Dispute Resolution is generic term used to describe a range of procedures designed to provide ways to resolving dispute as an alternative to court procedures Explain.
Introduction
The provision of effective dispute resolution is the core concern of domestic as well as international legal system. The aim of devising mechanisms to afford effective dispute resolution is to ensure that disputes are solved through effective and efficient means for the benefits of the disputants and the society in general. So as to attain this core objective, states and the international community have been searching various ways of resolving dispute than insisting on the traditional way of resolving dispute through court litigation which is mostly ineffective and inefficient.
Now days, therefore, Alternative Dispute resolution has got wide acceptance to resolve dispute due to its perceived advantages. Needless to say, even court officials, who used to consider ADR as taking of court power, recognized the need of ADR as a choice to settle dispute. Pre-trial conference and compulsory (court ordered) arbitration might be an indication for this.
Alternative Dispute Resolution is a generic term used to describe a range of procedures designed to provide ways to resolving a dispute as an alternative to court procedures. ADR had been used by human society since ancient times though it gets wide acceptance and recognition in countries‘laws recently. ADR methods, in comparison with court litigation, have various advantages though it is not free from different short comings. In this chapter issues in relation with the meaning of ADR, its historical development, its comparative advantages and disadvantages will be dealt. The short comings of court litigation also enumerated to show the rampant problems of litigation.s
Definition: Alternative Dispute Resolution:
ADR is composed o f different words: Alternative, dispute and resolution. Thus to clearly understand or define the phrase it is paramount important to understand each words separately thereof. And then what ?Alternative‘connotes to you? What about dispute? Is a dispute synonymous with conflict? What about resolution?
The word ?Alternative ?, as to the definition given in 6th edition of Oxford Advanced Learners Dictionary, refers ?a thing that you can choose to or have out of two or more possibilities.?
Therefore the word in this context is used as an adjective and refers to all permitted dispute resolution mechanisms other than litigation, be it in court or administrative tribunal . Whereas, the phrase dispute resolution, in the absence of alternative as prefix, is simply a collection of procedures intended to prevent, manage or resolve disputes and refers procedures ranges from self-help in the form of negotiation through to state sanctioned mechanisms called litigation. It is to mean that ?Alternative‘connotes the existence of dispute settling mechanisms other than formal litigation. Though the word ?Alternative‘in ADR seems to connote the normal or standard nature of dispute resolution by litigation and aberrant or deviant nature of other means of dispute resolution mechanisms, it is not really the case. ADR is not an alternative to the court system but only meant to supplement the same aiming on less lawyering. Now days there are arguments that ADR does not include arbitration and the proponent of this position say that alternative Dispute resolution encompasses various amicable dispute resolutions other than Litigation in court and arbitration. Indeed ADR Rules of The international Chamber of Commerce follows this approach. The preamble of the same rule reads as: Amicable settlement is a desirable solution for business disputes and differences. It can occur before or during the litigation or arbitration of a dispute and can often be facilitated through the aid of third party (the neutral) acting in accordance with these rules.
The other important word to define ADR is Dispute/ Conflict. There is debate about whether a conflict and a dispute are synonymous. Apart this debate psychologist, Lawyers, Diplomats, and Public Servants all deal in their work with conflict/ dispute. Concerning the distinction between Conflict and Dispute, different people suggested the difference in meaning between these words. Some people, for instance, define ?Conflict‘as a form of competitive behavior, like competition for scarce resource. Some see it as mere reflection of differences and an opportunity for personal growth. Still others only recognize conflict as armed conflict or war.
The nouns ?Conflict‘and ?Dispute‘are used interchangeably all time and indeed, are synonymous for each other in English Language, however. Still scholars, including Chornenki, draw slight distinction among the two words. According to the named scholar here, ?Conflict‘is the parent and disputes are the children and frequently, intervention is more important at parental level. He further states that conflict is a phenomenon or condition with three aspects. It manifests it self through attitudes, behaviour and situations. This triangular image opens the prospect that conflict can be internal state of mind, an external act or an environmental situation. By contrast, Dispute is an issue –specific manifestation of conflict as to the same person. It usually has identifiable parties and articulated or defined /delineated points of difference between those parties. A dispute is the subset of conflict: conflict gives rise to and sustains dispute. This distinction, as to the above proponent, is very important because if a dispute is addressed in only superficial way without regard for the underlying conflict, it may recur or replaced by other similar or related disputes. Similarly, Folberg and Taylor also give the same definition for dispute as of Chornenki. To them ?a Dispute‘is an interpersonal conflict that is communicated or manifested. A conflict may not become a dispute if it is not communicated to someone in the form of perceived incompatibility or contested claim as to them.
Abebe Semagne in his unpublished senior thesis also quoted the meaning of dispute as;
? a conflict or controversy; conflict of claims or right; an assertion of right, claim or demand on one side met by the contrary claims or allegations on the other; the subject of litigation; the matter for which a suit is brought and which issue in joined; and in relation to which jurors are called and witness examined?
A Brief History of ADR 1:
Dispute resolution outside of courts is not new; societies world-over have long used non-judicial, indigenous methods to resolve conflicts. What is new is the extensive promotion and proliferation of ADR models, wider use of court-connected ADR, and the increasing use of ADR as a tool to realize goals broader than the settlement of specific disputes. The ADR movement in the United States was launched in the 1970s, beginning as a social movement to resolve community-wide civil rights disputes through mediation, and as a legal movement to address increased delay and expense in litigation arising from an overcrowded court system. Ever since, the legal ADR movement in the United States has grown rapidly, and has evolved from experimentation to institutionalization with the support of the American Bar Association, academics, courts, the U.S. Congress and state governments. For example, in response to the 1990 Civil Justice Reform Act requiring all U.S. federal district courts to develop a plan to reduce cost and delay in civil litigation, most district courts have authorized or established some form of ADR. Innovations in ADR models, expansion of government-mandated, court-based ADR in state and federal systems and increased interest in ADR by disputants has made the United States the richest source of experience in court connected ADR. While the court-connected ADR movement flourished in the U.S. legal other ADR advocates saw the use of ADR methods outside the court system as a means to generate solutions to complex problems that would better meet the needs of disputants and their communities, reduce reliance on the legal system, strengthen local civic institutions, preserve disputants’ relationships, and teach alternatives to violence or litigation for dispute settlement. In 1976, the San Francisco Community Boards program was established to further such goals. This experiment has spawned a variety of community-based ADR projects, such as school based peer mediation programs and neighborhood justice centers. In the 1980s, demand for ADR in the commercial sector began to grow as part of an effort to find more efficient and effective alternatives to litigation. Since this time, the use of private arbitration, mediation and other forms of ADR in the business setting has risen dramatically, accompanied by an explosion in the number of private firms offering ADR services. The move from experimentation to institutionalization in the ADR field has also affected U.S. administrative rule-making and federal litigation practice. Laws now in place authorize and encourage agencies to use negotiation and other forms of ADR in rulemaking, public consultation, and administrative dispute resolution. Internationally, the ADR movement has also taken off in both developed and developing countries. ADR models may be straight-forward imports of processes found in the United States or hybrid experiments mixing ADR models with elements of traditional dispute resolution. ADR processes are being implemented to meet a wide range of social, legal, commercial, and political goals. In the developing world, a number of countries are engaging in the ADR experiment, including Argentina, Bangladesh, Bolivia, Colombia, Ecuador, the Philippines, South Africa, Sri Lanka, Ukraine, and Uruguay. The experience of many of these countries provides important lessons drawn upon in this Guide.
______________________________________________________________________________
1. This history is drawn from a number of sources, including: Stephen B. Goldberg, Frank E.A. Sander, Nancy H. Rogers, Dispute Resolution: Negotiation, Mediation and Other Processes (2d ed., Little Brown and Co., New York: 1992), pp. 3-12; and Elizabeth Plainer and Donna Stienstra, ADR and Settlements in the Federal District Courts: A Sourcebook for Judges and Lawyers (Federal Judicial Center and CPR Institute for Dispute Resolution: 1996), pp. 3-13.
Background of ADR In The United States:
Beginning in the late 1960′ s, American society witnessed an extraordinary flowering of interest in alternative forms of dispute resolution. Part of the ADR movement responded to the civil rights strife. In the 1964 Civil Rights Act, Congress established the Community Relation Service of the Justice Department to assist courts in settling intractable racial and community disputes. The Ford Foundation established the National Center for Dispute Settlement and the Institute of Mediation and Conflict Resolution to study dispute settlement mechanisms. 2 Courts also became involved. At the 1976 Pound Conference,3 leading jurists and lawyers expressed concern about increasing expense and delay for parties in a crowded justice system. A task force resulting from the conference was intrigued by Professor Frank Sander’s vision of a court that included a dispute resolution center where parties would be directed to the process most appropriate for a particular type of case. The task force recommended public funding of a pilot program using mediation and arbitration, and the American Bar Association’s new committee on dispute resolution encouraged the creation of three model “multi door courthouses.,,3
2. See Frank E.A. Sander. Alternative Methods of Dispute Resolution: An Overview. 37 FLA. L. REv. I (1985).
3. The Conference was named after Professor and Dean Roscoe Pound. honored on the seventieth anniversary of his famous presentation before the members of the American Bar Association in 1906. 2
Since then, alternative methods have developed from elements of procedural reform into an integral part of the American legal system. At present many kinds of ADR exist in the United States. American lawyers count about twenty different alternative proceedings for settling legal disputes.3 There are primarily three well-known rocesses – negotiation, mediation, and arbitration. Elements of these processes have been combined in a number of ways to create a rich variety of so-called “hybrid” dispute resolution techniques such as the mini-trial, early neutral evaluation, med-arb, rent-a-judge, and the ombudsman. All of these methods could be described as non-court or private ADR practices. In addition to the private sector, ADR programs have been implemented into the public justice system. The Civil Justice Reform Act of 1990 was
created as a pilot program to develop cost and delay reduction in the federal district courts. As a result, different kinds of pre-trial alternatives have become available in the American courts: court-annexed arbitration, mediation, summary jury trial, and early neutral evaluation. Moreover, the ADR movement is gaining new legislative support. In 1998, Congress adopted the Alternative Dispute Resolution Act, which requires federal district courts to establish at least one ADR program and to develop procedural rules for its wide and active use.4 Other efforts to improve and unify regulation deal with arbitration and mediation. The proposed Uniform Mediation Act and the Revised Uniform Arbitration Act has also been created. Both of these drafts are slated for final approval by the National Conference of Commissioners on Uniform States Laws (“NCCUSL,).5 a hallmark of the success of the American ADR movement is the strong support from non-profit professional organizations such as the American Bar Association, the American Arbitration Association, and the Society of Professionals in Dispute Resolution. These organizations provide
______________________________________________________________________________
4. See STEPHEN B. GoLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 8 (3d ed. 1999).
5. See Tom Arnold, Why ADR? Alternative Dispute Resolution: How to Use it to Your Advantage, ALI – ABA COURSE OF STUDY 19 (1996).
6. See John Bickerman, Great Potential, DISPUTE RESOLUTION MAGAZINE, Fall 1999, at 3.
7. The text of the Proposed Uniform Mediation Act with the prefatory and Reporter’s notes is available at <http://www.pon.harvard.edu/guests/uma>.
The Revised Uniform Arbitration Act (RUAA) was finally approved by NCCUSL in August
2000 and has now been submitted to the legislatures in all States. See <http://www.adrworld.com>.
legal communities with education, research, and alternative procedures in the area of ADR. They also play an important role in the creation of standards of ethics and professional responsibility for neutral persons in charge of resolving disputes. The final point to be noted is the effort made by the American legal education system. Many law schools include courses on alternative dispute resolution in their curricula and have university-based conflict resolution programs.8 Courses on ADR, arbitration, mediation, and negotiation serve to orient students away from traditional litigation and towards dispute resolution. Alternative dispute resolution has thus become institutionalized in the
United States. This has been made possible because ADR provides society as a whole with definite benefits. Alternative dispute resolution helps to:
– cut parties’ time and expenses;
– reduce court’s caseloads and expenses;
– improve public satisfaction with the justice system;
– preserve parties’ relationships;
– provide early and speedy settlement;
– provide accessible forums to people with disputes;
– teach the public to try procedures that are more effective than violence or litigation for settling disputes.s The United States is not alone in its interest in developing and improving alternatives and supplements to litigation. Nor is it alone in reviving interest in the theory and processes of dispute resolution generally.10 The ADR movement has evolved in other countries, mostly in the common law systems such as Canada, the United Kingdom, Australia, and New Zealand.
_____________________________________________________________________________
8. for a list of graduate. International, and undergraduate programs in the United States current through August 1998, see 16 ALTERNATIVES 118-21 n.8 (Sept. 1998).
9. See GoLDBERG, ET AL., supra note 3, at 3.
10. See KARL J. MACKIE, A HANDBOOK OF DISPUTE RESOLUTION: ADR IN ACTION (Sweet and Maxwell 1991). Mackie also noted that “revival” is the most appropriate term in this context since too much can be claimed for ADR as a modem movement. Many of the techniques adopted in ADR, such as mediation, have an ancient history or have been used for decades in some fields such as labor relations or international affairs. Id. at 1-2.
4 Annual Survey of International & Comparative Law, Vol. 7 [2001], Iss. 1, Art. 3
http://digitalcommons.law.ggu.edu/annlsurvey/vol7/iss1/3
Civil Justice Reform Act of 1990:
Civil cases often are expensive and time-consuming. In August 1990, the U.S. Congress passed the Civil Justice Reform Act to help remedy these problems (28 U.S.C.A. §§ 471–482). The U.S. Senate explained that the Civil Justice Reform Act was “to promote for all citizens, rich or poor, individual or corporation, plaintiff or defendant, the just, speedy and inexpensive resolution of civil disputes in our Nation’s federal courts” 11. The act ordered each U.S. district court to implement a Civil Justice Expense and Delay Reduction Plan under the direction of an advisory group comprising “those who must live with the civil justice system on a regular basis” 12.
The advisory groups in each federal district were appointed by the chief judge of the federal circuit, and they generally consisted of judges, clerks, and law professors. These experts prepared a report on methods for reducing expense and delay in civil litigation. The report was then considered by the federal circuit court judges in forming the Civil Justice Expense and Delay Reduction Plan.
Federal courts have also acted to improve scheduling. The U.S. District Court for the District of New Hampshire, for example, created four separate categories for scheduling civil cases: administrative, expedited (“rocket docket”), standard, and complex. The determination of a case’s category is made at the preliminary pretrial conference. Most cases fall into the standard category, which means a trial will be held within one year of the preliminary pretrial conference. A rocket docket case can be tried within six months of the preliminary pretrial conference, if the parties agree and the trial will last no more than five days. Administrative and complex cases are scheduled with special attention. By identifying the length and complexity of a case at the preliminary pretrial conference, federal circuit courts are able to minimize unnecessary delays.
In all jurisdictions, preliminary pretrial conferences have become important in civil litigation. The court, after consulting the parties, schedules and holds this conference within a certain amount of time after the filing of the complaint. At this conference, the court attempts to resolve all the issues that can be resolved outside of trial. These issues include the control and scheduling of discovery, the admissibility of evidence, the possibility of separate trials, and orders limiting the length of the trial presentation. To reach, or decide, substantive issues more quickly, many federal courts ask litigants to file any motions for summary judgment or motions to dismiss before the preliminary pretrial conference.
11. (S. Rep. No. 101-416, 101 Cong., 2d Sess., at 1 [Aug. 3, 1990]).
12. (S. Rep. No. 101-416, at 414 [quoting statement of SENATE JUDICIARY COMMITTEE chairman Biden, Cong. Rec. S416 (Jan. 25, 1990)]).
ADR in Bangladesh: Court-Annexed Judicial Settlement
By retired Chief Justice Mustafa Kamal13
History & Development:
In June 2000, formalized ADR was introduced in Bangladesh by means of courtannexed judicial settlement pilot projects, in an effort to decrease delays, expenses, and the frustrations of litigants labouring through the traditional trial process. The pilot program began in a collaborative effort with ISDLS in a series of Bangladeshi legal studies of Californian ADR systems. Three Pilot Family Courts were established in the Dhaka Judgeship, which exclusively used judicial settlement to resolve family cases including: divorce, restitution of conjugal rights, dower, maintenance and custody of children. An amendment to the Code of Civil Procedure was not necessary due to an existing 1985 Family Courts Ordinance, which authorized the trial judge to attempt reconciliation between parties prior to and during trial. The pilot courts were staffed by 30 Assistant Judges selected from all over Bangladesh, lawyers and non-lawyers, who were given training by a United States mediation expert (organized by ISDLS). During this assignment, the Assistant Judges were relieved of all other formal trial duties14. All three pilot programs were fully functioning by January 2001. Once judges had begun successfully settling cases, the program was expanded slowly to additional courts throughout the country. By the end of the first year of the program, the judicial settlement procedure in family disputes had effectively been introduced in 16 pilot family courts in 14 districts of Bangladesh. Due to the high settlement rates these courts were achieving, the Law Minister convened a conference in 2002 in order to spread awareness of the achievements
13. Paper presented on the conference organized by (ISDLS) Institute for the Study and Development of Legal Systems (2005). Report on the Turkish Civil Justice Conference:ADR Learning Program.
14. As Bangladesh uses a system of judicial credits for the career advancement of judges (based on number of cases settled by trial), a similar credit system was enacted for cases settled through mediation.
Of these programs. The conference brought together all District Judges, Presidents and Secretaries of all District Bar Associations, previous Chief Justices, the current Chief Justice, Judges of both divisions of the Supreme Court, and prominent lawyers from throughout the country. In 2003, the Civil Code of Procedure was amended to introduce mediation and arbitration as a viable means of dispute resolution in non-family disputes. In addition to this amendment, the Money Loan Recovery Act stipulated the use of Judicial Settlement Conferences for money loan recovery cases. A training program led by former Chief Justice Mustafa Kamal took place at the Judicial Administration Training Institute (JATI) in Dhaka for the forty judges that have exclusive jurisdiction over money loan recovery cases. Mediations began in non-family disputes in July 2003.
Conclusion:
The development of ADR in the international level is the right of individual parties to be a party before the tribunal and getting valid out come there under.
In other words, any individuals who have a dispute between them can take their matter before ADR tribunal freely with out the necessity of being represented by its nation or the sovereign government. In addition, almost all matters of disputes can be resolved by one of the ADR methods known these days. So, there is no subject matter of a dispute which can‘t get remedy by using ADR.
To facilitate the smooth settlement of international disputes by a duly established ADR tribunal and organized procedure and easy enforcement of remedies obtained in foreign nations, different international documents have been adopted and different international tribunals have been established by different parties. The 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Award, the 1899 and the 1907 Convention on the Pacific Settlement of International Dispute (which established the PCA – Permanent Court of Arbitration) are few of them. The UNCITRAL (United Nation Commission on International Trade Laws), subordinate body under UN, is also working to harmonize laws of the nations regulating the matter by its different activities, like adopting model arbitration and conciliation laws. The ICC (International Chamber of Commerce) is another international institution fostering ADR by enacting ADR and Arbitration laws and establishing ICA (International Court of Arbitration). ADR is also a well recognized mechanism in many regional documents like the NAFTA and EU documents.
BIBLIOGRAPHY
1) Alberta Law Reform Institute. Dispute Resolution: A Directory of Methods of Project and Resources. No. 19. Alberta: …,1990.
2) American Case Book, International Commercial Arbitration – A Transitional Perspective, West Group
3) Frank E.A. Sander. Alternative Methods of Dispute Resolution: An Overview. 37 FLA. L. REv. I (1985).
4) http://www.gama.com/HTML/history.html
5) Stephen B. Goldberg, Frank E.A. Sander, Nancy H. Rogers, Dispute Resolution: Negotiation, Mediation and Other Processes (2d ed., Little Brown and Co., New York: 1992)
6) Carbonneau, Thomas E. Alternative Dispute Resolution:Melting theLances and dismaounting the Steeds. Urbana:University of Illinois Press,1989.
7) Chornenki,Genevieve A. Corporate Counsel Guide To Dispute Resolution.Canada:Canadian Cataloguing in Publication Data,1999.
8) See Blackmon-Malloy v. United States Capitol Police Bd., 338 F. Supp. 2d 91 (D.D.C. 2004).
9)<href=”#ixzz1gFE4jLzR”>http://www.allbusiness.com/government/employment-regulations/974287- 1.html#ixzz1gFE4jLzR
10) D. W. Hendon and R. A. Hendon, Negotiating Worldwide – A Practical Approach, A Maya Gower Imprint, 1st edn. 2001.