Consensus Approach

Article by Petri Taivalkoskiand and Helle Lindegaard

This article first appeared in Legal Week Global October 2002

Pragmatism and a lack of formality are typical†features of how dispute resolution is generally†conducted in the Nordic Countries. In countries†such as Finland, the homogeneity of society and†the small size of the business community has†meant that relationships between companies are†straightforward and the need for formal communications†and procedures are fewer than in many†other countries.

Confidential, expedient and informal arbitration†as a dispute resolution method is particularly well†suited to such a business climate, as opposed to†often lengthy and more formal proceedings in state†courts. Accordingly, it is hardly surprising that the†traditional method of resolving business disputes in†Finland has been arbitration.

A relevant question today is whether arbitration†still meets the legitimate expectations of expediency†and informality. It would seem that Finland†has escaped the tendencies of 'jurisdiction' or 'proceduralisation'†of arbitration more than many†other countries. However, although arbitration in†Finland is functioning well, there remains a clear†demand for even more expedient and less adversarial†methods ó most commonly referred to as†alternative dispute resolution (ADR).

The topic of ADR has been well covered by legal†periodicals and, from time to time, in the national†media in the Nordic Countries. A general concern†has been the scope of the application of ADR (business†versus consumer disputes and/or disputes†related to family law) and the possible interaction†between court proceedings/arbitration and ADR†(the right to access to justice and conciliation†already being provided by judges etc).

Many of the controversies surrounding the†subject seem to stem from a fundamental, yet mistaken,†perception that ADR is a competitor to court†or arbitral proceedings.

It is important to underline that ADR is intended†to serve as a complement to judicial procedures†and not ó in spite of what the terminology might†indicate ó a substitute for proceedings before a†court of law or an arbitral tribunal. ADR can never†be a substitute for a thorough, comprehensive,†juridical review of a dispute, which takes place in a†court of law and should never pretend to do so. But†where ADR is an improvement on court proceedings†is in its spirit. ADR is a voluntary, party driven†process and the focus is not on the legal rights of†the...