Los llamados medios alternativos de resolucion de conflictos vistos desde el proceso civil ¿ la justa realizacion del derecho material vs la resolucion de conflictos?

Abstract

Much contemporary discussion in this field, and associated projects of institutional design, are taking place under the wide ranging but imprecise label of the Judiciary and its efficiency (from access to justice and the adjudication legitimacy). The reasons of origins and development of ADR are different in Civil Law (we explain the Germany experience) and American Law. If a common linking theme is sought, we argue that this must lie in a general shift of priorities as between judgement and settlement in ideological comparative terms in regards of the civil procedure. It is not right to present a "alternative" to legal process, when we are treated different institutes. The civil procedure has to achieve their goals according to the "Procedural Justice", which offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. This paper presents open questions about the conflicts resolution, the relation between substantial and formal law and the legal process.