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ADR is a cost effective, efficient, as well as less time consuming mode of settling conflicts -explain
INTRODUCTION
1.1 Conflict<href=”#_ftn1″ name=”_ftnref1″ title=””>[1] or dispute<href=”#_ftn2″ name=”_ftnref2″ title=””>[2] is a natural and inevitable part of all human social relationships. Conflict occurs at all levels of society from interpersonal, family, tribes to national and international levels. The existence of conflict and dispute presuppose the existence of dispute resolution process. Alternative Dispute Resolution can be a process to try to resolve conflict.
1.2 Alternative dispute resolution (“ADR”) is an umbrella term for processes that provide an alternative to traditional litigation.<href=”#_ftn3″ name=”_ftnref3″ title=””>[3] ADR processes give the parties an opportunity to play a more active role in crafting a resolution to their “dispute”. The term ADR encompasses a wide variety of processes and programs, from pre-dispute, binding contractual arbitration to voluntary community mediation.<href=”#_ftn4″ name=”_ftnref4″ title=””>[4] ADR involves an independent third person, called a “neutral” who tries to help resolve or narrow the areas of “conflict”. ADR is not new and is available in many communities for long time.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]
The use of ADR early in a case can result in the more efficient, cost-effective resolution of disputes with greater satisfaction to the parties. It covers a broad spectrum of approaches, from party-to-party engagement in negotiations as the most direct way to reach a mutually accepted resolution, to arbitration<href=”#_ftn6″ name=”_ftnref6″ title=””>[6] and adjudication at the other end, where an external party imposes a solution. Somewhere along the axis of ADR approaches between these two extremes lies “mediation<href=”#_ftn7″ name=”_ftnref7″ title=””>[7],” a process by which a third party aids the disputants to reach a mutually agreed solution.
TYPES OF ADR
ADR can be of many types depending on the different methods or situations and the level of dispute. In practice we mostly can observe four types of ADR. These are: 1. Mediation 2. Arbitration 3. Case Evaluation and 4. Negotiation. The following part is an attempt to explain the types of ADR in detail.
2.1. MEDIATION
In mediation, a neutral (the mediator) assists the parties in reaching a mutually acceptable resolution of their dispute. Unlike lawsuits or some other types of ADR, the mediator does not decide how the dispute is to be resolved. The parties do.<href=”#_ftn8″ name=”_ftnref8″ title=””>[8] Mediation is a cooperative process, in which the parties work together toward a resolution that tries to meet everyone’s interests, instead of working against each other, where at least one party loses. Mediation normally leads to better relations between the parties and to resolutions that hold up. For example, mediation has been very successful in family disputes, particularly with child custody and visitation. Mediation is particularly effective when the parties have a continuing relationship, like neighbors or business people.<href=”#_ftn9″ name=”_ftnref9″ title=””>[9] Mediation also is very effective where personal feelings are getting in the way of a resolution. This is because mediation normally gives the parties a chance to let out their feelings and find out how each other sees things. Mediation may not be a good idea when one party is unwilling to discuss a resolution or when one party has been a victim of the other or cannot have enough bargaining power in the mediation. However, mediation can be successful for victims seeking restitution from offenders. A mediator can meet with the parties separately when there has been violence between them.<href=”#_ftn10″ name=”_ftnref10″ title=””>[10]
2.2. ARBITRATION
In arbitration, a neutral (the arbitrator) reviews evidence, hears arguments, and makes a decision (award) to resolve the dispute. This is very different from mediation, where the mediator helps the parties reach their own resolution. Arbitration normally is more informal and much speedier and less expensive than a lawsuit.<href=”#_ftn11″ name=”_ftnref11″ title=””>[11] Because of the large number of cases awaiting trial in many courts, a dispute normally can be heard much more quickly by an arbitrator than by a judge. Often a case that may take a week to try in court can be heard by an arbitrator in a matter of hours, because evidence can be submitted by documents (like medical reports and bills and business records), rather than by testimony.<href=”#_ftn12″ name=”_ftnref12″ title=””>[12] There are two kinds of arbitration. Private arbitration, by agreement of the parties involved in the dispute, takes place outside of the courts and, normally, is binding. In most cases “binding” means that the arbitrator’s decision (award) is final and there will not be a trial or an appeal of that decision. By contrast, a decision by an arbitrator in a case referred by the courts, known as “judicial arbitration,” is not binding, unless the parties agree to be bound.<href=”#_ftn13″ name=”_ftnref13″ title=””>[13] A party who does not like the award may file a request for trial with the court within a specified time. However, if that party does not do better in the trial than in arbitration, he or she may have to pay a penalty. Arbitration is best for cases where the parties want a decision without the expense of a trial. Arbitration may be better than mediation when the parties have no relationship except for the dispute. Arbitration may not be a good idea when the parties want to resolve their dispute by themselves, or with the aid of a neutral.<href=”#_ftn14″ name=”_ftnref14″ title=””>[14]
2.3. CASE EVALUATION
In case evaluation, a neutral (the evaluator) gives an opinion on the strengths and weaknesses of each party’s evidence and arguments, and makes an evaluation of the case. Each party gets a chance to present the case and hear the other side. This may lead to a settlement, or at least help the parties prepare to resolve the dispute later on. Case evaluation, like mediation, can come early in the dispute and save time and money.<href=”#_ftn15″ name=”_ftnref15″ title=””>[15] Case evaluation is most effective when someone has an unrealistic view of the dispute or when the only real issue is what the case is worth, or when there are technical or scientific questions to be worked out. Case evaluation may not be a good idea when it is too soon to tell what the case is worth or when the dispute is about something besides money, like a neighbor playing loud music late at night.<href=”#_ftn16″ name=”_ftnref16″ title=””>[16]
2.4. NEGOTIATION
Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcome to satisfy various interests of tow people /parties involved in negotiation process. Negotiation is a process where each party involved in negotiating tries to gain an advantage for themselves by the end of the process. Negotiation is intended to aim at compromise.<href=”#_ftn17″ name=”_ftnref17″ title=””>[17]
3.1 ADVANTAGES OF ADR
ADR can have a number of advantages over a lawsuit.
· ADR can be speedier. A dispute often can be resolved in a matter of months, even weeks, through ADR, while a lawsuit can take years.<href=”#_ftn18″ name=”_ftnref18″ title=””>[18]
· ADR can save money. Court costs, attorneys fees, and expert fees can be saved.<href=”#_ftn19″ name=”_ftnref19″ title=””>[19]
· ADR can permit more participation. The parties may have more chances to tell their side of the story than in court and may have more control over the outcome.<href=”#_ftn20″ name=”_ftnref20″ title=””>[20]
· ADR can be flexible. The parties can choose the ADR process that is best for them. For example, in mediation the parties may decide how to resolve their dispute.<href=”#_ftn21″ name=”_ftnref21″ title=””>[21]
· ADR can be cooperative. This means that the parties having a dispute may work together with the neutral to resolve the dispute and agree to a remedy that makes sense to them, rather than work against each other.<href=”#_ftn22″ name=”_ftnref22″ title=””>[22]
· ADR can reduce stress. There are fewer, if any, court appearances. And because ADR can be speedier, and save money, and because the parties are normally cooperative, ADR is easier on the nerves. The parties don’t have a lawsuit hanging over their heads for years.<href=”#_ftn23″ name=”_ftnref23″ title=””>[23]
· ADR can be more satisfying. For all the above reasons, many people have reported a high degree of satisfaction with ADR.<href=”#_ftn24″ name=”_ftnref24″ title=””>[24]
Because of these advantages, many parties choose ADR to resolve a dispute, instead of filing a lawsuit. Even when a lawsuit has been filed, the court can refer the dispute to a neutral before the parties’ positions harden and the lawsuit becomes costly. ADR has been used to resolve disputes even after a trial, when the result is appealed.
4.1. DISADVANTAGES OF ADR
ADR may not be suitable for every dispute. Following are the disadvantages of ADR.
· If ADR is binding, the parties normally give up most court protections, including a decision by a judge or jury under formal rules of evidence and procedure, and review for legal error by an appellate court.<href=”#_ftn25″ name=”_ftnref25″ title=””>[25]
· There generally is less opportunity to find out about the other side’s case with ADR than with litigation. ADR may not be effective if it takes place before the parties have sufficient information to resolve the dispute.<href=”#_ftn26″ name=”_ftnref26″ title=””>[26]
· The neutral may charge a fee for his or her services.
· If a dispute is not resolved through ADR, the parties may have to put time and money into both ADR and a lawsuit.<href=”#_ftn27″ name=”_ftnref27″ title=””>[27]
· Lawsuits must be brought within specified periods of time, known as statutes of limitation. Parties must be careful not to let a statute of limitations run out while a dispute is in an ADR process.<href=”#_ftn28″ name=”_ftnref28″ title=””>[28]
5.1. THE LIMITATIONS OF ADR
Although ADR programs can play an important role in many development efforts, they are ineffective, and perhaps even counterproductive, in serving some goals related to rule of law initiatives.<href=”#_ftn29″ name=”_ftnref29″ title=””>[29] The following section of this paper discusses about the limitation of ADR.
A. ADR programs do not set precedent, refine legal norms, or establish broad community or national standards, nor do they promote a consistent application of legal rules.<href=”#_ftn30″ name=”_ftnref30″ title=””>[30]
B. ADR programs cannot correct systemic injustice, discrimination, or violations of human rights.<href=”#_ftn31″ name=”_ftnref31″ title=””>[31]
C. ADR programs do not work well in the context of extreme power imbalance between parties.
D. ADR settlements do not have any educational, punitive, or deterrent effect on the population.
E. It is inappropriate to use ADR to resolve multi-party cases in which some of the parties or stakeholders do not participate.
F. ADR may undermine other judicial reform efforts.
6.1 ADR IN BANGLADESH
Alternative dispute resolution in Bangladesh is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration Act, 2001 has been enacted to accommodate the harmonization mandates of UNCITRAL Model. To streamline the Bangladesh legal system the traditional civil law known of Code of Civil Procedure, (CPC) 1908 has also been amended and section 89A and 89B has been introduced which provides options for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement. Due to extremely slow judicial process, there has been a big thrust on Alternative Dispute Resolution mechanisms in our country.<href=”#_ftn32″ name=”_ftnref32″ title=””>[32]
7.1. PROBLEMS OF ADR IN BANGLADESH
We have many success stories of resolving issue through ADR. Many people who have experience with ADR become very committed. People are also enthusiastic to resolve disputes locally. Still people very frequently go for legal procedures due to the following reasons:<href=”#_ftn33″ name=”_ftnref33″ title=””>[33]
- People’s lack of trust of community leadership
- Sometimes faced with biased decisions
- Too much interference in the process by powerful people
- Fear of losing dignity and prestige
- Persons dealing with ADR do not have adequate knowledge and experience
- Decisions are not legally binding
- Some are interested in win-lose situation
- Some are interested in legal solution
- Cannot be a substitute for a formal judicial system
CONFLICT AND DISPUTE
Conflict and Dispute are the major elements of the discussion of ADR. However, there are differences between these two terms, though these terms are often used alternatively. Before finding out the differences between dispute and conflict, we will try to know about these terms in details.
8.1. CONFLICT
Conflict is a fact of life. God made each of us in his own image, but he also made us unique. Therefore some of our views and opinions will differ from those of others. Conflict often occurs because of a lack of respect for one another’s needs and views. Conflict happens when two or more people or groups have, or think they have, contrary goals.<href=”#_ftn34″ name=”_ftnref34″ title=””>[34]Conflict is a disagreement through which the parties involved perceive a threat to their needs, interests or concerns.
It is important to remember that conflict can be creative. Conflict is sometimes necessary to bring justice where injustice exists.<href=”#_ftn35″ name=”_ftnref35″ title=””>[35] It can provide an opportunity for new social and political systems to be established and can help to shape the future. However, when conflict becomes violent it will usually do more harm than good.
8.2. DISPUTE
Disputes have their origins in disagreements between individuals. A statement by one person that is contradicted by another gives rise to a disagreement or conflict, but not necessarily a dispute.<href=”#_ftn36″ name=”_ftnref36″ title=””>[36] The disagreement only becomes a dispute when one or other party cannot live with the consequences of the disagreement, and insists on having it resolved. This can apply to statements, but more usually applies to claims that are served by one person on another in a contractual or a social context. <href=”#_ftn37″ name=”_ftnref37″ title=””>[37]
It is often thought that a dispute arises when a claim is rejected, or is ignored for an unreasonably long period of time. However, the rejection of a claim does not necessarily bring a dispute into existence, as the party making the claim may, on reflection, accept the rejection. Thus for a dispute to crystallize, the claim needs to be reasserted in some way, after it has emerged that it is not accepted.<href=”#_ftn38″ name=”_ftnref38″ title=””>[38]
It is sometimes difficult to determine why disputes arise, but the reason usually holds the key to their resolution. Disputes mostly arise either from a genuine difference of opinion or from devious self-interest.
9.1. DIFFERENCES BETWEEN DISPUTE AND CONFLICT
Most people probably do not recognize a distinct difference between the terms “conflict” and “dispute.” However, many conflict scholars do draw a distinction between the two terms. As is unfortunately common in this field, different scholars define the terms in different ways, leading to confusion.
One way that is particularly useful, however, is the distinction made by John Burton<href=”#_ftn39″ name=”_ftnref39″ title=””>[39] which distinguishes the two based on time and issues in contention. Disputes, Burton suggests are short-term disagreements that are relatively easy to resolve. Long-term, deep-rooted problems that involve seemingly non-negotiable issues and are resistant to resolution are what Burton refers to as conflicts. Though both types of disagreement can occur independently of one another, they may also be connected. In fact, one way to think about the difference between them is that short-term disputes may exist within a larger, longer conflict. A similar concept would be the notion of battles, which occur within the broader context of a war.<href=”#_ftn40″ name=”_ftnref40″ title=””>[40]
Following Burton’s distinction, disputes involve interests that are negotiable. That means it is possible to find a solution that at least partially meets the interests and needs of both sides. For example, it generally is possible to find an agreeable price for a piece of merchandise. The seller may want more, the buyer may want to pay less, but eventually they can agree on a price that is acceptable to both. Likewise, co-workers may disagree about who is to do what task in an office. After negotiating, each may have to do something they did not want to do, but in exchange they will get enough of what they did want to settle the dispute.
Conflicts, on the other hand, usually involve non-negotiable issues. They may involve deep-rooted moral or value differences, high-stakes distributional questions, or conflicts about who dominates whom. Fundamental human psychological needs for identity, security, and recognition are often at issue as well. None of these issues are negotiable. People will not compromise fundamental values. They will not give up their chance for a better life by submitting to continued injustice or domination, nor will they change or give up their self-identity. Deep-rooted conflicts over these types of issues tend to be drawn out and highly resistant to resolution, often escalating or evolving into intractable conflicts.<href=”#_ftn41″ name=”_ftnref41″ title=””>[41]
A Clarifying Example — The Cold War
While many disputes stand alone and are settled permanently, others are part of a continuing long-term conflict. Looking back at events that represent concrete manifestations of the Cold War between the United States and U.S.S.R. provides a good example of this idea. For example, each round of Strategic Arms Limitation Talks, the Cuban Missile Crisis, the U.S.-Vietnam War, and the Soviet invasion of Afghanistan all constitute disputes within the broader conflict of the Cold War. The Vietnam War was extremely serious and relatively long, but nonetheless was a short-term conflict or “dispute” in the context of the Cold War, which played out over more than 40 years. <href=”#_ftn42″ name=”_ftnref42″ title=””>[42]
CONCLUSION
Because of the uniqueness of people, they always involve themselves in conflict and dispute. This is a very common issue that in social, national and international level there will be conflict and dispute. However, court or lawsuit is not the only way to resolve the disputes among different parties. People can use ADR which is cost effective as well as less time consuming. Depending on the type of dispute people can use different types of ADR. Though ADR has a number of advantages over lawsuits, ADR are not suitable for all kinds of dispute. Moreover, ADR has some disadvantages and limitations which make the decision of using ADR complex and complicated. ADR also is used in Bangladesh. In our socio-economic condition ADR can be very useful. And again there are a lot of challenges to establish ADR in our country. But successful implication of ADR can make the lives smoother and happier.
REFERENCES
ADR (Available at https://www.nycourts.gov/ip/adr/Publications.shtml)
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ADR Types & Benefits (Available at http://www.courts.ca.gov/3074.)
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Douglas H. Yarn, ed. “Conflict” in Dictionary of Conflict Resolution, San Francisco: Jossey-Bass 1999. p. 115.
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<href=”#_ftnref1″ name=”_ftn1″ title=””>[1] Conflict – a disagreement through which the parties involved perceive a threat to their needs, interests or concerns.
<href=”#_ftnref2″ name=”_ftn2″ title=””>[2] A dispute is a serious disagreement about something important to the parties involved, often regarding the truth or validity of something like a credit charge or terms of an agreement.
<href=”#_ftnref3″ name=”_ftn3″ title=””>[3] see ADR Blueprint http://www.courts.lawlink.nsw.gov.au/agdbasev7wr/_assets/cats/m402652l3/adr_blueprint_draft_recs1_preaction_protocols.pdf
<href=”#_ftnref4″ name=”_ftn4″ title=””>[4]See http://www.fresno.courts.ca.gov/alternative_dispute_resolution/
<href=”#_ftnref5″ name=”_ftn5″ title=””>[5] See http://www.courts.ca.gov/documents/adr.pdf
<href=”#_ftnref6″ name=”_ftn6″ title=””>[6] This is a process wherein parties to the dispute agree to submit their dispute to a neutral party, who will decide their case. Arbitration is the closest form to adjudication. The parties agree on a third neutral party or a panel, to whom they will present their case.
<href=”#_ftnref7″ name=”_ftn7″ title=””>[7] Mediation is a process that employs a neutral/impartial person or persons to facilitate negotiation between the parties to a dispute in an effort to reach a mutually accepted resolution. Mediation is a process close in its premises to negotiation.
<href=”#_ftnref8″ name=”_ftn8″ title=””>[8] See http://www.fresno.courts.ca.gov/alternative_dispute_resolution/
<href=”#_ftnref9″ name=”_ftn9″ title=””>[9] See ttp://www.lawyersclubindia.com/articles/Types-of-Arbitration-and-their-Importance-53.as
<href=”#_ftnref10″ name=”_ftn10″ title=””>[10] See http://www.sooperarticles.com/law-articles/criminal-law-articles/role-arbitration-dispute-resolution-26557.html
<href=”#_ftnref11″ name=”_ftn11″ title=””>[11] See http://legal-dictionary.thefreedictionary.com/arbitration
<href=”#_ftnref12″ name=”_ftn12″ title=””>[12]http://www.wysr-law.com/lawyer-attorney-1515318.html
<href=”#_ftnref13″ name=”_ftn13″ title=””>[13] See http://www.dst.org.in/kinds-of-arbitration
<href=”#_ftnref14″ name=”_ftn14″ title=””>[14] See http://www.lawyersclubindia.com/articles/Types-of-Arbitration-and-their-Importance-53.asp
<href=”#_ftnref15″ name=”_ftn15″ title=””>[15] See http://www.fresno.courts.ca.gov/alternative_dispute_resolution/
<href=”#_ftnref16″ name=”_ftn16″ title=””>[16] See http://www.resolutionremedies.com/adr_process/evaluation.asp
<href=”#_ftnref17″ name=”_ftn17″ title=””>[17] See http://adrresources.com/adr-methods/negotiation
<href=”#_ftnref18″ name=”_ftn18″ title=””>[18] See http://www.helpwithlawexams.co.uk/adr.html
<href=”#_ftnref19″ name=”_ftn19″ title=””>[19] See http://www.fresno.courts.ca.gov/alternative_dispute_resolution/
<href=”#_ftnref20″ name=”_ftn20″ title=””>[20] See http://www.herbertsmith.com/NR/rdonlyres/
<href=”#_ftnref21″ name=”_ftn21″ title=””>[21] See http://www.fresno.courts.ca.gov/alternative_dispute_resolution/
<href=”#_ftnref22″ name=”_ftn22″ title=””>[22] See http://www.fresno.courts.ca.gov/alternative_dispute_resolution/
<href=”#_ftnref23″ name=”_ftn23″ title=””>[23] See http://www.herbertsmith.com/NR/rdonlyres/
<href=”#_ftnref24″ name=”_ftn24″ title=””>[24] See http://www.helpwithlawexams.co.uk/adr.html
<href=”#_ftnref25″ name=”_ftn25″ title=””>[25] See http://www.lorman.com/newsletter/article.php
<href=”#_ftnref26″ name=”_ftn26″ title=””>[26]http://sixthformlaw.info/01_modules/mod1/1_1_civil_courts_adr/1_1_2_alternatives/10_advantages_disadvantages.htm
<href=”#_ftnref27″ name=”_ftn27″ title=””>[27] See http://www.helpwithlawexams.co.uk/adr.html
<href=”#_ftnref28″ name=”_ftn28″ title=””>[28] See http://sixthformlaw.info/01_modules/mod1/1_1_civil_courts_adr
<href=”#_ftnref29″ name=”_ftn29″ title=””>[29] See http://www.lorman.com/newsletter/article.php
<href=”#_ftnref30″ name=”_ftn30″ title=””>[30] See http://www.fresno.courts.ca.gov/alternative_dispute_resolution/
<href=”#_ftnref31″ name=”_ftn31″ title=””>[31] See http://sixthformlaw.info/01_modules/mod1/1_1_civil_courts_adr
<href=”#_ftnref32″ name=”_ftn32″ title=””>[32] See http://www.lawyersnjurists.com/our-services/practice-areas/alternative-dispute-resolution-adr
<href=”#_ftnref33″ name=”_ftn33″ title=””>[33] See http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf;
<href=”#_ftnref34″ name=”_ftn34″ title=””>[34] See Douglas H. Yarn, ed. “Conflict” in Dictionary of Conflict Resolution, San Francisco: Jossey-Bass 1999. p. 115
<href=”#_ftnref35″ name=”_ftn35″ title=””>[35] See See http://sixthformlaw.info/01_modules/mod1/1_1_civil_courts_adr
<href=”#_ftnref36″ name=”_ftn36″ title=””>[36] See http://www.beyondintractability.org/bi-essay/conflicts-disputes
<href=”#_ftnref37″ name=”_ftn37″ title=””>[37] See http://www.layngross.com/page33a.html
<href=”#_ftnref38″ name=”_ftn38″ title=””>[38]http://www.univie.ac.at/intlaw/wordpress/pdf/95.pdf
<href=”#_ftnref39″ name=”_ftn39″ title=””>[39] An English theological and classical scholar
<href=”#_ftnref40″ name=”_ftn40″ title=””>[40] See http://www.beyondintractability.org/bi-essay/conflicts-disputes.
<href=”#_ftnref41″ name=”_ftn41″ title=””>[41] See http://www.beyondintractability.org/bi-essay/conflicts-disputes
<href=”#_ftnref42″ name=”_ftn42″ title=””>[42] See Douglas H. Yarn, ed. “Conflict” in Dictionary of Conflict Resolution, San Francisco: Jossey-Bass 1999. p. 115.