Table of Contents
1. Introduction……………………………………………………………………………..1
2. 2. Concept of Alternative Dispute Resolution (“ADR”)…………..…….………………………………2
3. Types of ADR:………………………………………………………………………….2
4. Situation of “ADR” in Bangladesh. 4
5. Difficulties faced by “ADR”. .5
6. Issues that cannot be entertained or face hardship by ADR …………………………….6
7. Conclusion …………………………………………………………………….…………9
8. References…………………………………………………….………………………….9
1. Introduction: .
Alternative Dispute Resolution (“ADR”) processes are alternative methods of helping people resolve legal problems before going to court. ADR involves an independent third person, called a “neutral” who tries to help resolve or narrow the areas of conflict. Negotiation, mediation and arbitration are the most common features of ADR techniques in Bangladesh.
The current trial system in formal court in most of the country including Bangladesh is highly cumbersome and requires too much time to execute as huge number of cases is pending in the formal court. As a substitute of this problem, Alternative Dispute Resolution (“ADR”) is popular and it is not new to all. It requires less time, low cost, less hassle and easy to execute which gives it a attractive way to implementing trials.
But nothing in the world exists without drawbacks. The Alternative Dispute Resolution (“ADR”) processes have its own limitation and drawbacks. There are many instances where ADR cannot be entertained or if entertained faces hardship to implement. ADR is beneficial to solve local or minor problems which can be easily solved by a third party. But in real life many instances arises which requires deep interrogation and investigation as well as legal binding and obligation. Such kind of issues cannot be easily solved by the ADR process and thus need the help of formal court.
2. Concept of Alternative Dispute Resolution (“ADR”) .
ADR typically refers to processes and techniques of resolving disputes that fall outside of the judicial process (formal litigation – court). Courts are increasingly requiring some parties to utilize ADR of some type, most often mediation, before permitting the parties’ cases to be heard. There are generally four categories of ADR. These are mediation, arbitration, negotiation and
Collaborative law. Conciliation is sometimes included as a fifth category.
All ADR procedures, but negotiation, include the presence of a neutral person capable of providing an unbiased opinion who acts as a facilitator or decision maker. An exception exists with collaborative divorce or collaborative law where each party retains counsel who assists in the resolution process through explicitly contracted terms.
ADR has proven very helpful in many different types of legal disputes. These include divorces and other family matters, professional liability cases, personal injury situations, insurance issues, and commercial disputes.
3. Types of ADR: .
The ADR process can be exercised in many ways. The common types of ADR available for the people are:
Ombudsmen: Ombudsmen investigate and resolve complaints about public and private organizations. They also encourage good practice in the way complaints are handled by organizations and government bodies.
Conciliation: It involves an impartial third party helping the people in dispute to resolve their problem. The parties are free to agree to the resolution or not.
Mediation: Mediation involves an independent third party helping disputing parties to resolve their dispute. The disputants, not the mediator, decide the terms of the agreement.
Arbitration: In arbitration an independent, impartial third party hears both sides in a dispute and makes a decision to resolve it. In most cases the arbitrator’s decision is legally binding on both sides, so it is not possible to go to court if you are unhappy with the decision.
Adjudication: Adjudication involves an independent third party considering the claims of both sides and making a decision. The adjudicator is usually an expert in the subject matter in dispute. Adjudicators are not bound by the rules of litigation or arbitration
Early neutral evaluation: In early neutral evaluation (ENE) an independent third party considers the claims made by each side and gives an opinion, either on the likely outcome or on a particular point of law.
Expert determination: In expert determination, an independent third party considers the claims made by each side and issues a binding decision. The third party is usually an expert in the subject of the dispute and is chosen by the parties, who agree at the outset to be bound by the expert’s decision
Med-arb: Med-arb is a combination of mediation and arbitration. Mediation is attempted first, and if no agreement results, the dispute will go to arbitration, where a binding decision will be issued.
Med-rec: It is a form of mediation in which the mediator gives the parties a recommendation for resolving the dispute.
4. Situation of “ADR” in Bangladesh: .
In common with many other countries around the world, the legal system of Bangladesh is extremely formal, complex, urban based, time consuming and financially draining. Consequently, for many Bangladeshis, particularly the poor, illiterate and disadvantaged living in rural areas, the inability to enforce their own rights through the formal justice system has ensured that many suffer injustice in silence. Conversely, the level of community awareness of legal rights and how they might be enforced is extremely limited particularly in rural areas
Shalish is an age-old, traditionally based system of mediation and dispute resolution in rural Bangladesh in which disputants, community members and village elders gather locally to mediate a conflict and arrive at a resolution agreeable to all involved parties. Historically, village elders and elites along with men of high standing in the community were voluntary third-party mediators of local disputes. Over time, the authority to conduct shalish was transferred to local government bodies such as the Union Council or Union Parishad.
Originally, Shalish was an effective means of resolving local disputes in an amicable, cost-effective manner whereby fractured relationships were restored. However, gradually the shalish system was subject to exploitation at the hands of the powerful elite who used their positions to enforce discriminatory practices to maintain the status quo and local patronage system.
Bangladesh’s first ever alternative dispute resolution center, Bangladesh International Arbitration Center (BIAC) has been launched with a catalytic role played by IFC. BIAC helps business and investors settle commercial disputes out of court, in a quick, transparent and cost effective-manner, through a structured and institutionalized mechanism.
5. Difficulties faced by “ADR” .
ADR is basically the substitute of prevailing law and order but ADR itself has no definite terms and condition and sometimes issues are not solved due to the lack of rules and regulation. It is mainly done by a third party and mostly dependent on the judgment of the settler which sometimes involves unethical and biased activity.
There may be an imbalance of power between the parties, which could make face-to-face mediation unfair. This could include family or neighbor mediation where there has been violence or the threat of violence; or mediation between an individual and a large organization such as a local authority, where the size and resources of the organization could put the individual at a disadvantage.
Arbitration, and often adjudication, is processes that result in legally binding decisions. This means that the party cannot reject the decision if they don’t like it, and they can’t take the claim to court instead which sometimes make the whole process inflexible.
In our country, most of the time ADR process becomes bias to the party who is basically strong and thus make the whole process unfair to the weak party. This is extremely common in “Shalish” where the party who is in higher position or locally respectable always take the position to their sites.
Moreover, there are some extreme positions where the ADR process cannot go further and need court to complete the trial.
6. Issues that cannot be entertained or face hardship by ADR: .
Though ADR is substitute of formal court system and a popular and easy going system for completing the trial process, there are some limitations of ADR. Some factors or issues are there which cannot be entertained by ADR process.
Legal rights and human rights: ADR cannot provide specific solution for matters related to legal rights and human rights. As these matter is highly related to nations law and written constitute, Alternative dispute resolution can contradict or go against the existing law and order. This matter is highly ruled by the judiciary system of the country and the courts judgment shall be entertained. ADR cannot be overruled against current legal rights. The basic human rights is equal for all and don’t consider the judgment of the third party who act as a judge for ADR. The basic human rights highly follow the constitution so ADR faces high limitation while deal such kind of matters.
Where legal binding is necessary: ADR does not provide a legally binding, enforceable outcome which means that it has less power to implement or force its judgment to act accordingly. So in the case like if the aim of court action is to force a debtor to pay up, or to compel a local authority to meet its obligations, then court may be a better option. In such cases ADR is not a good choice for getting a trial as it doesn’t have power to follow the its trial like formal court.
Where deep investigation is obvious: Some extreme cases where deep investigation is highly essential, ADR faces hardship to do a fair and right trial. In a case where most of the relevant information is in the hands of the opponent, less discovery may pose a serious problem.ADR has its limitation and it doesn’t have the privilege to do a deep investigation about the subject matter. So for a case which requires investigation without which the trial cannot be complete, people have no choice to go formal court.
Emergency situations: Many emergency situation or the cases which requires legal binding cannot be done by ADR. For example, to prevent an eviction where needs immediate regal remedy, ADR is not able to handle such kind of cases. These cases must be solved only by the help of formal law and regulation.
Where imbalance of power exists: There may be an imbalance of power between the parties, which could make face-to-face mediation unfair. This could include family or neighbor mediation where there has been violence or the threat of violence; or mediation between an individual and a large organization such as a local authority, where the size and resources of the organization could put the individual at a disadvantage. This kind of situation is very common in our country and people face difficulties to solve the problem by taking the help of ADR.
Issues of nation’s interest: Many issues are related to nation’s interest. Cases where if anything goes wrong which can cause against nations interest, must be entertained by formal court. ADR cannot deal such kind of big issues which is directly relates to a large number of people. The scope of ADR is not so vast like the formal court and it doesn’t have privilege to rule such kind of act whose impact may fall to the whole nation. In such delicate matter people have no choice but to follow the trial of formal court.
International dispute: Handling of international dispute is highly cumbersome and requires international rules and regulation as well as political skill. Such matter is also highly related to the public interest. To come up a solution for such kind of delicate matter, ADR faces hardship or also don’t have the rights to solve. In the era of globalization, where one country is highly dependent of another country, a lot of dispute arises when country engages cross border deal. In solving such kind of matters, formal court as well as international governance is the way to solve the matter. So the ADR is ineffective and cannot be entertained for solving international dispute.
Where Appeal might necessary: Arbitration, and often adjudication, are processes that result in legally binding decisions. This means that party cannot reject the decision if they don’t like it, and they can’t take the claim to court instead. As a result, ADR make the related party scopless to take the matter in others end for a favorable level. If the party thinks that further trial is necessary or the case might need further trial, its better to go for formal court instead of ADR. Moreover, there is a high chance of biasness in the ADR process. In such cases where the appeal is necessary, formal court is more attractive than the ADR process.
7. Conclusion: .
Due to hassle, time duration, cumbersome process, high cost etc of formal court, Alternative Dispute Resolution or commonly known as “ADR” is a popular and easy going process for getting trial. But “ADR” has its own limitation and cannot overrule formal court judgment. It is a popular means of solving small or community dispute but when the issue becomes larger and needs law binding or deep investigation, “ADR” faces hardship and also becomes ineffective to provide solution. Moreover, there is a high chance of biasness and also coercion from strong party which makes it difficult to provide fair trial for all.
8. References .
1. Ahmed.N & Bharman.C. 2003.Study Circle Discussion Guide on Alternative Dispute Resolution
2. William S. & Jean R. Sternlight. 2007. Is Alternative Dispute Resolution Consistent
With the Rule of Law?. William S. Boyd School of Law
3. Thomas J. Stipanowich. November 2004. ADR and the “Vanishing Trial”: The Growth and Impact of “Alternative Dispute Resolution” Volume 1, Issue 3, 843–912
4. Smith.H. 2007. Pros and cons of common ADR processes.
5. Pros and Cons of ADR. Retrieved from http://www.adrnow.org.uk/go/SubSection_41.html.
6. Raymond, T and Georgalis, S (2003) “Dispute resolution in the changing shadow of the law: a study of parties’ views on the conciliation process in “ADR”, Vol. 6 Number 2, June 2003.
7. Sourdin, T (2002) Alternative Dispute Resolution Lawbook Co, Sydney.
8. Mediation is a way of addressing disputes that is voluntary, informal ,cost-effective, participatory, compromise-based,local and empowering. Retrieved from www.penal reform.org