The Impact of ADR on The Dichotomy of Form and Substance in Law

Özeler Sezici N.

International Conference on Jurisprudence, Budapest, Hungary, 16 - 18 October 2025, pp.12, (Summary Text)

  • Publication Type: Conference Paper / Summary Text
  • City: Budapest
  • Country: Hungary
  • Page Numbers: pp.12
  • Ankara Yıldırım Beyazıt University Affiliated: Yes

Abstract

This paper investigates whether alternative dispute resolution (ADR) mechanisms have a transformative impact on the dichotomy between the form and substance of law. ADR is widely recognized for enabling faster and potentially more sustainable conflict resolution by relying on negotiation and mutual concessions rather than strict adherence to legal norms and procedurals. Accordingly, it has been argued that ADR softens the formal character of modern law while strengthening its substantive dimension.

This study challenges that assumption, using the practice of mandatory mediation in Turkey as a case study. It begins by addressing the hierarchical dichotomy between legal form and substance, with particular attention to how form—characterized by certainty, predictability, conceptual clarity, and systematicity—is often privileged over substance, which includes the law’s purposes, values, principles, and empirical context.

Subsequently, the paper examines whether and how ADR mechanisms alter this formalist hierarchy. Drawing on critical perspective, it discusses concepts such as informal justice, delegalization, and informalism, which are often invoked in the literature to suggest that ADR contributes to a broader anti-formalist turn in legal systems. This includes diverting certain types of disputes from the formal judiciary, empowering local and traditional authorities, and enhancing party autonomy. However, some scholars argue that such mechanisms may instead serve a relegitimizing (instead of delegalization) function for the formal legal order.

In line with the latter view, this paper argues that ADR—specifically mandatory mediation in Turkey—does not, in practice, diminish the formal character of law. On the contrary, it generates new forms of formality by imposing procedural prerequisites before access to court. The mandatory mediation process incorporates numerous formal rules typically associated with civil procedure. Thus, rather than empowering the substantive aspects of law—its purposes, values, and principles—mediation in this context reinforces formality through new procedural layers. Ultimately, this study concludes that mediation, as currently institutionalized, fails to deliver the substantive legal transformation it is often presumed to offer.