Privatising Civil Justice and the Day in Court

Rainer Kulms

in Mediation

Published in print November 2012 | ISBN: 9780199653485
Published online January 2013 | e-ISBN: 9780191758270 | DOI:
Privatising Civil Justice and the Day in Court

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Courts step in when private ordering breaks down. Litigation strategies maximise the parties' utilities, but ignore negative externalities. There is a growing awareness that it is sub-optimal to handle conflict by trial. Courts embrace alternative dispute resolution as a mechanism for reducing the judiciary's workload and addressing the challenge of budget cuts. Dispute settlement by self-determination is a private ordering exercise to be preferred over cost-intensive procedures for trials and judicial precedent. This study assesses the economic and constitutional implications of privatising the day in court. Reference is made to US laws (including the Uniform Mediation Act) and to German and European laws (the EU Mediation Directive). Privatisation appears to be the regulatory policy prescription for averting tragedies of the common; but in turn, privatised dispute settlement may also provoke problems of the anti-commons of its own. More attention should be devoted to the private and social costs of a mediation settlement.

Keywords: civil justice; dispute resolution; dispute settlement; privatisation; mediation settlement; Uniform Mediation Act; EU Mediation Directive

Chapter.  18191 words. 

Subjects: Comparative Law

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