Alternative Dispute Resolution is a generic term used to describe a range of procedures designed to provide ways of resolving dispute as an alternative to the court procedure. Explain.

Introduction

Alternative Dispute Resolution (ADR) is generally a non-adversarial (investigatory) method of dispute resolution that is used instead of civil litigation. Arbitration, Mediation mini-trial and private trials are among the most common procedures of ADR method.

By using an ADR method the parties are able to come forward to sit together and talk to finally resolve their disputes. ADR provides the reservation in between the disputing parties and restoration of harmony through mediation, conciliation and arbitration etc. It helps the enforcement of the decision, when people’s participation are ensured as to tendering evidence, asking questions and making opinions.

[1]The several major reasons because of which people turns to ADR is as follows–

a) ADR is not only an alternative method but it gives a wider range of Alternative solution comparing with the formal litigation.

b) ADR may make substantial contribution to a more efficient use of Judicial Resources.

c) ADR can save both time and money of both type of parties. The legal system is overcrowded which result in long delays between the filing and hearing.

d) Accessibility is another reason because courts are often hard to get to and their 9 to 5 routine means people have to take time off from their work.

e) Dispute resolution do not create a win or lose atmosphere that provides the adversarial system of our courts.

f) It is non-building.

g) It’s proceedings are confidential and not admissible in the litigation if needed.

Mechanisms of Alternative Dispute Resolution:

ADR encompasses a variety of means as its mechanism to resolve conflicts or disputes other than the formal court adjudication. These means and processes also include a broad range of court oriented activities which are intended to facilitate a more effective administration of justice and help to overcome delays procedure orchard through the usual court system.

The Alternative Dispute Resolution mechanism is intended to cover specific processes and means which are unique by nature. The ADR mechanism can be broadly categorized into the following major procedures[2] –

a) Mediation.

b) Conciliation.

c) Arbitration.

d) The mini-trial.

e) Private Trial or Rent-a-Judge.

f) Ombudsman Scheme.

Mediation

The Mediation is defined as a process of settling conflict in which a third party oversees the negotiation between two parties but does not impose an agreement. Here, the mediator attempts to reconcile a dispute between two parties by persuading them to adjust or settle their differences. In this case, the mediator usually do not have the authority to resolve the dispute.

Objectives of Mediation:

1) Production of a plan for the future that the participants can accept and comply.

2) Preparation of the participants to accept the consequences of their own decisions.

3) Reduction of the anxiety and other negative effects of the conflicts by helping the participants devise a consensual resolution.

The Mediation can be used in the following situations –

– Commercial settling.

– To resolve pending legal actions.

– To resolve dispute before they become legal actions.

– To manage conflict among employees within a business.

The areas where the Mediation commonly take place are –

– Family Dispute (divorce, dowry etc.)

– Community Disputes (disputes between neighbors)

– Labor Disputes.

– Public Disputes (dispute between communities and the government).

The potential benefits of using Mediation is as follows:

– Procedural Flexibility.

– Partly participation in process.

– Partly participation in outcome.

– Relationship oriented.

– Flexibility of solution.

– Cost saving.

– Confidentiality.

Conciliation

Literally, the conciliation means bringing of opposing parties or individuals into harmony to settle the dispute. There is a conciliator who takes a more interventionist role than the mediator in bringing the two parties together and suggest possible solutions to achieve agreed settlement.

Disputes that can be settled by Conciliation:

Any dispute that has been arisen or may arise between the parties in respect of the defined legal relationship, whether contractual or not can be settled by the conciliation where the parties agree to seek an amicable settlement of that dispute by conciliation, except those cases, where a particular mode of settlement is prescribed by the law.

Any party competent to contract can seek amicable settlement of their dispute by conciliation. The parties may belong to the same or different nationalities. Normally, there is one conciliator but there can be two or three conciliators upon the consent of the parties.

Potential Advantage of resolving disputes by Conciliation:

Conciliation is becoming increasingly popular as an alternative to other formal and informal modes of dispute resolution due to its several obvious advantages.

– Conciliation offers a more flexible alternative for a wide variety of disputes, small as well as large.

– It obviates parties from seeking recourse to the court system.

– It reserves the freedom of parties to withdraw from conciliation at any stage of the proceedings.

– It is committed to the confidentiality of throughout the proceedings and thereafter about the dispute, the information exchanged, the offer and the counter offer of the solutions made and the settlement arrived at.

– It facilitates the maintenance of continued relationship between the parties even after the settlement or at least during the period of settlement is attempted at.

– It is cost effective and produces quicker resolution of dispute.

– In a Conciliation process, there is no scope of conciliation and bias.

Arbitration

Arbitration is the process in which the dispute is submitted to an arbitrate tribunal which makes decision on the dispute that is binding on the parties. Here, the third party is neutral, not acting as a judge, render a decision in a dispute.

The Arbitrator in this process is usually a member of Chartered Institute of Arbitrators and often acts independently of the tracts association. The arbitrator makes a decision based on the evidences presented by the involving parties. The decision is confidential and cannot be disclosed without the consent of the parties.

Areas where the Arbitration is used[3]:

– Construction – Disputes.

– Labor – Management Disputes.

– Consumer Disputes.

– Employment Disputes.

– International Transaction.

Advantages of using Arbitration:

There are some advantages of Arbitration against litigation. These advantages are –

– Arbitration allows the parties to keep private the details of the dispute.

– The parties can chose their own rules and regulations.

– The time and places of hearing can be chosen according to convenience.

– There is a greater scope for minimizing acrimony.

– The cost can be kept low.

– The ability of parties to choose their own judge is permitted.[4]

The Mini-Trial

A Mini-Trial is a non binding procedure in which the disputing parties are presented with summaries of their cases to enable them to assess the strengths, weakness and prospects of their cases and the opportunity to negotiate a settlement with the assistance of a neutral adviser.

In a Mini-Trial, the disputing parties present their respective cases before their senior executive who are competent to take decisions and who are assisted by a neutral third party. Thus the executives have an objective assessment of dispute and if possible, they can mutually arrive at an amicable settlement[5].

Advantages of Mini-Trial:

Mini-Trial have been used in patent disputes, product liability case, unfair competition and anti-trust claims. The advantages of Mini-Trial includes:

– The parties can design the processes and rules to be used.

– The process may allow for influence of mediation and creative problem solving.

– The use of some discovery techniques allows each party to learn the facts and pertinent issues about its opponent. This promotes an informed settlement.

– The adviser can be selected for his or her expertise and can be granted varying degree of authority.

– Both the participation of the trial and the trial itself are relatively brief.

– The Hearing is confidential. Neither the parties nor the adviser is allowed to disclose the information regarding the proceeding outside.

Private Trial or Rent-a-Judge

Some businesses have sought to resolve disputes by using paid services of retired judges or lawyers who assume the role of judge. The parties of each cases are able to select the judge who will hear the case and to have their cases heard whenever they are ready to present it.

In this dispute resolution method, referred to as the rent-a-judge or private trial method of the society does not vest the judge with the legal authority to impose a building decision on the disputing parties. However, the parties frequently agree to accept the judges determination. This form of ADR was first introduced in USA in 1990[6].

Ombudsman Scheme

Many services, like the National Board of Revenue (NBR) Bangladesh have an Ombudsman Scheme that can be used as ADR.

Ombudsmen are independent office holders. The main function of Ombudsmen are to investigate and rule on complaints from members of the public about maladministration of government and in particular services in both the public and the private sectors. Mediation is used by some ombudsmen as a part of their dispute resolution procedure.

Services, provided by the banks, insurance companies and other financial institutions are all covered by the FOS (Financial Ombudsman Services). One can only be able to refer his problem to the Ombudsman officer after the completion of the internal complaints procedure against the other party. The complaining party need to provide written details of his complaint, together with the copies of his evidence. The ombudsman will make a recommendation or a ruling which is usually accepted by the opposite party but it is not legally binding. Hence the complaining party can still make a court action if he is not satisfied with the decision. However, court will take ombudsman’s ruling into account when making the final decision. All the ombudsman schemes are free[7].

Conclusion

The role of the Alternative Dispute Resolution is very crucial in our day to day life. By offering the wide range of distinctive procedures and decision making systems ADR has not only provided a faster way to resolve our daily problems but it is also more flexible and hassle free compared to the general legal system. In fact, delay in the ordinary legal system devalues judgment, creates anxiety in the mind of litigants and uncertainty for the lawyers, which result in loss or deterioration of evidence, waste of court resources, needlessly increase the cost of the litigations[8].

We know delayed justice is the means of inflicting injustice through the process of law. Prolonged delay makes the litigants enormously impatient. As such an implicit model of mechanism must be made to pay to resolve undue delay in the disposal of the cases.

Taking all these views in mind, the ADR system can be introduced and developed in our present society beside the formal justice system in order to eliminate the endless suffering of the poor litigants of our country[9].

Reference