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Aeken, Koen van --- "Civil Court Litigation and Alternative Dispute Resolution" [2012] ELECD 768; in Clark, S. David (ed), "Comparative Law and Society" (Edward Elgar Publishing, 2012)

Book Title: Comparative Law and Society

Editor(s): Clark, S. David

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849803618

Section: Chapter 11

Section Title: Civil Court Litigation and Alternative Dispute Resolution

Author(s): Aeken, Koen van

Number of pages: 19

Extract:

11 Civil court litigation and alternative dispute
resolution
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 methodologi-
cal 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
...


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