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The Principled Relationship of Formal and Informal Justice through the Courts and Alternative Dispute Resolution

In its decision of 12 February 2016, the ELI Council accepted this project as a Statement to be carried out jointly by the ELI and the European Network of Councils for the Judiciary (ENCJ). The Project Team is chaired by Diana Wallis and Geoffrey Vos.

Background information

Over the past forty years, there has been a significant growth in and use of alternative forms of dispute resolution (ADR) throughout Europe. In addition to national developments, there have been developments at the European level. There are currently three main ADR instruments in force in the EU (the ADR instruments). Their aim is to “contribute to the proper functioning of the internal market” and to ensure access to “simple, efficient, fast and low-cost” ways of resolving disputes. They aim at limited harmonisation and leave much choice for Member States. In addition to official promotion of ADR, there has been a growth in private sector promotion of ADR through, for instance, contractual clauses in consumer or business contracts that specify that any disputes arising under the contract must be resolved via a relevant form of ADR e.g. a form of mandatory online dispute resolution (ODR) mechanism or arbitration scheme.

The various developments have left a patchwork quilt of ADR provision. In some Member States the use of some form of ADR, such as mediation, prior to resort to formal litigation before the courts is a mandatory pre-requisite i.e. Italy. In other Member States, such as the United Kingdom, use of ADR is optional, albeit its use is promoted by the State generally and by courts in particular. Such differential development may lead to a myriad of different ADR bodies that are alien and unfamiliar to foreign nationals. This in turn may undermine trust and confidence in such mechanisms, and their ability to deliver cost-effective, timely and fair dispute resolution across Member States’ borders. Furthermore, as the European Network of Councils for the Judiciary (ENCJ) has noted, there is a growing risk, and in some cases reality, that ADR is being developed in a manner that is improperly intruding on the legitimate ambit of the judicial branch of the State or government.

Outline of the project

The joint ELI-ENCJ project concentrates on an examination of the development of ADR in Europe. It is particularly focused on:

  • a critical review of the EU ADR instruments, and specifically the Mediation Directive, and their implementation in different Member States;
  • comparison of national questionnaires aimed at ascertaining whether and where reduced access to the national justice systems would be and is being a negative development. The national reports would also be used to gather information on shortcomings and best practices in national ADR systems.

Project’s objectives

The Project Team aims at analysing whether ADR schemes are voluntary, sufficiently visible and transparent, of sufficient quality in procedure and dispute resolution, and whether they develop throughout the EU Member States consistently with a proper and principled approach to access to the courts. Based on the national reports, and the research conducted by the members of the Project Team, an ELI Statement will be prepared with the goal of assessing whether concrete steps should be taken in this regard.

Following that stage, the project could move to a second phase, in which the issues could be considered further in order to address: (i) the potential for developing a draft legislative instrument for the EU aimed at harmonising ADR across the EU; and (ii) the role that Internet technology can properly play in the development of online courts and online dispute resolution, consistent with the principles identified in the first phase of the project.

Consultation

The Project Team has prepared a consultation paper on the relationship between formal and informal justice. It considers the risks posed by the increasing prevalence of many different forms of ADR and proposes three possible outcomes for the project. The ELI would greatly appreciate all responses to the consultation and all comments that our members and others feel could contribute to the project. You can find a consultation letter here and the consultation paper here. Kindly send all responses to the consultation to secretariat@europeanlawinstitute.eu by Monday 13 March 2017.