‘Discuss the historical development of Alternative Dispute Resolution (ADR).’

 1.Introduction

Many international organizations promoting the rule of law in developing and transitional societies over the last decade have created an interest in the use of alternative dispute resolution, or “ADR.” Several reasons underlie this interest. ADR is deemed to be more efficient and effective than the courts in providing justice, especially in countries in which the judiciary has lost the trust and respect of the citizens. Moreover, ADR is seen as a means to increase access to justice for populations that cannot or will not use the court system, to address conflicts in culturally appropriate ways, and to maintain social peace. With the spread of ADR programs in the developed and developing world, creative uses for and designs of ADR systems are proliferating. Successful programs are improving the lives of individuals and meeting broad societal goals. There is a critical mass of ADR experience, revealing important lessons as to whether, when, and how to implement ADR projects.

1.1 Defining Dispute/Conflict Resolution

Dispute/conflict resolution is a process that implies the causes of conflict as well as the resolution of such conflicts. Conflict is a regular and continuous process in our day-to-day life. Conflict can be resolved or settled, but once resolved, new conflicts may arise[1]. It is also a continuous process – one is resolved and another one emerges[2]. Conflict cannot be eliminated forever from our lives, but it can be minimized[3].

The purposes of dispute resolution are-

• To diagnose the root causes of disputes;
• To transform actual and potential disputes into peaceful and positive processes;
• To change violent behavior and hostile attitudes
• To create a lively, congenial environment.

1.2 What is ADR?

The term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes. The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or minitrials that look and feel very much like a courtroom process. Processes designed to manage community tension or facilitate community development issues can also be included within the rubric of ADR[4].                                                                           ADR systems may be generally categorized as negotiation, conciliation/mediation, or arbitration systems. Negotiation systems create a structure to encourage and facilitate direct negotiation between parties to a dispute, without the intervention of a third party[5]. Mediation and conciliation systems are very similar in that they interject a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship.                              Mediators and conciliators may simply facilitate communication, or may help direct and structure a settlement, but they do not have the authority to decide or rule on a settlement. Arbitration systems authorize a third party to decide how a dispute should be resolved. It is important to distinguish between binding and non-binding forms of ADR. Negotiation, mediation, and conciliation programs are non-binding, and depend on the willingness of the parties to reach a voluntary agreement[6].                                                                            Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that the disputants must follow even if they disagree with the result, much like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject. It is also important to distinguish between mandatory processes and voluntary processes. Some judicial systems require litigants to negotiate, conciliate, mediate, or arbitrate prior to court action. ADR processes may also be required as part of a prior contractual agreement between parties. In voluntary processes, submission of a dispute to an ADR process depends entirely on the will of the parties[7].

2. History of Alternative Dispute Resolution

Mediation and Arbitration are conventional methods of dispute resolution for settling controversies between individuals, businesses and countries. The parties may consent to their utilization after a controversy has taken place or may necessitate it for potential conflicts by counting a compulsory mediation and/or arbitration clause in their contract. In mediation, an unbiased third party meets with the disputants, both as a group and on an individual basis, then offers non-binding suggestions in order to resolve their controversy. If the parties cannot resolve their dispute by mediation, they will often submit it to binding arbitration by a neutral arbitrator. This arbitrator is either selected directly by the parties or is designated by an arbitration agency. The arbitrator performs the role of both the judge and the jury while considering the dispute and issues a decision called an award. The award is final and binding upon the parties.

 Historically, arbitration and mediation have been used to settle many different types of disputes[8]. These disputes have typically fallen into one of the following categories – international disputes, commercial disputes, and labor disputes. A recent example of the successful employment of an international mediation is that conducted by former President Jimmy Carter in Bosnia. Additionally, there are numerous examples of the historic resolution of international conflicts by arbitration, such as its use by warring Greek city states and by various Catholic Popes who acted as arbitrators of conflicts between European countries during the Renaissance.

International attempts to provide a foundation for lasting, global peace have also incorporated arbitration. Two examples of this are the Permanent Court of Arbitration, which resulted from international meetings conducted between 1899 and 1907 in Hague, Netherlands and the development of the League of Nations in 1918 which employed arbitration as one mechanism of dispute resolution.

Outside the political arena, arbitration and mediation have been used by businesses worldwide to settle their commercial disputes. In Europe, businesses of differing national origin have frequently submitted their controversies to arbitration. In the United States, arbitration and mediation are often used to settle labor disputes.[9] The submission of a commercial dispute to mediation and/or arbitration may be done voluntarily or at the prompting of a governmental agency.

The federal government of United States of America, has promoted commercial arbitration since as early as 1887, when it passed the Interstate Commerce Act. The Act set up a mechanism for the voluntary submission of labor disputes to arbitration by the Railroads and their employees. Then, in 1925, Congress passed the Federal Arbitration Act which governs the arbitration of contractual disputes involving commerce. More recently, the federal judiciary has found employment disputes, civil rights violations, securities fraud, RICO and anti-trust claims to present arbitrable issues.

While for the most part, the decision of whether or not to engage in commercial mediation and/or arbitration is a matter of contract and has been historically decided by the parties, there have been several occasions in which a government has intervened to require mediation and/or arbitration of a commercial dispute when it felt that the dispute threatened national interests.

For example, in 1926 the United States government enacted the Railway Labor Act to monitor the labor-management relations of both the railways and the airlines. Under the Act, the National Mediation Board may intervene in a dispute and require mediation. If the dispute is not resolved by mediation, the Board will ask, but cannot require, that the parties submit to binding arbitration.

There is also historical precedent for governments requiring the submission of commercial disputes to compulsory, binding arbitration when they felt their national interests so required. This has been done by several countries, including Australia, New Zealand, the United States and Norway. The United States required mandatory arbitration of a railway labor-management dispute in 1963 after a lengthy strike by railroad workers.

3. History of ADR in Bangladesh

Bangladesh has an age-old history of Alternative Dispute Resolution (ADR). The term “Alternative Dispute Resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms, which fall short of, or is alternative to, full-scale court proceedings. It is applied in different situations in different ways, both formally and informally. The village people usually preferred settling disputes amongst themselves and do not appreciate any intervention from other villages. They relate this intervention with loss of face for themselves and image of their village. With the gradual breakdown of the more traditional values of the social fabric, the traditional system of resolving disputes now stands virtually extinct and has been replaced by police cases, legal procedures and other methods.

The community sometimes takes a leading role in resolving local disputes. In Bangladesh, these are popularly known as Shalish and Mimangsha. These are usually undertaken through mediation, negotiation, and reconciliation. In the Shalish or Mimangsha the community leaders delve deep into the root cause/s in the presence of both parties, hear viewpoints of disputants, and try to find a solution agreeable to the parties concerned. Resolving disputes through community initiatives with the above tools are commonly known as Alternative Dispute Resolution[10].

Societies world-over have long used non-judicial, indigenous methods to resolve disputes. In Bangladesh, dispute resolution outside of courts is not new. What is new is the extensive promotion and proliferation of ADR models and its increased uses. In the traditional system, disputes are resolved within the village. However depending on the intensity of the dispute or gravity of the situation, neighboring villages are also sometimes involved.                    During the British period, in 1870, the Panchayat system was introduced to manage and rule the area for its collection of revenue. The Panchayat system was used to resolve minor disputes within their area, and the major disputes were forwarded for legal procedures. In 1919, the Bengal Village Self Government Act was introduced and Union Courts were set up to resolve disputes locally.

Later, the government established the Rin Shalishi Board to keep peasants free from the Mahazons and the moneylenders and also to avoid clashes. Later, the Family Court Ordinance of 1961 and the Village Court Act of 1976 were introduced and authority was vested on the Chairman of Union Parishad to try petty local cases and small crimes committed in their area and take consensual decisions. These were later strengthened in 1985 with additional power to cover

women and children’s rights. The village court consists of UP chairman, members and representatives from concerned parties. Under the Village Court Act of 1976, the village court can try disputes over property valued not exceeding Tk. 5,000. The village court has also power to summon a person to stand as a witness and can impose a fine of up to Tk. 500 on contempt charges. The village court provides easy access to the local people without any obstacle and allows them to defend their position without any outside assistance or lawyer. It is also less cumbersome and less expensive[11].                                                                                       However, this system has some disadvantages, such as the court decisions are sometimes biased and the members of the court may or may not have adequate knowledge and experience to conduct trial procedure. The present Union Parishad is the first tier in the hierarchy of local bodies in Bangladesh and has a mandate to settle disputes of the local people through Shalish. The decision of the Shalish is binding to the parties. In the process, the village elite is also involved. Major cases are not settled locally. Political influences are very frequent and often biased in the Shalish. Today, many NGOs are quite successfully involved in mediation between disputants. Still, many disputes are not mediated nor are local people acquainted with the ADR system.

5. Conclusion

ADR programs can serve as useful vehicles for promoting many rule of law and other development objectives. Properly designed ADR programs, undertaken under appropriate conditions, can support court reform, improve access to justice, increase disputant satisfaction with outcomes, reduce delay, and reduce the cost of resolving disputes. In addition, ADR programs can help prepare community leaders, increase civic engagement, facilitate public processes for managing change, reduce the level of community tension, and resolve development conflicts. An advantage of informal ADR systems is that they are less costly and intimidating for underprivileged communities, and therefore tend to increase access to justice for the poor.

Although ADR programs can accomplish a great deal, no single program can accomplish all these goals. They cannot replace formal judicial systems, which are necessary to establish a legal code, redress fundamental social injustice, provide governmental sanction, or provide a court of last resort for disputes that cannot be resolved by voluntary, informal systems.

6. Bibliography

• Alternative dispute resolution practitioners’ guide, March 1998.
• Forsyth, D. R. ,2009. Group dynamics (5th ed.). Pacific Grove, CA: Brooks/Cole.
• Clift, R. N., May 3^rd ,2010. The Phenomenon of Mediation: Judicial Perspectives and an Eye on the Future. Retrieved from : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1599420
• Schwartz, D. S., April 19^th, 2010. “Mandatory Arbitration and Fairness.” 84 Notre Dame L. Rev. 1247.
• Study Circle Guide,2003. Alternative Dispute Resolution.
• Totaro & Gianna, 2010. “Avoid court at all costs” The Australian Financial Review.