Discuss the Application of Alternative Dispute Resolution(ADR) in International Disputes and the Concerned Authorities and Instutions

TABLE OF CONTENT

 

Introduction

1

Alternative Dispute Resolution (ADR)

1

Advantages of ADR

2

Types, features and Applications of ADR

2

Concerned Authorities and Institutions

5

Bangladesh and Alternative Dispute Resolution

7

Conclusion

8

References

9


Introduction:

Alternative Dispute Resolution (ADR) has gained extensive receipt among both the general public and the legal work in recent years. The rising popularity of ADR can be explained by the increasing caseload of traditional courts. The perception rose that ADR imposes less expenses than lawsuit.  A preference for confidentiality also present there. At the same time, the need of some parties to have greater control over the medley of the individual or individuals who will come to a decision of their clash.[1] Finally, it can be said that one major goal of all the ADR processes is conflict resolution. If a procedure resulting resolution then it is a dispute resolution course of action.[2]

Alternative Dispute Resolution (ADR):

Another name of Alternative Dispute Resolution (ADR) is external dispute resolution. It includes disagreement resolution processes and techniques that do something as a way for disagreeing parties to come to an agreement short of lawsuit. Alternative Dispute Resolution (ADR) is an unconventional to a formal court hearing. It is a collective term for the ways that parties can settle disputes, with or without the assist of a third party. ADR are ways and methods of resolving disputes outside the judicial process. Some of the senior judiciary in certain jurisdictions are strongly in support of the make use of negotiation to settle disputes[3]. ADR conducted online is known as online dispute resolution (ODR) and it is mostly a exhortation and an challenge to create a idiosyncratic product. It should be mentioned that ODR services can be provided by government entities and it may be part of the litigation process. When no effective home remedies are available to dispute parties then it can be provided on a global scale.

The practice of resolving disputes without using conventional legal channels are vastly known as alternative dispute resolution.

Generally there are four types of disputes[4]

  • External disputes
  • Intra-business disputes
  • Disputes between businesses
  • Client disputes.

Advantages of ADR:

Because of the advantages of ADR, ADR becoming more popular among people of all countries. Some advantages are listed below.

  • Flexibility of procedure Lower costs
  • The protection of interaction and the preservation of reputations.
  • Privacy
  • Possibility and velocity of settlements
  • Less complexity
  • Correctness for multi-party disputes
  • Parties preference of unbiased third party to direct negotiations
  • Practical solutions adapted by parties
  • Stability of agreements[5]

 Types, features and Applications of ADR:

ADR includes informal tribunals, informal thinking processes, formal tribunals and formal thinking processes. The typical formal tribunal forms of ADR are arbitration. ADR customs differ from to some extent by country and culture. ADR is generally classified into at least four types- negotiation, mediation, collaborative law and arbitration.[6] Alternative Dispute Resolution is of two historic types. Firstly, methods for resolving dispute outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. The typical formal meditative process is referral for mediation before a court appointed mediator or conciliation panel. Structured transformative arbitration as used by the U.S. Postal Service is an official process. Classic informal methods include social processes, referrals to non-formal authorities and intercession. The major differences between formal and informal processes are pendency to a court procedure and possession or require of a formal arrangement for the application of the method.[7]

The most important features of each form are as follows:

  • Mediation: there is a third party, a intermediary, who facilitates the resolution process and may even propose a decision, but does not compel a resolution on the parties.
  • Negotiation: Contribution is intended and there is no third party who facilitates the resolution process or imposes a resolution.[8]
  • Collaborative law: Each party has a legal representative who facilitates the resolution process within specially constricted terms. The parties reach harmony with support of the attorneys who are trained in the process and mutually-agreed experts. No one imposes a resolution on the parties. The process is a formalized process that is part of the lawsuit and court system
  • Arbitration: Contribution is typically voluntary and there is a third party who will work as a private judge and will impose a resolution. Arbitrations often happen because parties to contracts have the same opinion that any future dispute about the agreement will be determined by arbitration.[9]  In recent years, the enforceability of arbitration clauses particularly in the context of consumer agreements has drawn inspection from courts[10]. Although parties may petition arbitration outcomes to courts and such appeals face a demanding set of appraisal.[11]

Further than the essential types of alternative dispute resolutions, there are other poles apart forms of ADR:

  • Family group conference: It is a conference among members of a family and members of their comprehensive related group. At this meeting the family becomes involved in learning skills for communication and in making a plan to stop the mistreatment or other abuse between its members.
  • Ombuds: Third party selected by an institution like a university, hospital, corporation or government agency to contract with complaints by employees, clients or constituents.[12]
  • Early neutral evaluation: It is a process that takes place soon after a case has been filed in court. The case is referred to a specialist who is asked to provide a fair and impartial evaluation of the dispute. The evaluation of the professional can help the parties in assessing their case and may influence them towards a resolution.
  • Case evaluation: a non-binding process in which parties present the facts and the issues to an unbiased case assessor who advises the parties on the strengths and weaknesses of their individual positions and assesses how the argument is likely to be decided by a panel of judges or other judge.
  • Neutral fact-finding: It is a process where a nonaligned third party is selected either by the disputing parties or by the court investigates an issue and information or testifies in court. The neutral fact-finding process is for the most part useful for resolving multifaceted scientific and factual disputes.

There are some important safeguards that need to be taken into account in basically any ADR procedure:

  • All ADR actions should be supported by the agreement of the parties
  • If third parties are involved as facilitators or decision-makers, they must be neutral and autonomous
  • Both parties must be accordingly notified of the procedures
  • Both parties must be given enough chance to present their case
  • If the proceedings can result in compulsory decisions and such decisions should only be based on information that had been part of the contact
  • There should be an internal or external appeal method, or at least means to manage fulfillment with due process safeguards.[13]

Concerned Authorities and Institutions:

  • Indian Institution of Arbitration and Mediation:  It is becoming one of the best ADR institutions in the world under the able guidance of Justice Mr. M. N. Venkatachalaiah. He was chief justice of India and chairman of National Human Right Commission.[14]
  • ·         The WIPO Arbitration and Mediation Center: WIPO has established the WIPO Arbitration and Mediation Center (the Center) in 1994 in order to make the advantages of ADR broadly available to scholar belongings owners.  The procedures offered by the Center under the WIPO Mediation, Arbitration and Expedited Arbitration Rules are on the whole suitable for technology, amusement and other disputes involving intellectual belongings. From a growing list of more than 1,000 independent arbitrators and mediators from some 70 countries parties can represent for covering the entire legal and technical range of intellectual property[15].
  • ·        The Dispute Resolution Institute (DRI): To provide parties with the chance to resolve their disputes in a timely, confidential and cost efficient manner in an easy to use forum, it was founded in 1994. The mass of cases submitted to DRI are resolved from beginning to end the standard alternative dispute pledge methods of arbitration and mediation. DRI utilizes hybrids of these processes or custom designs procedures that are flexible and individualized when required to satisfy specific or unique needs of the disputants. The best process available for a particular dispute is utilized is insured by specialized approach. DRI confirms that the “forum fits the fuss.”Nothing like the court structure, every case submitted to DRI is given the priority and individualized attention it deserves. With a high degree of control over resolution of their dispute, private dispute resolution provides participants.[16]
  • Business and Society Exploring Solutions Wiki: BASESwiki is an proposal of the UN Secretary-General’s Special Representative on Business and Human Rights,undertaken in collaboration by means of the Corporate Social Responsibility Initiative at Harvard Kennedy School and the International Bar Association. The project is an open-source, wiki-style storehouse for information, investigation, and wisdom about non-judicial forms of argument oath.[17]
  • Cornell University’s Scheinman Institute on Conflict Resolution: To present the country’s most wide-ranging clash resolution program focusing on workplace alternative dispute resolution, Cornell’s ILR School has joined forces with Cornell’s Law School. The Martin and Laurie Scheinman Institute on Conflict Resolution operation is to educate the next generation of arbitrators, mediators and facilitators who can help out resolve disputes between employers and employees.[18]
  • Fordham Law School’s Dispute Resolution Program: Fordham Law School’s Dispute Resolution program positioned in the peak 10 of U.S. News and World Report’s 2008 rankings, of the best Dispute Resolution programs in the country, according to the lately released rankings.[19]
  • Harvard Program on Negotiation: The Harvard Program on Negotiation (PON) is a university association committed to rising the theory and put into practice of negotiation and dispute resolution.[20]
  • Straus Institute for Dispute Resolution: Professional training and academic programs in dispute resolution including a diploma, Masters in Dispute Resolution (MDR) and Masters of Law in Dispute Resolution (LLM) are provided by Pepperdine University School of Law’s Straus Institute for Dispute Resolution.[21]
  • CUNY Dispute Resolution Consortium: Intellectual dwelling to dispute-resolution faculty, staff and students at the City University of New York and to the miscellaneous dispute-resolution community in New York City are served by The City University of New York Dispute Resolution Consortium (CUNY DRC).[22]
  • ·        CPR Institute for Dispute Resolution: The International Institute for Conflict Prevention and Resolution is known as the CPR Institute is a New York City membership-based nonprofit organization that promotes superiority and innovation in public and private dispute resolution as well as serving as a chief international resource for escaping, organization and resolution of business-related problems.[23]
  • The Association for International Arbitration: The Association for International Arbitration (AIA) is founded in Paris in 2001 by Johan Billiet and it is a non-profit organization. The Association for International Arbitration has a growing number of members among arbitrators and mediators of international backgrounds.[24]

Bangladesh and Alternative Dispute Resolution:

About 750,000 cases are pending with the courts of judicial magistracy according to records. To set up compulsory alternative dispute resolutions (ADR) in certain types of civil and criminal litigations, the government is functioning to reform the legal system. Once alternative dispute resolution is in place the litigants would go to court as a last option. It would save their expenses and make easy and quicker to dispute resolution. It would ease the legal system. Mandatory ADR can resolve disputes linking compoundable offences like offense. It is equally easy for ADR to sort out social disputes, cases of hurting religious sentiments, unlawful restraining or imprisonment of individuals, unlawful internment to extract acknowledgment, forcible property restoration, assault, unlawful compulsory labor, criminal intrude and house trespass.[25]

Conclusion:

Alternative dispute resolution (ADR) is a very easy and comfortable way of solving disputers without taking the help of court. This is beneficiary for both the parties because it is cost effective, less timeliness, confidential as well as harassment free. Most of the cases are hanging in the court in Bangladesh. If some disputes compulsorily fallen into ADR, the court system will be more effective.

References:

Totaro, Gianna., “Avoid court at all costs” The Australian Financial Review Nov. 14 2008. (April 19, 2010)

Taken from a presentation by Stephen R. Marsh of http://adrr.com/

collected from- SSRN: http://ssrn.com/abstract=1599420

available at- http://skills.business.qld.gov.au/dispute-resolution.htm

“What Is ADR?”, Business and Society Exploring Solutions wiki, available at- BASESwiki.org

Collected form- www.adviceguide.org.uk/c_alternative_dispute_resolution.pdf

Available at- www.courtinfo.ca.gov/selfhelp/lowcost/documents/adr.pdf

Negotiation Journal,  July 1990, pp. 239–248

available at- Scott v. Avery, 5 House of Lords, 811, 854

Schwartz, David S., “Mandatory Arbitration and Fairness.” 84 Notre Dame L. Rev. 1247 (April 19, 2010)

International Institute for Conflict Prevention & Resolution, “Arbitration Appeal Procedure,” available at-http://www.cpradr.org/ClausesRules/ArbitrationAppealProcedure/tabid/79/Default.aspx

available at- http://www.ombudsassociation.org/standards/

collected from- http://www.wipo.int/copyright/en/ecommerce/ip_survey/chap4.html

available at-  http://www.arbitrationindia.org/arb.htm

Further information about the WIPO Arbitration and Mediation Center in general is available at http://arbiter.wipo.int/center/index.html.

collected form- http://www.adrdri.com/

BASESwiki: Who We Are available at- http://baseswiki.org/en/Who_We_Are

Collected form- http://www.ilr.cornell.edu/conflictRes/

availavle at- http://www.lsbf.org.uk/programmes/masters/business-law.html?utm_source=google&utm_medium=cpc&utm_campaign=2236google

available at – http://www.pon.harvard.edu/about/

available at-  http://law.pepperdine.edu/straus/

available at -http://johnjay.jjay.cuny.edu/dispute/

available at- www.cpradr.org/

collected form- www.arbitration-adr.org/

Alternative Dispute Resolution by M S Sidiqqie available at- www.thefinancialexpress-bd.com/more.php?news_id=91513

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[1] Totaro, Gianna., “Avoid court at all costs” The Australian Financial Review Nov. 14 2008. (April 19, 2010)

[2] Taken from a presentation by Stephen R. Marsh of http://adrr.com/

[3] collected from- SSRN: http://ssrn.com/abstract=1599420

 

[4] available at- http://skills.business.qld.gov.au/dispute-resolution.htm

[5] “What Is ADR?”, Business and Society Exploring Solutions wiki, available at- BASESwiki.org

[6] Collected form- www.adviceguide.org.uk/c_alternative_dispute_resolution.pdf

[7] Available at- www.courtinfo.ca.gov/selfhelp/lowcost/documents/adr.pdf

[8] Negotiation Journal,  July 1990, pp. 239–248

[9] available at- Scott v. Avery, 5 House of Lords, 811, 854

[10] Schwartz, David S., “Mandatory Arbitration and Fairness.” 84 Notre Dame L. Rev. 1247 (April 19, 2010)

 

[11] International Institute for Conflict Prevention & Resolution, “Arbitration Appeal Procedure,” available at-http://www.cpradr.org/ClausesRules/ArbitrationAppealProcedure/tabid/79/Default.aspx

[12] available at- http://www.ombudsassociation.org/standards/

 

[13] collected from- http://www.wipo.int/copyright/en/ecommerce/ip_survey/chap4.html

[14] available at-  http://www.arbitrationindia.org/arb.htm

[15] Further information about the WIPO Arbitration and Mediation Center in general is available at http://arbiter.wipo.int/center/index.html.

 

[16] collected form- http://www.adrdri.com/

[17] BASESwiki: Who We Are available at- http://baseswiki.org/en/Who_We_Are

[18] Collected form- http://www.ilr.cornell.edu/conflictRes/

[19] availavle at- http://www.lsbf.org.uk/programmes/masters/business-law.html?utm_source=google&utm_medium=cpc&utm_campaign=2236google

[20] available at – http://www.pon.harvard.edu/about/

[21] available at-  http://law.pepperdine.edu/straus/

[22] available at -http://johnjay.jjay.cuny.edu/dispute/

[23] available at- www.cpradr.org/

[24] collected form- www.arbitration-adr.org/

 

[25] Alternative Dispute Resolution by M S Sidiqqie available at- www.thefinancialexpress-bd.com/more.php?news_id=91513