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法院附设ADR以其固有的效益诉求性,在当今各国受到广泛的重视,成为诉讼之外的重要的纠纷解决手段。然而作为诉讼的补充性手段,法院附设ADR一旦失败,当事人的纠纷就还得依赖诉讼进行解决。这样,不但其效益诉求没有发挥作用,还造成了双重成本的浪费,这种情况即所谓法院附设ADR的“效益困境”。本文指出走出效益困境的唯一出路,就是在不改变ADR的效益优势和不剥夺当事人的诉权的条件下,提高法院附设ADR对当事人的约束效力,尽量避免ADR的失败。
Court attached to the ADR with its intrinsic effectiveness claims, in today’s various countries have been widely valued, as litigation outside the dispute resolution means. However, as a supplement to the lawsuit, once the court appends the ADR, the parties’ disputes have to rely on the lawsuit to solve it. In this way, not only has its efficiency appeal failed to play a role, but it has also resulted in a waste of double costs. This is what the so-called “benefit dilemma” of ADR attached to the courts. This article points out that the only way to get out of the dilemma of efficiency is to improve the binding effect of court-attached ADR on the parties and to avoid the failure of ADR as far as possible without changing the advantages and disadvantages of ADR and not depriving the parties of the right of action.