Introduction
Humans have always had the affinity to solve their dissimilarities by combat and subsequently they have recognized the remunerations of settling matters peacefully by flipping a coin or some other way. This search for substitutes to ferocity gave birth to the dynasties of alternative dispute resolution (ADR). ADR is often thought of as a new way of resolving disputes. In fact, its roots run deep in human history, and they have long played a vital role in cultures across the globe.
ADR in Traditional Societies
Mediation in China
China, where the traditional view of disagreement resolution has its source in Confucian ethics, embraced mediation promptly. Confucius trained that natural harmony should not be disrupted, and combative proceedings were the opposite of harmony.[1] Since the Western Zhou Dynasty two thousand years ago, the post of mediator has been included in all governmental administrations.[2]
Today in China, it is assessed that there are 950,000 mediation committees with 6 million mediators in fact, there are more mediators per 100 citizens in China than lawyers per 100 people in the United States [3].Chinese mediators thus do more than try to settle a quarrel and move on: they also instruct the participants in how to have a better relationship for the long term.[4] It would be many years before Western consultants of ADR would draw level to these ideas.[5]
Ancient Greek Roots of Arbitration
Arbitration was not simply a matter of folklore to the early Greeks. As Athenian courts became packed, the city-state introduced the position of public arbitrator sometime about 400 B.C.[6] According to Aristotle, all men served this function during their sixtieth year, hearing all manner of civil cases in which the disputants did not feel the need to go before the more formal, and slow, court system. The decision to take a case before an arbitrator was intentional, but the choice of being an arbitrator was not. Unless he happened to be holding another office or roaming abroad, any qualified man selected to serve as an arbitrator was mandatory to do so; if he refused, he would lose his civil rights.
The events set up by the Greeks were surprisingly formal. The arbitrator for a given case was chosen by draw.[7] His first duty was to attempt to resolve the matter politely. [8]This failing, he would call witnesses and required the offer of evidence in writing. An appeal would be brought before the College of Arbitrators, which could state the matter to the traditional courts.[9]
Both Aristotle (384–322 B.C.) and Cicero (106–43 B.C.) commented constructively on arbitration in words that certainly could be used to describe modern arbitration. [10]They made clear that arbitration was a substitute to the law court. Aristotle said arbitration was introduced to “give equity its due weight, making possible a larger assessment of fairness” .[11]Cicero said a trial is “exact, clear-cut, and explicit, whereas arbitration is mild and moderate”. He added that a person going to court supposes to win or to lose ,a person going to arbitration presumes not to get everything but not to lose everything either.[12]
Other Early Uses of Arbitration
Other examples around the world include the following:
India
India used a system of arbitration, Panchayat, which began twenty-five hundred years ago. The arbitrator, called a Panch, was given such extraordinary position that his decisions were permanent.[13] All types of cases could be subject to arbitration, including criminal matters. This exercise of arbitration was so strong that it sustained even during the eight hundred years of Muslim rule in India.[14]
Ireland
Arbitration was also an article of the Old Irish Brehon Law system, a body of native law that was in Ireland from the Celtic settlement before Christ. In initial Irish law, a birthed, who had trained in law but had not been appointed by the king as the authorized judge, could work as an arbitrator.[15]
Spain
The Spanish king Alfonso the Wise fixed the use of adjudication and allowed lawyers to exercise with the publication of Siete Partides in 1263[16]. This arbitration was binding; however, the arbitrators maintained a spirit of reunion by attempting to make decisions harmonious with cultural customs.[17]
Korea
The early Yi Dynasty in Korea (1392–1910) is distinguished for its endurance and its thorough use of arbitration. Because of its isolation, the administration did not employ arbitration in international disputes, but it was broadly practiced in a variety of commercial and civil disputes between citizens.[18]
Bangladesh
In the traditional system, disputes were resolved within the village depending on the significance of the dispute; neighbouring villages were also sometimes involved. During the British period, in 1870, the Panchayat system was permitted to manage and rule the area for its group. This system was used to resolve negligible disputes within their area, and the major disputes were sent 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 Rin Shalishi Board to keep peasants free from the Mahazons and the moneylenders and also to avoid clashes. 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 case and small crimes committed in their area and take consensual decisions.[19] These were later strengthened in 1985 with additional power to cover women and children’s rights. The village court consists of chairman, members and representatives from concerned parties. 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.[20]
However, this system has some disadvantages, such as the court decisions are sometimes biased and the members of the court may or may not have adequate knowledge and experience to conduct trial procedure.[21] The present Union Parishad has a mandate to settle disputes of the local people through Salish. Major cases are not settled locally. Political influences are very frequent and often biased in the Salish. 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.[22]
Present Day ADR
Alternative dispute resolution (ADR) is any type of procedure or combination of procedures voluntarily used to resolve issues in controversy.[23]
Parties who choose to use alternative dispute resolution to resolve their dispute can choose a method and a provider of their own selection, conditional on the foundation of the dispute. While ADR is not usually obligatory but sections providing for ADR in contracts are binding as long as they are exact. However the extra-judicial events are not themselves governed by decree except for a number of Ombudsman Schemes and arbitration schemes which have been established by Act of Parliament.
Process of ADR
Figure 1: Process of ADR[24]
Types and features
ADR is generally classified into at least four types: [25]
Negotiation
- Mediation
- Collaborative Law[26]
- Arbitration
The relevant features of each type are as follows:
- In negotiation, partaking is intentional and there is no third party who comforts the resolution process or imposes a resolution.
- In mediation, there is a third party named as a mediator, who facilitates the resolution process and may even advocate a resolution, known as a “mediator’s proposal”, but does not try to force a resolution on the parties.
- In collaborative law each party has a lawyer who simplifies the resolution process within specifically constricted terms. The parties come to an agreement with the help of the attorneys and mutually-agreed experts. No one tries to force a resolution on the parties. However, the process is a formal process that is a portion of the litigation and court system.[27]
- In arbitration the participation of parties is voluntary, and there is also a third party who acts as a private evaluator to inflict a resolution. Arbitrations often occur because parties to contracts decide that any future fight concerning the agreement will be determined by arbitration. [28]
Beyond the elementary types of alternative dispute resolutions there are other different forms of ADR:
- Case evaluation: It is a non-binding process in which parties submit the facts and the issues to a impartial case evaluator who instructs the parties on the metiers and feebleness of their own positions, and judges how the dispute is possible to be decided by a jury or other adjudicator.
- Initial neutral evaluation: It is a technique that takes place soon after a case has been filed in court. The case is stated to an expert who is asked to provide a sensible and unbiased valuation of the disagreement. The evaluation of the expert can assist the parties in assessing their case and may guide them towards a settlement.
- Family group conference: It is a consultation between members of a family and members of their extended connected group. At this meeting or a series of meetings the family becomes tangled in knowledge skills for interaction and in making a plan to stop the mistreatment between its members.
- Neutral fact-finding: It is a course where a unbiased third party, designated either by the disputing parties or by the court, considers an issue and reports in court. The neutral exploratory process is mainly useful for deciding complex scientific and factual disputes.
- Ombuds: It is a third party who is selected by an organization for instance a university, hospital, corporation or government agency to deal with objections by employees, clients or constituents.
Benefits
ADR has been both; increasingly used together with, and combined formally, into legal systems internationally in order to capitalise on the typical advantages of ADR over litigation:[29]
- Appropriateness for multi-party disputes
- Elasticity of procedure – the process is determined and controlled by the parties engaged in dispute
- Lower costs
- Less complication
- Parties can choose neutral third party to direct negotiations[30]
- Possibility and speed of settlements
- Practical solutions custom-made to parties’ interests and needs
- Stability of agreements
- Confidentiality
- The protection of relationships and of reputations.
Goals of ADR
The goals of ADR may be defined as follows:[31]
- To dismiss court congestion and to prevent unnecessary cost and delay
- To grow community involvement in the dispute resolution process
- To enable access to justice
- To offer more effective dispute resolution
- Minimizing the number and frequency of disputes
- Saving costs on handling disputes [32]
- Resolving disputes faster
- Providing an outlet for disputants to discuss frustrations
- Achieving results that are stable and enforceable
- Maintaining good relationships with stakeholders
- Avoiding protracted disputes by providing a framework to deal with future disputes as they arise[33]
- Developing processes that are flexible enough to handle a range of dispute types in an appropriate manner[34]
ADR experts in the United States have expressed some doubt as to whether the practice of ADR can ever relieve court overcrowding. Nor is there any evidence to show its elimination to a greater extent. Undoubtedly, however, there are methods of resolving disputes which are less expensive and speedier than formal litigation. This is being brought out in the labour field [35]where research has shown that dismissal disputes were generally dealt with on a less costly and more efficient source by arbitration than they were in the Industrial Court.[36]
A second goal of ADR, namely to improve community participation in the dispute resolution process, is of particular importance in South Africa. South Africa’s recent history has served amongst other things to isolate a substantial section of the population from the formal court system. The development of suitable forms of dispute resolution which encourage and enhance community involvement and allow legitimacy is therefore of fundamental importance to those who would see disputes and conflict effectively resolved.
The third goal of ADR is to facilitate entrance to justice, is perhaps aspiring. For example, parties, who with the help of a mediator, are able to resolve their dispute may not think themselves as having received justice but may simply think that they have attained the more diffident goal of settling their dispute.
The most vital goal of ADR is the fourth goal stated above, because it provides a more real dispute resolution. As already stated, it is of the core of the study and practice of alternative dispute resolution to provide mechanisms and processes which will resolve disputes more effectively than an automatic choice to litigation. [37]
Recommendations
To make ADR more effective, extensive, and pro-active, coordination is needed among different agencies. Other initiatives are given below: