Discuss the History and Goals of Alternative Dispute Resolution.

Table of Contents

 

Introduction ……………………………………………………………………………………….. 1

Dispute Resolution ……………………………………………………………………………… 1

Alternative Dispute Resolution (ADR) …………………………………………………… 2

History of Alternative Dispute Resolution ……………………………………………… 2

Practices in the History of ADR …………………………………………………………… 5

Goals of Alternative Dispute Resolution ……………………………………………….. 7

Difficulties Encountered in Legal Procedure …………………………………………. 8

ADR to Achieve Economic & Social Objective ………………………………………. 8

History of ADR in Bangladesh ……………………………………………………………… 9

Problems of ADR in Bangladesh ………………………………………………………… 11

Recommendations toward Effective ADR ……………………………………………. 11

Conclusion………………………………………………………………………………………… 12

Bibliography……………………………………………………………………………………… 13

Introduction:

Alternative Dispute Resolution is a practice that has been brought with the evolution of history to bring real peace to human existence through consensus. People have been searching for a real alternative to resolve oppression in social, political and economic area and to make litigation process much cheaper, quicker and more effective. These lead to the concept of Alternative Dispute Resolution. [1]In cases where the exploited wish to challenge the actions of a powerful oppressor, they would be wise to look to revolutionary tactics to address their problems. Current legal systems must be revolutionized, because at present our legal institutions primarily protect property rights, not human liberty. Today, the worldwide alternative dispute resolution (ADR) movements function as a strong disempowering device. Various effective tools are used in ADR to create a better harmonious society.

Dispute Resolution:

Dispute or conflict resolution is a process that implies the causes of conflict as well as the resolution of such conflicts. Conflict can be resolved or settled, but once resolved, new conflicts may arise. [2]It is also a continuous process – one is resolved and another one emerges. [3]Two purposes of dispute resolution are-

• To diagnose the root causes of disputes
• To transform actual and potential disputes into peaceful and positive processes

Alternative Dispute Resolution (ADR):

Alternative Dispute Resolution refers to the means of settling disputes without going through legal procedures with or without the help of a third party. It is also known as external dispute resolution in some countries, such as Australia. It is an age-old tradition of society through which disputes are resolved amicably and which concerned parties accept. [4]ADR basically is an alternative to a formal court hearing or litigation.

History of Alternative Dispute Resolution:

 

 Fig 01: Evolution of ADR.

The Roots of Alternative Dispute Resolution (ADR): [5]The first event listed on ADR was in 1800 B.C. when mediation and arbitration were used to settle disputes between kingdoms in the ancient Middle East. The practice of ADR can be found in the Bushmen of the Kalihari Desert, the Hawaiian Islanders, and the Yoruba of Nigeria and in others area in 960 B.C. At that time practice was based on wide range of religious faiths, beginning in the Biblical Wisdom of Solomon.

Early-Modern Era: In the early era of modern civilization ADR started to use in business and land disputes and in international relations. [6]Political conflicts among countries were resolved with the help of third country.

Industrial Revolution: In the period of Industrial Revolution, ADR was used in labor-management disputes. In this period ADR takes the form of mediation in disputes involving labor and employment relations and equal employment opportunity. Several federal agencies provide guides about ADR proceedings to prospective complainants and other constituents.

The Beginning of the 1960s:[7] In the period of 1960s when there was revolution among black civilians, disputes were raised and resolved using Alternative Dispute Resolution.

Black Civilian Rights Revolution: Since the late 1980s, Congress has recognized that ADR provides a cost-efficient alternative to traditional methods for dispute resolution. [8]In 1988, Congress enacted the Judicial Improvements and Access to Justice Act, which permitted U.S. district courts to submit disputes to arbitration.

Late 1980s and Early 1990s:  Many people became increasingly concerned that the traditional method of resolving legal disputes in the United States, through conventional litigation, had become too expensive, too slow, and too cumbersome for many civil lawsuits (cases between private parties). This concern led to the growing use of alternative dispute resolution (ADR).

Impact on Administrative Agencies: In 1990s ADR was extended to environmental problems, Native American issues, prisoners’ rights and foreign relations matters. [9]Congress amended the Alternative Dispute Resolution Act of 1998, which requires each district court to require, by local rule, that litigants in all civil cases consider using an ADR process at the appropriate state of litigation.

Early 2000s: [10]ADR techniques 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.

 21st Century: ADR takes the form of modern institutionalization. [11]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 mediation, before permitting the parties’ cases to be tried. The European Mediation Directive (2008) expressly contemplates so-called “compulsory” mediation.

Alternative Dispute Revolution: [12]Alternative Dispute Resolution as a practice that promotes the rhetoric of peace through consensus. There is a real alternative for concerned citizens wishing to resolve oppressive social, political and economic conflicts; this under-utilized tool to resolve conflict is Alternative Dispute Revolution. Today, the worldwide alternative dispute resolution (ADR) movement functions as a strong disempowering device that the dominant discourse makes attractive by the use of a variety of rhetorical practices, such as the need to remedy the excesses of litigation, or of promoting the desirability of a more harmonious society.

Practices in the History of ADR:

With the evolution of history Alternative Dispute Resolution has taken many forms, which in turn has given many tools and techniques to resolve a legal dispute. [13]Mediation, arbitration, mediation-arbitration, Mini trial, early neutral evaluation, and summary jury trial are the most common. These tools vary somewhat by country and culture.

Mediation: Mediation also known as conciliation—is the fastest growing ADR method. Unlike litigation, mediation provides a forum in which parties can resolve their own disputes, with the help of a neutral third party. [14]Mediation permits the parties to design and retain control of the process at all times and, ideally, eventually strike their own bargain.

Arbitration: In Arbitration a neutral third party hears the disputants’ arguments and imposes a final and binding decision that is enforceable by the courts. The difference is that in arbitration, the disputants generally agreed to the procedure before the dispute arose.

Mediation-Arbitration: As its name suggests, [15]mediation-arbitration combines mediation and arbitration. First, a mediator tries to bring the parties closer together and help them reach their own agreement. If the parties cannot compromise, they proceed to arbitration—before that same third party or before a different arbitrator—for a final and binding decision.

Mini Trial: [16]In a mini-trial, each party presents its case as in a regular trial, but with the notable difference that the case is “tried” by the parties themselves, and the presentations are dramatically abbreviated. The mini trial, a development in ADR, is finding its greatest use in resolving large-scale disputes involving complex questions of mixed law and fact, such as Product Liability, massive construction, and antitrust cases.

Early Neutral Evaluation: An Early Neutral Evaluation (ENE) is used when one or both parties to a dispute seek the advice of an experienced individual, usually an attorney, concerning the strength of their cases. [17]An objective evaluation by a knowledgeable outsider can sometimes move parties away from unrealistic positions, or at least provide them with more insight into their cases’ strengths and weaknesses.

 

Goals of Alternative Dispute Resolution:

ADR techniques have not been created to undercut the traditional U.S. court system. [18]Certainly, ADR options can be used in cases where litigation is not the most appropriate route. However, they can also be used in conjunction with litigation when the parties want to explore other options but also want to remain free to return to the traditional court process at any point.

• Suitability for multi-party disputes
• Flexibility of procedure – the process is determined and controlled by the parties the dispute
• Lower costs
• Less complexity
• 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
• Durability of agreements
• Confidentiality
• The preservation of relationships and the preservation of reputations.

 Difficulties Encountered in Legal Procedure:

People are increasingly finding it difficult to go through the legal procedure. Legal procedures are less favorable to general people because of following reasons. These difficulties in the legal system have added to the importance of Alternative Dispute Resolution.

• Very time consuming
•  Requires a lot of money and energy
•  Loss of property
•  Complex procedure
•  Win-lose situation
•  Sometimes stimulates further conflict
•  No reconciliation process
•  Chances of deception
•  Dependency on lawyers
•  Lack of knowledge in legal procedure

ADR to Achieve Economic & Social Objectives:

[19]ADR procedure can support not only the legal objectives, but also support other development objectives, such as economic and social objectives, by facilitating the resolution of disputes.

• Win-Win outcome
• Cost effective or no cost at all
• Requires less time
• Indigenous style
• Creates social binding
• Reconciliation between disputants
• Positive outcome helps build confidence in the community
• Positive outcome encourage others to resolve disputes in the Community

History of ADR in Bangladesh:

In Bangladesh, dispute resolution outside of courts is not new. 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 intensity of the dispute or gravity of the situation, neighboring villages are also sometimes involved.

 

 

 

Fig 02: Evolution of ADR in Bangladesh.

During the British period, in 1870, [20]the Panchayat system was introduced to manage and rule the area for the collection of revenue. The Panchayat system was used to resolve minor disputes within their area, and the major disputes were forwarded for legal procedures. In 1919, the Bengal Village Self Government Act was introduced and Union Courts were set up to resolve disputes locally. Later, the government established the [21]Rin Shalishi Board to keep peasants free from the Mahazons and the moneylenders and also to avoid clashes. [22]Later, the Family Court Ordinance of 1961 and the Village Court Act of 1976 were introduced and authority was vested on the Chairman of Union Parishad to try petty local cases and small crimes committed in their area and take consensual decisions. These were later strengthened in 1985 with additional power to cover women and children’s rights. The village court consists of UP chairman, members and representatives from concerned parties. [23]Under the 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 contempt charges. Today, many NGOs are quite successfully involved in mediation between disputants. Still, many disputes are not mediated nor are local people acquainted with the ADR system.

Problems of ADR System in Bangladesh:

We have many success stories of resolving issues 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 reasons:

•  Peoples` 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
•  Cannot be a substitute for a formal judicial system.

Recommendations toward Effective ADR System:

To make ADR more effective, extensive, and pro-active, coordination is needed among different agencies. Other initiatives are given below:

• 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
• Matching Government and NGO efforts.

Conclusion:

Alternative Dispute Resolution techniques are well established and frequently used. The definition of alternative dispute resolution is constantly expanding to include new techniques. The term alternative dispute resolution has become such well-accepted shorthand for the vast array of non litigation processes that its continued use seems assured. But the process of developing the current system in order to meet the unique needs of legal disputes should come from all the institutions of the society.

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