Is Alternative Dispute Resolution Consistent With the Rule of Law?
25 Pages Posted: 13 Apr 2007 Last revised: 26 Mar 2008
Date Written: April 12, 2007
In the United States, critics often argue that the informal, private nature of ADR is hostile to the rule of law -- and ultimately to justice itself. Yet, over the last ten years, a broad, international array of groups has advocated including ADR in projects designed to foster the rule of law in other countries. This Article explores this paradox. Have we erred in condemning ADR domestically or in promoting it internationally? Or, does the desirability of ADR depend upon the nature of the system to which it is being compared, in that ADR is desirable to supplement second-class but not first class litigation regimes?
This Article concludes that neither of these approaches offers the optimal way to resolve the paradox. Instead, it urges that those who advocate the use of ADR as part of international rule of law projects have instinctively and intuitively recognized that ADR can potentially be supportive of justice in ways that litigation can not. By operating less formally than litigation ADR can for example offer conciliatory and restorative benefits.
This Article offers four key insights. First, attempting to build dispute resolution systems that are either exclusively formal or exclusively informal can be problematic. Second, the question of whether ADR and the rule of law are consistent is semantic. Third, we ought to consider whether rule of law should be favored as an end in itself or rather as a means to a greater end of justice. Fourth, examining the links between ADR, the rule of law, and justice requires us to rethink the meaning of each of those terms, and to consider whether living together harmoniously ought to be part of a vision of justice.
Keywords: alternative dispute resolution, rule of law, justice
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