Table of Content
Topic Page no.
Introduction……………………………………………………………2
Alternative Dispute Resolution……………………………………….3
Process of Alternative Dispute Resolution…………………………….4
Sources of Alternative Dispute Resolution…………………………….5
Analytical Phase of ADR………………………………………………5
NGO’s Role in ADR……………………………………………………7
In Bangladesh…………………………………………………….7
Practices ADR in Bangladesh…………………………………….9
Problems of ADR in Bangladesh………………………………..10
Making ADR more effective……………………………………..11
Conclusion……………………………………………………………..12
Bibliography……………………………………………………………13
Introduction:
Conflict or dispute is a normal and unavoidable part of all individual societal relationships. Conflict occurs at all levels of society from interpersonal, relatives, tribes to nationwide and global levels. In other words, conflict is everywhere.
By conflict or dispute, we mean conflict of interests between two or more parties about resources, dissimilarities of estimation within the group, power, prestige and others. Parties in conflict/disputes believe that they have mismatched goals and here the desire to gain benefit over, win over, harm, or conquer one another. There is a fine line between dispute and conflict. These terms are often used alternately and their meanings normally overlap. However, we will not trouble much about their distinction and both terms will be used here representing the same implication for a productive and meaningful discussion.
The academic difference between dispute and conflict is that conflict includes coercion and destructive behavior[1] whereas dispute implies discrepancy on minor issues, which may or may not have elements of critical or severe action. The following sentence will provide a clearer meaning all conflicts are disputes but all disputes are not conflicts.
Dispute/conflict resolution is a process that implies the causes of conflict as well as the resolution of such conflicts. Conflict is a regular and continuous process in our day-to-day life. Conflict can be determined or settled, but once resolute, new conflicts may arise. It is also a constant process one is determined and another one emerges. Conflict cannot be eradicated forever from our lives, but it can be minimized.
Alternative Dispute Resolution (ADR)
The term “alternative dispute resolution” or “ADR” is frequently used to explain a wide diversity of dispute resolution mechanisms[2] that are short of, or alternative to, full-scale court processes. The term can refer to the whole thing from facilitated resolution discussions in which disputants are encouraged to consult directly with each other prior to some other legal process, to adjudication systems or ministries that look and feel very a large amount like a courtroom process. Processes intended to manage community tension or make possible society development issues can also be incorporated within the rubric of ADR. ADR systems may be generally sorted as negotiation, conciliation/mediation, or arbitration systems. Cooperation systems create a structure to encourage and facilitate direct negotiation between parties to a dispute, without the interference of a third party. Mediation[3] and conciliation systems are very similar in that they interject a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Mediators and conciliators may merely make easy communication, or may help direct and structure a settlement, but they do not have the influence to decide or rule on a completion. Arbitration systems sanction a third party to decide how a dispute should be resolved. It is important to differentiate between binding and non-binding forms of ADR. Negotiation, mediation, and appeasement programs are non-binding, and depend on the eagerness of the parties to reach a voluntary agreement. Arbitration programs may be either binding or non-binding. Binding arbitration reduces a third party decision that the disputants must follow even if they oppose with the result, much like a judicial decision.
Non-binding arbitration creates a third party choice that the parties may reject. It is also important to distinguish between mandatory processes and voluntary processes. Some judicial systems require litigants to negotiate, conciliate, mediate, or arbitrate prior to court action. ADR processes may also be required as part of a prior contractual agreement between parties. In voluntary processes, submission of a dispute to an ADR process depends entirely on the will of the parties. These forms of ADR, and a variety of hybrids, are described in more detail in Taxonomy of ADR Models[4] from the Developed and Developing World. The Guide uses the general term, ADR, when referring to conditions or programs that may affect or include various types of ADR, but will refer to particular types of ADR negotiation, conciliation, mediation, or arbitration whenever possible.
Process of Alternative Dispute Resolution:
Conflict is a self-motivated process. It has a commencement and has to pass all the way through several stages before it ends. At the beginning some situation appears that can be said, as basis of conflict, and a surroundings of conflict is created. Then people start to perceive the conflicting situation and they become aware of it. Next, the feeling of anxiety emerges, doubt arises and fear develops. In this stage, conflict becomes overt and parties start indulging in forcefully defensive behavior. Finally, conflict moves towards the outcome, and either a win-lose situation[5] happens or an agreement is made.
Sources of Alternative Dispute Resolution:
There are many reasons behind each conflict. Some of these are:
- Dispute over sharing of assets or ownership
- Differences in principles and viewpoints between communities
- Personal interests- love and conjugal affairs
- Insecurity- differences of affluence and power
- Power domination-control and domination over one another
- Power struggle-contest between candidates or parties to win election.
- Mistrust- suspicious of one another
- Injustice- exploitation by financial and other means
- Denial of rights to possessions, religious practices, political campaign etc.
- Consciously and intentionally formed conflicts.
Analytical Phase of ADR:
There are a few issues that should be cautiously charged when deciding whether to start on a mediation project in a country: existing laws, practice and culture of dispute resolution, perceived need of mediation, ADR experience, key stakeholders, NGOs and global organizations, and sustainable financing. These factors, which can be customized according to the country’s precise features, are[6]:
Existing laws and regulations: creating legal surroundings for resolving profitable disputes. The country observed with international principles or not
Practice of dispute resolution in civil cases: presentation of courts and other legal organizations and experts associations e.g. bailiffs, attorneys[7]; number of procedures needed for agreement enforcement; time wanted for enforcement; court costs and legal fees; contact to justice; geographical access to the courts; corruption; other potency and weaknesses, etc.
Culture (of dispute resolution); Litigious-ness; social reception of the resolution; rate of settlement inside and exterior of courts; belief in the court system and judiciary; professed and real corruption; move toward to legal and judicial reform; economical and social setting; legal and cultural environment of the region, etc.
ADR experience: Survival of traditional or modern alternative methods; successful and unsuccessful attempts of introducing ADR; public awareness of ADR and particularly mediation; former ADR trainings; the pool of trained and trainable mediators.[8]
Perceived need to introduce mediation: and identification of areas where it would be particularly helpful. The parties give up on court proceedings and, disputes are perceived appropriate for mediation. The country pressured to modify its system by international organizations, neighboring countries, etc
Key stakeholders and political support: Key groups and individuals holding stakes in ADR and their affirmed and possible carry for the project, particularly. Judiciary, Ministry of Justice, small and medium enterprises, bar associations, and business organizations. Their strengths, weaknesses, successes; key opponents; areas requiring capacity building.[9]
NGOs and international organizations interested or involved in ADR: Past, present, and future projects with ADR component. Areas of common interests possible financial contributions or projects involving economy of scale (e.g. common mediation trainings).
Sustainable financing: Available sources; restrictions and goals of donors; financial needs of the project, etc. The duration of the project is not likely to be shorter than three years.[10]
Generally, mediation is most needed and should work best where transactional costs of litigation and other court procedures are particularly high. “High transactional costs of litigation” can be understood broadly, as any obstacle to efficient resolution of dispute, whether dilatory, monetary or other costs that raise the expense of resolving a dispute for a party. Mediation should also be introduced where the level of settlement is particularly low. Although such low settlement level may mean a culture that is adverse to mediation, even gradual change in this type of culture will be an important achievement. An important exception to that rule is where the court system is so inefficient and the justice is delayed to the point that it poses no or little threat to the parties. The consequences of delayed justice take away incentives to settle for many Diagnostic Phase parties[11].
NGO’s Role in ADR:
Nowadays NGO’s are involving rapidly in ADR. NGOs’ role in raising consumer awareness of ADR is significant owing to leaflets and their homepages. NGOs have appropriate human resources so they should make bigger the in sequence activity through local events, professional presentations and education.
In Bangladesh
In Bangladesh, government participation in the development of the agenda was quite limited. The Division of External Resource Development of the Ministry of Finance was asked when the RFA[12] was at first developed and USAID-B[13] proposed that they join the partnership. However, there is no exact government organization assigned to manage work in democracy and governance, so ERD[14] gave the go ahead to the program but refused to get involved. The government felt that they did not have the possessions or the experience to get involved in DG plans and optional that USAID-B use NGOs as service suppliers. The Partnership continues to consult and notify government bureaucrat swho are involved in the election commission and the locally elected bodies (LEBs) of the growth of the agenda and has communal the USAID results framework with them.
It is attractive to think whether or not humanizing the “shalish” group serves to generate a “second class” impartiality system or punctual the underprivileged to give up their right to chase cases that might have superior social or biased implications for themselves or their groups. The IRs[15] spoken by the Democracy Partnership and the way in which the two programs experiential were structured are attempts to promote the availability of unbiased, quality ADR programs, accessible to ALL classes of disputants. Program designers face an significant tradeoff growing instant access to a system, which provides touchable relief in the daily lives of users, versus championing the rights of the poor, in particular women, in the larger forum of the national court system. Dialogues with both users and NGO staff applying the programs point out that the inhabitants’ feels they need to be knowledgeable about their rights before supporting for those rights. The reformed mediation committees have provided them with an opportunity to initiate this education process.[16]
The primary social goal is augmented access to justice for the poor, as well as more equitable and effectual justice for them. The added reasons given by the NGOs surveyed for surroundings up ADR programs included guarantying the more effective implementation of their own programs, such as better right of entry to and use of family planning, or the development of conditions for women. ADR is just one of a number of services offered by these NGOs to complete their overall program goals.
Practices of ADR in Bangladesh:
The community now and then takes a most important role in resolving restricted disputes. In Bangladesh, these are commonly recognized as Shalish and Mimangsha. These are frequently undertaken through mediation, negotiation, and reconciliation. In the Shalish or Mimangsha the community leaders look into profound into the root causes in the attendance of both parties, listen to viewpoints of disputants, and try to locate a clarification pleasurable to the parties worried. Resolving disputes through community initiatives with the above tools are commonly known as Alternative Dispute Resolution.
Societies globally have long used non-judicial, native methods to decide disputes. In Bangladesh, dispute declaration outside of courts is not new. In the customary system, disputes are set on within the village. However depending on the concentration of the dispute or seriousness of the situation, bordering villages are also sometimes involved. During the British period, in 1870, the Panchayat[17] system was introduced to manage and rule the area for its collection of revenue.
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 common 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.
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.
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 consciousness about ADR
- Diffusion the success story of ADR
- Encouraging NGOs to become concerned in ADR
- Involving the Bar Associations in ADR
- Providing training for mediators
- Matching Government and NGO efforts.
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. The word “appropriate” also emphasizes two other important aspects of the problem: creating a dispute resolution system that is suitable for a given legal system and culture and matching a case to an appropriate dispute resolution procedure. ADR has become a buzz word in recent years. One of the problems with its application is the wide variety of ADR processes that have varied rules and dynamics that can accomplish a range of goals. As a result, there is a lot of perplexity about various ADR methods. Much of the confusion seems to occur when people speak of ADR but actually mean different processes, very often confusing mediation and arbitration. It is, therefore, particularly important for people to distinguish that mediation is qualitatively very different from arbitration.
Bibliography
Retrieved from http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacb895.pdf
- Retrieved from http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf
- Retrieved from http://www.lawyersnjurists.com/course-materials/legal-study-syllabus/alternative-dispute-resolution-legal-aid-and-professional-ethics/
- Retrieved from http://www.hcmadras.tn.nic.in/jacademy/articles/ADR- Justice SB Sinha.pdf
- Retrieved from http://www.lawyersnjurists.com/course-materials/legal-study-syllabus/alternative-dispute-resolution-legal-aid-and-professional-ethics
- Retrieved form “Alternative Dispute Resolution Manual: Implementing Commercial Meditation” written by Lukasz Rozdeiczer & Alejandro
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[1] Destructive behavior, a personality trait, is passive, sometimes obstructionist resistance to following through with expectations in interpersonal or occupational situations. It is a personality trait marked by a pervasive pattern of negative attitudes and passive, usually disavowed, resistance in interpersonal or occupational situations.
[2] Dispute resolution mechanisms include 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 are ways and methods of resolving disputes outside the judicial process (formal litigation – court).
[3] 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. See conciliation for further details.) ADR can be used alongside existing legal systems such as sharia courts within common law jurisdictions such as the UK.
[4] This is a brief survey of alternative dispute resolution (ADR) processes which can be found in various Michigan trial courts. All processes outlined below have been or are currently utilized in Michigan, although not in all courts, and in varying degrees. One key dynamic supporting the increased use of ADR processes nationally is that approximately 98 percent of all civil matters are disposed without adjudication by trial. Knowing this, policy makers, judges, lawyers, and citizens are concluding that since it is in the best interests of the parties and courts (and thus the public) to discover how best to achieve just settlements as early as possible.
[5] When you approach a negotiation with a win-lose mindset; remember that it may well be you that loses. Even if you think you have won, you may have damaged the relationship with the other person beyond repair. In win-lose battles there is, by definition, a winner and a loser. Each person usually sees the event as a life-or-death struggle, where the only way to avoid defeat is to win. The relationship with the other person is unimportant as to think kindly of them is to show weakness and expose yourself to defeat.
[6] There are many more possible problems that can and should be assessed, depending on the circumstances. Also note that answers to these and other questions may differ depending on the regional differences between the parts of the country
[7] One who is legally appointed by another to transact any business for him; an attorney in fact.
[8] See “Alternative Dispute Resolution – when it works, when it doesn’t”, PREM notes,WB 2005, Richard Messick, with subsequent changes by L. Rozdeiczer, and Alejandro Alvarez de la Campa.
[9] A party can have a court enforce mediation settlement, only when that jurisdiction has a law recognizing the direct enforceability of such decisions by the court system or if the (mediation) settlement is done in relation to court proceedings and after court approval has a power equal to the court judgment (most jurisdictions have such provisions). Otherwise such mediation settlement will be enforced through the litigation as a regular contract.
[10] An important The absence of these incentives along with other prerequisites and conditions will jeopardize the success of the project. Under such circumstances, it is not advisable to engage in a reform project. The experience of the WBG in implementing ADR projects confirms that creating the right incentives for the party is critical for the success of the project.
[11] Exception to that rule is where the court system is so inefficient and the justice is delayed to the point that it poses no or little threat to the parties. The consequences of delayed justice take away incentives to settle for many parties. This phenomenon is “shadow of the law (court) “. Assessment of the above issues should be made through analysis of legal documents, statistical data and, most importantly – interviews with and polls of key stakeholders (particularly judges, bar members, potential mediators, legal experts, and SMEs
[12] The rapid appraisal in April 1995,USAID-B developed several results targets or IRs. The IRs and the project design process were then used to develop a Request For Application (RFA) to solicit partners in achieving the stated IRs.
[13] USAID-B funded ADR program in Bangladesh, it is important to understand the context in which it was developed. USAID Bangladesh has enthusiastically embraced USAID Washington’s “re-engineering goals,” including customer focus, managing for results, teamwork, empowerment, and diversity. A second important factor is the principle goal of the mission: reduction of poverty
[14] Evaluation on Social Impact of Mediation, p.11. A report prepared by the monitoring and evaluation cell of the Madaripur Legal Aid Association. (1995-96).
[15] IR states that the “quality of alternative dispute resolution [in Bangladesh be] improved.” Each of the organizations has designed their delivery vehicle slightly different. Of these five, two NGO programs were observed and one of them will be described in detail here — the Madaripur LegalAid Association (MLAA).
[16] The MLAA( meditation system established in 1978 as a legal aid foundation) and BS programs both incorporate a significant amount of legal aid and education about rights. BS actually has a team which documents all cases, especially of abuse, which they are called upon to investigate and provide legal counsel. Both organizations are especially concerned about creating precedents, either through court cases or by institutionalizing a reformed shalish system, which promote and affirm the rights of the poor.
[17] 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.