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Injustes alternatives et justes conflits. Critique des justices alternatives à partir du droit social

Abstract : This article tries to show the ideological meaning as well as the limits and the dangers of «alternative dispute resolution» (ADR) within the today positive law. Since at least thirty years, these at present very fashionable «alternative justices» make use of such vocabulary as pacification, peace and modernity. But the aim is sometimes to drift the justiciable away from his or her judge. This removal can be questioned on behalf of the basic right to a fair trial. On the other hand, this new way of conflict resolution can have pernicious effects, especially when victims are enjoined to gain his or her harasser's favour. There are telling examples about this evolution such as mediation in harassment's affairs or procedures of conciliation (in fact alert) in case of severe and imminent threat. At last, the aim of conflict resolution could be debatable. For example, conflict as such can be sustained by the law, as in case of competition law or the right to strike, and, in that case, «resolving» the situation very often implies the weaker's « submission ».
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Submitted on : Monday, March 18, 2019 - 10:42:02 AM
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Emmanuel Dockès. Injustes alternatives et justes conflits. Critique des justices alternatives à partir du droit social. Droit et Cultures - Revue internationale interdisciplinaire, CHAD (UPN), Association Droit et Cultures, L'Harmattan, 2013, Les justices alternatives et leurs avatars, pp.101-110. ⟨hal-02070628⟩



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