There is a fallacy that is present in the modern discussion of the available methods of Alternate Dispute Resolution (ADR). This misconception stems from two major thought processes; firstly, the belief that ADR is a novel invention; secondly, that ADR involves the settlement of disputes outside of a courtroom setting, in the ‘shadow of the law’. This article presents how this misunderstanding of the fundamental elements of ADR has resulted in a major shortcoming in Irish legislation in relation to not only a viable form of ADR, but a potentially revolutionary form of ADR within the legal sphere.
Although it has become commonplace in our epochal legal system to assume that we are the pioneers of ADR and its advancement, this assumption is misguided. From the Greeks to the Tudors, there have been disputes settled through legal channels, and yet, there were myriads of alternate routes for resolving disputes. Trials by combat were an option, ordeals, feats of strength, or of faith. The courts were, and still often are, a late stage of dispute resolution, with private or minor matters being frequently dealt with by the parties involved. Although these now seem like archaic and out-dated forms of dispute resolution, it is equally arguable that these methods have simply adapted and evolved, rather than becoming extinct. The trial by combat, for example, allowed for a substitution of fighters, to have someone to fight on one’s behalf. It was, not surprisingly, normal practice to choose the largest, most formidable, champion to represent oneself in the duel, despite the fact that this may have been of greater cost.