On the Definition of Alternative Dispute Resolution

Abstract

The article examines theoretical and legal approaches to defining alternative dispute resolution and substantiates the need to revise established understandings of its content. Contemporary scholarly positions on the definition of alternative dispute resolution are analyzed, particularly regarding its identification as a set of legal norms, a system of procedures, or a form of protection of rights. It is established that there is no unified approach in the legal doctrine, while most definitions share common shortcomings, including narrowing the concept to exclusively out-of-court or jurisdictional procedures, emphasizing the mandatory involvement of a third party, and disregarding the possibility of hybrid application of procedures and their interaction with the judicial system. Special attention is paid to distinguishing between the concepts of “dispute resolution” and “dispute settlement”, which makes it possible to justify the broader nature of the latter. Dispute settlement is shown to encompass not only the achievement of a legally defined outcome but also the transformation of the conflict, alignment of the parties’ interests, and restoration of their relationships. It is argued that during the settlement process, the content and significance of a conflict for the parties may change, which in some cases eliminates the need for formal adjudication. Taking into account the historical origins of ADR as a response to the crisis of the judicial system, as well as current trends in its development, the article substantiates the appropriateness of using the term “alternative dispute settlement” as one that more accurately reflects the essence of the relevant procedures. The author proposes a definition of alternative dispute settlement as a set of dispositive procedures and mechanisms aimed at resolving conflicts, achieving a mutually acceptable outcome, or, where necessary, providing for formal dispute resolution.