Open Access Te Herenga Waka-Victoria University of Wellington
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ADR and the rule of law under a modern justice system

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posted on 2021-12-08, 13:30 authored by Annabel Shaw

Alternative dispute resolution (ADR) has been used around the world as a means to resolve conflict for hundreds of years, and has existed in its more modern form for more than four decades. Despite this long history and widespread use, ADR is still challenged as an illegitimate part of the justice system. This challenge has not gone unheeded and has been met with a vigorous defence. Much of the ensuing debate centres on the comparison between this ‘alternative’ form of justice and what is often called the more traditional form, adjudication. This paper addresses the longstanding claim made as part of this debate that ADR undermines the rule of law. Specifically, it seeks to determine whether ADR and the rule of law can be reconciled. It does this by firstly laying out and analysing the arguments made for and against ADR in this regard. Following this analysis, it proposes that ADR and the rule of law can be reconciled through the symbiotic relationship that exists between ADR and adjudication within the modern justice system. This theory is then evidenced through a case study by way of an examination of New Zealand’s restorative justice practice in the adult criminal justice system. The paper finds that ADR contributes necessary functions to the modern justice system, including the opportunity for broader justice through the wide and encompassing resolution of disputes that it can provide, and is clearly established as an essential component of the modern justice system. It concludes that ADR does not undermine the rule of law and these two can be reconciled.

History

Copyright Date

2016-01-01

Date of Award

2016-01-01

Publisher

Te Herenga Waka—Victoria University of Wellington

Rights License

Author Retains Copyright

Degree Discipline

Law

Degree Grantor

Te Herenga Waka—Victoria University of Wellington

Degree Level

Masters

Degree Name

Master of Laws

ANZSRC Type Of Activity code

970118 Expanding Knowledge in Law and Legal Studies

Victoria University of Wellington Item Type

Awarded Research Masters Thesis

Language

en_NZ

Victoria University of Wellington School

School of Law

Advisors

Morris, Grant