⚖️ Is ADR Justice?

by Pierfrancesco C. Fasano

Introduction

Over the past three decades, Alternative Dispute Resolution (ADR) has undergone a profound transformation. Once perceived as a minor, marginal, or merely complementary set of mechanisms to civil litigation, ADR procedures have progressively become structural components of the contemporary justice ecosystem.

The question increasingly posed by jurists, mediators, arbitrators, and policy-makers is no longer simply whether ADR is effective in resolving disputes.

The question has become more ambitious and systemic in nature:

Can ADR contribute to the administration of justice?

This reflection emerges particularly strongly within the international debate on mediation, but it in fact concerns the entire spectrum of alternative dispute resolution mechanisms, from mediation to arbitration, from expert determination to online dispute resolution systems.

From State Justice to Plural Justice

Traditionally, justice has been identified with the decision of the state court.

Civil proceedings ascertain the facts, apply the law, and produce an authoritative decision defining the rights, obligations, and responsibilities of the parties. This model remains naturally central within modern legal systems.

Over recent decades, however, a plural model of justice has gradually emerged, in which courts operate alongside various mechanisms for the extra-judicial resolution of civil and commercial disputes.

These include, among others:

• mediation, which facilitates an agreement between the parties with the assistance of a neutral and impartial third party;

• arbitration, which produces a binding decision as an alternative to that of the state court;

• expert determination, whereby the technical resolution of a specific issue is entrusted to an independent expert;

• Online Dispute Resolution (ODR) mechanisms for disputes arising in digital environments;

• specialised procedures regulated by ICANN (Internet Corporation for Assigned Names and Numbers) for the resolution of domain name disputes, such as UDRP and URS;

• content moderation and dispute mechanisms provided under Article 21 of the Digital Services Act.

In this context, ADR no longer represents merely an alternative to justice.

Rather, it has become a subsidiary and complementary means through which justice, in a broader sense, is effectively administered.

Legal Justice and Perceived Justice

In order to understand the role of ADR, it is useful to distinguish between two dimensions of justice.

Legal justice, guaranteed by the courts, consists in the application of legal rules and the issuance of authoritative decisions.

Perceived justice, by contrast, concerns the experience of the parties involved in a dispute: the possibility of being heard, understood, and acknowledged.

Many disputes—particularly those of a commercial, technological, or relational nature—require more than a formal legal determination.

They often require:

• an understanding of the broader context in which the conflict has arisen;

• mutual recognition of the parties’ respective positions and interests;

• pragmatic and workable solutions;

• the management of ongoing or future relationships between the parties.

It is precisely within this space that ADR may fully express its social and economic value.

Mediation: A Structured Space for Dialogue

Mediation represents perhaps the clearest expression of this dimension of justice.

The mediator does not impose a decision; rather, they create a structured environment for dialogue, within which the parties may explore their interests, needs, and possible avenues for settlement.

The outcome is not a judgment but an agreement which the parties themselves perceive as fair, balanced, and sustainable.

Such an approach frequently proves particularly effective in disputes where the human and relational dimensions are significant: complex commercial disputes, corporate conflicts, family disputes, or institutional disagreements.

Arbitration and Expert Determination: Specialist Decision-Making

Other ADR mechanisms operate in a manner closer to the logic of adjudicative justice.

Arbitration, in particular, allows the parties to obtain a binding decision rendered by arbitrators selected for their specific legal or technical expertise. In many sectors—ranging from energy and construction to intellectual property and international finance—arbitration has become a standard method for the administration of commercial justice.

Alongside arbitration, expert determination has also gained increasing prominence. This mechanism entrusts the resolution of highly technical questions to an independent expert.

Such instruments make it possible to combine legal certainty with specialised expertise, offering timely and technically informed solutions.

ADR and Digital Disputes

The evolution of the digital economy has further expanded the role of ADR.

Disputes concerning domain names, for instance, have for more than two decades been resolved through specialised procedures such as UDRP and URS, which allow for the rapid and efficient handling of practices such as the registration of domain names corresponding to trade marks or distinctive signs without the consent of the rightful holder—commonly known as cybersquatting.

Similarly, the European Union has strengthened the role of ADR mechanisms within the regulatory framework governing online platforms.

Article 21 of the Digital Services Act provides that users and platforms may refer disputes concerning content moderation decisions to certified out-of-court dispute settlement bodies.

This represents a significant development: the governance of digital conflicts is no longer entrusted exclusively to courts but also to specialised ADR mechanisms formally recognised within the regulatory framework.

The Necessary Limits of ADR

Recognising the value of ADR does not mean idealising it.

There remain areas in which state justice remains indispensable, particularly where disputes involve:

• criminal liability;

• significant public interests;

• the need for formal judicial fact-finding.

ADR should therefore not be regarded as a substitute for judicial authority.

Rather, it constitutes a complementary instrument, capable of offering alternative pathways for the management and resolution of disputes without overburdening the valuable collective resource represented by the judicial system.

Towards an Integrated Justice Ecosystem

The transformation currently underway concerns the very way in which justice itself is conceptualised.

Justice is no longer understood as a monolithic system centred exclusively upon the courts. Instead, it increasingly resembles an integrated ecosystem of mechanisms, in which judicial and extra-judicial processes operate in a complementary manner in order to provide more effective, timely, and economically sustainable solutions to disputes.

Within this ecosystem:

• courts guarantee the authority of the law;

• arbitration provides specialist adjudication;

• mediation facilitates consensual solutions;

• expert determination resolves complex technical questions;

• ODR systems and European ADR bodies address digital disputes.

Taken together, these mechanisms contribute to broadening access to justice.

Conclusion

The initial question therefore remains open: is ADR, or can ADR become, a form of justice?

Perhaps not in the same sense as judicial adjudication.

Yet ADR can undoubtedly contribute to creating more flexible, accessible, and context-sensitive spaces of justice, capable of responding to the complexity of contemporary disputes.

In a world characterised by global economic relationships, technological innovation, and increasingly complex conflicts, the justice of the future cannot—and will not—be entrusted to a single institutional mechanism.

Rather, it will emerge from a structured and complementary system, within which ADR is destined to play an ever more significant role in ensuring the effective exercise of the fundamental right of access to justice.