SEMINAR 2.9: Alternative Dispute Resolution Measures and Relational Justice

Date: May 2023

Place: Ateneo de Manila AdMU and University of the Philippines UP

Leader: Antonio Marquez Prieto

  1. OVERVIEW AND CONTEXT

The various ADR averages are discussed in depth. Not only as more efficient ways of solving possible conflicts, but as opportunities for seeking justice in a broad sense, that is, focusing on legal relationships as interpersonal relationships. The relational justice approach tries to identify justice gaps in each of the three dimensions of the relationship, for which ADR measures are very appropriate. Thus, for example, to strengthen the dimension of reciprocal behavior oriented to justice, negotiation, conciliation and mediation are highly recommended. Arbitration is a very good opportunity to contribute to justice from an institutional point of view, while other measures, such as ombudsman and odr, make it possible to contribute principles and values ​​of justice from the so called sociality level. All this is addressed in a broad context of comparison between different measures, in different legal cultures and in different regions of the world, also considering international and internal aspects.

  1. OVERALL AIM AND OBJECTIVES

The main objective of this academic activity is to approach the different ADR measures as particularly suitable ways to achieve justice in interpersonal legal relationships, as well as, symmetrically, the proposal of relational justice, to be developed in the academic and professional field, each time by a greater number of experts and agents, capable of enriching this novel experience, precisely through ADR measures. Along with this, the following specific objectives can be pointed out:

1-Analyze all types of ADR measures, comparing the advantages and disadvantages, in relation to legal proceedings.

2-Acquire sufficient notions about the regulatory framework of ADR measures in the European Union and in other areas.

3-To take into consideration of the ethical issues that can arise in ADRS, such as the principles of fairness, competence, integrity, trust and confidentiality and besides, the different types of justice connected in a special way with dispute resolution processes, such as restorative justice or transitional justice.

4-Introduction in the relational justice approach and valuation of the enormous possibilities of ADR measures to promote justice in interpersonal relations, the assurance of peace and the protection of human rights and human dignity.

5- Study the philosophy of mediation, through a comparative analysis of its possible contexts and roles, including different types of mediation and conciliation, considering them as a good opportunity to seek justice in the near case, taking into account the dimension of reciprocal conduct.

6-Collectively reflect sufficiently on the possibilities that the figure of arbitration exceeds institutional and commercial limits, to find a global model more oriented to material justice.

7-Assess the potential of ODR systems for the development of the collective learning of relational justice, creating an ever-growing base of social awareness content.

8-Analyze the figure of the ombudsman as a constant promoter of justice in all areas (public, social, business, private).

  1. WORK PLAN AND WORK TEAM

WORK PLAN:

FIRST DAY: GENERAL AND CONTEXTUAL ASPECTS OF ALTERNATIVE DISPUTE RESOLUTION MEASURES AND RELATIONAL JUSTICE

1. Interaction, cooperation, conflict and game theory

Recipients will achieve a general idea what conflicts are, their nature, various types and models of conflicts, as well as the management of the conflict itself, introducing the multidoor system. But, after that, it is interesting to note that the focus of the conflict is only part of reality. Human interaction includes moments of conflict and moments of cooperation. Game theory illustrates this reality very well. For example, deer hunting game.

2. ADRS methods and legal framework

This point deals with all types of ADRS, making a comparison among them and setting the advantages and disandvantages of all of them in relation with court proceedings. We will examine the legal, theoretical, and socioeconomic factors contributing to the global growth of ADR. They also will learn the contextual development of and regulatory framework of ADR in the European Union. They will also deal with a comparative analysis of the extent to which state or judicial compulsion to use ADR undermines justice and/or infringes Article 6 of the European Convention on Human Rights. 

SECOND DAY: ADRS AND RELATIONAL JUSTICE

1. Ethical issues in managing ADRS, principles and types of justice

In this point recipients will take into consideration of the ethical issues that can arise in ADRS, such as the principles of fairness, competence, integrity, trust and confidentiality. Next, different types of justice connected in a special way with dispute resolution processes, such as restorative justice or transitional justice, will be examined. Transitional justice refers to the set of measures of reparation for massive human rights violations, of transformation for the restoration of justice, reconciliation and peacekeeping. Besides, we will get involved with the key concepts of restorative justice and its features, taking a deep look into the different types of programs such as victim-offender mediation, community and family group conferencing, circle sentencing and the specific restorative programs for juvenile offenders.

2. Relational justice as a goal

Relational justice goes beyond the ideas of commutative, distributive and social justice, which it includes. It tries to ensure harmony in human relationships, preventing or repairing gaps in justice, which may occur in the normative institutional dimension, in the dimension of reciprocal behavior, or in that of the collective consciousness of principles and values. From this point of view there is a revaluation of ADRs, which are focused, not as more efficient ways, in relation to the courts, but as ways to seek, above all, justice in interpersonal relationships, the assurance of peace and the protection of human dignity.

THIRD DAY: NEGOTIATION, CONCILIATION AND MEDIATION

1.Negotiation, conciliation and mediation in general

Students will acknowledge key tactics, strategies and negotiation models, together with the necessary skills and abilities to conduct a negotiation. We will deal with the theory and philosophy under mediation, with a comparative analysis of the different models of mediation and its legal, ethical and regulatory framework and a detailed examination of the mediation process, including the roles of and strategies used by the various participants. 

2.Other forms

Also our goal is to explain  other forms of solving disputes in other areas such as family law, where the parenting coordination is arising as a slightly different ADR from mediation, or labor negotiation, mediation and conciliation. Besides recipients will learn about mediation within court proceedings and international mediation.

What is common, in short, to all these measures of negotiation, conciliation and mediation, is the opportunity to seek justice in the near case, with relational proximity, attending to the dimension of reciprocal conduct, helping to cultivate the immediate plane of relationship. So the relational justice potential of these methods is very strong.

FOURTH DAY: ARBITRATION

1. Arbitration as a Legal Model. 

The different subjects in this point refer to: the international context of Arbitration (UNCITRAL Model Law, the Arbitration Act 1985), ad hoc and institutional arbitration, applicable laws, the fundamental concepts of arbitration. The arbitration agreement. Commencing an arbitration and the main stages in the process, including the powers and duties of the arbitral tribunal and the role of the national courts. 

All this to try to identify principles and characteristics of an ADR measure that has emerged to try to avoid the rigidity of the judicial process, but that has perhaps focused too much on the institutional aspects and has tried to attend almost exclusively to commercial and state interests. Examples of national implementation in the different legal branches will be addressed (consumers, insurance, transport, labor law, etc.).

2. Towards a global arbitration model

Starting from the example of international arbitrations, both commercial and investment, and considering the characteristics analyzed comparatively in the previous point, we will reflect on the possibilities of overcoming institutional and strictly commercial limitations, to move towards a global model, in which arbitration can better contribute to the achievement of justice.

FIFTH DAY: OMBUDSMAN AND ODR SYSTEMS. FINAL ASSESSMENT

1.Ombudsman and Online Dispute Resolution (ODR).

Once the recipients has acknowledged the main ADRS and their features, this unit will consider the fact that the future is managing the conflict digitally so it is convenient to deal with the main characteristics of on-line mediation or arbitration. But particularly ODR systems have great potential for the development of the collective learning of relational justice, creating an ever-growing base of social awareness content, turning each particular or collective conflict into a new opportunity to descend into the terrain of sociality. On the other hand, the figure of the ombudsman, not only in the political and public institutional sphere, but also in the social and private field, is a great example of expert people with a permanent vocation to promote justice.

2. Final Assessment.

WORK TEAM:

Caro Gándara, Rocío (Ph. D., University of Malaga)

De Lucchi López-Tapia, Yolanda (Ph. D., University of Malaga)

Jiménez Palma, Eva María (Assistant Professor, University of Malaga)

Márquez Prieto, Antonio (Ph. D., University of Malaga)

Salas Porras, María (Ph. D., University of Malaga)

  1. EXPECTED OUTCOMES

1.- Contribute to the implementation of a university education, in a context of legal modernization, about ADR measures from the point of view of justice and human rights.

2.- Contribute to an increasingly rich collective academic reflection and a line of research on the potentialities of implementation and improvement of ADR measures from the point of view of promoting justice in interpersonal relationships.

3- Promote, at an academic and professional level, an increasingly solid integration of different legal cultures in the regional international sphere of belonging, in the field of ADRS from a modern conception of justice in legal relations.