The Right to Have a Matter Adjudicated by a Court and Alternative Dispute Resolution – Selected Issues

Abstract

This article presents selected issues relating to the concept and realization of the right to court, comparing them with alternative methods of dispute resolution – ADR. It points out some of the causes leading to the crisis of traditional justice, and at the same time points out the advantages of alternative methods of complementary judicial procedures in those areas where they have weaknesses. There is now no doubt that the phenomenon of ADR in the current world cannot be ignored or downplayed. Slowly it begins to gain more and more importance, responding to the expectations of at least a part of the society in which the opinion of justice performed by the courts, is not able to fully satisfy their interests. Also, judges themselves are increasingly using methods of ADR, particularly mediation, seeing the case and its underlying factors, more suitably resolved by the parties themselves than by a decision made by the court. This could be due to various reasons: the complexity of the dispute, the dominant role of personal conflicts between the conflicting parties and therewith to the creation of communication barriers, more so than a straightforward legal issue. In these situations, because the court is rather powerless and doubtful despite the possibility of a binding decision by the judge, such judgement will probably be far from what the parties expected or consider to be “fair”.