shared perception of their relationship, perception that will redirect their attitutudes
and dispositions toward one another.’ Lon Fuller, ‘Mediation – Its Forms and
Functions’ (1971) 44 Southern California Law Review 305, 325.
32 See Frank E Sander, ‘Varities of Dispute Processings’ in Leo A Levin and Russell
Wheeler (eds), The Pound Conference: Perspectives on Justice in the Future. Proceedings
of the National Conference on the Causes of Popular Dissatisfaction with the Administration
of Justice (West Publishing 1979) 74–75.
33 ‘Of course, it might be suggested that a court could also induce such a settlement. But
quite aside from the unlikelihood of a busy court being able to create a climate that
encourages the disputants to ventilate their underlying grievances, there is a world of
difference between coerced or semi-coerced settlement of the kind that so often results
in court and a voluntary agreement arrived at by the parties.’ See ibid 75.
34 RH Mnookin and L Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of
Divorce Dispute Resolution’ (1979) 88 Yale Law Journal 950.
35 ‘ADR functions within the sphere of disputant self-determination that already exists in
the court system. It gives litigants no measure of control that they do not have under
adjudication. Therefore, ADR programs do not undermine the justice system’s current
commitment to serving public interests.’ See Caroline Harris Crowne, ‘The Alternative
Dispute Resolution Act of 1998: Implementing a New Paradigm of Justice’ (2001) 76
New York University Law Review 1768, 1784.
36 J Resnik, ‘Many Doors – Closing Doors – Alternative Dispute Resolution and
Adjudication’ (1995) 10 Ohio State Journal on Dispute Resolution 211, 211. Similar
opinions have been voiced also elsewhere. In Finnish jurisprudence Risto Koulu has
spoken of this phenomenon together with the traditional distinction between litigation
and ADR paradigms. According to Koulu, the great paradox of dispute resolution is
the unanimous starting point that litigation has to change radically. This paradox then
divides into two different fronts, where ADR protagonists want to see litigation
adopting ADR strategies, and litigation protagonists consider that development of
litigation is enough. This, in its turn, has resulted in litigation procedures moving
closer to ADR methods and ADR procedures starting to more closely resemble court
proceedings. See Risto Koulu, Kaupallisten riitojen sovittelu (University of Helsinki
Conflict Management Institute 2006) 436.
37 In the Finnish context, ADR methods, e.g. mediation, have mainly been introduced
through the public courts. See Kaijus Ervasti, Sovittelu tuomioistuimessa (WSOY 2005).
The possibility of an amicable solution is also highlighted in the Finnish Code of Civil
Procedure. The judges in civil cases are required to exhaust all possible means of finding
a settlement before proceeding into adjudicative process (e.g. chapter 5, section 26). On
the settlement trend in family law, see, Frederik Swennen (ed), Contractualisation of
Family Law – Global Perspectives (Springer International Publishing 2015).
38 It should be noted that consent serves a slightly different function in different ADR
methods. For example, it is possible to distinguish jurisdiction-creating consent to
solve a dispute through ADR from the consent that is needed for ending the conflict
through mediation. Both of these are not necessarily required at the same time. In
arbitration, jurisdiction-creating consent takes the form of the arbitral clause and no
additional consent is required or even possible for rendering the arbitral award.
39 John Auerbach, Justice without Law? Resolving Disputes without Lawyers (Oxford
University Press 1983) 126–127. Of course, compulsory material norms limit the
scope of consent, as compulsory rules cannot be set aside by agreement. However, the
de facto protection that these norms provide depends also on the availability of
effective dispute resolution.
40 AK Dixit, Lawlessness and Economics: Alternative Modes of Governance (Princeton
University Press 2004) 1–4.
41 See below, Chapter 7, section 7.1.3.
Consent and private autonomy 157
and dispositions toward one another.’ Lon Fuller, ‘Mediation – Its Forms and
Functions’ (1971) 44 Southern California Law Review 305, 325.
32 See Frank E Sander, ‘Varities of Dispute Processings’ in Leo A Levin and Russell
Wheeler (eds), The Pound Conference: Perspectives on Justice in the Future. Proceedings
of the National Conference on the Causes of Popular Dissatisfaction with the Administration
of Justice (West Publishing 1979) 74–75.
33 ‘Of course, it might be suggested that a court could also induce such a settlement. But
quite aside from the unlikelihood of a busy court being able to create a climate that
encourages the disputants to ventilate their underlying grievances, there is a world of
difference between coerced or semi-coerced settlement of the kind that so often results
in court and a voluntary agreement arrived at by the parties.’ See ibid 75.
34 RH Mnookin and L Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of
Divorce Dispute Resolution’ (1979) 88 Yale Law Journal 950.
35 ‘ADR functions within the sphere of disputant self-determination that already exists in
the court system. It gives litigants no measure of control that they do not have under
adjudication. Therefore, ADR programs do not undermine the justice system’s current
commitment to serving public interests.’ See Caroline Harris Crowne, ‘The Alternative
Dispute Resolution Act of 1998: Implementing a New Paradigm of Justice’ (2001) 76
New York University Law Review 1768, 1784.
36 J Resnik, ‘Many Doors – Closing Doors – Alternative Dispute Resolution and
Adjudication’ (1995) 10 Ohio State Journal on Dispute Resolution 211, 211. Similar
opinions have been voiced also elsewhere. In Finnish jurisprudence Risto Koulu has
spoken of this phenomenon together with the traditional distinction between litigation
and ADR paradigms. According to Koulu, the great paradox of dispute resolution is
the unanimous starting point that litigation has to change radically. This paradox then
divides into two different fronts, where ADR protagonists want to see litigation
adopting ADR strategies, and litigation protagonists consider that development of
litigation is enough. This, in its turn, has resulted in litigation procedures moving
closer to ADR methods and ADR procedures starting to more closely resemble court
proceedings. See Risto Koulu, Kaupallisten riitojen sovittelu (University of Helsinki
Conflict Management Institute 2006) 436.
37 In the Finnish context, ADR methods, e.g. mediation, have mainly been introduced
through the public courts. See Kaijus Ervasti, Sovittelu tuomioistuimessa (WSOY 2005).
The possibility of an amicable solution is also highlighted in the Finnish Code of Civil
Procedure. The judges in civil cases are required to exhaust all possible means of finding
a settlement before proceeding into adjudicative process (e.g. chapter 5, section 26). On
the settlement trend in family law, see, Frederik Swennen (ed), Contractualisation of
Family Law – Global Perspectives (Springer International Publishing 2015).
38 It should be noted that consent serves a slightly different function in different ADR
methods. For example, it is possible to distinguish jurisdiction-creating consent to
solve a dispute through ADR from the consent that is needed for ending the conflict
through mediation. Both of these are not necessarily required at the same time. In
arbitration, jurisdiction-creating consent takes the form of the arbitral clause and no
additional consent is required or even possible for rendering the arbitral award.
39 John Auerbach, Justice without Law? Resolving Disputes without Lawyers (Oxford
University Press 1983) 126–127. Of course, compulsory material norms limit the
scope of consent, as compulsory rules cannot be set aside by agreement. However, the
de facto protection that these norms provide depends also on the availability of
effective dispute resolution.
40 AK Dixit, Lawlessness and Economics: Alternative Modes of Governance (Princeton
University Press 2004) 1–4.
41 See below, Chapter 7, section 7.1.3.
Consent and private autonomy 157