Original scientific paper
Marginalia on concepts of private justice and i ADR from the aspect of arbitration and mediation
Gašo Knežević
; Faculty of Law, University of Belgrade, Belgrade, Serbia
Abstract
In the world of conflicts, there are many ways for their resolving, interesting both to legal and non-legal theoreticians. Alongside with judiciary, arbitration and mediation are becoming ever more popular and are often considered to be alternative ways of resolving disputes. However, after studying ADR, one should conclude that its essence is in negotiation and agreement on the resolution of the dispute. For that reason, one cannot say that arbitration belongs to the world of ADR; it is only alternative way of dispute resolution if it has been terminated by a substantive law settlement concluded before a mediator, but within arbitration (unlike adjudicative arbitration procedure). Mediation, on the other hand, always belongs to alternative dispute resolution, since in its essence it is an agreeable dispute resolution.
When considering the difference between private and public justice, we refer to the origin of power (mandate) and status of the person deciding on conflict resolution. In the public justice sphere, the parties refer to a public authority whose power stems from the state sovereignty, while in private justice, the parties choose private persons or institutions whose power comes from the will of the parties. From the mentioned, one can conclude that the arbitration belongs to private justice, even when organised by a chamber of economy, while mediation only belongs to private justice if it is voluntary, and not if it is imposed by law or by a judge.
Keywords
arbitration; alternative dispute resolution; mediation; private justice
Hrčak ID:
93105
URI
Publication date:
3.5.2012.
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