anja amend-traut These situations describe the level between an out-of-court dispute settlement on the one hand, and a dispute resolution in court on the other hand: Even after court action has been initiated, the parties are free to entirely or partly discontinue or end the dispute without final judgment.2 Due to the traditional focus on judgments in the history of litigation, the various possibilities of such alternative dispute resolutions have so far been largely disregarded.3 Even though normative sources, deeply ingrained legal customs and in later times stylus curiae both within an editorial meaning and in court practice provided a comparatively binding framework for the formality of Imperial Chamber Court proceedings and thus also for their conclusion by final judgment, the search for traces of alternative dispute resolution exposes the difficulty of not finding the modern selectivity in the definition of terms. There is no clear distinction between a withdrawal of the action, termination of the legal dispute and waiver of the subject matter,4 as provided for in modern codes of procedure.5 Merely for the settlement in court can be found applicable regulations in codes of pro2 This did and still does of course especially not apply to criminal law matters which have already since the middle ages always been excluded from the legal freedom of action of individuals. On the development, see recently Martyn, Georges – Musson, Anthony – Pihlajamäki, Heikki (ed.) 2013. 3 More recent research on the legal history of litigation has meanwhile detached itself therefrom; cf. for example Oestmann, Peter 2001 pp. 15-54, Oestmann,Peter 2002 and AmendTraut, Anja 2009. In this respect, however, alternative procedures were still hardly ever pursued. The habilitation thesis on civil procedure by Ebel, Friedrich 1978 pp. 77-80, as well as Saar, Stefan Chr. 1998 column 724-725, and the brief extensions in Sellert, Wolfgang 1973 pp. 208-211, touch on the differences between formal procedures concluded by a final judgment and alternatives thereto as here of interest, even if a relation to court practice is at best indicated, cf. for instance also the corresponding note in Ebel, Friedrich (as above). Likewise, most contributions in Esders, Stefan (ed.) 2007, and the research on early modern committee structures at the Aulic Council by Ortlieb, Eva 2001, and by Ullmann, Sabine 2006, do not analyse the consideration of normative ideas in practice. Solely Kroeschell, Karl 2007 pp. 121-139, here esp. pp. 121-122, 138, points out the significance of the ”law in action.” 4 A first thorough research in this respect is the work of Graebe, Philipp Wilhelm Leopold 1843. 5 According to today’s procedural law, alternatives to the judgment on a dispute can be, apart from the settlement in court and the promise of withdrawal of the action - that can be asserted by the adverse party as a defence in case of non-compliance - the withdrawal of the action, the waiver of action, and a declaration that the matter was dealt with and 77
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