The Disadvantages of Using ADR in Criminal Justice
By Delilah van Tol and Frédérique Kwantes
In last week's blog post we discussed the advantages of ADR in Criminal law. But it wouldn’t be a fair assessment if we did not include the disadvantages of ADR in Criminal law.
As we have seen, ADR in Criminal law can be an efficient method leading to a more suitable outcome for all the parties involved. However, a main point of criticism arises exactly out of it: only the parties benefit from the outcome, not the society.[1] Opponents of ADR in this field of law, argue that public core values, which are captured in the written or unwritten constitution of countries and are democratically produced in statutes or through case-law, are derived from the court when ADR squeezes in public disputes.[2] Thus, the Court is deprived of a chance to create justice and, consequently, the legitimacy of the Court, and also of the rule of law itself, is at stake.[3] Thus, the court will be endangered because the scope of its work will be limited due to ADR.
To counter-argue, not all cases will be suitable to resolve with ADR. Parties will also not always choose this kind of settlement for different reasons. For example, they may not be willing to face and discuss with the alleged perpetrator of a crime against them.
In ADR you strive for a win-win situation, and in criminal ADR it is, therefore, likely that the victim would not be adequately compensated for losses or damages they have encountered.[4] It can be said that criminal ADR would achieve in finding a solution that would restore peace between the parties, but ADR would not find a remedy for the victim and the victims to come.[5]
Through a lawsuit, a remedy could be made available for the victim and it can be relied upon by other victims. This is not the case in ADR. It has a more individualistic approach as it does not set a precedent for other cases.[6] This is due to the fact that all parties and ad hoc interests involved in the specific dispute need to be considered and confidentiality needs to be respected. Although there might be similar cases, different parties seek different solutions. For these reasons, it can be argued that Criminal ADR may be disadvantageous, as it does not seek remedies for the victims and it does not set a precedent on which future victims can rely.[7]
Although disadvantages should not be ignored, the decision on the most efficient path to be followed depends a lot on the type of case at hand. For that reason, the main focus should be put on the solution sought for the case at hand. If you’re looking for a mutually beneficial outcome, ADR would be the preferred option. If you’re seeking remedies, litigation may offer a more favorable outcome. From that perspective, the disadvantages may not outweigh the advantages for criminal ADR, but they do help you find the option on how you want the case to be resolved. Criminal ADR is neither panacea, not anathema; depending on the ultimate goal of the parties, it can be an efficient way of dispute settlement.
[1] Grace, Maggie T., Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, and Renewing Public Norms (December 17, 2009). Vermont Law Review, Vol. 34, 2010, Available at SSRN: https://ssrn.com/abstract=1524762 > 17-09-2020
Fiss, supra note 26, at 1085
[2] ibid.
[3] FISS, supra note 28, at 32
[4] ibid 567-568.
[5] ibid 568.
[6] ibid 568.
[7] ibid 568-569.