How could Alternative Dispute resolution (ADR) Promote “access to justice”


ADR 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 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. According to Grillo (1991), this particularly concerns illiterate and/or poor population who cannot afford to navigate conventional legal channels.[1] In this case, however, there is a danger that these groups may receive a “second class” justice and be in fact forced to settle on less advantageous terms.

Alternative Dispute Resolution (ADR) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party.





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
  • Practical solutions tailored to parties’ interests and needs (not rights and wants, as they may perceive them)
  • Durability of agreements
  • Confidentiality

Problems of 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:

  1. Peoples` lack of trust of community leadership
  2.  Sometimes faced with biased decisions.
  3. Too much interference in the process by powerful people
  4. Fear of losing dignity and prestige
  5. Persons dealing with ADR do not have adequate knowledge and experience
  6. Decisions are not legally binding


 Relevant legal area:

ADR is generally classified into at least four types: negotiation, mediation, collaborative law and arbitration. Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation. ADR can be used alongside existing legal systems such as sharia courts within common law jurisdictions.

ADR traditions vary somewhat by country and culture. There are significant common elements which justify a main topic, and each country or region’s difference should be delegated to sub-pages. According to ADR Times, Bangladesh moves toward institutionalizing ADR with the launching of the Bangladesh International Arbitration Centre (BIAC) at the initiative of International Chamber of Commerce. Adjudication of matters in Bangladeshi courts has proved slow-going, with some litigants not receiving a verdict in their lifetime. [2]

ADR includes informal tribunals, informal mediative processes, formal tribunals and formal mediative processes. According to Transparency International Bangladesh, [3]while traditional forms of alternative dispute resolution – known as ‘Shalish’ – are as old as time itself in Bangladeshi village communities, the courts have shown themselves unable to deliver justice to any but an elite few. Shalish is a combination of negotiation and mediation process in Bangladesh which provides a traditional alternative to dispute resolution in a community and covers both civil and criminal cases of varying intensity and degree. This system in the village has been in place for centuries. Local leaders provide an opportunity for resolving local disputes. Women and the poor particularly, favor this option of conciliation through Shalish. They feel comfortable about easy access to the resolution process and are not required to pay money for it.

 The classic formal tribunal forms of ADR are arbitration (both binding and advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal mediative process is referral for mediation before a court appointed mediator or mediation panel. According to Lipsky and Seeber(1998)[4], most data supports the claim that mediation reduces backlog in courts in various countries. Most of the parties and their counsel (65-80%) believe that mediation and arbitration reduce the time and costs of resolving commercial disputes, as compared to litigation.

Finally, it is important to realize that conflict resolution is one major goal of all the ADR processes. If a process leads to resolution, it is a dispute resolution process.

In recent years there has been more discussion about taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster “appropriate” dispute resolution.

Relevant legal principles:


According to Ravitz et al.(2001, p-128)[5], mediation is a flexible, non-binding dispute resolution process in which a neutral third party (the mediator) assists two or more disputants to reach a voluntary, negotiated settlement of their differences. The parties have ultimate control of the decision to settle and the terms of resolution. The mediator uses a variety of skills and techniques to help the parties reach a settlement, but has no power to make a decision. The parties remain the decision makers. Mediation is generally referred to as an interest-based process – in contrast to a rights-based process – because it is designed to help the parties clarify any underlying motivations or interests. [6]The mediator also may help the parties prove the strengths and weaknesses of their legal positions, enhance communications, explore the consequences of not settling, and generate settlement options. Mediation sessions sometimes result in creative solutions, including those where both sides can profit from the settlement terms. Thus mediation changes the distributive, zero-sum game into a value-creating situation. Mediation sessions also are generally confidential. The parties sometimes enter into formal confidentiality agreements before the start of the mediation. Such agreements can preclude a party from later using in litigation or arbitration the documents or information obtained during mediation which they did get elsewhere. This confidentiality provision is often a part of mediation law, and such a confidentiality agreement is not necessary.



In arbitration systems, the court authorizes a neutral person or a third party to resolve the dispute at the place of occurrence. The Arbitration Act of 1940 was introduced to settle disputes through this process. But the practice of arbitration by the court is not popular. Except for some interim measures, there is very little scope for judicial intervention in the arbitration process.Accordin to Meek (1996)[7], the arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award.

Once the period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.


Conciliation is a less formal form of arbitration. According to Folberg (2005), this process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. [8]One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.

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.

Beyond the basic types of alternative dispute resolutions there are other different forms of ADR:

  • Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator.
  • Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement.


To make ADR more effective, extensive, and pro-active, coordination is needed among different agencies. Other initiatives are given below:

  1. Creating awareness about ADR
  2.  Spreading the success story of ADR
  3. Encouraging NGOs to become involved in ADR
  4. 10.  Involving the Bar Associations in ADR
  5. 11.  Providing training for mediators
  6. 12.  Matching Government and NGO efforts.


ADR refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or mini trials that look and feel very much like a courtroom process. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation. The rising popularity of ADR can be explained by the increasing caseload of traditional courts.

According to The Financial express, [9]the legal system in Bangladesh has not earned yet a positive distinction for handling properly and timely the adjudication of all sorts of cases that come before it. Thus, some cases are not blessed with verdicts sometimes even in the lifetime of an accuser and he or she may not live to see the verdict let alone get any benefit from it. Reforms of the legal system are underway and the same could lead to appreciable reduction in the backlog of unresolved cases after a period of some years.


Grillo,T. 1991, The Mediation Alternative: Process Dangers for Women.

Lipsky,D. B. & Seeber,R 1998, The Appropriate Resolution of Corporate Disputes; A Report on the Growing Use of ADR, ICR Cornell/Perc Insitute on Conflict Resolution.

Robert, J, Donna ,S, Ravitz, S (2001), p. 128, Guide to Judicial Management of Cases in ADR, Federal Judicial Center.

Meek,S 1996, Alternative Dispute Resolution, Lawyers & Judges Publishing Company Inc, Tucson.

Folberg, J, 2005, Resolving Disputes: Theory, Practice, and Law, Aspen Publishers, New York

Website of CEDR.

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Website of ADR Times

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Website of Transparency International Bangladesh


Website of the Financial Express


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[1] Grillo,T. 1991, The Mediation Alternative: Process Dangers for Women.


[3] Website of Transparency International Bangladesh

[4] Lipsky,D. B. and R. L. Seeber,1998, The Appropriate Resolution of Corporate Disputes; A Report on the Growing Use of ADR, ICR Cornell/Perc Insitute on Conflict Resolution.


[5] Robert J. Donna S, Ravitz ,S 2001, p. 128, Guide to Judicial Management of Cases in ADR, Federal Judicial Center.

[6]  Website of CEDR. <>


[7] Meek,S 1996, Alternative Dispute Resolution, Lawyers & Judges Publishing Company Inc, Tucson

[8] Folberg, J (et al) 2005, Resolving Disputes: Theory, Practice, and Law, Aspen Publishers, New York