Alternative Dispute Resolution - Justice without Trial?

• Author: Angelica Rosu
• Position: Associate Professor PhD, 'Danubius' University of Galati, Faculty of Law, Romania
• Pages: 281-284

Legal Sciences

281



Alternative Dispute Resolution – Justice without Trial?

Angelica Rou

1

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

1. Introduction

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

2

and

Directive 2008/52 of the European Parliament and Council regarding certain aspects of mediation in

civil and commercial matters

3

, 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

1

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: rosuangelica@univ-danubius.ro.

2

Adopted by UNCITRAL on 24 June 2002.

3

Published in European Union's Official Journal no. L 136 / 3 of 24

th

of May 2008, 2008.