However, they do share a common denominator, which is the emphasis on the
parties’ own opinions, attitudes and the need to address these in dispute resolution.
Private autonomy and consent are raised above state control and such resolutions
of conflicts are considered better than litigation results.
The juxtaposition of ADR and litigation is somewhat artificial in the current
context, although historically it is understandable. However, this categorisation
hides the role of consent in litigation. Unlike the majority of ADR literature
seems to imply, litigation increasingly acknowledges the importance of consentbased settlement. For example, Harris Crowne points out that litigation and
ADR both work under the auspices of self-determination, and ADR does not
grant disputants more leeway than litigation. Instead, both forms of dispute
resolution share the same operational sphere, which is based on selfdetermination.
35 Also, different forms of dispute resolution are more and more
often converging, states Resnik.
36
These bridge-building stances depict the triumph of conciliation, and the
expanding scope of consent, also within the sphere of public litigation. The
desirability of an amicable solution has been adopted into litigation both by
introduction of mediation and by codification of settlement objectives into
legislation.
37 This trend towards ‘softer’ and more diverse methods of dispute
resolution appears to be connected to ADR. It is conceivable that the shadow of
the law argument functions reciprocally: contractual solutions reflect legal ones
but also affect the content of future methods of adjudication. Or, the popularity
of ADR methods imposes a pressure for change in litigation. Regardless of causes
and consequences, the settlement trend itself cannot be contested.
To sum up, the role of private autonomy is particularly pronounced in ADR,
but not limited to these forms of dispute resolution. Instead, public dispute
resolution processes increasingly place value on settlements and encourage disputing parties to find an amicable solution. On a different note, institutionalisation has
brought several ADR schemes closer to public dispute resolution. Also, compulsory
forms of mediation are bringing into question the authenticity of forced compliance in consent-based dispute resolution. It is evident that different methods of
private and public dispute resolution are converging. Although the current scope
of consent is to some extent in a state of flux, it is impossible to deny that private
autonomy can be found in dispute resolution, and that its role is acknowledged
and sometimes used to justify different methods of dispute resolution.
38
6.2.2 What’s wrong with consent?
The concept of consent appears to be flexible and open for continuous reinterpretation. At first glance it appears that the structural coupling between the
systems of law and economics has more leeway than sovereignty to overcome
the justificatory challenge of technology. Justifying dispute resolution through
private autonomy does not make a distinction between dispute resolution offered
by state authorities and that offered by private providers, and thus the principle
brushes off the challenge of understanding private use of coercion, which is so
Consent and private autonomy 151
parties’ own opinions, attitudes and the need to address these in dispute resolution.
Private autonomy and consent are raised above state control and such resolutions
of conflicts are considered better than litigation results.
The juxtaposition of ADR and litigation is somewhat artificial in the current
context, although historically it is understandable. However, this categorisation
hides the role of consent in litigation. Unlike the majority of ADR literature
seems to imply, litigation increasingly acknowledges the importance of consentbased settlement. For example, Harris Crowne points out that litigation and
ADR both work under the auspices of self-determination, and ADR does not
grant disputants more leeway than litigation. Instead, both forms of dispute
resolution share the same operational sphere, which is based on selfdetermination.
35 Also, different forms of dispute resolution are more and more
often converging, states Resnik.
36
These bridge-building stances depict the triumph of conciliation, and the
expanding scope of consent, also within the sphere of public litigation. The
desirability of an amicable solution has been adopted into litigation both by
introduction of mediation and by codification of settlement objectives into
legislation.
37 This trend towards ‘softer’ and more diverse methods of dispute
resolution appears to be connected to ADR. It is conceivable that the shadow of
the law argument functions reciprocally: contractual solutions reflect legal ones
but also affect the content of future methods of adjudication. Or, the popularity
of ADR methods imposes a pressure for change in litigation. Regardless of causes
and consequences, the settlement trend itself cannot be contested.
To sum up, the role of private autonomy is particularly pronounced in ADR,
but not limited to these forms of dispute resolution. Instead, public dispute
resolution processes increasingly place value on settlements and encourage disputing parties to find an amicable solution. On a different note, institutionalisation has
brought several ADR schemes closer to public dispute resolution. Also, compulsory
forms of mediation are bringing into question the authenticity of forced compliance in consent-based dispute resolution. It is evident that different methods of
private and public dispute resolution are converging. Although the current scope
of consent is to some extent in a state of flux, it is impossible to deny that private
autonomy can be found in dispute resolution, and that its role is acknowledged
and sometimes used to justify different methods of dispute resolution.
38
6.2.2 What’s wrong with consent?
The concept of consent appears to be flexible and open for continuous reinterpretation. At first glance it appears that the structural coupling between the
systems of law and economics has more leeway than sovereignty to overcome
the justificatory challenge of technology. Justifying dispute resolution through
private autonomy does not make a distinction between dispute resolution offered
by state authorities and that offered by private providers, and thus the principle
brushes off the challenge of understanding private use of coercion, which is so
Consent and private autonomy 151