代案的 紛爭解決制度(ADR)의 經濟學― 環境紛爭調停制度에 대한 評價를 中心으로 ―

Abstract

When individuals need to resolve their disputes with other individuals, they may often go not only to courts for trial but also to alternative methods of dispute resolution (“ADR”). Drawing upon a few recent studies, this article provides some economic explanation about why individuals make use of ADR instead of trial and/or settlement. By examining what the social interest is in ADR, it also provides a useful reference point by which one can evaluate the ADR system the “Environmental Dispute Adjustment Act” has developed to cope with complicated environmental disputes. Part I begins with defining the characteristics of environmental disputes that make environmental litigation less frequent. Due to the tendency of “under-litigation” involving environmental disputes, ADR is particularly needed for environmental disputes. An ADR system aiming at environmental disputes needs to be designed so as to i) minimize the total cost of resolving disputes, and simultaneously ii) to engage as many parties involved as possible and make an ideal communication structure where the parties involved can provide each other with the relevant information(Part II). Part III looks over the cost structure of ADR. The dispute resolution costs of ADR consist of ADR-using cost(“operation cost”) and misjudgment cost(“error cost”). To save the former, it is necessary to trade off the latter. Accordingly, an ideal ADR system must be such that the sum of both can be minimized. In general, ADR brings about less operation costs than a trial before the courts. Therefore the success of ADR depends upon how much it can minimize error costs. If one can design an ideal communication structure in ADR process, it may also help lower error costs. Part IV specifies ADR's institutional elements necessary to cope successfully with environmental disputes. Drawing upon the findings of Part III and IV, Part V evaluates the current ADR system established by the Environmental Dispute Adjustment Act.