Analysis of Historical Development of Alternative Dispute Resolution

TOPIC:


 

                                                Abstract

Alternative Dispute Resolution (ADR) is a way to make any solution between parties involving in any disputes without involvement of judicial activities (alternative way of litigation) through using its various forms. Negotiation, Mediation, Arbitration, Collaborative Law, Conciliation etc forms are mainly used to make resolutions between two or more disputed parties as an alternative way of litigation or court hearing. Alternative Dispute Resolution has been historically developed in North American countries like United States, Canada etc; in European Countries like Italy, Greece, Great Britain, Ireland, Spain, France, Belgium etc; in Australia; in China; in Sub-Saharan African Countries like Ethiopia, Botswana, Namibia, Nigeria etc; in Middle-East and North African Countries like Saudi Arabia, Iraq, Egypt, Morocco etc; in China; in Indian-Sub Continent countries like India, Bangladesh, Pakistan  from ancient to present period with the implementation of practice of mediation, arbitration, negotiation, conciliation etc imposed by past rulers and legal provisions. International organizations like Association of International Arbitration have been established for resolving disputes between International parties for implementing Alternative Dispute Resolution (ADR).

 

 

 

 

                                                  TABLE OF CONTENTS

Introduction………………………………………………………………………………………………………….4

Forms of Alternative Dispute Resolution:

    Negotiation………………………………………………………………………………………………….4-5                      

   Mediation……………………………………………………………………………………………………….5

 Collaborative Law……………………………………………………………………………………………5         

  Arbitration…………………………………………………………………………………………………….5-6

Conciliation……………………………………………………………………………………………………..6                                 

Historical Development of Alternative Dispute Resolution:

Development in North America…………………………………………………………………………6-7 Development in Europe…………………………………………………………………………………..7-8   Development in Australia………………………………………………………………………………..8-9  Development in Sub-Saharan Africa………………………………………………………………….9 Development in Middle-east North Africa………………………………………………………….9-10  Development in China……………………………………………………………………………………..10 Development in Indian-Sub Continent……………………………………………………………….10-11     International Development………………………………………………………………………………11-12                       

Conclusion ………………………………………………………………………………12

Bibliography……………………………………………………………………………..13

Introduction:

The process of making solutions to remove all kinds of disputes and conflicts between two or more parties is basically known as Dispute resolution.[1] Alternative Dispute Resolution (ADR) is a form of dispute resolution in which parties involving in any kind of conflicts or disputes comes into an agreement to solve their conflicts and disputes without making any court hearing or lawsuits or litigation using forms like Negotiation, Arbitration, Meditation, Collaborative Law, Conciliation etc. [2]It is also known as External Dispute Resolution in some countries like Australia.[3] So, Alternative Dispute Resolution (ADR) is a way to make any solution between parties involving in any disputes without involvement of judicial activities (alternative way of litigation) through using its various types.[4] It has gained huge popularity and has been accepted among both common people and people involving in legal activities through progressive development of its various forms in recent years around the world.  [5]

Forms of Alternative Dispute Resolution (ADR):

To settle disputes, Alternative Dispute Resolution (ADR) has following important forms:

i) Negotiation:

The word “Negotiation” is derived from Latin word “Negotiatus” which means “To carry on business.” [6]A form of dialogue between two or more parties involving in any kind of disputes or conflicts to make a solution for removing all disputes or conflicts is known as negotiation.[7] Negotiation is basically occurred to remove disputes regarding business, non-profit organizations, personal situations like marriage or divorce etc. [8]Participation of conflicted parties in Negotiation process is voluntary and no third party is permitted to involve in its resolution process. [9]But, a third party like social worker or skilled friend may act as a mentor for both parties behind the negotiation scene. This process is known as “Helping People Help Themselves”.[10]

ii) Mediation:

The process of resolving conflicts between two or more parties through involvement of a third party (also known as a mediator) is known as meditation.[11] A mediator assists parties involving in any conflict and guides them to a solution through some proposals.[12]

iii) Collaborative Law:

A legal process to finish all kinds of family and martial disputes through separation or divorce or mutual consent with the help of lawyers on court is known as collaborative law.[13] This system is also called collaborative practice or divorce.[14]

iv) Arbitration:

A legal technique to resolve any conflicts between two or more parties with involvement of third parties (known as arbitrators) who give decisions by judging situations of the conflicted parties through making an agreement between conflicted parties is known as arbitration.[15] Participation in any arbitration process can be voluntary or compulsory for all parties. The use of arbitration is frequently seen in consumer and employment matters.[16]

v) Conciliation:

Conciliation is a process to settle disputes between two or more parties through involvement of a third party (known as conciliators).[17]It is different from mediation and arbitration process because acceptance of decision of conciliators should be approved by all disputed parties.[18] If any party rejects the decision or judgment of conciliators then the effectiveness of the conciliation process shall be hampered.[19]

Analysis of Historical Development of Alternative Dispute Resolution (ADR):

Alternative Dispute Resolution (ADR) has been developed in recent years in Asian, African and Western Countries through practice of negotiation, mediation, arbitration etc.

1. Development of Alternative Dispute Resolution (ADR) in North America:

Arbitration and Mediation were also highly practiced in United States for settling commercial disputes during 18th and 19th century.[20] Arbitration was first promoted by Federal Government of United States by passing Interstate Commerce Act in 1887.[21]Full Arbitration process was developed in United States during 20th century when Congress (Parliament of United States) passed Federal Arbitration Act, 1925.[22]                                                                                                        In Canada, Alternative Dispute Resolution was practiced in form of mediation to resolve family disputes.[23] Through the practice of mediation, Family Law for resolving family disputes was formed in Canada during 20th century.[24] Mediation was also start to spread for civil or non-family law in Canada during mid-1980 period. [25]Thus, Alternative Dispute Resolution (ADR) has been gradually developed in North American Countries like USA, Canada etc through practice and spread of Arbitration and Mediation.

2. Development of Alternative Dispute Resolution (ADR) in Europe:

During the Renaissance period, Catholic Popes were practiced arbitration by acting as arbitrators to remove conflict between European Countries etc like Italy, Greece etc.[26] In ancient period, Roman Emperors in Italy were practiced mediation.[27] Mediation was highly practiced in Iceland during the era of ancient kings.[28] In Ancient Greece, the existence of practice of arbitration was to be believed through mythology.[29] Besides Mythology, Public Arbitrators were instituted in Athenian courts in States of Ancient Greece to resolve disputes.[30] Greek Philosophers Aristotle and Cicero also believed arbitration as an alternative to the courts to support Alternative Dispute Resolution.[31] In Great Britain, the practice of Mediation was established from United States.[32] Old Irish Brehon Law system was existed in Ireland from the Celtic settlement before the birth of Jesus Christ through practice of arbitration.[33] Practice of Negotiation, Mediation and Arbitration were also available during rulers of Ancient and Medieval period in Spain, France, Belgium and other European countries.[34] Thus, Alternative Dispute Resolution (ADR) has been gradually developed in Europe through spread of Arbitration and Mediation.

3. Development of Alternative Dispute Resolution (ADR) in Australia:

Alternative Dispute Resolution (ADR) has been early developed in states of Australia through Arbitration and conciliation.[35] “These forms of ADR were practiced in International relations and labor law which brought some order to volatile and violence-prone industries such as coal industry and the railways during 19th and 20th century in Australia.”[36] Three important forms of ADR have been established in Australia during the decade of 1960 and 1970.[37]These are: Development of the Ombudsman in Australia, Development of a system of tribunals and Development of Community Justice Centers in Australia.[38] Thus, Alternative Dispute Resolution (ADR) has been gradually developed in Australia.

 

4. Development of Alternative Dispute Resolution (ADR) in Sub-Saharan Africa:

Existence of having Alternative Dispute Resolution (ADR) was identified in Sub-Saharan countries of Africa Continent like Ethiopia, Benin, Botswana, Namibia, Nigeria etc through practice of negotiation, mediation and conciliation before the start of colonial period.[39] “In Benin, specialized tribunaux de conciliation hear cases on a broad range of civil law matters.” [40]Ancient Tribal leaders in Ethiopia, Namibia, Nigeria, Botswana and other French-speaking African countries were also operated mediation and conciliation before the start of colonial period.[41] Thus, Alternative Dispute Resolution (ADR) has been gradually developed in Sub-Saharan African countries.

5. Development of Alternative Dispute Resolution in Middle-East and North Africa:

The existence of Alternative Dispute Resolution Middle-east and North African countries like Saudi Arabia, Iran, Iraq , Egypt, Tunisia, Morocco etc has been found in Ancient and Medieval period during the period of Prophets and Caliphs  through practice of Arbitration and Mediation.[42] Prophet Muhammad (Sm.) has encouraged and practiced Takhim (Arbitration) by acting as an arbitrator.[43] Sulh (settlement) and Musalaha (reconciliation) were practiced as forms of Alternative Dispute Resolution by Ancient Middle-Eastern tribes and villages for resolving disputes and conflicts between them.[44] Thus, Alternative Dispute Resolution (ADR) has been gradually developed in Middle-East and North African countries.

6. Development of Alternative Dispute Resolution (ADR) in China:

In Ancient China, Alternative Dispute Resolution has been developed in Confucian ethics through the adaptation of mediation.[45] About 950,000 meditation committees have been developed with an estimate of 950 mediators in Present China to resolve disputes between parties as an Alternative Dispute Resolution.[46] Thus, Alternative Dispute Resolution (ADR) has been gradually developed in China.

7. Development of Alternative Dispute Resolution (ADR) in Indian-Sub-Continent:

Indian-Sub Continent countries India, Bangladesh and Pakistan have a long history for developing Alternative Dispute Resolution (ADR).[47]In ancient period, Practice of Mediation and Arbitration was maintained during the rule of Murya, Pala and Sena period.[48] In Medieval period, Mediation and Arbitration were also practiced Mughal Emperors like Akbar the Great.[49] In Colonial Period, British rulers of Indian Sub-Continent practiced Arbitration and Conciliation to make resolutions for disputes.[50] In India, Lok Adalat (People’s Adalat) has been considered as Gandhian principle in India to resolve disputes through mediation of elder persons in rural areas.[51]  In Independent India, Arbitration and Conciliation have been developed as forms of alternative dispute resolution through passing Arbitration and Conciliation Act, 1996.[52] Local Communities or Villagers of Bangladesh has been practicing mediation for  long period (known as  Shalish or Mimangsha in Bengali) to act as Alternative Dispute Resolution.[53] In Pakistan and Bangladesh, Alternative Dispute Resolution has been developed through implementation of Arbitration Act, 1940.[54] Thus, Alternative Dispute Resolution (ADR) has been gradually developed in Indian Sub-Continent countries like India, Bangladesh and Pakistan.

8. International Development of Alternative Dispute Resolution (ADR):

Arbitration and Mediation were also highly practiced in International meetings of inter-continental nations. Arbitration had a great role to form international peace among nations.[55]                  “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.”[56] In 2001, Association of International Arbitration has been founded in Paris by Johan Billiet to make resolutions for international disputes through Arbitration and Mediations.[57] Thus, International Development of Alternative Dispute Resolution (ADR) has been gradually developed.

Conclusion:

At last we can conclude that, Alternative Dispute Resolution (ADR) is the process of making resolutions for disputes between two or more parties by avoiding litigation through various forms.[58] It has been historically developed from ancient period to present period in Europe, North America, Sub-Saharan African Countries, Middle-East and North African Countries, Australia, China, Indian-Sub Continent and other regions around the world through the practice of negotiation, mediation through mediators, arbitration through arbitrators and Conciliation for resolving disputes between parties without court hearing.[59]

                                                           

 

                                                       Bibliography

A breif history of Alternative dispute resoltion. (n.d.). Retrieved December 2, 2011, from http://www.fema.gov/doc/library/morethanoneway.doc.

Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf.

Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

Arbitration. (n.d.). Retrieved 2011, from http://en.wikipedia.org/wiki/Arbitration.

Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

Boulle, L. (2005). A History of Alternative Dispute Resolution. Retrieved from http://epublications.bond.edu.au/cgi/viewcontent.cgi.

Collaborative Law. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Collaborative_law.

Conciliation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Conciliation.

Field, C. (2007). Alternative Dispute Resolution in Victoria:. Retrieved from http://www.consumer.vic.gov.au/CA256902000FE154/Lookup/CAV_Publications_Reports_and_Guidelines_2/$file/cav_report_adr_supply_side_research_2007.pdf.

Global Arbitration Mediation Association, Inc. (2000). HISTORY OF ALTERNATIVE DISPUTE RESOLUTION. Retrieved December 2, 2011, from http://www.gama.com/HTML/history.html.

Kohlhagen, D. (2008). Alternative Dispute Reslution (ADR) and Mediation in Africa. Retrieved from http://www.dhdi.free.fr/recherches/etudesdiverses/articles/kohlhagenmediation.pdf.

Mediation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Mediation.

Negotiation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Negotiation.

 

 

align=”left” size=”1″ />

[1] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[2] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[3] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[4] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[5] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[6] Negotiation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Negotiation.

[7] Negotiation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Negotiation.

[8] Negotiation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Negotiation.

[9] Negotiation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Negotiation.

[10] Negotiation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Negotiation.

[11] Mediation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Mediation.

[12] Mediation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Mediation.

[13] Collaborative Law. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Collaborative_law.

[14] Collaborative Law. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Collaborative_law.

[15] Arbitration. (n.d.). Retrieved 2011, from http://en.wikipedia.org/wiki/Arbitration.

[16] Arbitration. (n.d.). Retrieved 2011, from http://en.wikipedia.org/wiki/Arbitration.

[17] Conciliation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Conciliation.

[18] Conciliation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Conciliation.

[19] Conciliation. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Conciliation.

[20] A breif history of Alternative dispute resoltion. (n.d.). Retrieved December 2, 2011, from http://www.fema.gov/doc/library/morethanoneway.doc.

[21] A breif history of Alternative dispute resoltion. (n.d.). Retrieved December 2, 2011, from http://www.fema.gov/doc/library/morethanoneway.doc.

 

[22] A breif history of Alternative dispute resoltion. (n.d.). Retrieved December 2, 2011, from http://www.fema.gov/doc/library/morethanoneway.doc.

[23] Boulle, L. (2005). A History of Alternative Dispute Resolution. Retrieved from http://epublications.bond.edu.au/cgi/viewcontent.cgi.

[24] Boulle, L. (2005). A History of Alternative Dispute Resolution. Retrieved from http://epublications.bond.edu.au/cgi/viewcontent.cgi.

[25] Boulle, L. (2005). A History of Alternative Dispute Resolution. Retrieved from http://epublications.bond.edu.au/cgi/viewcontent.cgi.

[26] Global Arbitration Mediation Association, Inc. (2000). HISTORY OF ALTERNATIVE DISPUTE RESOLUTION. Retrieved December 2, 2011, from http://www.gama.com/HTML/history.html.

[27] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[28] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[29] Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

[30]  Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

[31]Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

[32]  Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

[33] [33] Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

[34] A breif history of Alternative dispute resoltion. (n.d.). Retrieved December 2, 2011, from http://www.fema.gov/doc/library/morethanoneway.doc.

[35] Field, C. (2007). Alternative Dispute Resolution in Victoria:. Retrieved from http://www.consumer.vic.gov.au/CA256902000FE154/Lookup/CAV_Publications_Reports_and_Guidelines_2/$file/cav_report_adr_supply_side_research_2007.pdf.

[36]Boulle, L. (2005). A History of Alternative Dispute Resolution. Retrieved from http://epublications.bond.edu.au/cgi/viewcontent.cgi.

[37] Field, C. (2007). Alternative Dispute Resolution in Victoria:. Retrieved from http://www.consumer.vic.gov.au/CA256902000FE154/Lookup/CAV_Publications_Reports_and_Guidelines_2/$file/cav_report_adr_supply_side_research_2007.pdf.

[38] Field, C. (2007). Alternative Dispute Resolution in Victoria:. Retrieved from http://www.consumer.vic.gov.au/CA256902000FE154/Lookup/CAV_Publications_Reports_and_Guidelines_2/$file/cav_report_adr_supply_side_research_2007.pdf.

[39] Kohlhagen, D. (2008). Alternative Dispute Reslution (ADR) and Mediation in Africa. Retrieved from http://www.dhdi.free.fr/recherches/etudesdiverses/articles/kohlhagenmediation.pdf.

[40] Kohlhagen, D. (2008). Alternative Dispute Reslution (ADR) and Mediation in Africa. Retrieved from http://www.dhdi.free.fr/recherches/etudesdiverses/articles/kohlhagenmediation.pdf.

[41] Kohlhagen, D. (2008). Alternative Dispute Reslution (ADR) and Mediation in Africa. Retrieved from http://www.dhdi.free.fr/recherches/etudesdiverses/articles/kohlhagenmediation.pdf.

[42] Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

[43] Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

[44] Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

[45] Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

[46] Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.

[47] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf.

[48] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf.

[49] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf.

[50] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf.

[51] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[52] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[53] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf.

[54] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf.

[55] Global Arbitration Mediation Association, Inc. (2000). HISTORY OF ALTERNATIVE DISPUTE RESOLUTION. Retrieved December 2, 2011, from http://www.gama.com/HTML/history.html.

[56] Global Arbitration Mediation Association, Inc. (2000). HISTORY OF ALTERNATIVE DISPUTE RESOLUTION. Retrieved December 2, 2011, from http://www.gama.com/HTML/history.html.

[57] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[58] Alternative Dispute Resolution. (n.d.). Retrieved December 2, 2011, from http://en.wikipedia.org/wiki/Alternative_dispute_resolution.

[59] Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.