ADR Mechanisms and Their Incorporation into Global Justice in the Twenty-First Century: Some Concepts and Trends

Abstract

The State and State courts have been approached for centuries as the almost only available instruments to ensure access to justice to citizens; that is to guarantee the right to an effective remedy before an independent and impartial tribunal previously established by law within a reasonable time. A monopoly for the State in the field of dispute resolution has existed to the extent that despite the long presence of non-judicial instruments of dispute resolution in many jurisdictions, they have been traditionally considered as marginal in most countries and have lacked real implementation by citizens and legal actors.

Unfortunately, the situation is not fully satisfactory. State courts have become more and more inefficient and incapable of offering solutions to the enormous amount of disputes of all kinds submitted to them. In the last decades we have witnessed the pervasiveness of the absolute power of State courts in the legal life of citizens, and at the same time the growing feeling of its inability to provide them with a quick, sound and affordable solution to their problems. In fact, this extremely broad role granted to the law and to the courts has in certain cases resulted in unexpected solutions, and in too many cases has shown an ineffective legal system.

A quest for alternative ways to ensure access to justice to citizens is approached as a worldwide trend nowadays though several degrees of acceptance and support in different areas of the world are also ascertainable. This vigorous movement in favour of ADR in many areas of the world is said to favour a new approach to the idea of justice, which tries to be much more in accordance with the complex, flexible and changeable social reality in which we are currently living. This modern approach to justice and, consequently to access to justice, stands on the acceptance of the existence of a plurality of ways of access to justice to be chosen by citizens: a sort of multirooms civil justice system. This paper studies in depth this move, its basis, current situation and future trends focusing on arbitration and mediation, the rising star of ADR.