Navigating Justice: Decision-Making Dynamics between Litigation and Alternative Dispute Resolution in the Pre-Dispute Phase

This paper investigates the factors influencing individuals' decisions to pursue Alternative Dispute Resolution (ADR) instead of litigation in formal courts. Using a qualitative approach, the study explores how personal, social, and institutional factors shape these decisions. Building on Felstiner et al.’s framework of naming, blaming, and claiming, the research considers the pre-dispute phase, where conflicts emerge and evolve into legal or alternative solutions. The analysis reveals that key factors include individuals' perceptions of cost, time, and outcomes, alongside the influence of social norms, cultural expectations, and institutional accessibility.

Additionally, the study emphasizes the role of trust in legal institutions versus ADR mechanisms, as well as the influence of power dynamics between the disputing parties. Personal experiences with the justice system, or lack thereof, often lead individuals to opt for ADR, where the process is perceived as more flexible, less adversarial, and focused on negotiated outcomes.

The paper investigates how individuals assess their options as conflicts unfold by discussing the outcome off in-depth interviews with both individuals that have successfully and unsuccessfully litigated a dispute before of a court of law and individuals that are in the pre-dispute phase, if they favour Alternative Dispute Resolutions instead of litigation before a court of law and what the main factors are in their decision making. This study aims to provide insights into the complex interplay between legal consciousness, institutional frameworks, and dispute resolution preferences in shaping how justiciable problems are addressed.