The Juridification and Technicisation of Alternative Dispute Resolution Practices

Abstract

Mediation and other forms of Alternative Dispute Resolution as conflict resolution mechanisms are being embraced widely by legal regimes in criminal law, family law, labour law, administrative law, and civil law areas. In this way, frustration with inadequacies of the legal system and an incipient crisis in legitimacy due to delay, expense and impersonality are contained, and control over dispute resolution is reasserted by the legal system. But in the process, these community-based practices also undergo an institutionalising transformation or “rationalisation” which removes them from their social framework and makes them into technical forms of conflict dispute resolution. This article uses an Habermasian analysis to contend that policymakers, legislators, professional and quasi-professional practitioners are thus systemically colonizing potentially liberatory social practices and transforming them into a “technique” where practices are formalised and strategies are imposed on conflict to produce determinable outcomes.

Alternative Dispute Resolution of Chinese Enterprises: Learning from Foreign ADR Application Experience

“…Using ADR to solve enterprise disputes can help the parties to the dispute decide the applicable ADR method and use of time, place, and professionals according to the different professional content, the extent of importance, and stages of the dispute to provide more professional and neutral solutions and reach a consensus with the minimum cost of time and money as well as the fastest speed. In fact, many legal regimes welcome ADR being widely used in criminal law, family law, labor law, administrative law, and civil law areas, considering the benefits mentioned above [9].…”

L'éthique et les limites du droit

“…Il est plutôt appelé, compte tenu de sa spécificité 9 , à partager la tâche avec d'autres formes de discours. L'émergence des nouveaux modes de résolution des différends, tout comme les autres formes de réflexion normative avancées par les éthiciens 10 et les philosophes 11 , serait là pour nous le rappeler 12 .…”

Costs of Cooperation Rather than Competition in the Provision of Justice?

“…First, the invasion into the provision of justice of accounting systems language leads to informalism, namely the adoption of alternative dispute resolution (ADR) methods. Second, the lifeworld method of conflict resolution through informal mediation is itself being colonised by the law through the process of juridification (Langer 1998). The accounting technologies demand a new overriding objective namely efficiency, speed and effectiveness (Andrews 2000).…”