ADR and applicable law

Julia Hörnle

doi:10.1017/CBO9780511576102.004

4 - ADR and applicable law

Published online by Cambridge University Press: 30 November 2009

Julia Hörnle

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Julia Hörnle: Affiliation:
Queen Mary University of London

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Summary

Those, who in quarrels interpose,

Must often wipe a bloody nose.

(John Gay, 1685–1732)

Introduction

The function of this chapter is to explain the meaning of alternative dispute resolution (ADR). This serves as background to the discussion of ODR in the following chapter. This chapter concentrates on the two main forms of ADR (mediation and arbitration), discussing their main characteristics, function and limitations. In doing so, this chapter explains why only arbitration is to be regarded as a true alternative to litigation, and why mediation is, in its nature, a sort of filter for disputes, a complementary rather than independent form of dispute resolution.

One way to deal with disputes is through adjudication. The essence of adjudication is to have a neutral third person decide whether the second person should give the disputed something to the first person or do what the first person demands. The adjudicator thereby defines the first person's legal rights and entitlements.

Alternatively, the first person may want to bargain with the other person. Bargaining by its very nature involves the first person persuading the second person that it is in his or her interests to give to the first person what they wish to obtain, or to do what the first person wants him or her to do.

Between the opposite ends of the spectrum of formality (namely bargaining and litigation) lies a range of dispute resolution mechanisms that involve a neutral third party but which are kept outside the courts.

Type: Chapter
Information: Cross-border Internet Dispute Resolution , pp. 47 - 73

DOI: https://doi.org/10.1017/CBO9780511576102.004 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2009

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