Conflict Resolution Procedures Within the Courtroom: Between the Adversarial and Inquisitorial Traditions
Modern courts have evolved around two central legal traditions—the adversarial and the inquisitorial. The two traditions have historically reflected different approaches towards consent and authority or towards conflict resolution and strict application of the law. Yet with the blurring of boundaries between the two legal traditions, and alongside various reforms in adversarial and inquisitorial legal systems, new practices of judicial conflict resolution within the courtroom have developed. This Article will compare the two legal traditions and examine the assimilation of ideologies and procedures typical to conflict resolution processes into the work of judges, as they strive to end civil legal cases by ways other than traditional legal ruling (i.e., by settlement).
This Article argues that the integration of inquisitorial-like judicial practices within an adversarial environment contributes to the evolution of proper conditions for rich judicial conflict resolution. This is as opposed to contexts in which inquisitorial systems internalize conflict-resolution procedures into the legal system, yet the shift in how judges perceive their role is less significant. Applying practices foreign to the courtroom—practices that focus on the broader interests of the parties—minimizes the original and clear separation that the founders of the alternative dispute resolution movement envisioned as they developed alternative conflict-resolution procedures intended to be completely separate from the legal world.
The new sphere in which the adversarial judge practices, alongside rapid developments in dispute-resolution procedures, is a unique arena which enables dispute resolution under the auspices of authority. Consequently, and as litigants’ expectations of the legal process have changed accordingly, the center of gravity of the legal process has shifted from the evidentiary stage to the preliminary stages (such as pretrial and discovery). This process has inevitably led to changes in the roles of litigators, rules of procedures, relative burdens of proof, and the overall management of litigation. The development of this unique sphere bears great potential for the resolution of complicated legal conflicts and for the development of innovative hybrid models for law and mediation.
Amos Gabrieli and Michal Alberstein,
Conflict Resolution Procedures Within the Courtroom: Between the Adversarial and Inquisitorial Traditions,
Ga. J. Int’l & Compar. L.
Available at: https://digitalcommons.law.uga.edu/gjicl/vol51/iss1/4