Alternative Dispute Resolution (ADR) has got wide acceptance to resolve dispute due to its perceived advantage

Introduction:

Alternative dispute resolution (ADR) includes quarrel resolution means and procedures that plunge exterior of the government judicial process. Despite historic defiance to ADR by both parties and their advocates, ADR has advanced extensive acceptance amid both the general public and the lawful work in fresh years. In item, some courtyards now demand some parties to vacation resort to ADR of some sort, commonly mediation, before sanctioning the parties’ instances to be tried. The getting higher reputation of ADR can be described by the advancing caseload of conventional courtyards, the awareness that ADR inflicts smaller number charges than litigation, a favorite for confidentiality, and the wish for of some parties to have bigger manipulate over the collection of the separate someone or separate people who will make a determination their dispute.[1]

Legal procedures and its difficulties

Legal procedures are a method of dispute resolution that takes place in the enclosures of law. Basically, persons proceed to the lawful administration to obtain a favorable decision but furthermore to have a feeling of triumph over the other, which may in the minds of the victors pass the genuine gains made out of the tenacity of the difficulty or dispute. It is a win-lose game. This method often retains arguments, and departs enduring scars on the brain of the mislaying party other than settling the difficulty, and it may end in producing the arguments endemic and long lasting. When the losing party gets a possibility, they gaze for revenge. Legal procedures

v     Are very time consuming

v     Require a lot of money and energy

v     Loss of property

v     Are a complex procedure

v     Create a win-lose situation

v     Sometimes stimulate further conflict

v     Requires no reconciliation process

v     Require lack of knowledge in legal procedure

Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) procedures are alternative mechanisms of assisting civilians’ resolve legal complications ahead of going towards court. ADR involves an independent third fellow, branded a neutral who tries towards assistance declaring or narrowing the areas of conflict. Arbitration is a streamlined edition of an experiment involving limited innovation and streamlined governs of evidence.[2] The arbitration is headed and decided via an arbitral panel. To consist a panel, either both sides match on one arbitrator, or each side chooses one arbitrator and the pair arbitrators elect the third. Arbitration hearings generally final between a minority days to a week, and the panel merely meets for a minority hours per day. The panel thereafter deliberates and releases a written verdict, or arbitral award. Arbitration is where the parties with a discord go beyond their quarrel to a third party, who will make a judgment on their behalf.  This judgment will then be validly binding on the parties[3].

The history of Alternative Dispute Resolution in Bangladesh

The Greeks and Romans used ADR as did the popes and European monarchs throughout the middle Ages[4]. Societies world-over have long employed non-judicial, indigenous methods to tenacity disputes. In Bangladesh, dispute resolution outside of courtyards is not new. What is new is the considerable endorsement and proliferation of ADR types and its advanced uses. In the conventional procedure, quarrels are answered in the village. However is relying on the strength of the quarrel or gravity of the situation, neighboring villages are in addition at times involved. During the British interval, in 1870, the Panchayat procedure was introduced to supervise and lead the environs for its accumulation of revenue. The Panchayat procedure was employed to tenacity less noteworthy quarrels in their area, and the greatest quarrels were forwarded for lawful procedures. In 1919, the Bengal Village Self Government Act was ushered in and Union Courts were set up to tenacity quarrels locally. Later, the government established the Rin Shalishi Board to keep peasants free from the Mahazons and the moneylenders and in addition to avoid clashes. Later, the Family Court Ordinance of 1961 and the Village Court Act of 1976 were ushered in and agency was vested on the Chairman of Union Parishad to a go petty restricted instances and small crimes dedicated in their environs and take consensual decisions. These were afterwards fortified in 1985 with supplemental power to cover women and children’s rights. The settlement court contains of UP chairman, components and representatives from afraid parties. Under the Village Court Act of 1976, the settlement court can try disputes over real estate prized not surpassing Tk. 5,000. The village court has in addition power to summon a someone to stand as an onlooker and can inflict a fine of up to Tk. 500 on contempt charges. The settlement court gives not hard entry to the restricted population without any obstacle and sanctions them to vindicate their location without any outside assistance or lawyer. It is in addition less cumbersome and less expensive.
However, this procedure has some penalties, for instance the court decisions are at times biased and the components of the court may or may not have enough learning and understanding to accomplish trial procedure. The present Union Parishad is the first tier in the hierarchy of local
bodies in Bangladesh and has a mandate to reconcile quarrels of the local people through Shalish. The determination of the Shalish is binding to the parties. In the method, the settlement elite are in addition involved. Major cases are not reconciled locally Political effects are very regular and often biased in the Shalish. Today, more NGOs are somewhat productively included in mediation
between disputants. Still, more quarrels are not mediated neither are local population acquainted with the ADR system.

  Benefits of ADR

Advantages include the observation that it generally takes far fewer time to arrive a final resolution than whether the substance were to go to trial. There are actually some other benefits as well.

1. Speed – Settling a challenge employing ADR is generally faster than employing the court system.
2. Expertise – An expert from inside a specific trade or commerce is adept to propose a sensible answer which will be agreeable to the parties involved.  A referee is improbable to have expert information, other than in the law.
3. Privacy – ADR is carried out in confidential, consequently averting advertising from the media.  The public are in addition not able to attend.
4. Parties may be able to remain on good terms – The purpose of ADR is to pinpoint a compromise solution which is acceptable to both parties.  Court proceedings write a winner and a loser.  Using ADR to settle a contest method financial collection can remain on good terms and reach to deal with each other once their contest is resolved.
5. Costs to the Parties – All configurations of ADR are far smaller than taking a case to court.
6. Costs to the State – Every instance decided consuming ADR retains the Government money.
7. Saving of Court Time – Every case solved through ADR stops the courts being over burdened with cases[5].
8. Cooperative approach – All ADR services take position in a more informal, fewer confrontational atmosphere. This is more conducive to preserving a positive commerce relationship between the pair parties.

 Disadvantages of ADR

Using an alternative dispute resolution program is an excellent way to conclude a prospective lawsuit, but, like any constitutional process, there are benefits and disadvantages involved

1. Unequal Bargaining Power – In certain circumstances one boundary is competent to control the other, for instance, paid job and split up instances, establishing the courtyards a better pick for a frail party.
2. Lack of Legal Expertise – In certain positions one edge is adept to override the other, for demonstration, paid work and end wedding ceremony situations, producing the Where an argument engages tough lawful points a mediator or arbitrator is improbable to have the identical lawful know-how and information as a judge.
3. No System of Precedent – It isn’t easy towards predict the event of a argue decided across ADR as there is none system of precedent.
4. Enforceability – Most types of ADR are not lawfully binding, producing any accolade tough to enforce.
5. A Court action may still be required – If employing ADR bungles to tenacity the parties’ quarrel, court achievement may still be needed.  This adds to the charges and hindrances weighed against to taking a quarrel direct to the courtyards in the first place.
6. Decisions are often final – The effects of the proceedings are broadly chatting terminal and, dissimilar court determinations, not able to be petitioned if you are not gratified with the result. It is up to you to investigate assorted avenues of other pick quarrel perseverance and analyze how binding they will be.
7. case might not be a good fit – Alternative dispute resolutions generally resolve only issues of money or civil disputes[6]. Alternative dispute resolution proceedings cannot effect in injunctive orders. They cannot effect in a command demanding one of the parties to do or discontinue doing a specified positive act.

Wide acceptance of the alternative dispute resolution

Alternative Dispute Resolution (ADR) has gained wide acceptance as an effective alternative towards the expanding prices, unwanted publicity and protracted procedure of old-fashioned litigation. Methods of ADR incorporate mediation, and non-binding and attaching arbitration.

This method has created a wide acceptance because of the following reasons.

ü       Well-defined and often flexible processes

ü       Parties dominate the procedure, towards the extent conceded or licensed via relevant statute

ü       Parties within argue employ with each else, rather than across their lawyers

ü       Focus onto the argue, not legal niceties and procedural objections

ü       Process is ‘outcome oriented’

ü       Focus onto holding prices low and hurry of resolution

ü       Process is managed via a fellow whom acts neutrally but firmly, within the interests of the parties and their right towards natural justice

ü       Confidentiality may be preserved.[7]

ü       Win-Win outcome

ü       Cost effective or no cost at all

ü       Requires less time

ü       Indigenous style

ü       Creates social binding

ü       Reconciliation between disputants

ü       Positive outcome helps build confidence in the community

ü       Positive outcome encourage others to resolve disputes in the community

The concept of ADR as an alternative to litigation is globally accepted and has become institutionalized as part of many court systems[8]. Although ADR is a widely recognized worldwide thought that is adapted to resolve conflicts, very tiny quantitative research exists to estimate its commendation and exercise by public procurement officials and their lawful experts at the declare and provincial crosswise in the different countries. Alternate dispute resolution (ADR) is merely consume of a processes towards declare argues else than the old-fashioned court and administrative forums. A nebulous and ever booming notion, ADR contains a broad spectrum of deeds ranging from a mere open door policy across attaching arbitration of statutory claims.

Recommendation

Alternative dispute resolution (ADR) is broadly considered as retaining large pledge for the low-cost and efficient tenacity of buyer arguments, particularly cross-border disputes. In the most of member countries, principle plans identifying the promise advantages of ADR have been developed. In some nations, state-run ADR means are very well developed, proposing argument tenacity services for a broad variety of buyer disputes. In numerous other countries, state-run ADR designs are accessible only on a part or commerce broad basis. Despite efforts to encourage the development and use of private-sector ADR for enterprise to buyer arguments, there is evidence that the provision of such services continues patchy. These outcomes propose that there is still room for enhancement in the development, advancement and use of equitable and productive ADR services for enterprise to consumer arguments, particularly for cross-border disputes.

Conclusion

Alternative Dispute Resolution (ADR) is a term used to describe a variety of different processes, in which an impartial person helps people to resolve their disputes. The word ‘alternative’ is usually understood to mean that these processes are an alternative to having a decision made by a judge in court[9].Arbitration in Bangladesh is governed by the Arbitration Act, 2001 (‘‘the Act’’). Section 9 of the Act sets out the necessary elements to be contained in an arbitration agreement and states that it may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Arbitration uses rules of evidence and procedure that are less formal than those followed in trial courts, which usually leads to a faster, less-expensive resolution.

Bibliography:

1. National Alternative Dispute Resolution Advisory Council. Issues of Fairness and Justice in Alternative Dispute Resolution Discussion Paper, November 1997.
2. Effective Contract Dispute Management and Resolution (2005) [On-line] Available at www.bipsolutions.com/events/ecdmr. [Retrieved November 7, 2005
3. Martin, L.,Miller, J. (2005). Alternative Dispute Resolution: An Implementation
4. Nolan-Haley, J. (1992). Alternative Dispute Resolution (2^nd ed.) St. Paul Minn. West Publishing, (pp 8-9)
5. American Bar Association (ABA) Special Committee on Alternative Dispute Resolution. (1999) Alternative dispute resolution: A practical guide for resolving government contract controversies. Chicago: American Bar Associatio
6. Center for Effective Dispute Resolution, Minister encourages local authorities to follow government’s mediation pledge, (2005) [On-line] Available at www.cedr.co.uk/index.php [Retrieved November 4. 2005]
7. CREMADES, Bernardo M., Arbitraje comercial internacional, Manuales Extebank, Madrid, 1981.
8. DERAINS, Yves, “The revision of the ICC Rules of Arbitration. Method and objectives”, The ICC International Court of Arbitration Bulletin, Vol. 8 N° 2, December 1997
9. In “The Law and Practice of International Commercial Arbitration”, by Redfern & Hunter.
10. FRIEDLAND, Paul D. and HORNICK, Robert N., “The relevance of international standards in the enforcement of arbitration agreements under the New York Convention”, The American Review of International Arbitration, The Parker School of Foreign and Comparative Law,