Define alternative dispute resolution. Appreciate the difference between conflict and dispute.

Table of Contents

 

Page No.

1. Introduction……………………………………………………………………….    1
2. Alternative Dispute Resolution …………………………………… ………………  1
3. 3.       Types and features of alternative dispute resolution……………………………….  2
4. Benefits of Alternative Dispute Resolution………………………………………..  4
5. Alternative Dispute Resolution in Bangladesh…………………………………….  5
6. Problems of ADR in Bangladesh…………………………………………………… 5
7. Difference Between Conflict and Dispute ……………..………………………….  6
8. Conclusion………………………………………………………………………….  7
9. References………………………………………………………………………….  i

 

 Introduction:

Alternative Dispute Resolution procedures for settling disputes by means other than legal action; e.g., by arbitration or mediation; Such procedures, which are usually less costly and more expeditious than litigation, are increasingly being used in commercial and labor disputes, divorce actions, in resolving motor vehicle and medical malpractice, trot claims, and in other disputes that would likely otherwise involve court litigation.[1]

During the late 1980s and early 1990s, a lot of people become increasingly concerned that the traditional method of resolving legal dispute in the United States, through conventional litigation, had become too expensive, too slow, and too burdensome for many civil lawsuits (case between private parties). This concern led to the growing use of ways other than litigation to resolve disputes. These other methods are commonly known collectively as alternative dispute resolution (ADR).[2]

In early 2000s, ADR systems were being used more and more, as parties and lawyers and courts realized that these techniques could often help them resolve legal disputes quickly and cheaply and more privately than could conventional litigation. Moreover, many people preferred ADR approaches, because they saw these methods as being more creative and more focused on problem solving than litigation, which has always been based on an adversarial model.[3]

 

Define Alternative Dispute Resolution:

Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that act as a means for disagreeing parities to come to an agreement short of litigation.[4] 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 Arbitration, before permitting the parties’ case to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individual who will decide their dispute. Alternative dispute resolution is usually considered to be alternative to litigation. It also can be used as a colloquialism for allowing a dispute to drop or as an alternative to violence.

 

Type of Alternative Dispute Resolution:

ADR is normally classified into at least four types:[5] Arbitration, Conciliation, Mediation, and Negotiation. Details are discussed as follows:

Arbitration:

 The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. Such an agreement must be in writing.[6] The contract, regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. An exchange of statement of claim and defense in which existence of an arbitration agreement is alleged by one party and not denied by other is also considered as valid written arbitration agreement.[7]

Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach for the sole arbitration if any Arbitration Agreement exists between them. There are only two grounds upon which a party can challenge the appointment of an arbitrator- reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitutes the Arbitration Tribunal. Once the period of 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.[8]

 

Conciliation:

Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. 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.[9] Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or writing.  Parties may even submit suggestions for the settlement of the dispute to the conciliator. When it appears to the conciliator that element of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.[10]

Mediation:

Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties. A third patty, the mediator assists the parties to negotiate their own settlement (facilitative mediation).[11] In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluate mediation). Mediation has a structure, timetable and dynamics that ‘ordinary’ negotiation lacks. The process is private and confidential. The presence of a mediator is the key distinguishing features of the process. There may be no obligation to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them. Mediators use various techniques to open or improve, dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Much depends on the mediator’s skill and training. The mediators must be wholly impartial. Disputants may use mediation in a verity of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. A third party representative may contract and mediate between (say) union and corporation. When a worker’s union goes on strike, a dispute take place, the parties may agree to a third party to settle a contract or agreement between the union and the corporation.[12]

Negotiation:

Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcome to satisfy various interests of tow people /parties involved in negotiation process. Negotiation is a process where each party involved in negotiating tries to gain an advantage for themselves by the end of the process. Negotiation is intended to aim at compromise.[13]

 

Benefits of Alternative Dispute Resolution:

ADR has both; increasingly used alongside, and integrated formally, into legal systems internationally in order to capitalize on the typical advantages of ADR over litigation:[14]

• Suitability for multi-party disputes
• Flexibility of procedure – the process is determined and controlled by the parties the dispute
• Lower costs
• The procedure is less formal than going to court
• Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate
• Likelihood and speed of settlements
• Practical solutions tailored to parties’ interests and needs (not rights and wants, as they may perceive them)
• Durability of agreements
• Confidentiality
• The preservation of relationships and the preservation of reputations

Alternative Dispute Resolution in Bangladesh:

Alternative dispute resolution in Bangladesh is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration Act, 2001 has been enacted to accommodate the harmonization mandates of UNCITRAL Model. To streamline the Bangladesh legal system the traditional civil law known of Code of Civil Procedure, (CPC) 1908 has also been amended and section 89A and 89B has been introduced which provides options for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement. Due to extremely slow judicial process, there has been a big thrust on Alternative Dispute Resolution mechanisms in our country.[15]

 

Problems of ADR in Bangladesh:

We have many success stories of resolving issue through 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:[16]

• People’s 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

 

Difference between Conflict and Dispute:

Conflict or dispute is a natural and inevitable part of all human social relationships. Conflict occurs at all levels of society- from interpersonal, family, tribes to national and international levels. In other words, conflict is ever-present. By conflict or dispute, we mean conflict of interests between two or more parties about resources, differences of opinion within the group, power, prestige and others. Parties in conflict/disputes believe that they have incompatible goals and here the desire to gain advantage over, win over, injure, or defeat one another.[17]

There is a fine line between dispute and conflict. These terms are often used alternately and their meanings frequently overlap. The academic difference between dispute and conflict is that conflict includes coercion and aggressive behavior whereas dispute implies disagreement on minor issues, which may or may not have elements of destructive or extreme action. The following sentence will provide a clearer meaning- all conflicts are disputes but all the disputes are not conflicts.[18]

Conflict is a dynamic process. It has a beginning and has to pass through several stages before it ends. At the beginning some conditions appear that can be said as source of conflict, and an environment of conflict is created. Then people start to perceive the conflicting situation and they become aware of it. Next, the feeling of tension emerges, distrust arises and fear develops. In this stage, conflict becomes obvious and parties start indulging in aggressively defensive behavior. Finally, Conflict moves towards the outcome, and either a win-lose situation happens or an agreement is made.[19]

 

 Conclusion:

The phrase alternative dispute resolution is to some degree a misnomer. In reality, fewer than five percent of all lawsuits filed go to trial; the other ninety five percent are settled or otherwise concluded before trial.[20] Thus, it is more accurate to think of litigation as the alternative and ADR as the norm. Despite is fact; the term alternative dispute resolution has become such well accepted shorthand for the vast array of no litigation processes that its continued use seems assured. To make ADR more effective, extensive, and pro-active, coordination is needed among different agencies. Other initiatives like, creating awareness about ADR, spreading the success story of ADR, encouraging NGOs to become involved in ADR, involving the Bar Associations in ADR, providing training for mediators etc are necessary for the effectiveness of ADR.[21]