Any process of solving disputes other than by litigation, the term is also used as ADR. Alternative Dispute Resolution (“ADR”) refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As increasing court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are also voluntary; some of them are also mandatory. ADR has proven very helpful in many different types of legal disputes. These include divorces and other family matters, professional liability cases, personal injury situations, insurance issues, and disputes
Arbitration and mediation are the two major forms of ADR. While the two most common forms of ADR are also arbitration and mediation, negotiation is almost everywhere attempted first to resolve a controversy. It is the primitive mode of dispute solving. Negotiation allows the parties to meet in order to settle a dispute. The main positive advantage of this form of dispute solving is that it allows the parties themselves to control the process and the solution perfectly.
Mediation is also an informal alternative to litigation. Mediators are individuals trained in negotiations, which bring opposing parties together and attempt to work out a settlement or agreement that both parties accept or reject. Mediation is used for a wide number of case-types ranging from juvenile felonies to federal government negotiations with Native American Indian tribes. Mediation has also become a significant method for resolving disputes between investors and their stock brokers. It is related with the business part mostly
Arbitration is a simplified version of a trial involving limited discovery and simplified rules of evidence. The arbitration is headed and decided by an arbitral panel. To comprise a panel, either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third. Arbitration hearings usually last between a few days to a week, and the panel only meets for a few hours per day. The panel then deliberates and issues a written decision, or arbitral award. Opinions are not public record. Arbitration has long been used in labor, construction, and securities regulation, but is now gaining popularity in other business disputes. Title 9 of the U.S. Code establishes federal law supporting arbitration. It is based on Congress’s plenary power over interstate commerce. Where Title 9 applies, its terms prevail over state law. There are, however, numerous state laws on ADR. Forty-nine states have adopted the 1956 version of the Uniform Arbitration Act as state law. The act was revised in 2000 and subsequently adopted by twelve states. The arbitration agreement and award is now enforceable under both state and federal law.
In 1958, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards was drafted to aid in the enforcement in domestic courts of awards granted in foreign countries. As of August 2007, there were 142 countries participating in the convention. In 1970, the United States joined the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
History & Development of ADR in Bangladesh:
The History of ADR is not that much old in our country, it has been introduced in June 2000, formalized ADR was introduced in Bangladesh by means of court annexed judicial settlement pilot projects, in an effort to decrease delays, expenses, and the frustrations of litigants laboring through the traditional trial process. The pilot program began in a collaborative effort with ISDLS in a series of Bangladeshi legal studies of Californian ADR systems. Three Pilot Family Courts were established in the Dhaka Judgeship, which exclusively used judicial settlement to resolve family cases including: divorce, restitution of conjugal rights, dowry, maintenance and custody of children. An amendment to the Code of Civil Procedure was not necessary due to an existing 1985 Family Courts Ordinance, which authorized the trial judge to attempt reconciliation between parties prior to and during trial. The pilot courts were staffed by 30 Assistant Judges selected from all over Bangladesh, lawyers and non-lawyers, who were given training by a United States mediation expert (organized by ISDLS). During this assignment, the Assistant Judges were relieved of all other formal trial duties.
All three pilot programs were fully functioning by January 2001. Once judges had begun successfully settling cases, the program was expanded slowly to others courts throughout the country. By the end of the first year of the program, the judicial settlement procedure in family disputes had effectively been introduced in 16 pilot family courts in 14 districts of Bangladesh.
Due to the high settlement rates these courts were achieving, the Law Minister convened a conference in 2002 in order to spread awareness of the achievements of these programs. The conference brought together all District Judges, Presidents and Secretaries of all District Bar Associations, previous Chief Justices, the current Chief Justice, Judges of both divisions of the Supreme Court, and prominent lawyers from throughout the country.
In 2003, the Civil Code of Procedure was amended to introduce mediation and arbitration as a viable means of dispute resolution in non-family disputes. In addition to this amendment, the Money Loan Recovery Act stipulated the use of Judicial Settlement Conferences for money loan recovery cases. A training program led by former Chief Justice Mustafa Kamal took place at the Judicial Administration Training Institute (JATI) in Dhaka for the forty judges that have exclusive jurisdiction over money loan recovery cases. Mediations began in non-family disputes in July 2003.
The majority of ADR in Bangladesh is court-annexed; a private mediation facility has not yet developed. Judicial mediators are compensated in the same amount as the traditional trial judges.
The current widespread use of mediation has necessitated consideration of a national training facility for mediators, to provide standardized training and certification for all mediators. Efforts are now being made to expand the ADR program to include commercial cases to modify the system.
Types of Alternative dispute resolution (ADR)
There are three types of alternative dispute resolution. Three of them are mentioned and described briefly below:
- 1. Conciliation:
In consumer disputes, conciliation is the first stage in the arbitration process and the conciliator is usually a member of the trade association. Both you and the supplier will be asked to give written details of the complaint, including any evidence, and the conciliator will give an opinion on the best solution. Any decision is not binding and won’t prevent you from taking court action. If you disagree with the opinion offered, you can then proceed to the arbitration stage or consider suing in court. There is usually no charge for conciliation.
- 2. Arbitration:
Arbitration is a procedure for settling disputes in which both a party and the supplier usually agree to accept the decision of the arbitrator as legally binding. This means one cannot take court action, except to enforce the award if the supplier doesn’t pay. The arbitrator will usually be a member of the Chartered Institute of Arbitrators and often acts independently of the trade association. The arbitrator will make a decision based on the written evidence presented by someone and the supplier. The decision is confidential and cannot be made public without the supplier’s agreement. One will have to pay a registration fee which may be refunded if that someone is successful. Some contracts for services and delivery notes include an arbitration clause stating that you will refer any dispute to arbitration. Although this is binding once a party has signed the agreement, if the total cost is under the small claims limit, the party cannot be forced to arbitrate unless you gave your agreement after the dispute arose.
- 3. Mediation:
If we use the mediation system, the mediator will help the party and the supplier to negotiate an acceptable agreement and will act as a go between if the parties don’t want to meet. If the supplier agrees to mediation, they will both be asked to give details of the dispute, including copies of any evidence and will be asked to sign a mediation agreement giving a framework for the mediation. The mediator may arrange joint or separate meetings with the parties and the supplier and will help you to identify the strengths and weaknesses of the case. If an agreement is reached, the parties will both be asked to meet to draft the terms of the settlement. This will be legally binding unless one party state otherwise and the other will prevent from taking court action except to enforce the award. Mediation can be expensive, but any party may be able to get legal aid to help with the costs.
The advantages of Alternative Dispute resolution:
It has brought a change to the system, specially saving in cost and time which will help the common people getting the light of law.
- We can solve our problem by ourselves through negotiations, it saves our time and money.
- In some cases, ADR leaves the option for the party to go to the court. It does not bind the parties so that they cannot go to the court if the party is not satisfied.
- It is less formal than going to court as we are solving our problems by ourselves.
- It is also less lengthy; it always takes less time than the Court.
- Privacy of the involved party is also ensured but in court it is not ensured as it’s a public place. It often helps the people keeping their private matter in their own.
- The United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards of 1958, known as the New York Convention, generally provides for the recognition of arbitral awards on par with domestic court judgments without review on the merits. This greatly facilitates the enforcement of awards across borders.
- ADR can be neutral to the law, language and institutional culture of the parties, thereby avoiding any home court advantage that one of the parties may enjoy in court-based litigation, where familiarity with the applicable law and local processes can offer significant strategic advantages.
- Trials are lengthy, without exception. In many jurisdictions it could take years before we even get to begin arguing your case before a judge, much less get a verdict. There are better things you could be doing with anyone’s time.
Disadvantages of ADR:
- Alternative dispute resolution processes do not always lead to a resolution. That means it is possible that you could invest the time and money in trying to resolve the dispute out-of-court and still end up having to go to court.
- With few exceptions, the decision of a neutral arbitrator cannot be appealed. Decisions of a court, on the other hand, usually can be appealed to a higher court.
- While the option of making the proceeding confidential addresses some of this concern, some parties still want to go to court “just on principle.”
- There is very limited opportunity for judicial review of an arbitrator’s decision. While a large arbitration service could, if it so chose, have some kind of process for internal appeals, the decision is usually final and binding, and can only be reviewed by a court in limited cases
It is also important to rethink these advantages and disadvantages before agreeing to arbitration and any other kind of alternative dispute resolution. There are also possibilities, we have already agreed to arbitration in many situations, without even knowing it. Many lease agreements and employment contracts have mandatory arbitration provisions which always start controversies, and they will usually be enforced, as long as certain standards are being seen .generally, they must not deprive someone of a constitutional right, and they should be reciprocal.
Implement of ADR in our country:
Everywhere of the world-over have long used non-judicial and other methods to resolve controversy, In Bangladesh, dispute resolution outside of courts is not so new. It is as old as the society. What is new is the extensive promotion and proliferation of ADR models and its increased uses. In the traditional system, disputes are resolved within the village. However depending on the depth of the dispute or gravity of the situation, neighboring villages are also sometimes involved. During the British period, in 1870, the Panchayat system was introduced to manage and rule the area for its collection of tax. The Panchayat system was used to resolve minor disputes within a certain area, and the major disputes were forwarded for legal procedures in the court. Changes occur in 1919, the Bengal Village Self Government Act was introduced and Union Courts were set up to solve 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. After that, the Family Court Ordinance of 1961 came and the Village Court Act of 1976 was brought to light and authority was relying on the Chairman of Union Parishad to try non major local cases and small crimes committed in the certain area and take appropriate decisions. These were later strengthened in 1985 with additional power to maintain women and children’s rights. The village court also contains UP chairman, members and representatives from concerned parties. According to Village Court Act of 1976, the village court can try disputes over property valued not exceeding Tk. 5,000. The village court has also power to summon a person to stand as a witness and can impose a fine of up to Tk. 500 on the basis of the law.
The village court gives 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 proved to be less cumbersome and less expensive. Mostly it is cost effective. 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 system of local judicial bodies in Bangladesh and has reserve the right to settle disputes of the local people by Shalish. The order of the Shalish is binding to the parties. In this system, the village elite are also involved. Major cases are not settled locally. In the Shalish, Political influences are very frequent and often biased. Today, many NGOs are quite successfully involved in mediation between disputants. Still, many disputes are not mediated nor are local people acquainted with the beneficial part of ADR system. Bangladesh’s complex dispute resolution stance in turn also has a detrimental effect on its standing as an investor-friendly state. The current situation of commercial disputes causes investors to lose confidence in Bangladesh and in turn discourage existing investors from investing further in Bangladesh. Simultaneously, it can generate bad publicity amongst prospective investors and deter future foreign investments to Bangladesh. Therefore, an investment culture that allows for effective dispute resolution system would clearly benefit Bangladesh by promoting foreign investment and thereby creating the jobs necessary for Bangladesh.
Businesses have a very simple and straightforward approach to resolving disputes. They need disputes resolved quickly and efficiently. Therefore, businesses along with legal experts and visionaries across the world have started changing disputes resolution landscape to accommodate these growing needs by introducing less formal procedures for dispute resolution. There are is a famous book of Barrister Abdul Halim named “ADR in Bangladesh” in this book the writer have tried to mention a lot of things which includes both positive and negative concept. The author mentions that ADR becomes cumpolsory when a country’s judicial system is flooded with a lot of pending cases while there are consisting limited number of judges, very low judge-population ratio, pretty low budget allocation for the judiciary and lack of good maintenance and governance in the legal system. The author appropriately highlights that given the fact that most of the developed and developing countries has achieved a great success in reducing pending cases by adopting ADR, Bangladesh should find and try ways and means to develop ADR modes in the same fashion. The most significant contribution of the book to existing literature is contained in its analysis of the pre-conditions of success of ADR, limitation of the ADR mechanisms and challenges of effective functioning of ADR in Bangladesh. The book also focuses on formal ADR systems in different statutes of Bangladesh and deals with evaluation and outcome of each of the formal ADR systems. The book has been conveniently divided into two parts. Part A has fifteen chapters with the frequent analysis of the ADR system, while part B deals with supplements of different legislation and model on ADR in Bangladesh. Chapter one and two describe theoretical type discussion, philosophical and conceptual basis of ADR. Chapter three and four respectively provide history of formal and informal ADR in Bangladesh and various aspects, objects and modes of ADR mechanism. In Chapter four the author has attempted to analyze that how ADR is an effective system for ensuring the ethical issues and social values.
Alternative Dispute Resolution is used when there is any conflict between two groups regarding a specific situation. Hence, when the two parties are not able to come to any solution, then they go for ADR. There is a third party involved to come to an agreement suitable. There were many historical development of ADR in the history of law Bangladesh are also mentioned above. Though it is not free from abuse of the law, still its helping the common people in getting the judiciary service cheaply. Also the judiciary system is getting speed as it is facing less petty case of charge.
1. Thompson, B.1992. ALTERNATIVE DISPUTE RESOLUTION. [Online]. Available at : http://www.law.cornell.edu/wex/alternative_dispute_resolution
2. Kennen, E .2008. Understanding Alternative Dispute Resolution.Available at: http://suite101.com/article/advantages-and-disadvantages-of-adr-a58925
3. Lamance,k.2009. Advantages and Disadvantages of Alternative Dispute Resolution. Available at: http://www.lorman.com/newsletter/article.php?article_id=1155&newsletter_id=248&category_ii=8&topic=LIT
4. Qyader,M,(2012). Changing face of dispute resolution regime in Bangladesh. The NewAge. june 27, p 18
5. Halim,A.(2010).ADR in Bangladesh: Issues and challenges .p 12-35