ADR meaning “alternative” to formal court hearings, trials and formal legal proceedings. In fact, many forms of dispute resolution are thousands of years old, dating from Confucian principles of promoting harmony and community, rather than individual, “justice,” in China and then later other Asian countries, or African community dispute resolution processes called “moots” (or in some countries Ubuntuor gacaca), which are mediation like processes in which community elders listen to narratives of the dispute from the parties and either help negotiate a solution with the parties, or, more like arbitration, decide or command some remedy, with the goal of preserving community peace. The goals of such older forms of dispute resolution are to prevent further conflict and escalation of the dispute beyond the parties, to restore the community to peaceful existence.

In the West (Continental Europe and in England), the middle ages saw the movement from “trial by ordeal” (putting disputing parties on a horse to joust, or dropping them into a fire or body of water to see if God would “protect” them and declare the innocent or non-wrongdoer) to trial by evidence. The development of formal rules of evidence was designed to use rational forms of proof and judgement by “peers” (juries) about what had happened to cause the dispute. “Modern” justice meant that judges or juries declared winners and losers (in both civil and criminal cases) so that the guilty would be punished or pay damages and the innocent would be vindicated by using the same rules of procedure and substantive rules of law to everyone (“equal justice under law”).

In the late 20th century this more modern way of achieving “individual” justice caused many court systems to become very crowded (in countries like the US and Italy it could take as much as 5-10 years to get a hearing), and once there, the court and formal trial process became quite expensive, requiring the hiring of lawyers and other professionals (experts) and the paying of high fees.

So in the 1970s two different groups of reformers proposed different solutions to the court delay problem. Some American judges and scholars proposed “alternatives” to court (mediation, arbitration, negotiation, mandatory settlement conference,) to encourage parties to settle their differences quicker and cheaper with out-of-court processes. This was called the “Multi-Door Courthouse,” an idea that people would choose a process and reduce their costs and time in resolving disputes. The US government actually funded a few local court systems to create such multi-door courthouses and many people (lawyers, psychologists and community leaders and social workers) were trained as mediators .

In the last few decades different forms of ADR have gone global—a new field of transitional justice has developed to provide both punishment and reconciliation in post-apartheid, post-civil-war and other post-conflict zones. So although there is now an International Criminal Court for state violations of human and civil rights and criminal prosecutions, in some settings, a form of ADR has been used to create Truth and Reconciliation Commissions (e.g. South Africa, Bolivia, Argentina, Liberia) which are often hybrid institutions that seek the “truth” about what atrocities have occurred, but also try to use various forms of narrative, apologies, forgiveness ceremonies and rituals to attempt to “heal” the past, so newly constituted countries can move forward.

Ironically, or in a return to earlier history, some countries have used older indigenous processes like community moots (gacaca in Rwanda) to attempt to combine justice of the past with peace for the future. These new forms of institutions are hybrid because they draw on both public international law concepts (international criminal law) and national or indigenous processes.

ADR is now widely used around the world to deal with disputes and conflicts as well as agreement-making and planning. At the international level, negotiation (between and among different countries, states and communities are as old as humankind) and is a process now used by the 200 countries in the world to negotiate treaties (which are state commitments to not engage in war or other bad acts, or to positively collaborate on other activities, like poverty amelioration, environmental protection, anti-discrimination, health, education and cultural cooperation).

Modern international legal activity is often conducted in informal networks of negotiation and new forms of international administrative actions, rather than by formal courts or executive diplomacy. Mediation by international officials is now commonly used to try to resolve interstate conflicts before they escalate to war. Mediation and arbitration are both used in both public law and private, commercial law settings. Arbitration is used on an international level to resolve border and boundary disputes, private commercial cross-border disputes, and now disputes involving private investors in foreign countries.

Formal institutions like the World Trade Organization use arbitral processes and investment arbitration now represents a controversial hybrid, using arbitral processes, but relying on more public law principles and demands for transparency. Most informal dispute processes ultimately rely on the enforcement powers of national courts under international treaties, such as the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards or the Washington Convention for dispute processes for foreign investment disputes with states.

At the level of everyday disputing, the European Union and some national court systems are now promoting various forms of ADR, such as those described here, to reduce long court delays and to provide consumer and even businesses different ways to resolve their disputes, including the promotion of Online Dispute Resolution (computer platforms for trans border and national consumer disputes or disputes between citizens and states).

The expansion of different forms of dispute resolution has led to interesting issues and policy differences about whether conflicts and disputes belong to the parties, so they can privately choose their form of resolution, or whether conflict resolution should remain a public and transparent state function when the impact or precedent of a conflict resolution might be greater than just on the interested parties. This is were the concept of Game theory is necessary in ADR.

References

Andrew, J. P. (2000). Alternative dispute resolution: skills, science, and the law. Toronto, Ontario: Irwin Law, 5.

-Meadow, C.(2016). The history and development of “A” DR (alternative/appropriate dispute resolution)”, Völkerrechtsblog, doi: 10.17176/20180220-230945.

Sourdin, T. (2014). Alternative dispute resolution principles: From negotiation to mediation (4th ed), Thomson Reuters, 179-193.

Ojeaburu Friday Msc, ACA, PhD (In View)

Ojeaburu Friday
Ojeaburu Friday

Ojeaburu, Friday (ACA, BSc, MSc, PhD) is a seasoned Chartered Accountant with over 14 years accounting experience. He has experience in corporate accounting, financial accounting, financial management, financial audit, public sector accounting, environmental accounting, entrepreneurial accounting, Cv writing, business plan writing, online coaching, research writing etc.

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