Judicial dispute resolution can be an effective response to the increase in disputes that threaten to undermine the performance of justice administration systems.
In response to the clear backlog of cases that justice services and courts in the Americas must move through and the increase in litigiousness caused by the global pandemic, the Justice Studies Center of the Americas will work on dispute resolution using judicial dispute resolution (JDR).
In the publication “Judicial dispute resolution (JDR): A proposal for dispute resolution in Latin America,” authors Nicolás Parra* and Marco Fandiño* focus on incentives for the use of this tool through the promotion of a hybrid model that draws on the benefits of mediation, commonly used alternative dispute resolution (ADR) techniques associated with Anglo Saxon systems, and the legitimacy and trust that jurisdictional oversight, monitoring and decisions lend to the process.
What is judicial dispute resolution (JDR)?
Judicial dispute resolution was developed in Canada, Singapore and Australia. It is a dispute resolution method that allows the judge to facilitate a dialogue and negotiation between the parties to the dispute. He or she serves as a mediator and helps them to reach an agreement, limit the dispute or explore the possible results of a negotiation.
At the request of the parties prior to or during the proceedings, the judge may even propose a binding arrangement. In such cases, judicial dispute resolution is called “binding judicial dispute resolution.”
Spheres of action
Judicial dispute resolution (JDR) involves two areas: that of alternative dispute resolution and the judicial system. That intersection between ADR and the judicial system allows judges to combine the informality, flexibility and collaborative approach to the conflict of ADR and the legitimacy, expertise, security and formality characteristic of the judicial system.
Judicial dispute resolution can thus be conceived of as a hybrid method that integrates and amplifies the opportunities provided by ADR within the judicial system. Rather than being an alternative to the judicial process, judicial dispute resolution is a method used within and coordinated with the judicial system.
The authors of the JSCA study present a general overview of judicial dispute resolution. They offer a summary of the history of the practice, the concept behind it and how it differs from mediation. They also examine how this figure has been regulated in Canadian provinces such as Alberta, Ontario, Quebec and British Columbia and in Singapore and Australia.
The study then provides a list of the benefits and limitations of this dispute resolution method. Finally, the authors present a proposal for designing initial prototypes or models of in situ or virtual judicial conferences in Latin America, whether binding or not, to respond to pandemic-related crises like the one currently impacting the world and crises caused by judicial congestion and the adversarial legal mentality in general.
Click here to download the publication.
Click here to download the Executive Summary.
*Nicolás Parra Herrera is a doctoral (S.J.D.) and LL.M. Candidate at Harvard Law School. He earned an undergraduate degree in Philosophy (magna cum laude), law degree (magna cum laude), master’s degree in Philosophy and is a specialist on International Business Law. Parra currently serves as a Visiting Professor at Universidad de los Andes Law School (Colombia). He is the author of the books “Temperamentos Interpretativos: Interpretación de la Constitución, la ley y los contratos” (Legis, 2018) and “Argumentar y Persuadir: Subir las escaleras de la argumentación jurídica al derecho y al revés” (Legis, 2020), among others. His research focuses on issues such as negotiation, mediation, philosophy of law and private law.
**Marco Fandiño is a doctoral candidate at Universidad de Vigo. Fandiño holds a law degree from Universidad de Santiago: de Compostela and a master’s degree in Governance and Human Rights from Universidad Autónoma de Madrid. He is currently the Director of Research and Projects at JSCA. His most recent publication is the book Proceso Civil: Un modelo adversarial y colaborativo (Editores Del Sur, 2020).