The way forward: Policy principles on the role of law and interests in ADR Felix Steffek 20 April 2016 ADR and Justice Conference, Oxford

The questions The justice question (part 1): What is the yardstick for just frameworks of dispute resolution? The justice question (part 2): What is the best basis for the implementation of justice principles? The empirical question: What do people want from dispute resolution? The legislative question: Justice in courts and/or ADR? Same or different? The institutional question: A principled and just design of different mechanisms? The efficiency question: Which role for efficiency in justice? The consumer question: Specific requirements of justice? The e-ADR question: Chances and challenges for justice?

The justice question (part 1): What is the yardstick for just frameworks of dispute resolution? The regulatory issue The source of justice  Normative individualism Confirmed in discussion: “the interest to be heard” The relevant characteristic  Interests (not rights or laws) Descriptive Normative The principles of justice “Sometimes we look at situations where the person is really unhappy, but the only thing the other party has done is apply the law”

Possibility and necessity of justice Source of justice Normative element Principles of justice The justice question (part 1): a sliding scale approach

The justice question (part 2): What is the best basis for the implementation of justice principles? The implementation issue What should be the focus of just dispute resolution, the interests of the parties or just legal rules? Interests of the parties take priority unless… (1)“… the parties are unable to implement their interests” (2)“… third party interests are involved” In situations (1) and (2) legal rules help to realise interests  Ultimately, it is always interests, but law may sometimes be needed to implement them

The empirical question: What do people want from dispute resolution? Interests: the link between descriptive and normative What do people want from dispute resolution?  Empirical research  Discussion: “Different people want different things” What does this mean for the design of ADR policy? Conflicts of interests that ADR cannot solve  In terms of regulation/application of justice only legitimate interests prevail  The importance of justice principles Variety of interests  Create institutions that allow for the realisation of these interests  Embed choice as essential element, “learning systems” Should we develop principles of regulating choice and variety?

The legislative question: Courts and/or ADR? Same or different? From the right to access to the courts to the right to effective and fair dispute resolution Access to ADR as a fundamental procedural human right Self-determination of parties  responsibility for solving disputes primarily in the hands of the parties But state needs to provide the parties with the necessary enabling and – as necessary – conduct rules Due to state monopoly on enforcement of rights different principles apply to courts Discussion: What is the role of the courts after the ADR movement? Is there a place for ADR in the courts? “Courts to manage trial or to manage resolution“, “courts and ombuds should dovetail”

The institutional question: A principled and just design of different mechanisms? Regulation and practice to reflect party autonomy  the less party control the more regulatory safeguards Initiation Control Procedure Control Result- Content Control Result- Effect Control Neutral Choice Control Information Control NegotiationYES N/AYES MediationYES ConciliationYES NOYES ArbitrationYES NO YES OmbudpersonYESNO YES AdjudicationNO

The efficiency question: Which role for efficiency in justice? What role should costs and efficiency play in the design of dispute resolution? Not only the parties themselves, but also an example of (2) “... third party interests are involved” Third parties that are not part of the conflict Efficiency and justice Efficiency or justice? Efficiency as a principle of justice  Efficiency as important, but neither only nor dominating justice principle

The consumer question: Specific requirements of justice? An example of (1) “… the parties are unable to implement their interests” What are the particular justice requirements for dispute resolution involving consumers? Specific issues, the consumer perspective, eg Initiation control “Participatory governance structures” “Quick transactions” “Publication of ombudsperson decisions”, “not private dispute resolution” The trader perspective The Market for Lemons statement The diminishing marginal utility for different types of dispute resolution

The e-ADR question: Chances and challenges for justice? How does technology change the face of ADR? A chance to improve efficiency and, hence, improve access to fair dispute resolution In particular as regards low value disputes E-dispute resolution can mirror the social/commercial relationship of the parties  Insights from ODR discussion Technology can reduce costs of negotiation/neutral assisted dispute resolution and hence increase the area for amicable dispute resolution Eg EU ODR translation service, “justice through algorithms” Eg creation of a fully digital online court in the UK with new functions such as using the electronic court file for the feedback loop

The questions The justice question (part 1): What is the yardstick for just frameworks of dispute resolution? The justice question (part 2): What is the best basis for the implementation of justice principles? The empirical question: What do people want from dispute resolution? The legislative question: Justice in courts and/or ADR? Same or different? The institutional question: A principled and just design of different mechanisms? The efficiency question: Which role for efficiency in justice? The consumer question: Specific requirements of justice? The e-ADR question: Chances and challenges for justice?