Alternative Dispute Resolution and Human Rights: Developing a Rights-based Approach through the Echr
| DOI | 10.1093/ejil/chv039 |
| Date | 05 November 2015 |
| Pages | 607-634 |
| Year | 2015 |
| Published By | Oxford University Press |
The European Journal of International Law Vol. 26 no. 3
EJIL (2015), Vol. 26 No. 3, 607–634 doi:10.1093/ejil/chv039
© The Author, 2015. Published by Oxford University Press on behalf of EJIL Ltd.
All rights reserved. For Permissions, please email: journals.permissions@oup.com
Alternative Dispute Resolution
and Human Rights: Developing a
Rights-Based Approach through
the ECHR
LornaMcGregor*
Abstract
The presumption that courts are the principal forum for dispute resolution continues to
be eroded. Alternative forms of dispute resolution (ADR), including agreement-based
ADR (such as mediation and conciliation) and adjudicative ADR (such as arbitration),
continue to proliferate and are increasingly institutionalized, leading to their character-
ization as ‘appropriate’ or ‘proportionate’ dispute resolution. Interestingly, despite these
developments, the position of international human rights law (IHRL) on two key ques-
tions regarding ADR and proportionate dispute resolution (PDR) is unclear. These ques-
tions are, first, the standards of justice expected of ADR/PDR (whether entered into
voluntarily or mandatorily). Second, the permissible circumstances in which parties to a
dispute can be required to use ADR/PDR instead of, or before, accessing courts. The attri-
butes and challenges with ADR/PDR have been discussed extensively in socio-legal stud-
ies, feminist literature and the dedicated ADR/PDR literature. This article seeks to bring
this vast theory on the diversification and institutionalization of dispute resolution into
IHRL. Through the lens of the European Court of Human Rights, this article examines
the types of tests that supranational bodies currently employ and advances a framework
for assessing the choice, design and implementation of ADR/PDR in the future.
1 Introduction
In 1975, the European Court of Human Rights (ECtHR) held that ‘one can
scarcely conceive of the rule of law without there being a possibility of having
* Lorna McGregor, Reader, Essex Law School and Director, Human Rights Centre, University of Essex.
Email: lmcgreg@essex.ac.uk.
608 EJIL 26 (2015), 607–634
access to the courts’.1 Yet the presumption that courts are the principal forum
for dispute resolution continues to be eroded through the proliferation of alter-
native forms of dispute resolution (ADR), both agreement based (such as media-
tion and conciliation) and adjudicative (such as arbitration). ADR is integrated
within national court systems and enjoys support at the international level. For
example, the European Union has adopted a series of resolutions on mediation,2
and its Fundamental Rights Agency is exploring the role of non-judicial processes
under the theme of ‘justice in austerity’.3 With the increasing institutionaliza-
tion of dispute resolution processes, many commentators refer to ‘appropriate’ or
‘proportionate’ dispute resolution4 (ADR/PDR) rather than ADR. Such reframing
posits that the ‘means and costs of resolving disputes should be propor tionate to
the importance and nature of the issues at stake’5 rather than presuming that
courts are the preferred form of dispute resolution. In this article, Irefer to ‘ADR/
PDR’ to capture this reframing.
Interestingly, despite these developments, the position of international human
rights law (IHRL) on two key questions regarding ADR/PDR is unclear. These ques-
tions are, first, the standards of justice expected of ADR/PDR (whether entered
into voluntarily or mandatorily) and, second, the permissible circumstances in
which parties to a dispute can be required to use ADR/PDR as a precondition to
access a court6 or cost penalties threatened or imposed in order to motivate parties
to use ADR/PDR rather than litigate. For example, in England and Wales, the High
Court can impose cost penalties where parties fail to consider mediation prior to
trial if they are directed to do so on the grounds that ‘litigation should be a last
resort’.7
1 ECtHR, Golder v.United Kingdom, Appl. no.4451/70, Judgment of 21 February 1975, para. 34.
2 Commission Directive 2000/43, OJ 2000 L180/22; Commission Directive 2009/52, OJ 2009
L136/3.
3 ‘Justice in Austerity: Challenges and Opportunities for Access to Justice’ Fundamental Rights Conference
2012, December 2012, available at fra.europa.eu/en/event/2012/fundamental-rights-conference-
2012-0?tab=programme (last visited 12 July 2015).
4 Susan Blake, Julie Browne and Stuart Sime, A Practical Approach to Alternative Dispute Resolution
(2012), at5.
5 Elliot and Thomas, ‘Tribunal Justice and Proportionate Dispute Resolution’, 71(2) Cambridge Law Journal
(2012) 297, at 299. See also, Adler, ‘Tribunal Reform: Proportionate Dispute Resolution and the Pursuit
of Administrative Justice’, 69 Modern Law Review (MLR) (2006) 958.
6 This is already a practice in some states and may increase further as a means of enhancing the use of
mediation in particular. See Giuseppe de Palo etal., Directorate General for Internal Policies, ‘Rebooting’
the Mediation Directive: Assessing the Limited Impact of Its Implementation and Proposing Measures to Increase
the Number of Mediations in the EU (2014), at 152.
7 Pre-action protocols specic to the type of dispute, available at www.justice.gov.uk/courts/procedure-
rules/civil/protocol/prot_pic (last visited 12 July 2015). See also compulsory mediation schemes in states
such as Austria, Canada, Germany, Italy and Norway in Klaus Hopt and Felix Steffek (eds), Mediation:
Principles and Regulation in Comparative Perspective (2013); Hess and Pelzer, ‘Regulation of Dispute
Resolution in Germany: Cautious Steps towards the Construction of an ADR System’, in Felix Steffek and
Hannes Unberath (eds), Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads (2013)
209, at 217; Genn, ‘What Is Civil Justice For? Reform, ADR and Access to Justice’, 24 Yale Journal of Law
and Humanities (2012) 397.
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