Procedural Justice and the Rule of Law: Fostering Legitimacy in Alternative Dispute Resolution

Abstract

In the eyes of legal scholars, alternative dispute resolution (ADR) mechanisms often show to poor advantage when compared to their judicial counterparts, particularly on procedural fairness grounds. Owen Fiss famously argued against the negotiated settlement of certain important disputes related to fundamental rights, and Deborah Hensler notably criticized the use of mediation on the grounds that it might not appear fair to some disputants because it did not promote a resolution based on public norms. Critics have suggested that a judicially-based dispute resolution system that comports with the rule of law may be fundamentally at odds with non-judicial, and therefore less formal, dispute resolution mechanisms such as arbitration, mediation, and negotiation. But other scholars have responded by suggesting that the rule of law is less in tension with ADR than critics imagine, because they both aim to serve the same goal-the pursuit of justice. This difference of opinion is aided and abetted by the fluidity of the definition of the term "rule of law" itself, which scholars have variously defined to include tenets as distinct as non-retroactivity, generality, certainty, protection of individual rights, and lack of discretion by government actors. We argue here that the tenets of the rule of law, however one may define them, are neither irreconcilably at odds with ADR nor seamlessly reconcilable with it.