of its deconstructive power. Simply put, violence has to be justified but at the
same time it cannot be justified. Into this gap we fit justificatory structures and
hope that they function as mechanisms of deparadoxification.
Enforcement is relevant for finding justification of dispute resolution for two
reasons. First, enforcement is a vital part of legal decision-making. This does not
undermine the ADR emphasis on voluntary compliance with the decision, as
ADR ideology accentuates the need to meet the actual needs of the parties,
which then render enforcement irrelevant. However, the effects and significance
of a decision depend on its actualisation by force in the end. If the debtor does
not pay the debt voluntarily, the creditor is entitled to get the money she has
lent. She may realise her right by resorting to the institutionalised violence of the
state machine as a last resort. If a consumer bought a vinyl record-player from the
corner shop but the player did not work as promised, she is entitled to call off
the deal, return the player, and have her money returned. She may engage the
district court and enforcement office if needed. If a person has paid a monthly bill
twice by mistake, she is entitled to have the extra payment reimbursed and may
turn to dispute resolution and enforcement to reach this outcome.
It is the ‘if’ in making voluntary payments that underline the necessity of
enforcement. There is no dispute resolution without the possibility of actualising
the outcome. Different jurisdictions have different rules for who and which cases
are entitled to access enforcement. However, the coercion, the violence, the
consequences of non-compliance are shared by most as they are constitutive
elements of law. Law is use of force, as becomes apparent in enforcement.
Dispute resolution is law, law is use of force and use of force has to be justified.
Second, the same discussion gains significance in relation to the online
environment. Online, if the buyer does not receive the office chair she purchased
on an e-commerce marketplace but a kitchen chair instead, she should have
access to redress. She should have the possibility to cancel the transaction, get her
money back and return the unwanted kitchen chair. If the state mechanism is not
available, the question arises, what alternative systems would be applicable? This
leads to the emergence of ODR, private enforcement, and its alternatives such as
escrows,
39 chargebacks, and reputation systems. These mechanisms cannot be
considered simply as contractual issues because they deal with the other side of
dispute resolution – they deal with the violence. A point of interest is that the
rhetoric does not start from the claim that there should not be use of coercion in
these situations. Instead, the question is, whose coercion and by which means?
Another layer is added but the paradox itself does not disappear.
For decisions rendered in the private sphere, the situation has been exactly the
opposite. Traditionally, ADR procedures promote easy access to conflict resolution, which is guaranteed by the relatively low fees and light structure of the
process and by focusing on party interests instead of black-letter law. However,
ADR decisions struggle with accessing enforcement in those cases where the
decision is not followed on a voluntary basis. Traditionally, ADR decisions had to
resort to the state’s enforcement mechanism, which meant that they were
subordinated to ex ante control of due process before being enforced. This
Emerging crisis 71
same time it cannot be justified. Into this gap we fit justificatory structures and
hope that they function as mechanisms of deparadoxification.
Enforcement is relevant for finding justification of dispute resolution for two
reasons. First, enforcement is a vital part of legal decision-making. This does not
undermine the ADR emphasis on voluntary compliance with the decision, as
ADR ideology accentuates the need to meet the actual needs of the parties,
which then render enforcement irrelevant. However, the effects and significance
of a decision depend on its actualisation by force in the end. If the debtor does
not pay the debt voluntarily, the creditor is entitled to get the money she has
lent. She may realise her right by resorting to the institutionalised violence of the
state machine as a last resort. If a consumer bought a vinyl record-player from the
corner shop but the player did not work as promised, she is entitled to call off
the deal, return the player, and have her money returned. She may engage the
district court and enforcement office if needed. If a person has paid a monthly bill
twice by mistake, she is entitled to have the extra payment reimbursed and may
turn to dispute resolution and enforcement to reach this outcome.
It is the ‘if’ in making voluntary payments that underline the necessity of
enforcement. There is no dispute resolution without the possibility of actualising
the outcome. Different jurisdictions have different rules for who and which cases
are entitled to access enforcement. However, the coercion, the violence, the
consequences of non-compliance are shared by most as they are constitutive
elements of law. Law is use of force, as becomes apparent in enforcement.
Dispute resolution is law, law is use of force and use of force has to be justified.
Second, the same discussion gains significance in relation to the online
environment. Online, if the buyer does not receive the office chair she purchased
on an e-commerce marketplace but a kitchen chair instead, she should have
access to redress. She should have the possibility to cancel the transaction, get her
money back and return the unwanted kitchen chair. If the state mechanism is not
available, the question arises, what alternative systems would be applicable? This
leads to the emergence of ODR, private enforcement, and its alternatives such as
escrows,
39 chargebacks, and reputation systems. These mechanisms cannot be
considered simply as contractual issues because they deal with the other side of
dispute resolution – they deal with the violence. A point of interest is that the
rhetoric does not start from the claim that there should not be use of coercion in
these situations. Instead, the question is, whose coercion and by which means?
Another layer is added but the paradox itself does not disappear.
For decisions rendered in the private sphere, the situation has been exactly the
opposite. Traditionally, ADR procedures promote easy access to conflict resolution, which is guaranteed by the relatively low fees and light structure of the
process and by focusing on party interests instead of black-letter law. However,
ADR decisions struggle with accessing enforcement in those cases where the
decision is not followed on a voluntary basis. Traditionally, ADR decisions had to
resort to the state’s enforcement mechanism, which meant that they were
subordinated to ex ante control of due process before being enforced. This
Emerging crisis 71