Discuss the Recognized Alternative Dispute resolution (ADR) systems prevail in different laws of Bangladesh.

Alternative Dispute Resolution is a term that refers to several different methods of resolving business related dispute outside traditional legal and administrative.

The entire globe of ADR can be further subdivided under three major subheads which are arbitration, mediation and negotiation.

There are some more effective steps should be taken to make the ADR process more fruitful. There are different procedures that are followed throughout the centuries about the different ADR system to resolve the dispute. Some are stated in the laws and some are form the ancient times. Wherever the system is the core benefit of ADR remains the same- to resolve dispute without any interfere of the law.

Topic	Page number
Introduction	4
What is an ADR	5
Key ADR distinctions	5
Mechanisms of ADR	7
Practices of ADR in Bangladesh	8
Making ADR effective	9
Conclusion	10

Dispute is an inevitable part of human history. Dispute occurs at all levels of human relationship-from national and international level to interpersonal and family. So dispute can occur at any level in human life.

“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.”[1]

There are some differences between conflict and dispute. People often get confused and used the term interchangeably. There is a fine line between dispute and conflict. Conflict includes coercion that result in aggression behavior. Dispute has different meaning. Dispute implies disagreement on different issues that may or may not result in aggressive, destructive or extreme action.

Alternative dispute resolution is design to reduce conflict. Alternative dispute resolution is used to describe resolution and performs how to reduce the dispute in a proper manner. Dispute is a dynamic process. Like all other things dispute has beginnings and it passes through some conditions and thus create a conflicting environment. When a conflicting environment arises people become aware of it. When a problem arises people feel insecure and the pressure mounts. At this stage fear grows and tension develops.

Dispute conflict resolution is process that implies the main causes of the conflict and the resolution of the conflict. Dispute is a continuous and regular process. It can only be resolved or settled but once a dispute is settled a new dispute may rise. Sometimes dispute can’t be resolute but it can be minimized. The purpose of dispute resolution is:

1.         I.                                                                                                         Diagnosing the root causes of the problem.
2.       II.                                                                                                         Transforming actual and potential dispute into positive processes.
3.     III.                                                                                                         Changing violent and hostile aggressive behavior.
4.     IV.                                                                                                         Creating a hostile free aggressive environment.[2]

When dispute is settling without going through legal procedures can be defined as Alternative dispute resolution. Alternative dispute resolution can be done both in formal or informal ways. The most common process for resolving dispute is formal; which happens in the form of judicial system. The other system for solving dispute is informally and also some are resolved as time passes by. It is a tradition of the society through which disputes are resolved amicably and concerned parties accept. Normally it was seen that the authority does not challenge.  It is not the formal process with in the society but none of the parties both the community members and the disputants reject it.

 Key ADR distinctions[3]

Understanding the key ADR distinctions can result how to implement the ADR mechanisms effectively. Recently, ADR is a buzzword is Bangladesh constitution. Some of the concepts that are related to the ADR are as follows:

Binding or Non-binding:

When entering an ADR process, this type of commitment describes when parties make. When the parties have respect and commitment towards the agreement by a third party is regarded as binding method. In binding process, mini-trial or mediation, third parties cannot force them to proceed any legal agreement. It is only on the parties to make any legal document. Once the parties are agreed on the contract they are bound to follow the contractual agreement. Any resolutions that are have to be done in court’s favor then the parties can enforced by the court by a court decision or court decision.

Voluntary Vs. mandatory referrals to mediation:

As a general the mediation is voluntary. When the court orders the parties to mediate only at parties request or parties consent then the process is voluntary. However the participation is required by the court rule or by individual judge then the process is called mandatory mediation. Whether the parties can enter with their consent or because of the court order they can how to settle the case. Therefore the parties are not bound to enter into any legal contract if they can find a third party whom they can trust.

Interest based Vs. Rights based

These terms referred as the special resolution to solve a dispute. Interest based dispute resolution refers to expand the discussion beyond the parties legal procedure to look into underlying interests, deal with emotions and seek creative solutions. Interest based mediation is based on parties underlying interests and motivate them with their emotions. On the other hand rights based process refers to narrow issues and legal judgments on assessments of the parties. Depending on the structure of the process ADR can contain both interest based and rights based process. Mediation in particular is practiced both interest based and right based procedure. It is the most common that interest based procedure is practiced because through it can reflect the underlying causes and motivation of the parties.

Negotiation, arbitration and mediation are the most common mechanisms of ADR practices in Bangladesh law. ADR support legal objective as well as support other developments objective also. Through ADR process mainly focus on win-win outcome and ingenious style.

Negotiation:

Negotiation is the process through which the parties within disputes exchange ideas, identify the irritant points of difference, and find a solution and get commitment from each other to reach an agreement. The parties within dispute seek a common result to reduce the dispute. Bargaining is the common feature in the negotiation process. This is the only mechanisms that differ from arbitration and mediation. The negotiation is usually conducted by a third party. When the third party is not involved then the parties among the disputant has to break the ice to bring them into negotiation table and then withdraw from the negotiation process.

Arbitration:

Arbitration is another dispute resolution mechanism. In arbitration system, to resolve the dispute the court orders a third party or a third person. As the courts interfere, the court appoints a neutral person that has acceptability for both the parties. This practice of the court is not popular because a person may not be the right person.

Mediation:

Mediation is another part of the ADR mechanisms process. It is just an extension of dispute resolution process. Mediation is individuals that are experienced personnel in the dispute resolution process who bring the disputant parties together that both parties can accept or reject it. The person generally makes an attempt to work out between the disputant parties. Mediation is generally understood by a third party intervention. Through mediation promote reconciliation, settlement and compromise.

A traditional alternative dispute resolution for conflict resolution in a community is Shalish, a local process. It provides both criminal and civil cases in varying intensity and degree.  This system in the village has been placed for centuries. Women and poor people particularly favor the system. They find that it is the most easily accessible and poor people in the village do not have to pay money. The chance of not to have a fair justice is significantly low because local Shalish are aware of the real nature of the conflict.

In the societies of Bangladesh, have long used non-judicial method to resolve conflict among the disputant parties. In Bangladesh dispute resolution outside the court is not new. In the traditional system, the dispute is resolved within the village. However, depending on the gravity of the situation or measuring the intensity of the situation neighboring villages are also involved. Those who are involved have to have a good reputation of them.

During the British colonial period, in 1870, the Panchayat system was introduced and people are very much liable to that system.[5] At that time rule the area and collect a fair amount of revenue. The Panchayat system was used to resolve the minor dispute among the village people and major dispute were resolved by legal procedure.

In 1919, the Bengal village self Government Act was introduced and Union Courts were set up to resolve dispute.

The poor people were the most sufferers at that moment in the time of Mohazans. The government established the Rin Shalishi Board to keep peasants free from Mohazans and moneylenders and also to avoid clashes. Then the Union Parishad is introduced to resolve the local dispute and local crimes. These were later strengthened in 1985 with additional power with women and children right. The village court consists of UP chairman, members and representative of concerned parties. The village court can try dispute to resolve not more than Tk 5,000. The village court has also power to summon a person to stand as a witnessed and if found guilty can charge up to Tk 500 on contempt charge.[6]

The village court provides easy access for justice without any outside lawyer and it also allows them to defend their position without any outsider. It is cost efficient for them and less burdensome. However, the court has some disadvantages too. The court decision can sometimes be biased and corrupted and members of the court may not have adequate experience to continue the trial procedure. The major cases of the Shalish court also included the elite people of the village. The decision of the shalish is bound with the parties. Today many NGO’s are quite successfully involved in mediation in the village court system.

 

There are certain steps should be taken to be ADR procedure more effective, extensive and more pro-active. The steps are given below:

1.                                     I.        To create awareness about ADR.
2.                                   II.        To spread the success story about ADR.
3.                                 III.        To encourage different NGO’s to get involved in ADR.
4.                                 IV.        To involve the BAR associations in ADR.
5.                                   V.        To provide training for mediators.

 Conclusion

The best way to resolve any dispute is to develop any understanding and logical situation through which both the parties got benefited. To design this mechanism to be true ADR procedure is introduced. ADR process is can be the best because sometimes these can resolve the problem and can have a socially accepted result that can be good for both the disputant.

• Ahmed. N. U. 2003. Alternative Dispute Resolution.[pdf]. Available at:  http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf [Accessed 4 Dcenmber,2011]
• Understanding an ADR and mediation. n.d. [pdf] Available at: http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/adr_chapter1.pdf [Accessed 4 December,2011]