Alternative Dispute Resolution Processes within the Framework of the World‐Wide Access‐to‐Justice Movement

Abstract

I shall start with a few words about the topic of this workshop.Its official title is 'Dispute Resolution: Civil Justice and its Alternatives'.Alternative dispute resolution (ADR) is usually given a strictly technical meaning, which refers to those devices which are intended to solve disputes, mainly out of court, or by non-judicial devices.This, however, is not the only meaning the conveners of this conference had in mind.Quite properly, they made it clear that what they had in mind was to deal more generally with those deviceswhetherjudicial or notthat have emerged as alternatives to the ordinary or traditional types of procedures.Thus, class actions, for instance, would be part of the topic they envisaged dealing with, as well as access to justice generally, including access to information in the hands of potential litigants (thus, discovery devices as developed, in particular, in the USA).I will follow, in part at least, this broader approach, and will try to analyse the topic, within the framework of the world-wide access to justice movement, indeed, as an important feature of such a movement.The access-to-justice movement has been, for several decades, a most important manifestation of a new approach to both legal scholarship and legal reform in many countries throughout the world.As a new approach to legal scholarship, ie, as a 'theoretical movement,' it created a new vision, repudiating the formalistic approach long prevailing in much of the Western world, and especially in Europe.This formalistic approach tended to identify the law with the 'system of norms' produced by the state.This was, in my opinion, an over-simplification of the reality; law and the legal system were seen exclusively in their normative aspect, whereas their real-world components -subjects , institutions, processes and, more generally, their societal contextwere neglected.Legal realism was a first strong reaction against such an approach.As it is well known, legal realism led to what was called 'normative skepticism'; with the awareness that the norms themselves, whether derived from statutory or from case law, are expressed in languagewords and symbolsthey require a creative interpretation from their addressees.As was pointed out by Oliver Wendell Holmes as early as 1899: 'It is not true that in practice . . .a given . . .word has one meaning and no other.A word has several meanings, even in the dictionary.'2This normative skepticism was taken to extremes, especially by some representatives of the contemporary and indeed important school of thought called 'Critical -Legal Studies'; they have ascribed total ambiguity, indeterminacy, to legal rules whether legislative or judicial.This new approach is often inspired by such modem or, as they would like to consider themselves, 'post-modern' thinkers as Foucault, Derrida and Lyotard: the proponents of 'deconstruction' in any kind of hermeneutics

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