for justifying private dispute resolution.
28 Julia Hörnle, who examines the
resolution of Internet disputes, considers consent as the necessary foundation of
all ADR processes.
29
In short, the doctrine of arbitration seems to place emphasis on the consent of
the parties, both in the form of the actual arbitral clause and as an opt-out from
the official judicial system of the nation-state. There are two reasons for this
rhetoric of dissociating private dispute resolution from the public by references to
consent. First, it promotes the significance of consent in dispute resolution and
connects the legal system with the economic system, justifying private ordering
both on the level of jurisdiction and on a more abstract level of justification.
Second, the distinction is based on doctrinal development that has highlighted
private dispute resolution particularly as an alternative to courts.
30 It is against
this background that Lon Fuller sees the rise of mediation as a change of attitude
from litigation to ADR.
31
This juxtaposition of litigation and ADR is still present in literature, where
ADR is promoted as the ‘authentic’ will of the parties and litigation represents
hard and unaccommodating black letter law. Emphasising harmony and the
significance of a genuine real agreement repeats the ideal of contract law with
the contract as the meeting of the minds. In ADR literature the quality of the
end result, a genuine understanding between the parties, is portrayed as the ideal
outcome. According to the doctrine, the authenticity of the newly found agreement binds the parties to the resolution’s outcome and prevents future conflicts
from rising, thus making enforcement inconsequential. As the eminent ADR
scholar Frank Sander states, the neutral mediators aim to find an agreement
‘which seeks to alleviate the long-run tensions as well as resolve the immediate
controversy’. The authenticity requirement is met when non-legal elements such
as feelings are brought to the discussion table for ‘therapeutic effect on the longterm relationship’.
32 According to Sander, such a genuine authentic agreement
between the parties can be reached only outside the courtroom where there is no
compulsion to affect the parties’ opinions.
33 Interestingly, this argument depicts
the conditions of eligibility placed on the consent. In order to qualify, the
consent needs to be genuine, unforced, freely given. Continuing in the same
train of thought, such consent cannot be formed within litigation, as it would
lose its authenticity.
Contrastingly, Mnookin and Kornhauser claim in their seminal article from
1979 that ADR solutions take place in the shadow of the law, reflecting
the predicted outcomes of taking the case to court.
34 Thus, contractual dispute
resolution follows the same outlines as litigation and, in fact, these outlines are
created, reinterpreted and upheld by the public dispute resolution system.
Although this difference of opinion between Sander and Mnookin and Kornhauser
looks like a discrepancy of ADR doctrine, it is not. While Sander speaks about
informality of ADR procedures creating an atmosphere void of compulsion,
Mnookin and Kornhauser point out that agreements in general are rarely reached
without a context, without weighing the pros and cons of ADR in comparison to
litigation. Thus, the two notions approach the subject from different angles.
150 Three quests for justification
28 Julia Hörnle, who examines the
resolution of Internet disputes, considers consent as the necessary foundation of
all ADR processes.
29
In short, the doctrine of arbitration seems to place emphasis on the consent of
the parties, both in the form of the actual arbitral clause and as an opt-out from
the official judicial system of the nation-state. There are two reasons for this
rhetoric of dissociating private dispute resolution from the public by references to
consent. First, it promotes the significance of consent in dispute resolution and
connects the legal system with the economic system, justifying private ordering
both on the level of jurisdiction and on a more abstract level of justification.
Second, the distinction is based on doctrinal development that has highlighted
private dispute resolution particularly as an alternative to courts.
30 It is against
this background that Lon Fuller sees the rise of mediation as a change of attitude
from litigation to ADR.
31
This juxtaposition of litigation and ADR is still present in literature, where
ADR is promoted as the ‘authentic’ will of the parties and litigation represents
hard and unaccommodating black letter law. Emphasising harmony and the
significance of a genuine real agreement repeats the ideal of contract law with
the contract as the meeting of the minds. In ADR literature the quality of the
end result, a genuine understanding between the parties, is portrayed as the ideal
outcome. According to the doctrine, the authenticity of the newly found agreement binds the parties to the resolution’s outcome and prevents future conflicts
from rising, thus making enforcement inconsequential. As the eminent ADR
scholar Frank Sander states, the neutral mediators aim to find an agreement
‘which seeks to alleviate the long-run tensions as well as resolve the immediate
controversy’. The authenticity requirement is met when non-legal elements such
as feelings are brought to the discussion table for ‘therapeutic effect on the longterm relationship’.
32 According to Sander, such a genuine authentic agreement
between the parties can be reached only outside the courtroom where there is no
compulsion to affect the parties’ opinions.
33 Interestingly, this argument depicts
the conditions of eligibility placed on the consent. In order to qualify, the
consent needs to be genuine, unforced, freely given. Continuing in the same
train of thought, such consent cannot be formed within litigation, as it would
lose its authenticity.
Contrastingly, Mnookin and Kornhauser claim in their seminal article from
1979 that ADR solutions take place in the shadow of the law, reflecting
the predicted outcomes of taking the case to court.
34 Thus, contractual dispute
resolution follows the same outlines as litigation and, in fact, these outlines are
created, reinterpreted and upheld by the public dispute resolution system.
Although this difference of opinion between Sander and Mnookin and Kornhauser
looks like a discrepancy of ADR doctrine, it is not. While Sander speaks about
informality of ADR procedures creating an atmosphere void of compulsion,
Mnookin and Kornhauser point out that agreements in general are rarely reached
without a context, without weighing the pros and cons of ADR in comparison to
litigation. Thus, the two notions approach the subject from different angles.
150 Three quests for justification