The history of Alternative Dispute Resolution”, offers a comprehensive review of the various types of peaceful practices of resolving conflicts3 illustrate and explain.

Table of Content

 

                                                                                                                                                Page

 

  1. Definition of Alternative Dispute Resolution (ADR)………………………………….2-3
  2. Benefits  of ADR ……………………………………………………………….……….3
  3. Types of ADR……..………………………………………….……………………………..4-5
  4.  Time to use ADR…………….…….………………….……………………………….5-6
  5. The use of ADR by Court…………………………………………………………..……6
  6. Practice of ADR in Bangladesh……..……….………………………………………….7
  7. History and Development of ADR in Bangladesh……………………………………..8-9
  8. Conclusion……………………………………………………………………………….9

     Bibliography ……………………………………………………………………………..10

 

 Definition of Alternative Dispute Resolution (ADR):

ADR typically refers to processes and techniques of resolving disputes1 that fall outside of the judicial process (formal litigation – court). Courts are increasingly requiring some parties to utilize ADR of some type, most often mediation, before permitting the parties’ cases to be heard. ADR has proven very helpful in many different types of legal disputes. These include divorces and other family matters, professional liability cases, personal injury situations, insurance issues, and commercial disputes. A type of dispute resolution that seeks to limit the costs of litigation by using alternative, often out-of-court means, such as arbitration, conciliation etc. Alternative dispute resolution options are voluntary, and often involve a neutral third party to make decisions.

If you have a dispute over the supply of goods or services that you have been unable to settle through negotiation, you may wish to consider using an alternative dispute resolution scheme rather than taking court action. These schemes use an arbitrator or an ombudsman2 to help you and the supplier reaches a solution. You will usually have to complete the supplier’s internal complaints procedure beforehand and you may have to pay a fee for using the scheme. This is usually refunded if you are successful.

Also in the book “The history of Alternative Dispute Resolution” written by Jerome Barrett, offers a comprehensive review of the various types of peaceful practices of resolving conflicts3.

 

1: dispute means to argue or debate about a specific matter.

2:Ombudsman is a person who acts as a trusted intermediary between either the state or an organization.

3see: http://www.amazon.com/History-Alternative-Dispute-Resolution-Political/dp/0787967963/ref=sr_1_9?s=books&ie=UTF8&qid=1322983555&sr=1-9

 

Scott Brown, Christine Cervenak and David Fairman described that “Alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes.”4

Lukasz Rozdeiczer and Alejandro Alvarez de la Campa defined that “ADR is usually used as an acronym for alternative dispute resolution, which is defined as any process or procedure other than adjudication by a presiding judge in court – litigation, in which a neutral third party participates to assist in the resolution of issues in controversy”5

Benefits of ADR:

v      Suitability for multi-party disputes

v      Flexibility of procedure – the process is determined and controlled by the parties the dispute

v      Lower costs

v      Less complexity

v      Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate

v      Likelihood and speed of settlements

v      Practical solutions tailored to parties’ interests and needs (not rights and wants, as they may perceive them)

v      Durability of agreements

v      The procedure is Confidential

v      The procedure is less formal than going to court

 

4see: http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacb895.pdf

5see: http://rru.worldbank.org/Documents/Toolkits/adr/adr_fulltoolkit.pdf

Types of Alternative Dispute Resolution:

The main types of ADR that deal with consumer disputes are arbitration, conciliation mediation or negotiation and are usually provided by trade associations.

  1. 1.      Arbitration

 

Arbitration is a procedure for settling disputes in which both you and the supplier usually agree to accept the decision of the arbitrator as legally binding. This means you cannot take court action, except to enforce the award if the supplier doesn’t pay. The arbitrator will usually be a member of the Chartered Institute of Arbitrators and often acts independently of the trade association. The arbitrator will make a decision based on the written evidence presented by you and the supplier. The decision is confidential and cannot be made public without the supplier’s agreement. You will have to pay a registration fee which may be refunded if you are successful.

Some contracts for services and delivery notes include an arbitration clause stating that you will refer any dispute to arbitration.

  1. 2.      Conciliation

In consumer disputes, conciliation is the first stage in the arbitration process and the conciliator is usually a member of the trade association. Both you and the supplier will be asked to give written details of the complaint, including any evidence, and the conciliator will give an opinion on the best solution. Any decision is not binding and won’t prevent you from taking court action. If you disagree with the opinion offered, you can then proceed to the arbitration stage or consider suing in court. There is usually no charge for conciliation.

  1. 3.      Mediation

If you use a mediation scheme, the mediator will help you and the supplier to negotiate an acceptable agreement and will act as a go between if you don’t want to meet. If the supplier agrees to mediation, you will both be asked to give details of the dispute, including copies of any evidence and will be asked to sign a mediation agreement giving a framework for the mediation. The mediator may arrange joint or separate meetings with you and the supplier and will help you to identify the strengths and weaknesses in your case. If an agreement is reached, you will both be asked to meet to draft the terms of the settlement. This will be legally binding unless you state otherwise and will prevent you from taking court action except to enforce the award. Mediation can be expensive, but you may be able to get legal aid to help with the costs.

  1. 4.       Negotiation

Negotiation is the process whereby the parties within the dispute seek to settle or resolve the dispute. The negotiation process provides the parties or disputants and opportunity to exchange ideas, identify the irritant points of differences, find a solution, and get commitment from each other to reach an agreement. Bargaining is a common feature of the negotiation process. This feature makes it different from mediation and arbitration. In negotiation, a third party may or may not be involved. When a third party is not involved in the negotiation process, someone usually breaks the ice and brings the parties to the negotiation table and then withdraws from the negotiation process.

There is another type of dispute resolution called “Trade Dispute”6.

Trade Dispute means any dispute between employers and workmen or between workmen and workmen or between employers and employers, which is connected with the employment or non-employment, or the terms of employment or the conditions of labor of any person.

Time to use Alternative Dispute resolution

Any time negotiations are stuck, anticipated to become stuck, or otherwise not progressing in a constructive way from a party’s standpoint, it is worth considering whether some form of ADR might help. Situations in which mediation has been found to be useful include:

  1. Where a party has a strong emotional investment in or reaction to the case which is inhibiting constructive settlement discussion;

6see: Sen,A.K & Mitra,J.K Commercial Law and Industrial Law, 26th edition, Pg-949.

  1. Where there is a question as to whether a party or negotiating attorney understands the nature of the claims, defenses, technical questions, or other relevant information;
  2. Where something just doesn’t add up (the case seems like it should settle–if you were in your adversary’s shoes, you can’t imagine why you wouldn’t settle–and yet the other side seems to be holding out for something different);
  3. Where there are difficult personalities involved;
  4. Where you suspect that opposing counsel is trying to work towards agreement but is having difficulty communicating with the client;
  5. Where you suspect that opposing counsel is not accurately conveying information to the client or is otherwise an obstacle to constructive settlement discussions;
  6. Where there appears to be unrealized potential for advancing negotiations through the development of non-monetary settlement components (pollution prevention measures, exceeding compliance goals, timing of commitments, recognition, etc.);
  7. Where a party believes that he/she/it is being treated unfairly;
  8. Where a party endlessly procrastinates or outright refuses to come to the table;
  9. Where a party does not appear to have a realistic view of the case;
  10. Where the number of parties is great and/or the issues so numerous or complex; and
  11. Where, despite everything–competent counsel, a good faith desire among all parties to reach settlement, no shortage of information, good communication–there remains a seemingly unbridgeable gap.

The use of Alternative Dispute Resolution by Court:

Courts have many motivations for using ADR processes. They are generally grouped as increasing participant satisfaction, reducing time, and saving money; however, a fourth group of motivators – bureaucratic, political and other pressures – also may be at work. No matter what the motivating factor, the court must always be focused on providing a just process through ADR. Additionally, while the outcomes may not be exactly the same as those reached through traditional litigation, the process and the outcomes must be perceived as fair by the parties.

Practices of Alternative Dispute Resolution in Bangladesh:

 

Societies world-over have long used non-judicial, indigenous methods to resolve disputes. 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. During the British period, in 1870, the Panchayat system was introduced to manage and rule the area for its collection of revenue. The Panchayat system was used to resolve minor disputes within theirarea, 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 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 was 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. 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.

The village court provides easy access to the local people without any obstacle and allows them to defend their position without any outside assistance or lawyer. It is also less cumbersome and less expensive. 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. The present Union Parishad is the first tier in the hierarchy of local bodies in Bangladesh and has a mandate to settle disputes of the local people through Shalish. The decision of the Shalish is binding to the parties. In the process, the village elite are also involved. Major casesare not settled locally. Political influences are very frequent and often biased in the Shalish. 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.

History & Development of ADR in Bangladesh:

In June 2000, formalized ADR was introduced in Bangladesh by means of court annexed judicial settlement pilot projects, in an effort to decrease delays, expenses, and the frustrations of litigants laboring 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 duties107.

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 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.

The majority of ADR in Bangladesh is court-annexed; a private mediation facility has not yet developed. Judicial mediators are compensated in the same amount as the traditional trial judges.

The current widespread use of mediation has necessitated consideration of a national training facility for mediators, to provide standardized training and certification for all mediators. Efforts are now being made to expand the ADR program to include commercial cases.

Conclusion:

Alternative Dispute Resolution is used when there is any conflict between two parties regarding a specific matter. Moreover, when the two parties are unable to come to any solution, then they go for ADR. There is a third party involved to come to an agreement suitable. There were many historical development of ADR in Bangladesh mentioned above.

Bibliography:

  1. http://www.hg.org/adr.html
  2. http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacb895.pdf
  3. http://rru.worldbank.org/Documents/Toolkits/adr/adr_fulltoolkit.pdf
  4. http://www.businessdictionary.com/definition/alternative-dispute-resolution.html
  5. http://www.epa.gov/region1/enforcement/adr/use.html
  6. http://courtadr.org/pocketguide/why.php http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf
  7. http://rru.worldbank.org/Documents/Toolkits/adr/adr_appendices.pdf
    1. Sen,A.K & Mitra,J.K (2006) Commercial Law and Industrial Law, 26th edition, India, The world press private ltd.
    2. http://en.wikipedia.org/wiki/Alternative_dispute_resolution

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