1. Introduction:
Alternative Dispute Resolution (ADR)[1] has gained extensive receipt among both the general public and the legal work in recent yeards. The rising popularity of ADR can be explained by the increasing caseload of traditional courts. The perception rose that ADR imposes less expences than lawsuit. A preference for confidentiality also present there. At the same time, the need of some parties to have greater control over the medley of the individual or individuals who will come to a decision of their cash. Finally, it can be said that one major goal[2] of all the ADR processes is conflict resolution. If a procedure resulting resolution then it is a dispute resolution course of action.
2. Alternative dispute Resolution (ADR):
Another name of Alternative Dispute resolution (ADR) is external dispute resolution[3]. It includes disagreement resolution processes and techniques that do something as a way for disagreeing parties to come to an agreement short of lawsuit. Alternative Dispute Resolution (ADR) is an unconventional tao a formal court hearing. It is a collective term for the ways that parties can settle disputes, with or without the assist of a third party[4]. ADR are ways and methods of resolving disputes outside the judicial process. Some of the senior judiciary in certain jurisdictions are strongly in support of the make use of negotiation to settle disputes. ADR conducted online is known as online dispute resolution[5] (ODR) and it is mostly an exhortation and a challenge to create an idiosyncratic product. It should be mentioned that ODR services can be provided by government entities and it may be part of the litigation process. When no effective home remedies are available to dispute parties than it can be provided on a global scale. The practice of resolving disputes without using conventional legal channels are vastly known as alternative dispute resolution.
Generally there are four types of disputes.
- External disputes
- Intra-business disputes
- Disputes between businesses
- Client disputes.
3. Advantages of ADR:
Because of the advantages of ADR, ADR becoming more popular among people of all countries. Some advantages are listed below:
- Flexibility of procedure Lower costs.
- The protection of interaction and the preservation of reputations.
- Privacy.
- Possibility and velocity of settlements.
- Less Complexity.
- Correctness for multi-party disputes.
- Parties preference of unbiased third party to direct negotiations.
- Practical solution adapted by parties.
- Stability of agreements.
4. Types, features and applications of ADR:
ADR includes informal tribunals, informal thinking processes, formal tribunals and formal thinking processes. The typical formal tribunal forms of ADR are arbitration. ADR customs differ form to some extent by country and culture. ADR is generally classified into at least four types-negotiation, mediation, collaborative law and arbitration[6]. Alternative Dispute Resolution is of two historic types. Firstly methods for resolving dispute outside of the official judicial mechanisms. Second informal methods attached to or pendant to official judicial mechanisms. The typical formal Meditative process is referral for mediation before a court appointed mediator or conciliation panel. Structured transformative arbitration as used by the U.S. postal service is an official process. Classic informal methods include social processes, referrals to none-formal authorities and intercession. The major Differences between formal and informal process are pendency to a court procedure and possession or require of a formal agreement for the application of the method.
4.1. The important features of each form are as follows:
- Mediation: There is third party, an intermediary, who facilitates the dissolution process and many even propose a decision, but does not compel a resolution of the parties.
- Negotiation: Contribution is intended and there is no third party who facilitates the resolution process or imposes a resolution.
- Collaborative Law: Each party has a legal representative who facilitates the resolution process within specially constricted terms. The parties reach harmony with support of the attorneys who are trained in the process and mutually-agreed experts. No one imposes a resolution on the parties. The process is a formalized process that is part of the lawsuit and court system
- Arbitration: Contribution is typically voluntary and there is a third party who will work as a private judge and will impose a resolution. Arbitrations often happen because parties to contracts have the same opinion that any future dispute about the agreement will be determined by arbitration. In recent years, the enforceability of arbitration clauses particularly in the context of consumer agreements has drawn inspection form courts. Although parties may petition arbitration outcome to courts and such appeals face a demanding set of appraisal.
4.2. Further than the essential types of alternative dispute resolution, there are other poles apart forms of ADR:
- Family group conference: It is a conference[7] among members of a family and members of there comprehensive related group. At this meeting the family becomes involved in learning skills for communication and in making a plan to stop the mistreatment or other abuse between its members.
- Ombuds: Third party selected by an institution like a university, hospital, corporation or government agency to contract with complaints by employees, clients or constituents.
- Early neutral evaluation: It is a process that takes place soon after a case has been filed in court. The case is referred to a specialist who is asked to provide a fair and impartial evaluation of the dispute. The evaluation of the professional[8] can help the parties in assessing their case and may influence them towards a resolution.
- Case evaluation: A none-non-binding process in which parties present the facts and the issues to an unbiased case assessor who advises the parties on the strengths and weaknesses of their individual positions and assesses how the argument is likely to be decided by a panel of judges[9] or other judge.
- Neutral fact- finding: it is a process where a nonaligned third party is selected either by the disputing parties or by the court investigates an issue and information or testifies in court. The neutral fact-finding process is for the most part useful for resolving multifaceted scientific and factual disputes.
4.3. There are some important safeguards that need to be taken in to account in basically any ADR procedure:
- All ADR actions should be supported by the agreement of the parties[10]
- If third parties are involved a facilitators or decision- makers, they must be neutral and autonomous
- Both parties must be accordingly notified of the procedure
- Both parties must be given enough chance to present their case
- There should be an internal or external appeal method, or at least means to manage fulfillment with due process safeguards.
- If the proceedings can result in compulsory decisions and such decisions should only be based on information that had been part of the contract.
5. Concerned Authorities and Institutions:
- Indian Institution of Arbitration and Mediation[11]: It is becoming one of the best ADR institutions in the world under the able guidance of Justice Mr. M. N. Venkatachalaiah. He was chief justice of India and chairman of National Human Right Commission.
- The WIPO Arbitration and Mediation Center: WIPO has established the WIPO Arbitration and Mediation Center (the Center) in 1994 in order to make the advantages of ADR broadly available to scholar belongings owners.
The procedures offered by the Center under the WIPO Mediation[12], Arbitration and Expedited Arbitration Rules are on the whole suitable for technology, amusement and other disputes involving intellectual belongings. From a growing list of more than 1,000 independent arbitrators and mediators from some 70 countries parties can represent for covering the entire legal and technical range of intellectual property.
- The Dispute Resolution Institute (DRI): To provide parties with the chance to resolve their disputes in a timely, confidential and cost efficient manner in an easy to use forum, it was founded in 1994. The mass of cases submitted to DRI are resolved from beginning to end the standard alternative dispute pledge methods of arbitration and mediation. DRI utilizes hybrids of these processes or custom designs procedures that are flexible and individualized when required to satisfy specific or unique needs of the disputants. The best process available for a particular dispute is utilized is insured by specialized approach. DRI confirms that the “forum fits the fuss.” Nothing like the court structure, every case submitted to DRI is given the priority and individualized attention it deserves. With a high degree of control over resolution of their dispute, private dispute resolution provides participants.
- Business and Society Exploring Solutions Wiki: BASESwiki is a proposal of the UN Secretary-General’s Special Representative on Business and Human Rights, undertaken in collaboration by means of the Corporate Social Responsibility Initiative at Harvard Kennedy School[13] and the International Bar Association[14]. The project is an open-source, wiki-style storehouse for information, investigation, and wisdom about non-judicial forms of argument oath.
- Cornell University’s Scheinman Institute on Conflict Resolution: To present the country’s most wide-ranging clash resolution program focusing on workplace alternative dispute resolution, Cornell’s ILR School[15] Resolution operation has joined forces with Cornell’s Law School. The Martin and Laurie Scheinman Institute on Conflict Resolution operation[16] is to educate the next generation of arbitrators, mediators and facilitators who can help out resolve disputes between employers and employees.
- Fordham Law School’s Dispute Resolution Program: Fordham Law School’s Dispute Resolution program[17] positioned in the peak 10 of U.S. News and World Report’s 2008 rankings, of the best Dispute Resolution programs in the country, according to the lately released rankings.
- Harvard Program on Negotiation: The Harvard Program on Negotiation[18] (PON) is a university association committed to rising the theory and put into practice of negotiation and dispute resolution.
- Straus Institute for Dispute Resolution: Professional training and academic programs in dispute resolution including a diploma, Masters in Dispute Resolution (MDR)[19] and Masters of Law in Dispute Resolution (LLM)[20] are provided by Pepperdine University School of Law’s Straus Institute for Dispute Resolution.
- CUNY Dispute Resolution Consortium: Intellectual dwelling to dispute-resolution faculty, staff and students at the City University of New York and to the miscellaneous dispute-resolution community in New York City are served by The City University of New York Dispute Resolution Consortium (CUNY DRC)[21].
- CPR Institute for Dispute Resolution: The International Institute for Conflict Prevention and Resolution is known as the CPR Institute is a New York City membership-based nonprofit organization that promotes superiority and innovation in public and private dispute resolution as well as serving as a chief international resource for escaping, organization and resolution of business-related problems.
- The Association for International Arbitration: The Association for International Arbitration (AIA) is founded in Paris in 2001 by Johan Billiet and it is a non-profit organization. The Association for International Arbitration has a growing number of members among arbitrators and mediators of international backgrounds.
6. Bangladesh and Alternative Dispute Resolution:
About 750,000 cases are pending with the courts of judicial magistracy according to records. To set up compulsory alternative dispute resolutions (ADR) in certain types of civil and criminal litigations[22], the government is functioning to reform the legal system. Once alternative dispute resolution is in place the litigants would go to court as a last option. It would save their expenses and make easy and quicker to dispute resolution. It would ease the legal system. Mandatory ADR can resolve disputes linking compoundable offences like offense. It is equally easy for ADR to sort out social disputes[23], cases of hurting religious sentiments, unlawful restraining or imprisonment of individuals, unlawful internment to extract acknowledgment, forcible property restoration, assault, unlawful compulsory labor, criminal intrude and house trespass.
7. Conclusion:
Alternative dispute resolution (ADR) is a very easy and comfortable way of solving disputers without taking the help of court. This is beneficiary for both the parties because it is cost effective, less timeliness, confidential as well as harassment free. Most of the cases are hanging in the court in Bangladesh. If some disputes compulsorily fallen into ADR, the court system will be more effective.
BIBLIOGRAPHY
1. Totaro, Gianna., “Avoid court at all costs” The Australian Financial Review Nov. 14 2008. (April 19, 2010)
2. Taken from a presentation by Stephen R. Marsh of http://adrr.com/
3. Collected from- SSRN: http://ssrn.com/abstract=1599420
4. Available at- http://skills.business.qld.gov.au/dispute-resolution.htm
5. “What Is ADR?” Business and Society Exploring Solutions wiki, available at- BASESwiki.org
6. Collected form- www.adviceguide.org.uk/c_alternative_dispute_resolution.pdf
7. Available at- www.courtinfo.ca.gov/selfhelp/lowcost/documents/adr.pdf
8. Negotiation Journal, July 1990, pp. 239–248
9. Available at- Scott v. Avery, 5 House of Lords, 811, 854
10. Schwartz, David S., “Mandatory Arbitration and Fairness.” 84 Notre Dame L. Rev. 1247 (April 19, 2010)
11. International Institute for Conflict Prevention & Resolution, “Arbitration Appeal Procedure available at- http://www.cpradr.org/ClausesRules/ArbitrationAppealProcedure/tabid/79/Default.aspx
12. Available at- http://www.ombudsassociation.org/standards/
13. Collected from- http://www.wipo.int/copyright/en/ecommerce/ip_survey/chap4.html
14. Available at- http://www.arbitrationindia.org/arb.htm
15. Further information about the WIPO Arbitration and Mediation Center in general is available at http://arbiter.wipo.int/center/index.html.
16. Collected form- http://www.adrdri.com/
17. BASESwiki: Who We Are available at- http://baseswiki.org/en/Who_We_Are
18. Collected form- http://www.ilr.cornell.edu/conflictRes/
19. Available at- http://www.lsbf.org.uk/programmes/masters/business-law.html?utm_source=google&utm_medium=cpc&utm_campaign=2236google
20. Available at – http://www.pon.harvard.edu/about/
21. Available at- http://law.pepperdine.edu/straus/
22. Available at -http://johnjay.jjay.cuny.edu/dispute/
23. Available at- www.cpradr.org/
24. Collected form- www.arbitration-adr.org/
25. Alternative Dispute Resolution by M S Sidiqqie available at- www.thefinancialexpress-bd.com/more.php?news_id=91513
[1] ADR is the generally accepted acronym for alternative dispute resolution. Most simply put, ADR denotes all forms of dispute resolution other than litigation or adjudication through the courts. This definition of ADR, however, makes no mention of a vital consideration. This is that ADR provides an opportunity to resolve disputes and conflict through the utilisation of a process that is best suited to the particular dispute or conflict. For this reason many ADR practitioners prefer to use the acronym to denote the words “appropriate dispute resolution”.
[2]See in, http://www.saflii.org/za/other/zalc/ip/8/8-CHAPTER-2.html. The goals of ADR may be described as follows: a) to relieve court congestion, as well as prevent undue cost and delay; b) to enhance community involvement in the dispute resolution process; c) to facilitate access to justice; and d) to provide more effective dispute resolution.
[3]See in, http://www.saflii.org/za/other/zalc/ip/8/8-CHAPTER-2.html. Three major categories of dispute resolution which may be considered are: a) Dispute resolution processes involving private decision-making by the parties themselves. This category would include negotiation and mediation; b) dispute resolution processes involving private adjudication by third parties. Arbitration would fall into this category; and c) dispute resolution processes involving adjudication by a public authority. This category would include administrative decision-making and formal litigation before the courts.
[4]See. http://www.fema.gov/help/adr/faq.shtm. The third-party neutral keeps the parties focused and constructive in their discussions. Unlike a judge or jury, the third-party neutral does not have decision-making authority nor the power to impose a resolution on the dispute. Rather, the neutral works with the parties to facilitate communication, identify underlying issues, explore options, and craft a mutually satisfying solution.
[5]See in-http://en.wikipedia.org/wiki/Online_dispute_resolution. Online dispute resolution (ODR) is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR). However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process. ODR is a wide field, which may be applied to a range of disputes; from interpersonal disputes including consumer to consumer disputes (C2C) or marital separation; to court disputes and interstate conflicts.It is believed that efficient mechanisms to resolve online disputes will impact in the development of e-commerce. While the application of ODR is not limited to disputes arising out of business to consumer (B2C) online transactions, it seems to be particularly apt for these disputes, since it is logical to use the same medium (the internet) for the resolution of e-commerce disputes when parties are frequently located far from one another.
[6] See, http://www.thefreedictionary.com/arbitration. (1)The process by which the parties to a dispute submit their differences to the judgment of an impartial person or group appointed by mutual consent or statutory provision.(2)(law) the hearing and determination of a dispute by an impartial referee agreed to by both parties (often used to settle disputes between labor and management).(3) the act of deciding as an arbiter; giving authoritative judgment; “they submitted their disagreement to arbitration”
[7] You must attend the ADR Conference in person at the scheduled time. A lawyer, an immigration consultant, or someone else who is assisting you, can attend with you if you wish. Attending the ADR Conference will be (1) you (and anyone who is representing you); (2)Minister’s counsel, and (3)the DRO, who is a tribunal officer or a member of the IAD.
[8] See. http://www.evaluationpro.com/school/ EvaluationPro is a quantum leap in the systematic teacher observation process. A revolutionary web-based system, it arms today’s administrators with a multitude of resources designed to simplify the evaluation process while saving time and maximizing effectiveness.
[9] See, http://en.wikipedia.org/wiki/Judge
[10] See, http://www.bestsampleresume.com. An agreement is a mutual understanding between two persons or two companies about some terms and conditions. Such a kind of communication on paper is called agreement letter. It can be made for various reasons like lease, subcontract, lending money, mortgaging, working, buying any product on loan and so on. Agreement is a letter with entire details of all the promises, applied rules of an association, and agreed policies. If an agreement is signed between two parties then it also contains a copy of all the list of goods and their prices. Whenever parties engage in any kind of a contract they form an agreement letter, one copy of which is kept with both the parties. The main components of an agreement letter should be terms of payment, clear explanation of the work to be done, entire information related to cost, span of the agreement, and a brief list of the agreement period.
[11] See, http://www.arbitrationindia.org Indian Institute of Arbitration & Mediation is a non-profit organization registered under the TC Literary Scientific and Charitable Societies Registration Act, 1955. The institute was formed by a group of professionals and businessmen in the year 2001.
[12] See, http://www.wipo.int Set out below are the WIPO Mediation Rules. You may also order or download (pdf) the brochure WIPO Arbitration and Mediation Rules (WIPO Publication No. 446) containing all WIPO Rules, Clauses and Schedule of Fees.
[13] The idea of a school of public affairs at Harvard was born in the midst of the Great Depression and on the eve of World War II. As government grappled with historic challenges both domestic and international, Harvard alumnus Lucius N. Littauer backed his vision of a school for a new professional governing class with an unprecedented $2 million gift, then the largest single gift from an individual donor ever given to a university. For the past seven decades the Harvard Kennedy School has strived to place itself at the vanguard of studying public policy and preparing its practitioners. Today the Kennedy School has evolved into one of the world’s most eminent social science research institutions – housing 15 research centers and institutes and more than thirty executive education and degree programs – with worldwide reach and influence. More than 27,000 Kennedy School alumni reside in 137 countries and serve in a wide range of positions in the public, private and nonprofit sectors.
[14] See, http://www.ibanet.org/About_the_IBA/About_the_IBA.aspx
[15] See, http://www.ilr.cornell.edu/about/
16 The Scheinman Institute’s programs will serve undergraduate and graduate students, as well as working professionals, through expanded curricula for undergraduate students, a first-ever master’s degree in dispute resolution, and more opportunities for students to get hands-on field experience and work closely with practitioners in the field. The institute also has plans to launch a new education and training program for mid-career professionals who want to make a transition to careers in dispute resolution. “Conflict resolution is at the center of ILR’s agenda. Through the Scheinman Institute, and because of Marty’s commitment to the school and to the future of the arbitration field, we can grow what we do in this area and help in the settling of workplace conflicts,” Katz says.
17 See, http://law.fordham.edu/international-non-jd-programs. The Fordham Law Dispute Resolution Program for International Lawyers and Students is designed to provide an introduction to lawyers and law students coming from abroad who wish to gain an understanding of dispute resolution techniques from a U.S. perspective.This one-week program introduces participants to the U.S. style of civil litigation, mediation, domestic arbitration, and international arbitration. The program also includes a visit to court and to either a law firm with an international arbitration practice group or to a dispute resolution organization located in Manhattan, such as AAA or JAMS, and a lecture by Dr. Branislav R. Srdanovic, former Ambassador and Foreign Policy Adviser to the President of State Union of Serbia and Montenegro.
18 See, http://www.pon.harvard.edu. The Program on Negotiation (PON) is a university consortium dedicated to developing the theory and practice of negotiation and dispute resolution. As a community of scholars and practitioners, PON serves a unique role in the world negotiation community. Founded in 1983 as a special research project at Harvard Law School, PON includes faculty, students, and staff from Harvard University, Massachusetts Institute of Technology and Tufts University.
19 http://law.pepperdine.edu The Master’s Degree in Dispute Resolution is a 32-unit program offered to those who possess a bachelor’s degree.
20 See, http://law.pepperdine.edu/academics/master-laws-dispute-resolution/. The LL.M. in Dispute Resolution is a 28-unit program offered to those who possess a law degree.
21 http://johnjay.jjay.cuny.edu/dispute/. Since 1993, John Jay College of Criminal Justice has housed the City University of New York Dispute Resolution Consortium (CUNY DRC), a university based academic center which serves as a comprehensive coordinating mechanism to advance research and innovative program development throughout the City University as well as the New York City metropolitan area.
22 The Criminal Litigation Accreditation Scheme covers all types of criminal law work. Members will have shown, to the satisfaction of the Law Society and through external examination that they have and will maintain a high level of knowledge, skills, experience and practice in the area of criminal litigation.The Criminal Litigation Accreditation Scheme is designed to enable solicitors and Fellows of the Institute of Legal Executives (FILEX) to qualify to apply for inclusion on local duty solicitor rotas under the Legal Services Commission’s Criminal Defence Service Duty Solicitor Arrangements 2001.
23 See, http://www.telegraphindia.com Gram kutcheris (panchayat-level courts) in the state have been empowered to deal with civil disputes. The state police headquarters has issued directives to all the superintendents of police (SPs) to transfer such cases to gram kutcheris. The panchayat-level courts will not only lodge complaints of civil nature but also solve disputes, including those related to land or immovable assets. The police headquarters has asked the SPs to provide security to sarpanchs (heads of courts at panchayat level) so that they could deliver justice without any fear.