ADR programs can play an important role in many development efforts, they are effective in serving some goals related to rule of law-illustrate and explain.

 CHAPTER I

1.1  Introduction :

ADR is short for alternative dispute resolution. It is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional third party who helps them resolve their dispute in a way that is less formal and often more consensual than is done in the courts. The best known and most commonly used forms of ADR in the UK are arbitration and mediation but adjudication is rapidly becoming established as a valued method of settling disputes quickly, fairly and cheaply.

It has become popular in some quarters, in particular lawyers and mediation service providers, to regard conciliation, negotiation and mediation alone as ADR. For these people a negotiated settlement is an alternative to having a dispute brought to an end by a third party such as an adjudicator, an arbitrator or a judge. This narrow definition ignores the significance of the voluntary aspect of private dispute settlement and the role that is played in all forms of ADR processed by experts and professionals outside the legal profession.

1.2  Brief History of ADR :

Although mediation goes back hundreds of years, alternative dispute resolution has grown rapidly in the United States since the political and civil conflicts of the 1960s. The introduction of new laws protecting individual rights, as well as less tolerance for discrimination and injustice, led more people to file lawsuits in order to settle conflicts[1]. For example, the Civil Rights Act of 1964 outlawed “discrimination in employment or public accommodations on the basis of race, sex, or national origin. Laws such as this gave people new grounds for seeking compensation for ill treatment. At the same time, the women’s movement and the environmental movements were growing as well, leading to another host of court cases. The result of all these changes was a significant increase in the number of lawsuits being filed in U.S. courts. Eventually the system became overloaded with cases, resulting in long delays and sometimes procedural errors[2]. Processes like mediation and arbitration soon became popular ways to deal with a variety of conflicts, because they helped relieve pressure on the overburdened court system.

 1.3  ADR in Bangladesh:

In June 2000, formalized ADR was introduced in Bangladesh by means of court-annexed judicial settlement pilot projects, in an effort to decrease delays, expenses and the frustrations of litigants laboring through the traditional trial process. The pilot program began in a collaborative effort with ISDLS in a series of Bangladeshi legal studies of Californian ADR systems. Three Pilot Family Courts were established in the Dhaka Judgeship, which exclusively used judicial settlement to resolve family cases including: divorce, restitution of conjugal rights, dower, maintenance and custody of children. An amendment to the Code of Civil Procedure was not necessary due to an existing 1985 Family Courts Ordinance, which authorized the trial judge to attempt reconciliation between parties prior to and during trial. The pilot courts were staffed by 30 Assistant Judges selected from all over Bangladesh, lawyers and non-lawyers, who were given training by a United States mediation expert (organized by ISDLS). During this assignment, the Assistant Judges were relieved of all other formal trial duties[3].

All three pilot programs were fully functioning by January 2001. Once judges had begun successfully settling cases, the program was expanded slowly to additional courts throughout the country. By the end of the first year of the program, the judicial settlement procedure in family disputes had effectively been introduced in 16 pilot family courts in 14 districts of Bangladesh.  Due to the high settlement rates these courts were achieving, the Law Minister convened a conference in 2002 in order to spread awareness of the achievements of these programs. The conference brought together all District Judges, Presidents and Secretaries of all District Bar Associations, previous Chief Justices, the current Chief Justice, Judges of both divisions of the Supreme Court, and prominent lawyers from throughout the country.

 In 2003, the Civil Code of Procedure was amended to introduce mediation and arbitration as a viable means of dispute resolution in non-family disputes. In addition to this amendment, the Money Loan Recovery Act stipulated the use of Judicial Settlement Conferences for money loan recovery cases. A training program led by former Chief Justice Mustafa Kamal took place at the Judicial Administration Training Institute (JATI)

in Dhaka for the forty judges that have exclusive jurisdiction over money loan recovery

cases. Mediations began in non-family disputes in July 2003.

 CHAPTER II

RULE OF LAW AND BENEFITS OF ADR

2.1 Concept of the Rule of Law:

 “No free man shall be taken or imprison or desseised or exiled or in any way destroyed nor will we go or send for him, except under a lawful judgement of his peers and by the law of the land”.

–MAGNA CARTA

One of the basic principles of the English constitution is the rule of law. This doctrine is accepted in the constitution of U.S.A. and also in the constitution of Bangladesh. Now a day’s rule of law is one of the most discussed subjects of developing countries. Developed countries and donor agencies always instruct the developing countries for sustainable development and good governance. Actually sustainable development and good governance mostly depends on the proper application of rule of law. Laws are made for the welfare of the people, to bring a balance in society, a harmony between the conflicting forces in society. One of the prime objects of making laws is to maintain law and order in society, a peaceful environment for the progress of the people. In true and real sense there is no rule of law in Bangladesh today. Law in Bangladesh follows a course of selective and discretionary application. Institution and procedures required for ensuring rule of law also are no effective in the country.

The term ‘Rule of Law’ is derived from the French phrase ‘La Principe de Legality’ (the principle of legality) which refers to a government based on principles of law and not of men. In this sense the concept of ‘La Principe de Legality’ was opposed to arbitrary powers[4].

The rule of law is old origin. In thirteenth century Bracton, a judge in the reign of Henry III wrote-

“The king himself ought to be subject to God

and the law, because law makes him king.”[5]

Edward Coke is said to be the originator of this concept, when he said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. Professor A.V. Dicey later developed on this concept in his classic book ‘The Law Of The Constitution.’ published in the year 1885[6]. Dicey’s concept of the rule of law contemplated the absence of wide powers in the hands of government officials. According to him wherever there is desecration there is room for arbitrainess[7].

The rule of law is a viable and dynamic concept and like many other such concepts, is not capable of any exact definition. Its simplest meaning is that everything must be done according to law, but in that sense it gives little comfort unless it also means that the law must not give the government too much power. The rule of law is opposed to the rule of arbitrary power[8].

The primary meaning of rule of law is that the ruler and the ruled must be subject to law and no one is above the law and hence accountable under the law. It implies the supremacy of law and the recognition that the law to be law cannot be capricious.

 2.2 Rule of Law in True and Modern Sense:

Today Dicey’s theory of rule of law cannot be accepted in its totality. The modern concept of the rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This concept was developed by the International Commission of Jurists. Known as Delhi Declaration, 1959 which was latter on confirmed at logos in 1961. According to this formulation—

“the rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality”[9].

According to Davis, there are seven principal meanings of the term ‘Rule of law:

(1) law and order; (2) fixed rules; (3) elimination of discretion; (4) due process of law or fairness; (5) natural law or observance of the principles of natural justice; (6) preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and (7) Judicial review of administrative actions[10].

 So finally it may correctly be said that rule of law does not mean and cannot mean any government under any law. It means the rule by a democratic law- a law which is passed in a democratically elected parliament after adequate debate and discussion. Likewise, Sir Ivor Jennings says –

“In proper sense rule of law implies a democratic system, a constitutional government where criticism of the government is not only permissible but also a positive merit and where parties based on competing politics or interests are not only allowed but encouraged. Where this exist the other consequences of rule of law must follow”[11].

Above discussions clearly shows that the present condition of rule of law in Bangladesh is not satisfactory. However, the proposed measures for overcoming the shortcomings of rule of law also are not final but these are fundamental. Independent and particular policy for rule of law is a must for overcoming the ambiguity and anomalies in rule of law. After all, government must be committed to ensure the security of life and property of the people, protection of individual rights and the dissention of justice on the basis of the equality and fairness. On the other extreme, the opposition, civil society and social groups and organizations also have the moral obligations to help and cooperate with the government in this juncture.

 2.3 Benefits of ADR:

ADR has been both; increasingly used alongside, and integrated formally, into legal systems internationally in order to capitalize on the typical advantages of ADR over litigation:

• Suitability for multi-party disputes.
• Flexibility of procedure – the process is determined and controlled by the parties the dispute.
• Lower costs.
• Less complexity.
• Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate.
• Likelihood and speed of settlements.
• Practical solutions tailored to parties’ interests and needs (not rights and wants, as they may perceive them).
• Durability of agreements.
• Confidentiality.
• The preservation of relationships,[12] and the preservation of reputations.

2.4 Where ADR is not applicable:

ADR is not available for criminal cases which are dealt with by and on behalf of the State before the Criminal Courts. Public Law disputes between individuals and the State, for example a complaint that an application for planning permission has not been dealt with properly by a planning and development licensing authority, are normally dealt with by specialist decision making bodies such as administrative tribunals which whilst distinct from the courts remain part of the State Judicial Machinery. Often the decision making body may be called an adjudicator or an arbitrator but since the decision making process is not voluntary, despite the similarity in name, the process is not part ADR. However, where the organs of state engage in the same type of activities as ordinary people and organizations, such as driving vehicles and business agreements, resultant disputes are civil and can be disposed of by either the civil courts or ADR.

The take-up of ADR depends on a combination of three critical factors. First, the extent to which disputants and their advisors are aware of ADR. Second, the adequacy of the supply of ADR services for those that would wish to take-up ADR services. Third, the perceived advantages and disadvantages of ADR.

 This section is concerned primarily with the third of those factors. It notes, however, the low level of awareness of ADR among disputants, the critical and influential position of lawyers in determining whether disputants seek resolution through ADR, and comments on the extent to which the court system raises awareness about the potential for ADR as a dispute resolution pathway.

CHAPTER III

TO ACCOMPLISH RULE OF LAW OBJECTIVES BY ADR

3.1 ADR Help to Accomplish the Rule of Law Objectives:

ADR systems may be designed to meet a wide variety of different goals. Some of these goals are directly related to improving the administration of justice and the settlement of particular disputes. Some, however, are related to other development objectives, such as economic restructuring, or the management of tensions and conflicts in communities. For instance, developing an efficient, consensual way to resolve land disputes may be critical to an AID mission not because of its commitment to strengthening the rule of law, but because land disputes threaten the social and economic stability of the country. Likewise, efficient dispute resolution procedures may be critical to economic development objectives where court delays or corruption inhibit foreign investment and economic restructuring.

The following matrix matches the general ADR systems with the purposes and development objectives to which they are best suited. Although any one ADR system can be designed in a variety of ways, this matrix may provide general guidance on which ADR model to choose.

3.1.1  ADR Can Support and Complement Court Reform

1. A.     When Use ADR

a)      Case backlog impairs court effectiveness.

b)      Complex procedures impair court effectiveness.

c)      Illiterate or poor cannot afford the courts or manage their way within them.

d)      Small informal systems can better reach geographically dispersed population.

1. B.     When Do Not Use ADR

a)      The courts’ reputation is sufficiently tainted to suggest that independent programs may enjoy more popular support.

3.1.2 ADR Can By-pass Ineffective or Discredited Courts

1. A.     When Use ADR

a)  Working with or within the existing judicial system is unlikely to be           effective or receive popular support.

b)      Complex or technical disputes can be handled more effectively by specialized private ADR systems.

1. B.     When Do Not Use ADR

a)      Official opposition is sufficiently strong and controlling to suppress competing programs. In these cases, links to the official judicial and legal system may be necessary for success.

When the civil court system has so many institutional weaknesses and failures (inadequate resources, corruption, systemic bias) that there is no near-term prospect of successful civil court reform, ADR programs may be an appropriate way to provide an alternative forum.

1.                      i.            Justice for populations not well-served by the courts.
2.                    ii.            Efficient and satisfactory resolution in highly-technical, specialized areas.
3.                   iii.            Ethnically-based, public and family disputes.

 3.1.3  ADR Can Increase Satisfaction of Disputants with Outcomes

1. A.     When Use ADR

a)      High cost, long delay, and limited access undermine satisfaction with existing judicial processes.

b)      Cultural norms emphasize the importance of reconciliation and relationships over “winning” in dispute resolution.

c)      Considerations of equity indicate that creativity and flexibility are needed to produce outcomes satisfactory to the parties.

d)      Low rates of compliance with court judgments (or a high rate of enforcement actions) indicate a need for systems that maximize the likelihood of voluntary compliance.

e)      The legal system is not very responsive to local conditions or local conditions vary.

1. B.     When Do Not Use ADR

a)      Cultural norms suggest a preference for formal, deterministic solutions.

b)      Cultural norms are discriminatory or biased and would be perpetuated in the ADR system.

3.1.4        ADR Programs Can Increase Access to Justice for Disadvantaged Group

   A.  When Use ADR

a) Use of formal court systems requires resources unavailable to sectors of the   population.

b)  Formal court systems are biased against women, minorities, or other groups.

c)  Illiteracy prevents part of the population from using formal court systems.

d)  Distance from the courts impairs effective use for rural populations.

 B.  When Do Not Use ADR

a)  Disadvantaged groups need to establish rights in order to reduce power imbalances.

                               b)  Local elites have the power to control program implementation.

c) A number of barriers to access to the justice system can be addressed effectively in an ADR program.

1.                                                                                                i.            Reducing the cost to parties.
2.                                                                                              ii.            Reducing the formality of the legal process.
3.                                                                                            iii.            Overcoming the barrier of illiteracy.
4.                                                                                            iv.            Serving rural populations.
5.                                                                                              v.            Counteracting discrimination and bias in the system.
6.                                                                                            vi.            Public outreach to increase awareness of ADR.

 3.1.5 ADR Programs Can Reduce Delay in the Resolution of Disputes

A. When Use ADR

a)  Delays are caused by complex formal procedures.

      b)  Court resources are insufficient to keep up with case backlog.

??????B.  When Do Not Use ADR

a)      Official intervention will impose complex procedures on ADR programs.

 3.1.6 ADR Programs Can Reduce the Cost of Resolving Disputes

A. When Use ADR

a)  High costs in the courts are driven by formal procedures or the requirement of legal representation.

                   b)  Court filing costs are high.

                   c)  Court delays impose high costs on parties.

??????B.  When Do Not Use ADR

a)      Official intervention will impose formal procedures or costs on ADR.

3.2 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. In particular, ADR is not an effective means to

•  Define, refine, establish, and promote a legal framework.

•  Redress pervasive injustice, discrimination, or human rights problems.

•  Resolve disputes between parties who possess greatly different levels of power  or authority.

•  Resolve cases that require public sanction.

•  Resolve disputes involving disputants or interested parties who refuse to participate, or cannot participate, in the ADR process.

CONCLUSION

4.1 Conclusion:

It is clear that though there are some positive provisions for ensuring rule of law in Bangladesh Constitution, they are being outweighed by the negative provisions. Though our constitution provides for 18 fundamentals rights for citizens, these remain meaningless version to the masses because due to poverty and absence of proper legal aid the poor people cannot realize them. And the discussions clearly shows that the present condition of rule of law in Bangladesh is not satisfactory. Our government must be committed to ensure the security of life and property of the people, protection of individual rights and the dissention of justice on the basis of the equality and fairness. On the other extreme, the opposition, civil society and social groups and organizations also have the moral obligations to help and cooperate with the government in this juncture.

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 law disputes. The efficiency of Arbitration, Conciliation, Lok-Adalats, Mediation, Negotiation as a means of providing quicker, faster, cheaper, efficient and some what agreeable settlement, in a private atmosphere, without publicizing the issue has made the ADR system a hot favorite amongst both litigants as well as corporate, The popularity and acceptability of the system is quite evident from the fact that, now even courts of law are seriously encouraging this concept.

 Thus it would not be wrong to summarize that, in true sense of the term ADR has emerged as a life saving pill for our ailing judicial system, ADR by dealing with simple cases has in fact spared to the regular courts, some extra time to deal with more technical and complex judicial matters, and by doing so it has in fact been quite successful in achieving its desired purpose of relieving the regular courts of their growing backlog of cases.

At this juncture it would not be wrong to conclude by saying that the system of ADR has emerged as a more humane face of regular litigation, the mere mention of which in fact quite capable of sending a chill down the spine of many a person .

BIBLIOGRAPHY

1)      Barrister Abdul Halim -ADR in Bangladesh: Issues and Challenges
(CCB Foundation, Dhaka, 2010)

2)      Massey, I.P. Conceptual objections against the Growth of Administrative Law. Administrative Law, 5th Ed; Eastern Book Company: 34, Lalbagh, Lucknow-226001, India, 2001;21.

3)      Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M. Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345.

4)      Dicey, A.V. The Rule of Law: Its Nature and General Applications. Introduction To The Study Of The Law Of The Constitution, 8th Ed; Macmellan and Co. Limited: St. Martin’s Street, London, 1915; 202.

5)       Dicey, A.V. Ibid, 198.

6)      Wade, H.W.R. Some Constitutional Principles-The Rule of Law, Administrative Law, 3rd Ed; clarendon Press: Oxford, 1971; 6.

7)      Massey, Op. Cit. 30.

8)      Thakker, C.K. Basic Constitutional principles. Administrative Law, 1st ed; Eastern Book Company: 34 Lalbagh, Lacknow-226001, India, 1992; 26.

9)      Halim, M.A. Op. Cit. 351.

10)  ALTERNATIVE DISPUTE RESOLUTION PRACTITIONERS’ GUIDE

Center for Democracy and Governance; Bureau for Global Programs, Field Support, and Research (U.S. Agency for International Development)

Washington, D.C.  20523-3100