Alternative dispute resolution (ADR) refers to a way to make any solution between parties involving in any disputes without involvement of judicial activities through using its various forms. There are several forms that are mainly used to make the solution between two parties without going through the regular court process are known as ADR. Alternative dispute resolution process historically developed in North American countries like America, Canada etc. The European countries, African countries, Middle East and the Asian countries are using the alternative dispute resolution as the alternative way to resolve the problems. International associations like Association of International Arbitration have been used Alternative dispute resolution to resolve problems between international parties.
During the late 1980s and early 1990s a lot of people become increasingly concerned that the traditional method for solving the problem in USA through conventional litigation has become too much expensive, too slow and too problematic.(1) Later this thoughts led to use the alternative ways to resolve the problems which collectively known as Alternative dispute resolution.
In early 2000s, the uses of Alternative dispute resolution increases day by day and the parties and lawyers realized that these techniques can help them to resolve issues quickly, cheaply and more privately than the litigation process.(4) Now a day’s most of the people prefer ADR because this is more focused on problem solving and always based on an adversarial model.
2. Definition of alternative dispute resolution:
Alternative Dispute Resolution processes are alternative methods of helping people resolve legal problems before going to court. Alternative Dispute Resolution (“ADR”) refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory. ADR involves an independent third person, called a neutral who tries to help resolve or narrow the areas of conflict.
Alternative dispute resolution process includes dispute resolution process and techniques that work as a means of disagreeing parties to come into an agreement. Alternative dispute resolution basically is an alternative way than formal court hearing or litigation. It is also known as external dispute resolution process in some countries. There are several ways of resolving issues rather than litigation, this ways collectively known as alternative dispute resolution. Now it has gained huge popularity among the common people and also among the people involving legal activities.
3. Alternative Dispute Resolution in Bangladesh:
Alternative dispute resolution is not new in Bangladesh and it was existed under previous arbitration act, 1940. The Arbitration Act, 2001 has been enacted to accommodate the Harmonization mandate of UNCITRAL model. Bangladesh legal system the traditional legal system known as code of civil procedure 1908 has also been amended and section 89A and 89B has introduced which provides the opportunities to arrange alternative dispute outside the court. Due to slow judicial process in Bangladesh there extreme want for alternative dispute resolution process in our country Bangladesh.
4. ADR in other country:
During 18th and 19th century Arbitration and mediation was widely used in America for setting commercial disputes. Arbitration was first promoted by the Federal Government of America by passing the commerce act in 1887.(9) In 20th century the full arbitration process is passed. In Canada alternative dispute resolution used as meditation to solve family disputes. In mid 1980s the meditation started to use for civil and non family law. Thus alternative resolution process developed in North American countries.
During the Renaissance period the Catholic Popes were practiced arbitration by acting as arbitrators to resolve the conflict between European countries like Italy, Greece etc. in ancient period the Roman emperors used meditation in Italy. Greek philosopher Aristotle and Cicero also believed in arbitration as an alternative way of remove dispute to the court. The practice of meditation in Great Britain established from united state.(1) Practice of negotiation, meditation and arbitration was practiced in ancient and medieval period in Spain, Belgium, France and other European country. Thus alternative dispute resolution is formed and developed in European countries.
The existence of alternative dispute resolution is also found in Middle East and North African countries like Saudi Arabia, Iran, Iraq , Morocco from the ancient and medieval period during the period of Prophets and Caliphs through the practice of arbitration and meditation.
In Indian sub continent like India, Bangladesh and Pakistan has a long history of Alternative dispute resolution. In ancient period the use of meditation and arbitration was maintained during the rule of Murya, Pala and sena period. In medieval period the mediation and arbitration has also practiced by Mughol emperor. In colonial period the British rulers of Indian sub continent used arbitration and conciliation to resolve the dispute. Now in independent India, Bangladesh and Pakistan used alternative dispute resolution to remove conflict between parties. Thus alternative dispute resolution developed in Indian sub continent.
5. Types of Alternative Dispute Resolution:
The alternative dispute resolution processes are classified into four types.
The process of arbitration process exists if valid arbitration agreement between the parties prior to the emergence of the dispute. Such as agreement is in written format. The agreement, regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can run sole arbitration if the valid arbitration is exists. There are only two grounds upon the party can challenge to the arbitrator. A sole arbitrator or panel arbitrator appointed constitutes the arbitration tribunal. Once the period of filling an appeal is over or if the appeal is rejected, the award is binding on the parties and considered as a decrease of the court.
Conciliation is less formal form than arbitration. This does not need any existence of prior agreement. Any party can request other party to appoint a conciliator. One conciliator is preferred but two or three is also acceptable. In case of multiple conciliators, all must act jointly. If one party rejected the conciliation then there will be no conciliation. Parties may submit statements to the conciliator describing the forms of disputes and the nature of issues. Each party sends the copy of statements to other. Conciliator can ask for further information, statements. Conciliator can ask the parties to communicate between each other orally or written. Parties can send the suggestion for the settlement of the dispute. When the terms of settlement exists then the conciliator drawn up the settlement and send it to the both parties. If the both parties signed the settlement paper then the it shall be final and binding on both.
Meditation is used in law, an alternative way of dispute resolution between two or more parties. The third party a mediator assists the parties to negotiate their statements. In some cases the mediator can express what is fair and what should be reasonable. Meditation has a dynamic, timetable and structure which ordinary negotiation lacks. The process is private and confidential. The presence of mediator is a key distinguish feature of that process. There may be no obligation for meditation. But in sometimes if the parties signed in the settlement agreement then it binds on both the party. In meditation the mediators uses various techniques to improve or to make an agreement between the parties. It depends on the mediator’s skill and training. The mediators must be wholly impartial. The process meditation can be used to solve different disputes like commercial, diplomatic, legal, family matters etc. a third party may contract and mediate between union and corporation. When labor unions go for strike, dispute occurs then a third party may settle an agreement between the union and corporation.
Negotiation is dialogue between two parties or more in order to solve any dispute or to resolve point of differences or gain advantage outcome of dialogue.(6) Negotiation is bargaining between two or more parties for resolving any arguments for collective advantage. Negotiation is a process where each party tries to gain an advantage for themselves at the end of the process.(8) Negotiation is process of compromise.
6. Possible reasons for using ADR:
Sometimes people become involved in disputes which, although very important and worrying to those concerned, are better resolved outside the comparatively expensive court system. Some disputes do not have a legal solution, while others may be made worse by court action. There are a number of advantages of Alternative Dispute Resolution in general over litigation: The possible reasons for which the state uses alternative dispute resolution to solve the dispute are given below:
One of the largest reasons parties choose to resolve their disputes outside of the courts is cost. Alternative dispute resolution usually costs much less than litigation, allowing smaller financial disputes a financially viable way to be settled.
ADR can be scheduled by the parties and the panelist as soon as they are able to meet. Compared to the court process, where waits of 2-3 years are normal, dispute resolution is as fast as the parties want it to be. Trials are lengthy, without exception. In many jurisdictions it could take years before you even get to begin arguing your case before a judge, much less get a verdict. There are better things you could be doing with your time.
The parties control some of the process; selecting what method of ADR they want to follow, selecting the panelist for their dispute resolution; the length of the process; and, in a mediations case, even the outcome. Opposed to the court system, where the legal system and the judge control every aspect, ADR is much more flexible.
Disputes resolved in court are public and any judgments awarded are also public. Mediation, arbitration, and mini trials are all conducted in private and in strict confidentiality.
6.5. Experienced Neutral Panelists:
Our panelists are professional mediators and arbitrators with training and expertise in dispute resolution and insurance. Disputing parties are able to select their panelist from a list of qualified individuals who are specialized in specific aspects of insurance. In the court system, binding decisions are made by judges who may lack expertise in insurance practices.
6.6. Cooperative Approaches:
All ADR services take place in a more informal, less confrontational atmosphere. This is more conducive to maintaining a positive business relationship between the two parties. With mediation, specifically, the result is a collaboration between the two parties.
Legal and non legal disputes can be addressed during this process proving it to be more flexible. Some may think that is a suitable package in the sense that takes into account fundamental concerns of the parties and offers remedies not available when at court.
6.8. Parties into good terms:
The aim of absolute dispute resolution is to find out a compromise solution which is satisfactory to both the parties. Court proceedings a winner and a looser. Using ADR to settle a dispute means business can remain on good terms and continue to trade with each other once their dispute is resolved.
The advantages and benefits of Absolute dispute resolution is realized when the dispute or conflict is successfully resolved and all the participant parties respect and agree with the outcomes of the procedures. The failure to compromised decision pinpoints the weakness of ADR which to be adjusted for attaining fruitful outcome.
Alternative dispute resolution refers to everything from facilitated settlement negotiation in which disputants are encouraged directly to negotiate each other prior to some other legal process. The arbitration process seems like courtroom process. Absolute Dispute resolution has gain widespread acceptance to both the general public and the people related to law.
At last we can conclude that, Alternative Dispute Resolution (ADR) is the process of making resolutions for disputes between two or more parties by avoiding litigation through various forms. It has been historically developed from ancient period to present period in Europe, North America, Sub-Saharan African Countries, Middle-East and North African Countries, Australia, China, Indian-Sub Continent and other regions around the world through the practice of negotiation, mediation through mediators, arbitration through arbitrators and Conciliation for resolving disputes between parties without court hearing.
Now in recent period it has become acceptable to both the common people and people related to law. Now different state of the world promotes Alternative dispute resolution in their legal system for several reasons which are already analyzed in previous. Alternative dispute resolution overcomes the costly and slow regular judicial process. So it becomes more acceptable.
The ADR system is much more effective in many cases but it doesn’t provide or gives us a fair result always. It becomes unfair because of the ruling of powerful people over the lower caste people. So the system needs to have a change. Because a person who is not guilty always wants a fair trial whether the other party is powerful or not. This thing is happening all around the world. If this happens for a long time than people will lose their absolute faith in court an justice. So the governments need to resolve this issue as quickly as possible.
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- Schwartz, David S., “Mandatory Arbitration and Fairness.” 84 Notre Dame L. Rev. 1247 (April 19, 2010)
- International Institute for Conflict Prevention & Resolution.“Arbitration Appeal Procedure.”http://www.cpradr.org/ClausesRules/ArbitrationAppealProcedure/tabid/79/Default.aspx
- “What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution Processes.” American Bar Association. http://www.abanet.org/dispute/draftbrochure.pdf
- The Permanent Court of Arbitration. International Alternative Dispute Resolution: Past, Present and Future, (200)
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- http://www.lawyersnjurists.com/our-services/practice-areas/alternative-dispute-resolution-adr ; Retrieved on 01-12-2011
- Simkin, W. E., (1971); Mediation and the Dynamics of Collective Bargaining; Bureau of National Affairs Books, Washington DC;
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- Barrett, J. T. (2004). A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement. Jossey-Bass.
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