Man is a social being for fulfilling his requirements. With a view to lead these nature man need co-operation, competition and conflict. Dispute regarding any matter may be arisen there from the very beginning the mankind. People tried their best to resolve these dispute by introducing different forms. ADR is one kind and may be the best form of removing this dispute. Taking this view 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.
A. Interpretation of the terms ADR:
ADR is the abbreviation of alternative dispute Resolution. Now let interpretative these terms : Alternative + Dispute + Resolution.
Alternative Dispute Resolution (ADR) are generally non-adversarial method of dispute resolution that are used instead of civil litigation. Arbitration, mediation mini-trial and private trials are among the more common ADR methods. In addition, small claims courts, summary trials and administrative agencies are also option that are used instead of litigation.
Professor Thomas J. stipenwich states that “The name ADR is an outmoded acronym that survives as a matter of convenience only”
B. Beginning of ADR in different countries in the world :
B. a India :
During the British rule in India, Under the bangle regulation of 1772, the court in different parts of British India were empowered to refer, either with the consent of the parties or at the instance of the parties. It was in discharge of this obligation that the CILAS (committee for Implementing legal aid scheme) was established in 1980.
B. b UK :
Since ADR first began to be widely discussed in the UK towards the end of the 1980’s, a range of organizations such as, the centre for effective dispute resolution (CE DR) , ADR group , academy of experts, Chattered institute of Arbitrators. City dispute penal mediation UK or, Have been established to train mediator and to carry out commercial mediation. Since 1993, judges in the commercial courts have been appeal ADR scheme, established in 1996, is a voluntary scheme in which the court invites parties to participate in mediation.
B. c USA :
The concept of ADR has been studied and supported since early 20th century. Congress past the federal arbitration act in 1925 and American arbitration association was founded a year later in 1970 ADR was incorporated as a part of a legal system in USA. By the middle of the 1980, ADR was being embraced by large corporations as means to be solve complicated dispute while cutting bargaining legal costs. In 1926 the AAA was founded.
C.1 Recent Enactment in Bangladesh
Recently the following acts have been enacted in the arena of the ADR practice, Which beget Satisfactory result in civil litigations
a) Arbitration act, 2001
b) Civil procedure code, 1908 (as amended in 2003)
c) The Bangladesh labor code, 2006.
d) Arthurian adalat ain, 2003
e) Family courts ordinance, 1985.
f) Dispute conciliation (pauro area) board act , 2004.
C.a.1 Arbitration act, 2001
Arbitration act has a 7 section which operated by the followings
- General provisions
- Arbitration agreement
- Composition of arbitral tribunal
- Jurisdiction of arbitral tribunals
- Conduct of arbitral proceedings
- Making of arbitral award and termination of proceedings
- Recourse against arbitral award
- Enforcement of arbitral award
- Recognition and enforcement of certain arbitral awards
- Supplementary provision
- i. the limitation act shall apply to arbitrations under this act as they apply to proceedings in court.
- ii. For the purposes of this section and the limitation act, an arbitration shall be deemed to have commenced on the date referred in section 27.
Repeal and savings : 1. the arbitration act 1937, the arbitration act, 1940, here after mentioned as acts, are hereby repealed.
ADR provision have been introduced under the following section of this code.
89A mediation. (1) except in a suit under the artharin adalat ain, 1990, after filling of written statement, if all the contesting parties are in attendance in the court in person or by their respective pleader, the court may, by adjourning the hearing , mediate in order to set tie the dispute or disputes in the suit or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or the party or parties.
89B if the parties to a suit, at any stage of the proceedings, apply to the court for withdrawal of the suit on ground that they will refer the disputer or disputes in the suit to arbitration for settlement
The provision of ADR has been incorporated in the Bangladesh labor code, 2006 for the settlement of industrial disputes with regard to this. With regards to this , section 210 of the said code provides that.
C.d.1 arthorin adalat ain, 2003 :
With a view to settle the disputes between bank and loan the provision of ADR, has been included in the arthorin adalat ain, 2003.
C.e.1 the family courts ordinance, 1985 :
With a view to expedite the resolution of cases relate to family affairs rapidly and effectively, the family courts ordinance, 1985 promulgated, some family courts have been established by the ordinance, and these courts have been following the ADR procedure in dispensing the cases instituted for trial.
Cognizable offense means a cognizable offence as define in sec 4
An act to constitute conciliation board for easy and speedy settlement of certain cases in puroshava areas. Whereas it is expedient cases and necessary to constitute conciliation board for settlement of certain cases in pourosova areas.
- This act may be called the conciliation board act, 2004
- It shall come such areas as declared under pauroshova ordinance.
- In this act, Unless there is anything repugnant in the subject or context.
D. Mechanism of Alternative Dispute Resolution (ADR)
- Causes of conflict and its strategy.
- Dispute Resolution Mechanism
E. The main objectives of ADR system are as follow :
(a) The parties have been able to come forward to sit together to talk together finally resolving their disputes.
(b) ADR system in civil justice delivery system in the country is reservation in between the disputing parties and restoration of harmony through meditation, conciliation and arbitration etc.
(c) It helps in enforcement of the decision, when peoples participation are ensured as to tendering evidence, asking questions and making opinions.
F. There are several reasons why ADR is essential
(a) ADR is not only an alternative method but it gives a wider range of alternative solution comparing with formal litigation.
(b) It may make substantial contribution to a more efficient use of judicial system.
(c) It can save both time and money.
G. Process of ADR mechanism
- The mini-trial
- Private trial or rent-a-judge.
- Ombudsman scheme.
ADR techniques are extra – judicial in character. They can be used in almost all contentious matters which are capable of being resolve, under law, by agreement between two parties. The ADR procedure consists of negotiation, conciliation, mediation, arbitration, mini – trial, and neuters evaluation. Of the several ADR techniques, mediation, seems to be the most widely-used one, it is the same dispute resolution process as conciliation. sometimes, the terms conciliation and mediation are used interchangeable. Other, ADR techniques can be used where appropriate and what form is appropriate depends the facts and circumstances of each case.
1. An introduction to Alternative Dispute Resolution (ADR) And Legal Aid.
2. Frank E.A. sander, varieties of dispute processing 1976, p-111
3. sources of internet www.lawyersnjustists.com