Anna NÉMETH: Exploring Alternative Dispute Resolution: Beyond Judicial Proceedings
The preceding article delved into the right to a fair trial and, in particular, the right to apply to the courts. While courts typically occupy the forefront of discussions concerning the resolution of legal conflicts, it is essential to recognize the existence of alternative dispute resolution (ADR) options. Each legal dispute is different, with unique circumstances and the people involved in settling these disputes usually have the opportunity to choose the most appropriate procedure for their particular case and they might find one of the ADR methods has all the attributes they value. The choice of the procedure will greatly affect the success of the settlement of the case, so the consideration of the possible options must be thorough. In the following, we will peek into the world of alternative dispute resolution and explore what it has to offer.
In cases where individuals are hesitant to exercise their right to apply to the courts, they may seek alternative ways to resolve their issues without resorting to avoidance tactics. While parties can attempt to reach an agreement amongst themselves, the presence of a third party can facilitate constructive dialogue. This is where mediation, along with the mediator’s expertise, plays a pivotal role.
Mediation is a non-binding process where a neutral mediator tries to bring the parties together to reach an agreement on a resolution.[1] Mediation appears – among others – in the fields of family law, consumer protection law, employment law,[2] and even criminal law.[3] It is widely regarded as the most common form of third-party intervention in international disputes.[4] It must be emphasized, that the mediator does not decide for the parties: mediation leaves the decision power totally and strictly with the parties.[5] The mediator only serves as a catalyst, fostering communication between opposing interests, defining issues, and removing obstacles to facilitate collaboration. Mediation is generally a short-term, structured, task-oriented process.[6] Mediation is a non-binding procedure, as a party to a mediation cannot be forced to accept an outcome that it does not like.[7] However, after an agreement is reached, most mediation agreements are considered enforceable contracts.[8] Due to this freedom of the parties in relation to the final decision, mediation is fully voluntary, from beginning to end (although sometimes statutes, rules, or court orders may require participation in mediation). Even if the parties have mutually agreed to enter mediation for dispute resolution, they retain the freedom to withdraw from the process at any point after the initial meeting if they determine that continuing with it does not align with their interests. The voluntary nature of mediation remains a pivotal aspect, enabling participants to freely engage from initiation to conclusion, with certain exceptions where statutes, rules, or court orders may require mediation participation. This liberty becomes a compelling factor when contemplating mediation, as parties retain the ability to withdraw from the process if it no longer aligns with their interests, rendering it non-binding in effect. You have got everything to gain and nothing to lose.
Another avenue to resolve disputes without resorting to court litigation is through arbitration. Arbitration is another of the methods of alternative dispute resolution and can be defined as a contractual process similar to litigation with binding decisions and limited ability to appeal.[9] It goes without saying, that arbitration is consensual, both parties need to agree on bringing their disagreement on the road of arbitration. Like judicial proceedings, the outcome of the case hinges on the interplay between the facts of the dispute and the applicable law. Nevertheless, akin to mediation, arbitration involves the presence of a neutral third party, selected jointly by the disputing parties. In the case of arbitration, this neutral party is called a tribunal, made up of one or more arbitrators. The number of arbitrators on a Tribunal and the method of their appointment should be agreed upon by the parties.[10] Ordinarily, a Tribunal comprises three arbitrators, with each party appointing one co-arbitrator. The parties attempt to agree on the third arbitrator, the President of the Tribunal.[11] This illustrates well that in the field of arbitration, party autonomy is wide, and it makes arbitration often privileged over litigation[12] However, it is worth noting that various dispute-settlement institutions have established conventions, encompassing a set of rules that govern the entire arbitration process from inception to conclusion. These conventions serve as a framework to facilitate arbitration proceedings, but most of these rules are subsidiary and only applied if the parties have not agreed otherwise. For instance, the International Centre for Settlement of Investment Disputes (ICSID), a renowned dispute-settlement institution states in Article 38 of the ICSID Convention that the Chairman shall, at the request of either party and after consulting both parties as far as possible, appoint the arbitrator or arbitrators not yet appointed, after a certain period of time has passed and the Tribunal shall not have been constituted. [13]
In arbitration, the neutral third party imposes the final, binding decision over the matter, and just as in the litigation process, the state court will enforce the judgment.[14] Out of the potential alternative dispute resolution methods available, this feature makes arbitration the most similar to taking your case to court.[15] If the parties do not agree with the decision, they cannot take their case to court to get the decision changed.[16] Instances where arbitration decisions come before a judge are rare and occur only under exceptional circumstances. For example, this may happen when the decision or the arbitration procedure itself contains elements that could be deemed as grounds for invalidity. In such cases, the matter may be brought before a judge for review and potential rectification, although such occurrences are infrequent. Otherwise, arbitration rulings stand as conclusive and legally binding, concluding the dispute resolution process.[17]
The relationship between alternative dispute resolution and judicial proceedings can be quite complicated in practice. The first and maybe the most challenging step in each case is to decide which procedure can contribute the most to the solution and what the parties find important in the process. Factors such as privacy, cost efficiency, speed, and cooperation may carry different weight for each party. Step zero should be setting priorities straight. Gain information – or ask your lawyer – about the different routes and what they have to offer or if they suit your expectations. This preliminary stage ensures a well-informed choice. Regardless of the chosen path – whether mediation, arbitration, or traditional judicial proceedings – the ultimate objective at the conclusion of the case remains unchanged: closing the file with a just point.
The principle of access to justice is fundamental. With a view to facilitating better access to justice, these alternative, extra-judicial procedures were created.[18] The European Union recognized this and stated: “The objective of securing better access to justice, as part of the policy of the European Union to establish an area of freedom, security and justice, should encompass access to judicial as well as extrajudicial dispute resolution methods.”[19]
We shall recognize that alternative dispute resolution and judicial proceedings might work differently and have different strengths, but they are all possible ways to access justice. They can peacefully coexist and have a balanced relationship.
The problem is that people of ordinary means may lack awareness of alternative dispute resolution methods. In the future, I am planning to explore mediation in more detail, examining its popularity and considering possible ways to increase public awareness.
Indeed, the lack of awareness about alternative dispute resolution methods, such as mediation, can hinder their utilization, particularly among individuals of ordinary means. Additionally, examining ways to enhance public awareness of mediation can play a pivotal role in making this alternative more accessible and widely embraced.
Legal sources
Act LX of 2017 on arbitration2017. évi LX. törvény a választottbíráskodásról, https://njt.hu/jogszabaly/en/2017-60-00-00 ,https://net.jogtar.hu/jogszabaly?docid=A1700060.TV , 30 July 2023
DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, of 21 May 2008, on certain aspects of mediation in civil and commercial matters, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32008L0052 , 30 July 2023
ICSID Convention, as Amended and Effective April 10, 2006, https://icsidfiles.worldbank.org/icsid/icsid/staticfiles/basicdoc/basic-en.htm, 30 July 2023
Other sources
Andrew Boon and others, What Difference Does it Make? Facilitative Judicial Mediation of Discrimination Cases in Employment Tribunals, Industrial Law Journal, Volume 40, Issue 1, March 2011, Pages 45–81, https://doi.org/10.1093/indlaw/dwq030 , 30 July 2023
Bercovitch, J., & Langley, J. (1993). The Nature of the Dispute and the Effectiveness of International Mediation. The Journal of Conflict Resolution, 37(4), 670–691. http://www.jstor.org/stable/174545 , 30 July 2023
Eric Leikin , Clemens Treichl, Pick Your President: Why and How Parties Should Seek to Agree on a Presiding Arbitrator, Arbitration International, Volume 37, Issue 1, March 2021, Pages 121–152, subsection 2.4, https://doi.org/10.1093/arbint/aiab006, 30 July 2023
https://legal.thomsonreuters.com/en/insights/articles/problems-and-benefits-using-alternative-dispute-resolution, 30 July 2023
https://www.findlaw.com/adr/mediation/what-is-mediation-.html 30, 30 July 2023
https://www.jamsadr.com/mediation-defined/, 30 July 2023
https://www.law.cornell.edu/wex/arbitration, 29 July 2023
https://www.wipo.int/amc/en/mediation/what-mediation.html, 30 July 2023
Lovas Z., Herczog M. (2020). A mediáció, avagy a fájdalommentes konfliktuskezelés. Wolters Kluwer Hungary Kft.. https://doi.org/10.55413/9789632959337. , 30 July 2023
Myriam Gicquello, Biased or Not Biased? Arbitral Decision-Making and Arbitrators’ Preferences, Journal of International Dispute Settlement, Volume 13, Issue 3, September 2022, Pages 348–369, https://doi.org/10.1093/jnlids/idac005 , 30 July 2023
Muzsalyi, R. (2022). A külföldi választottbírósági ítéletek elismerésének és végrehajtásának megtagadása a New York-i Egyezmény alkalmazása során. OPUSCULA CIVILIA, 2022(5), https://antk.uni-nke.hu/document/akk-copy-uni-nke hu/Opuscula_Civilia_2022_5_Muzsalyi_Robert.pdf , 30 July 2023
[1] https://legal.thomsonreuters.com/en/insights/articles/problems-and-benefits-using-alternative-dispute-resolution
[2] https://doi.org/10.1093/indlaw/dwq030
[3] https://doi.org/10.55413/9789632959337.
[4] http://www.jstor.org/stable/174545
[5] https://www.jamsadr.com/mediation-defined/
[6] https://www.findlaw.com/adr/mediation/what-is-mediation-.html
[7] https://www.wipo.int/amc/en/mediation/what-mediation.html
[8] https://www.findlaw.com/adr/mediation/what-is-mediation-.html
[9] https://legal.thomsonreuters.com/en/insights/articles/problems-and-benefits-using-alternative-dispute-resolution
[10] https://icsid.worldbank.org/procedures/arbitration/convention/process/appointment/2006
[11] https://doi.org/10.1093/arbint/aiab006
[12] https://doi.org/10.1093/jnlids/idac005
[13] https://icsidfiles.worldbank.org/icsid/icsid/staticfiles/basicdoc/parta-chap04.htm
[14] Opuscula_Civilia_2022_5_Muzsalyi_Robert.pdf (uni-nke.hu)
[15] https://www.law.cornell.edu/wex/arbitration
[16] https://www.citizensadvice.org.uk/scotland/law-and-courts/legal-system-s/settling-out-of-court/how-an-arbitrator-decides-the-outcome-of-a-consumer-complaint-s/
[17]Act LX of 2017 on arbitration, 6. §, 47. §
[18] DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, preamble (2)
[19] DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, preamble (5)
Anna NÉMETH – She is currently pursuing her master’s degree in law at Eötvös Loránd University, completing her courses with excellent marks. In addition, she is studying international public management BA at the University of Public Service. During her university years she won the New National Excellence Programme in 2020. She worked as an intern for KPMG Legal Tóásó Law Firm and for the Oppenheim Law Firm in Budapest. In her previous research, she has focused on the constitutional status of art and artistic freedom. Through another project she has explored the consumer protection and competition law aspects of the Digital Markets Act. In her ongoing research, she delves into the topic of mediation.
