Alternative Dispute Resolution – Justice without Trial?
Abstract: This research is proposed to analyze the alternative means of dispute r esolution, as an alter native
of jus tice, or as a justice alternative, after studying both European critical literature and nat ional one. The
phrase „alternative dispute resolution” means any alternative way of dispute resolution method whereby two or
more people try using a third party to reach a solution to the problem that precludes them, whether it is
mediation, conciliation, assisted negotiation. In this research, we proposed to use the observation as a common
method. We concluded that the main reason of the alternative means for dispute resolution results from the
possibility to avoid the judicial system that makes it available for the litigants. It was also shown that us ers of
alternative means for dispute resolution not seek to r esolve the dispute outside a court as an amicable
settlement, negotiated, consensual of their dispute.
Keywords: mediation; agreement; trial; litigation; conciliation
By this study we proposed to remove the “one size fits all” litigation mentality and prove that more
creative problem-solving processes are available through alternative dispute resolution (ADR).
Justification of our approach stems from the fact that “conventional” matter is already present in
judicial proceedings, a part being able to claim the other’s party claims, to abandon the promoted
action, to abandon the right before the Court, to conclude a transaction, to quit to the right to action.
In this paper, we try to give an answer to the next question: alternative means of dispute resolution are
they a matter for state jurisdiction or they are under the strict contractual field, escaping from the
control of any judge?
ADR is an umbrella term that refers to alternatives to the court adjudication of disputes such as
negotiation, mediation, arbitration, mini-trial etc. (Nolan-Haley, 2008). Thus, we consider it necessary
to remove ab initio terminological ambiguity.
In this work, when we enunciate the concept alternative way, we understand any way of resolving a
dispute in which two or more people try, using a third party, to reach a solution to the problem that
opposes whether it is mediation, conciliation, assisted negotiation etc.
In this respect, we invoke the UNCITRAL Model Law on International Commercial Conciliation
Directive 2008/52 of the European Parliament and Council regarding certain aspects of mediation in
civil and commercial matters
, but also different definitions given to alternative means by doctrine
and common dictionaries.
As a result, reconciliation is seen as “a procedure called conciliation, mediation or in any other
equivalent manner in which the parties request a third person (“ the conciliator “) the support in their
attempt to reach an amicable solution to a dispute arising between them “(article 1 section 3), and
mediation as “a structured process, however it is named or referred to it as, in which two or more
parties in a dispute attempt on their own initiative, to reach an agreement on the settlement of their
Associate Professor PhD, “Danubius” University of Galati, Faculty of Law, Romania, Address: 3 Galati Blvd, Ga lati,
Romania, tel: +40372 361 102, fax: +40372 361 290, Corresponding author: firstname.lastname@example.org.
Adopted by UNCITRAL on 24 June 2002.
Published in European Union's Official Journal no. L 136 / 3 of 24
of May 2008, 2008.