Comparative Law and Society

Comparative Law and Society

Research Handbooks in Comparative Law series

Edited by David S. Clark

Comparative Law and Society, part of the Research Handbooks in Comparative Law series, is a pioneering volume that comprises 19 original essays written by expert authors from across the world. This innovative handbook offers both a history of the field of comparative law and society and a thorough exploration of its methods, disciplines, and major issues, presenting the most comprehensive look into this contemporary field to date.

Chapter 11: Civil Court Litigation and Alternative Dispute Resolution

Koen van Aeken

Subjects: law - academic, comparative law, law and society

Extract

Koen van Aeken* 1 1 INTRODUCTION This chapter seeks to discuss civil court litigation and alternative dispute resolution from a comparative and interdisciplinary viewpoint. Comparative law and society, in section 2, lends itself perfectly to a particular empirical and interdisciplinary investigation into law, especially from the perspective of legal sociology. In section 3, we focus on the area of litigation and alternative dispute resolution (ADR). To overcome the problem of comparing apples and oranges often raised by cross-national comparison, we consider the merits of a functional perspective. The underlying function of both litigation and ADR is dispute resolution. People attempt to solve disputes and do so by taking various paths to justice. Against the backdrop of the paths to justice, we touch upon related topics such as the advantages and weaknesses of various dispute resolution mechanisms and representations of these paths. Drawing on statistics in section 4 from various nations including the United States, the United Kingdom, Japan, France and Australia, we see that, in actual comparative analysis, methodological pitfalls arise. This is exemplified by comparative litigation rates and comparing national paths to justice studies. We summarize the main methodological challenges, since any researcher venturing into the comparative study of judicial and extra-judicial dispute resolution will have to confront these. In section 5, we attempt to provide a basic insight into variations in actual rates of litigation and ADR in a cross-national context. Whereas efforts to gather comprehensive comparative data often prove futile, this section strives for explanation. Several explanatory...

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