Meaning and the concept of  ADR.

 Legal aid is a constitutional right and every man in the world is entitled to get legal aid. The responsibility of ensuring legal aid is vested on the nation for its citizens. But there are many obstacles that hamper the normal ways for legal aid. For an example, in Bangladesh lots of cases are pending under the courts which are not possible to solve within sort time. To solve cases within sort time, new idea related to dispute regulation has been discovered through out the world. That is ADR.

The phrase ADR elaborately known as “alternative Dispute Regulation” . It is alternative in the sense of the normal court process. There are three kinds of dispute regulation processes in the world such as

1. 1.       Judicial
2. 2.       Quasi Judicial
3. 3.       Non- Judicial.

Judicial and quasi judicial are a long and time expensive dispute regulation process and these are now is disputed as it can not give solution for all cases with in sort time. ADR is a non-judicial process in where it is not required to maintain all rules related to court. ADR is a dispute regulation process in where disputes are solved outside court with a view to ensuring legal aid for people rapidly and correctly.

ADR is a  Procedure out side court for settling disputes by means other than litigation. The term alternative dispute resolution includes a wide range of processes, many with little in common except that each is an alternative to full-blown litigation. Litigants, lawyers, and judges are constantly adapting existing ADR processes or devising new ones to meet the unique needs of their legal disputes. The definition of alternative dispute resolution is constantly expanding to include new techniques.

The legal definition of Alternative dispute regulation is methods by which legal conflicts and disputes are resolved privately and other than through litigation in the public courts. It is designed to help parties solve disputes efficiently without resort to formal litigation and with a minimum of judicial interference.

 Alternative Dispute Resolution refers to the means of settling disputes without going through legal procedures. Through ADR settlement of disputes can be done in many formal and informal ways but here ADR emphasis is mainly on the settlement of disputes by local community initiatives. It is an age-old tradition of society through which disputes are resolved amicably and which concerned parties accept. Normally authority does not challenge it. It is not institutionalized, but both the community members and the disputants accept it. There are different ways to resolve disputes. Some are resolved formally, others informally, and some are resolved as time passes by.

Methods of ADR.

There are three kinds of methods related to ADR.

1. Negotiation
2. Mediation
3. Arbitration.
4. Let us have a discussion.

Negotiation.

In this process, the parties of dispute themselves resolve the dispute with the participation of any third party.

In Bangladesh, Labor Law –2006 contains provisions related to Negotiation. Section 210 (2)Settlement of industrial disputes.-(2)within  fifteen days of the receipt of a communication under sub-section(1)the party receiving it shall, in consultation with the other party, arrange a meeting with the other party for  collective bargaining on the issue raised   in the communication with a view to reaching an agreement thereon through the procedure of a dialogue, and such meeting may also be held between representatives of both the parties authorized in this behalf.

 It is another dispute regulation in where the dispute is resolved with the presence of third party as well as the disputed party.

Section 89 (A) of CPC .Arbitration.-[Omitted by Arbitration Act,1940(X of 1940),s.49 and Third Schedule

 Mediation:

In some cases there can have some sections in an act containing provision relating to arbitration. In that case, any dispute is resolved appointing an arbitrator . Arbitration is also applicable for any dispute between countries.

In Bangladesh there is “Arbitration Act 2001”   and section 89 (B) of CPC contains rule related to Arbitration.

Problems of ADR in Bangladesh:

We have many achievement stories of resolving matters through ADR. Many people who have knowledge with ADR become very dedicated. People are also excited to resolve disputes nearby. Still people very frequently go for legal procedures due to the following:

• Peoples` 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.

ADR In Bangladesh and  ADR’S Prospect

In Bangladesh, for the rapid regulation of dispute , government has enacted and inserted sections related to ADR. From that time, ADR has got a wide prospect in Bangladesh. 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. 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.

The prospects of ADR can be expounded by expounding the laws contained rules related to ADR.

ADR in various law in Bangladesh.

Section 89(A) and (B) of Code of Civil procedure in 1908.

Section 210 (A) and (B) of Labor law 2006.

Arbitration  Act-2001.

Arthurian  ADR Adalot –2003.

Section 10 of Family court ordinance-1985.

Section 7 of Muslim family court ordinance-1961.

 To ensure justice for the people, government has enacted laws for the better application of ADR.

Benefits

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 (“less is more”)
• Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate
• Likelihood and speed of settlements
• Paper Series 1989-5. Honolulu: University of Hawaii at Manoa, Program on Conflict Resolution (PCR), 1989.ions tailored to parties’ interests and needs

Making ADR more effective

To make ADR more effective, extensive, and pro-active, coordination

is needed among different agencies. Other initiatives are given below:

 Creating awareness about ADR

 Spreading the success story of ADR

Encouraging NGOs to become involved in ADR

 Involving the Bar Associations in ADR

 Providing training for mediators

• Matching Government and NGO efforts.
•  may perceive them)
• Durability of agreements
• Confidentiality
• The preservation of relationships; and the preservation of reputations.

The Role of NGOS :

Definition and Founding of NGOs-

Peter Willets in his book “The conscience of the World: The Influence of Non Governmental Organizations in the UN System” describes NGOs as non-commercial, and therefore should have a non-profit making aim, and non-political organization that should not `openly engage in violence or advocate violence as a political tactic and that they should be able to raise funds from their members or voluntary contributions. NGOs are founded by people who voluntarily associate with an aim of working together to achieve a common goal/objective.

Another reason for the existence of NGOs is that people come together in independent groups to promote some type of activity that is not being undertaken by.  ernments. Alternatively, governments may already be involved in an activity but groups are formed in order to challenge the way government is handling it.

Formation of NGOs require innovative thinking, creativity, conceptualization of vision, ability to assess an existing gap in the provision of a service(s) or goods which calls for the skills to analyze what is and what ought to be- the real and the ideal.

Most founders of successful NGOs have abilities of interpreting the past(history),assess the present and forecast the future, relatively accurately and realistically. They have a bility to influence and mobilize popular support from beneficiaries, government and other possible state holders. They are good at planning, have enter prenuerial and managerial skills,are willing to work voluntarily at least in the formative stages ,should be able to understand the culture and traditions of the target groups and be ready to move with and adopt to the changing environment. They should be clear on their geographical area of operation and have clearly stated missions and objectives.
Main levels of NGO Involvement in the Development ProcessNGOs can be classified geographically or by the purposes for which they are founded. They are either International or single country, Northern or Southern NGOs. International NGOs normally start as Northern NGOs but are influenced to expand their activities into more countries as the NGO increases the resources at their disposal or changes perception of their role. Examples of these are Oxfam that has become more development oriented and therefore has spread more into the developing countries or 3″d World Countries. Single Country NGOs on the other hand are bodies, groups or institutions that are entirely or largely independent of government interference. Another category of NGOs is development NGOs or Non-Government Development Organizations (NGDO) and can be classified into four categories: Organizations NGOs, Support or Intermediary Organizations, Field/Action Level Organizations.

  Aid Organizations: They can be categorized as:

a) Funding NGOs from the North: These raise money from their own governments. They support development projects carried out by local 3`d world organizations at the support level. The are also involved in campaigns/dialogue – acting as counter weight to state power – protecting human rights, b) Technical intervention NGOs: These two are NGOs from the North that tend to carry out development projects themselves. They do the planning and the implementation processes. They may only be interested in the technical aspects. In most cases they do have their own financial resources. Examples of these are CARE.

 Support/Intermediary organizations: Support is normally provided by support NGOs. The purpose is to offer support to local initiatives, developmental/farmer organizations at the field Action level. Such support NGOs are very common in the 3rd World Countries and are usually prompted by two factors namely:
a) Lack of the State involvement in development programmes. So the support to NGOs comes in to fill the gaps.
b) Need by the NGOs in the North to have partner organizations in the South to identify and execute development projects on their behalf. Many other factors like creation of employment for their citizens, research for higher degrees and publishing desires are into play. However, genuine developmental desires also contribute to the formation of support level NGOs.

 Field/Action Level Organizations: Field/Action level organizations are categorized as follows:

a) Representation Organizations: These represent their members for purposes of claims and/or negotiations with government and other bodies and fight in defence of the vital interest of membership. These include groups like Workers Unions. Landless farmers on mailo land/ranches may organize themselves to demand agrarian reform measures. These kinds of organizations are basically pressure groups representing the interests of the communities falling in the same social economic strata.

b) Community Organizations: These have broader functions, which include that of representation but also that of managing assets held in common by the whole community. All members of a community are members by right. For example a dispensary build under self help initiatives, valley dams/wells, community centres.

c) Association type organizations: These are most restrictive than the first two. Members are registered and are normally screened depending on certain criteria developed by members. The organizations represent interests of members actively involved in pursuing a specific common goal. Members are registered. Cooperative Societies belong here but increasingly, many of these groups are being registered as Community Based Organizations
Summary

In Summary, the NGO are involved in the following:

  Policy Formulation: There is a marked increase in NGO participation in policy processes as invited participants. Their representatives have had seats at the table in formulation of specific policies, district development plans and on technical committees and sub-committees at all levels. This is highly commendable.

 As Pressurisers /Agenda Setting: NGOs sometimes exert pressure from outside `the tent’ on both formulation and implementation of policies, programmes and plans. They use campaigning – a visible activity directed at a certain constituency, often media – mediated; and lobbying – a direct and often private approach to individuals or small groups of people, as an attempt to influence the decisions of the institutional elite on behalf of a collective interest. NGOs are supposed to act as counter weight to state power – protecting human rights, opening up channels of communication and participation, providing training grounds for activists and promoting pluralism.

As Service Deliverers: NGOs engage with policy makers at implementation or field/ Action level. Implementation is an important policy phase as it is often at that stage that failures in the policy processes occur. Here NGOs play a bridging role between government and the people.

  As Monitors: NGOs can provide an independent assessment of how public resources are being allocated at the national and local level. After NGOs have advocated for equitable distribution of national resources during the budget process, they monitor whether these resources reach the intended beneficiaries and whether they translate into `value for money’ (getting the best outcome using limited financial and human resources) for end users. NGOs also have a role to play in assessing how quickly and effectively the private sector is moving into space created for it by liberalization and rolling back of state institutions from direct production and whether the premises on which this model is based hold for our type of economies.

As innovators: NGOs are sometimes instrumental in the introduction of new approaches and techniques which, when adopted, bring considerable benefits to the poor. Examples include introduction of new technologies, farming methods, resolution of conflicts etc.

 As Partners: NGOs work in partnership with Governments and Donors in the planning process by offering expertise, experience and whether possible logistics and other resources. NGOs are agents of change but their ability to effect change rests on organizational independence, closeness to the poor, representative structures and a willingness to spend a large amounts of time in awareness-raising and dialogue. NGOs particularly those working closely with CBOs and which believe in the efficacy of `empowerment’ approaches can be an important asset when government wants to mobilize people.

In this first module of An NGO Training Guide for Peace Corps Volunteers, you build on your experiences with nonprofit organizations in the United States to gain an understanding of the critical role nongovernmental organizations (NGOs) play in developing civil societies. By the time you complete this module you should have acquired the knowledge, skills, and attitudes to:

# Describe four characteristics that differentiate NGOs from government

organizations and for-profit businesses.

# Identify some major sectors (e.g., health, youth, or women’s issues) where

NGOs are active in your country of service.

# Explain in your own words how each of the six key elements of public

participation increases the involvement of citizens in a civil society.

# Select three words that describe the appropriate role of a Peace Corps

Volunteer in working with NGOs, and give examples of situations where

each role would be useful.

Role of NGOs In case of ADR.

Truly speaking, the Application of ADR is widely fulfilled by NGos. There are some NGOs in Bangladesh who are currently running programs relating to ADR.

The of the NGOs doing ADR  are

1. 1.       Ain o Salis Kandro (ASHOK)
2. 2.       Bangladesh Legal Aid Services Trust (BLAST)
3. 3.       Madaripur Legal Aid
4. 4.       USAID
5. 5.       Unicef

Conclusion:The main idea behind mediation projects is not only to provide alternatives to litigation but to modify the whole dispute resolution system, including litigation, to make it more suitable for the parties in commercial disputes. Introducing mediation or arbitration is one way of making the system more apposite for end-users. Mediation and other ADR methods are not alternatives to the formal justice system in the sense that they aim to replace it. Their goal is to harmonize the scope of court procedures so that the parties can choose between these processes. However, this choice does not have to be exclusive. In many cases, parties may choose mediation along with court case or arbitration and conduct them in parallel, until they settle, withdraw, or get a court decision or arbitration award. Moreover, litigation is and must remain a crucial part of the ADR system in any country. Litigation is mainly ital for the continuation of mediation and other non-binding procedure because one of the stronger incentives to mediate is often to avoid adjudication.

This led to the rise of NGOs to become partners in the Development work and at the same time NGOs are being accused of trying to `crowd out’ government process. The inability of governments to deliver sufficiently the promised goods and services eroded their legitimacy. Researches undertaken so far suggest that most governments in the south are not only backing away from the traditional responsibilities, but also have completely failed. People started to loose faith in some of their governments policies aimed at improving welfare. Governments themselves began to doubt their own development strategies and thus realized the need for radical change involving private organizations voluntarily formed by the people themselves. NGOs therefore increasingly have to take on all development work and at the same time NGOs are being accused of trying to ‘crowd out’ government.

                                                                       Bibliography

1.Retrieved form “Alternative Dispute Resolution Manual: Implementing Commercial  Meditation” written by  Lukasz Rozdeiczer & Alejandro.

2.The Bangladesh  Labour code,2006 written by Md. Abdullah Halim & Masum Saifur Rahman

3.The Code of  Civil Procedure written by A.A.M. Moniruzzaman. Fifth Edition

4. The Code of  Civil Procedure written by Altaf Hossen.

5. Retrieved from http://www.lawyersnjurists.com/resource/course-materials/legal-study-syllabus/alternative-dispute-resolution-legal-aid-and-professional-ethics/

6. Retrieved from     http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf

7. The role of NGOs in Human Security written by  Sarah Michael

8.Dee R Jay,Henkin B AlanNon-profit Management and Leadreship Vol.8,No.2, Winter 1997_Jossey-Bass Publishers

9.Edwards Michael and Hulme David (eds) (1996) Non-Government Organizations – Performance and Accountability Beyond the Magic Bullet Earthscan Publications Ltd., London.

10.Lister Sarah and Nyamugasira Warren, A study on the Involvement of Civil Society in Policy Dialogue and Advocacy, Lessons Learnt on their Engagement in Policy Advocacy, and Future. December 2001

11.Smillie Ian The Alms Bazaar Altruism under fire – Non-Profit Organizations and International Development IT Publications 1995

12.Willets Peter (eds) (1996) The Conscience of the World – The Influence of Non Government Organizations in the UN System< a Publication of the David Davies Memorial Institute of International Studies, London Hurst and Company, London