“Alternative Dispute Resolution (ADR) to promote justices”-explains and illustrate

1. 1.      Introduction

Justices has been a burning question on 21^st century. Balanced view of civilian right and democracy has been requiring ADR caused by regulations practices either in a formal or informal way, rather than new regulations or government programs to reduce distortions caused by legitimate difficulties. Justices analysts view argues that ADR in to pay a role in managing the liberally justices in civilian justices establishment.

1. 2.      Alternative dispute resolution and justice

2.1 Alternative dispute resolution (ADR)

Alternative dispute resolution is a  resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It’s a collective term is used to settle disputes with (or without) the help of third party. Historical trends show that despite some resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance.[1] In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties’ cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called “compulsory” mediation; attendance that is, not settlement at mediation). Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favor of the use of mediation to settle disputes.

2.2 Justice

The conception of justices has been the act of just and fair considering the moral rightness based on ethics, rationality, law, natural law, religion and equity.[2] According to the most contemporary theories, John Rawl has claimed justices as the first virtue of social institution and true system of thought. Studies at UCLA in 2008 have reviled that justices with the notion of being fairly treated satisfies the basic needs.[3] Thereby further research by Emony University in 2003 suggests that inequity aversion might not be uniquely human.[4]

1. 3.      ADR under English law and the convention[5]

Under the English law, ADR can be of four types: negotiation, mediation, collaborative law, and arbitration. Alongside of these ADR can be used in the existing legal system such as sharia courts within common law jurisdictions such as the UK.

ADR includes informal tribunals, informal meditative processes, formal tribunals and formal meditative processes. The classical formal tribunal of ADR includes arbitration (both binding and advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal meditative process is referral for mediation before a court appointed mediator or mediation panel. Classic informal methods include social processes, referrals to non-formal authorities (such as a respected member of a trade or social group) and intercession.

The salient features of each type are as follows:

1. In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution.
2. In mediation, there is a third party, a mediator, who facilitates the resolution process but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.
3. In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms.
4. In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution.

4. Justices under English law and the convention[6]

Justices varies depending on lawful evidence, consequent, the effect of offenders/victims, proper allocation process.

Utilitarianism is a form of consequent, where punishment is forward-looking. Justified by the ability to achieve future social benefits resulting in crime reduction, the moral worth of an action is determined by its outcome.

Retributive justice regulates proportionate response to crime proven by lawful evidence, so that punishment is justly imposed and considered as morally correct and fully deserved. The law of retaliation (lex talionis) is a military theory of retributive justice, which says that reciprocity should be equal to the wrong suffered; “life for life, wound for wound, stripe for stripe.”^[7]

Restorative justice is concerned not so much with retribution and punishment as with (a) making the victim whole and (b) reintegrating the offender into society. This approach frequently brings an offender and a victim together, so that the offender can better understand the effect his/her offense had on the victim.

Distributive justice is directed at the proper allocation of things — wealth, power, reward, respect — among different people.

5. ADR to promote justices a comparative assessment

Justices is about fairness, equality, valuing people deserves, having property right and welfare- maximization process. Egalitarian approach states that justice can only exist within the coordinates of equality which includes demands for equality of opportunity and for equality of outcome. It affirms that freedom and justice without equality are hollow and that equality itself is the highest justice.[7] For instance, liberalism provides democracy with the experience of civic reformism. Without it, democracy loses any tie-argumentative or practical-to a coherent design of public policy endeavoring to provide the resources for the realization of democratic citizenship. Thereby theories of distributive justice claim that everyone should get what they deserve. Wealth and social status is to be distributed to match to match individual merit, which is usually understood as some combination of talent and hard work (meritocratic theories). Based on needs-based theories, goods (especially such basic goods as food, shelter and medical care) should be distributed to meet individuals’ basic needs for them. Marxism has regarded a needs-based theory “from each according to his ability, to each according to his need“.^[10] However a justice ensures that goods should be distributed to match an individual’s contribution to the overall social activities (contribution-based theories). Fairness is another key to justice. Most of the time decision-in-ignorance leads fairness, because it excludes selfish bias. Rawls’s has mentioned two principles of justice:[8]

• Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.
• Social and economic inequalities are to be arranged so that they are both
  • to the greatest benefit of the least advantaged, consistent with the just savings principle, and
  • Attached to offices and positions open to all under conditions of fair equality of opportunity.^[11]

All these principals have been the principles of justice, because we would agree to them in a fair decision procedure. Robert Nozick‘s influential critique of Rawls has been arguing that distributive justice is not a matter of the whole distribution matching an ideal pattern, but of each individual entitlement having the right kind of history.[9] Nozick also added that all attempts to redistribute goods according to an ideal pattern, without the consent of their owners, are theft. In particular, redistributive taxation is theft. Some property rights theorists further suggest that property rights based justice also has the effect of maximizing the overall wealth of an economic system.[10] They explain that voluntary (non-coerced) transactions always have a property called praetor efficiency. A praetor efficient transaction is one where at least one party ends up better off and neither party ends up worse off. The result is that the world is better off in an absolute sense and no one is worse off. Such consequentiality property rights theorists also has highlighted that respecting property rights maximizes the number of pare to efficient transactions in the world and minimized the number of non-praetor efficient transactions in the world (i.e. transactions where someone is made worse off). The result is that the world will have generated the greatest total benefit from the limited, scarce resources available in the world. Further, this will have been accomplished without taking anything away from anyone by coercion. Some theorist suggests that justice requires the maximization of the total or average welfare across all relevant individuals (utilitarian theory). This may require sacrifice of some for the good of others, so long as everyone’s good is taken impartially into account. Utilitarianism theorist also argues that the standard of justification for actions, institutions, or the whole world, is impartial welfare consequentialism, and only indirectly, if at all, to do with rights, property, need, or any other non-utilitarian criterion. These other criteria might be indirectly important, to the extent that human welfare involves them. But even then, such demands as human rights would only be elements in the calculation of overall welfare not uncross able barriers to action. Difficulties of establishing the justices are created through some litigation process. And “Alternative” dispute resolution is usually considered to be alternative to litigation which is used as a colloquialism for allowing a dispute to drop or as an alternative to violence. It’s aimed at taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster “appropriate” dispute resolution.[11] However the “Appropriate” dispute resolution considers all the possible responsible options for conflict resolution that are relevant for a given issue.[12] ADR promote to justices through its extraordinary negotiation, collaboration law and arbitration practices. ADR negotiation diminishes a line between the provider and consumers where it’s a provider driven process which validate consumer’s use of different options depending on the needs and circumstance.[13] It also ensures the realization of conflict resolution in its dispute resolution process. For more equality of justices process ADR has been opening door to third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called “Helping People Help Themselves” in which includes a section on helping someone draft a letter to someone who is perceived to have wronged them. Conflicts often occurs based in convicts and victims regarding the distribution of goods.[14] ADR helps to resolve such conflicts through the collaborative law practices. In collaborative law parties reach agreement with support of the attorneys (who are trained in the process) and mutually-agreed experts. No one imposes a resolution on the parties. However, the process is a formalized process that is part of the litigation and court system. Rather than being an Alternative Resolution methodology it is a litigation variant that happens to rely on ADR like attitudes and processes. Finally Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration of ADR process. This is known as a ‘Scott Avery Clause’.[15]In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts.[16] Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.

6. Conclusion

Overall research work is a clear indication for establishing justices to get out of malpractices of civilian rights. Proper utilization of ADR has been recounting to establish justice limitations and related factors that have been affecting the civilian rights both directly and indirectly. ADR practices rather than the biased view on legitimate judiciary polity by courts are necessary to explore. This recipe (ADR practices) is not only essential for Bangladesh, but also for stabilizing the sub-continental liberal civilian rights, which is still going through the aftershocks of the law and judiciary reforms. Indeed, a more alternative legitimate practices stable global people’s rights will support right to be faired in the emerging transformational judiciary process, with less and less restricted resolution practices for civilian justices, and will provide mutually beneficial growth opportunities for both developed and developing countries justices.

References

Arbitration Appeal Procedure n.d. retrieved on 24^th July 2012, from http://www.cpradr.org/ClausesRules/ArbitrationAppealProcedure/tabid/79/Default.aspx [2]

Daston & Lorraine 2008, “Life, Chance and Life Chances”, Daedalus, pp. 5–14.

Dispute Resulation n.d, “What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution Processes.” retrieved on 24^th July 2012, from http://www.abanet.org/dispute/draftbrochure.pdf [3]

Dominik, K 2007, ‘ADR and Mediation: the Experience of French-Speaking Countries’, Addis Abada

Honderich, T 1969, ‘Punishment: The supposed justifications’, Hutchinson & Co, London Chapter 1.

Konow & James 2003, “Which Is the Fairest One of All? A Positive Analysis of Justice Theories.”, Journal of Economic Literature, v. 41, no. 4: p. 1188

Lynch, J 2001, “ADR and Beyond: A Systems Approach to Conflict Management”, Negotiation Journal, v. 17, no. 3, p. 213.

Mill, J 1991, ‘Utilitarianism in On Liberty and Other Essays’,OxfordUniversity Press, Oxford, c. 5.

Marx, K 1977, ‘Critique of the Gotha Program’,OxfordUniversity Press, Oxford, p. 569.

Rawls, J 1999, ‘A Theory of Justice’, OxfordUniversity Press, Oxford, p. 3

Singer, P (edt) 1993, ‘Crime and Punishment: A Companion to Ethics’, Blackwell Publishing, Oxford, pp. 366–72.

Schwartz & David, S 2010, “Mandatory Arbitration and Fairness.”, Notre Dame L. Rev, no. 1247

Totaro & Gianna 2010, “Avoid court at all costs” The Australian Financial Review

Waterfield, R (edt.)1984, ‘Republic’, OxfordUniversity Press, Oxford.

Zeno, S and Ignat, C n,d, “Alternative ways of solving conflicts (ADR)”, Publisher: University, p. 24