As alternative dispute resolution continues to supplant trials within the United States, there has been a marked movement internationally towards greater reliance on formal adjudication to resolve disputes, especially in the areas of human rights violations and trade disputes.   Although the domestic and international trends seem in opposition to one another, Andrea Kupfer Schneider argues in a new article that the two trends are actually both responsive to demands for procedural justice.  Domestically, the flexibility of ADR gives litigants a greater sense of control over the process.  Internationally, formal adjudication gives small nations and otherwise-marginalized communities and individuals better opportunitities to make their voices heard. 

Andrea suggests that formal adjudication may be necessary to provide a sense of procedural justice in places where the rule of law is not well established.  However, within the United States and other nations where the rule of law is better established, ADR becomes a viable alternative. 

Although there seems to be an inevitable shift to consensual dispute resolution after formal adjudication mechanisms are set up, Andrea worries that this shift may sometimes happen too quickly, particularly with respect to human rights disputes — “consensual dispute resolution [may become] just another set of processes to be abused by those with power.”

This is just one dimension of the article, which contains many interesting reflections on the present and future of international dispute resolution.  Entitled “Bargaining in the Shadow of (International) Law: What the Normalization of Adjudication in International Governance Regimes Means for Dispute Resolution,” the article is available here on SSRN.  It was published at 41 N.Y.U. J. Int’l L. & Pol. 789.  The abstract appears after the jump. 

After examining the similar goals and values that drive the simultaneous increase in international trials and the decrease in U.S. trials, the article then examines the challenges international adjudication poses to dealing with human rights violations and transitional justice situations. Simplistically, these tensions can be viewed as the need to strike a balance between peace and justice, top-down implementation and bottom-up impact, and process efficiency and conflict customization. The good news is that these challenges have been slowly working themselves out as the next generation of international adjudication models continues to improve. This continued improvement and normalization leads to an even more interesting question — what are the possibilities for human rights adjudication in the future? What happens when countries and individuals are bargaining in the shadow of international law? The last part of this article, looking through the lens of dispute resolution theory, addresses at least two intriguing developments that could occur in the next ten years. The first development might be the normalization of consensual international processes that mirror, at least to some degree, U.S. process. After moving away from negotiation toward judicialization of international disputes, the pendulum might start to swing back toward negotiated settlements. Will individual defendants be more likely to plea bargain (as has already occurred)? Will states be willing to work out settlements with their human rights victims prior to trial? Given the potential risks involved in these developments, the international community needs to be vigilant so that the rule of law, rights, and equality are still protected through these consensual dispute resolution processes. Second, the shift to broad community reparations like health care and education ordered by tribunals and truth commissions opens up a new chapter in more appropriate remedies for human rights victims.