Court-Annexed ADR In USA

The concept of ADR, which comes from America, is a means of non-litigation disputes settlement carried on in court. Since 1970s, some state courts in USA have set up a disputes settlement system by a third party such as arbitration and mediation, which is called Court-Annexed ADR. As a critical link for the realization of complementary function between litigation and non-litigation disputes settlement, the flourishing development of Court-Annexed ADR in USA draws increasing attention. Operating in the shade of law, the Court-Annexed ADR in USA is a kind of new rising disputes settlement, and its emergence represents the new trend of judicature. However, the establishment and development of Court-Annexed ADR are not as simple as what some people think, which brings out a series of problems which deserve deep think. At present, there is no Court-Annexed ADR in the civil disputes settlement mechanism in our country, and concerned research is still limit to preliminary recommendation. Just because of its advantages, a number of scholars suggest that we should copy it before any further analyses have been taken, which is, in my opinion, cursory and imprudent. Whereas, this paper tends to have a further study on the Court-Annexed ADR, and puts forward the planning of concrete system. The paper, about 80,000 words, consists of three parts.Part I. General review of the Court-Annexed ADR. First, the author analyzes and evaluates some typical views about Court-Annexed ADR, presents her own opinions on Court-Annexed ADR and recommends the categories of Court-Annexed ADR. Then, the author reviews seven characters of the Court-Annexed ADR. In the end, the author concludes that the Court-Annexed ADR has disputes settlement function, adjustment function and remediation function to traditional litigation procedure, and that its value focuses on efficiency in addition to justice and on judicature democratization.Part II. The Court-Annexed ADR and the rule of law. The paper analyzed in details the three reasons for the rising of the Court-Annexed ADR in USA. The first reason is tradition, namely the legal culture of USA; the second reason is the organization and the structure of American courts; and the third reason is about the American society, which isto say, the needs of American society for the Court-Annexed ADR and the transformation of judicature ideology. Then, the author points out that the Court-Annexed ADR gives rise to much controversy in America, and makes remarks on the argument mainly taking Court-Annexed mediation and the Court-Annexed arbitration as examples. Although the Court-Annexed ADR in USA has its particular settlement value, it still conflicts with the rule of law and the spirit of law superiority objectively. The Court-Annexed ADR has the defects of its qualities that it violates the rule of law, and at the same time it also composes a challenge to American civil proceedings. Finally, the paper puts its respect on the practice of Court-Annexed ADR in USA. The author provides a number of factual information, including its application in practice and legislation; moreover, she makes a study of the Court-Annexed ADR of USA under the circumstances of American law reform. In the end, she comes to a conclusion that the patterns of Court-Annexed ADR depend on actual demands and possibilities of a country; therefore, whether our country should establish the Court-Annexed ADR and its categories should be demonstrated time and again as well as considered with discretion.Part in. The inspiration of Court-Annexed ADR. The paper demonstrates the necessity of establishing Chinese Court-Annexed ADR from four aspects such as satisfying actual needs of all walks of live, enhancing settlement capacities of our courts and eliminating the abuse of court mediation, improving the multi-disputes resolution system, and optimizing judge resources distribution. And then, the paper demonstrates the feasibilities of establishing Court-Annexed ADR in China on the bases of the four essential elements: namely, mentality, qualified personnel, theories and legislation. Considering our national conditions, the author draws her conclusion that we may borrow the ideas mainly from American Court-Annexed mediation and Court-Annexed arbitration, provide preparatory scenario about the concrete operation pattern, and suggest putting it into trial use at favorable or appropriate time, with the result that Chinese Court-Annexed ADR system can be constructed.