Nowadays, eyes are turning toward alternative dispute resolution (ADR). Several reasons underlie this uptick in interest.

Firstly, ADR is not a recent phenomenon. It has existed for a long time but the recent expansion in interest and the fashionable nature of ADR are quite new.

No doubt, the development of ADR processes will help the courts to face their overload and reopen the possibility of settling in a more flexible manner. ADR seems to operate within a plural justice system; they develop alongside the judicial process (within or outside it). The legislation has engaged the judicial institution in the amicable settlement path, by multiplying links between those processes. It is noteworthy that ADR is conceivable only when legislation does not prohibit them.

ADR is an open-category

ADR is not only an alternative to judicial resolution of disputes; they can be part of the judicial system, such as judicial conciliation or mediation. Some authors would classify ADR in three categories: (i) those aiming at settling disputes by means of prevention; (ii) those whose goal is to settle amicably a conflict within the judicial system; (iii) those falling outside the judicial process.

For a better understanding, time has come to define some arbitrarily selected ADR. The classic ones include mediation, conciliation and arbitration. However, new types of ADR are developing, such as collaborative practice which translates in France into the participatory process convention.

Mediation is a way of settling conflicts where the person chosen by the protagonists proposes a project to settle without necessarily trying to bring them closer to each other and without having the power to impose this solution on them.

Oct-Dec 2015 issue

Jones Day