-efficiency proposed by standard economics seem not sufficient analytical tools in this perspective. This article shares Mitchell’s cognitive approach to the theory of law, and it is aimed at analyzing the new model of mediation introduced into Italian legislation through the lens offered by F.A. Hayek’s theory of law (1973, 1976, 1979), with particular reference to the distinction he made between law and legislation and its consequence on the analysis of the role of the judge in common law as the discoverer of law. Moreover, Hayek’s legal theory will be analyzed jointly to his concept of social order. In the light of the contribution of this author, in fact, the choice of our legislator seems to be close to the idea of developing regulatory structures that simply delineate the action of subjects without imposing specific behaviors or ex ante solutions to given situations