States promote the use of ADR in their legal system, State the possible reason Discuss the different types of ADR and their proceeding with special emphasis on common ADR mechanism.”

1.1 Introduction

ADR (Alternative Dispute Resolution) typically refers to processes and techniques of resolving disputes that fall outside of the judicial process (formal litigation – court). ADR is also known as external dispute resolution in some countries.

[1]Alternative Dispute Resolution (ADR) (also known as external dispute resolution in some countries, such as Australia) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. ADR are ways and methods of resolving disputes outside the judicial process (formal litigation – court).

 All ADR procedures, but negotiation, include the presence of a neutral person capable of providing an unbiased opinion who acts as a facilitator or decision maker. An exception exists with collaborative divorce or collaborative law where each party retains counsel who assists in the resolution process through explicitly contracted terms.

[2]ADR is a term that encompasses a broad spectrum of “upstream” and “downstream” strategies for preventing, managing, and resolving disputes outside of the conventional arenas of the courts, the legislature, or administrative channels.  Upstream collaborative engagement and conflict prevention strategies are designed to prevent a conflict or dispute from arising while the more traditional downstream ADR processes (such as negotiation, mediation, and facilitation) involve managing and resolving an existing conflict or dispute, often by use of a third party neutral. The strategies are voluntary and are confidential to the extent legally allowed.

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 disputes.

 In selecting an appropriate ADR strategy, participants should try to resolve a problem or address an issue at the lowest possible level of the organization and start with the least formal procedure possible. If the strategy fails, it is then recommended to select a more formal strategy. Keep in mind that many of the boundaries between the different strategies are not well-defined and that many strategies may contain elements of others. Any ADR strategy should be adapted according to the particular circumstances of a situation. Be aware that parties may be accompanied by legal counsel through any ADR process.

 1.2 [3]Brief History of ADR:

Although mediation goes back hundreds of years, alternative dispute resolution has grown rapidly in the United States since the political and civil conflicts of the 1960s. The introduction of new laws protecting individual rights, as well as less tolerance for discrimination and injustice, led more people to file lawsuits in order to settle conflicts . For example, the Civil Rights Act of 1964 outlawed “discrimination in employment or public accommodations on the basis of race, sex, or national origin. Laws such as this gave people new grounds for seeking compensation for ill treatment. At the same time, the women’s movement and the environmental movements were growing as well, leading to another host of court cases. The result of all these changes was a significant increase in the number of lawsuits being filed in U.S. courts. Eventually the system became overloaded with cases, resulting in long delays and sometimes procedural errors . Processes like mediation and arbitration soon became popular ways to deal with a variety of conflicts, because they helped relieve pressure on the overburdened court system.

 1.3 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 duties .

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.

 States promote the use of ARD in their legal system

2.1 [4]Why ADR?

ADR strategies have become popular for natural resource disputes because of their potential, when applied appropriately, to more efficiently, cost-effectively, and cooperatively produce agreements and resolutions that are more creative, satisfying, and enduring than traditional formal systems of redress. The use of conflict prevention or ADR also tends to mend or improve the overall relationship between the parties because the focus is largely on interests and cooperation, while litigation focuses on positions and competition. In addition, the parties craft an agreement or solution themselves, and since parties retain a greater level of control over the outcomes, they are generally more committed to the agreement than when a judge or hearing officer imposes a solution or when an agency decides on an issue without meaningful public involvement. ADR processes also can allow the parties to develop a more flexible or creative solution than is generally possible in marginal public involvement processes or in court or formal hearings and appeals.  Additionally, the use of ADR-based collaborative and public engagement help the BLM to achieve transparent governance by opening up and bringing interested and affected parties inside the decision making process.

There are specific ADR strategies that can be used to improve understanding and achieve consensus, to build trust, to consult, to prevent conflict, to solve problems, and to manage or resolve disputes.  Any of these strategies might be used to help develop a land use plan, rule, or regulation; issue a license or permit; or analyze and implement a natural resource action.

 In carrying out its multiple-use mandate for managing federal lands, BLM staff regularly interacts with a wide array of people who have different interests and expectations of land management.  Management decisions need to accommodate competing interests, and disagreements are common among the many publics served by the BLM, sometimes even within the Bureau. The benefits of ADR can apply in all these arenas, assisting in conflict prevention, management, and resolution, and in fostering open and participatory government.

 2.2 [5]States like to promote the use of ADR

 Reduce Backlog of case and number of case

By establishing proper ADR in the country state can get relief from backlog of cases. And also pressure on court get reduced as common people get an opportunity to solve the problem in short time and also effectively. And this is very suitable for developing countries like Bangladesh also as well as for developed countries.

 Increasing Satisfaction

Improving the experience that participants have while resolving their disputes is an important motivator for many court ADR programs. Some judges frame this question in terms of justice – when that litigant came to court, did he or she feel like justice was served, even if he or she did not prevail? Others look at it in terms of customer satisfaction – when that litigant came to court, did he or she feel that he or she received good service? Either way, serving the party well is central to this motivation.

Improvements in party experience can play out in different ways in the varying sectors of the court. For example: In a divorce court, a mediation program may increase procedural justice measures such as unrepresented parents’ sense of whether the process was fair, whether they had a voice in it, and whether they were heard.

In a juvenile court, a restorative justice program may increase the satisfaction levels of the victims (by understanding why the offense took place or receiving recompense), the community (by reducing tensions or reducing offenses), and the offender (by limiting re-offending or improving the future outlook).

 In a child dependency court, a co-mediation program may result in other benefits, such as more services for biological parents, better communication among all participants and less time in foster care for children, which in turn can raise the satisfaction levels of participants.

 Time and Money Savings

Savings of time and money is really a broader concept that encompasses the amount of resources used by the court and the parties and not just cash and hours. On the court side, for example, those courts with high case burdens often look to ADR to reduce backlogs of cases by lessening the caseload of judges as cases dealt with through the ADR process.

 Reducing Time

Many courts have looked to ADR processes to reduce time spent on a case both by the court and by the parties. This time savings can be measured in many ways, including: time from filing to case closure; number of court appearances prior to resolution; amount of attorney time spent on discovery and other case tasks; and level of compliance, which determines how much activity is needed to deal with compliance issues following case closure.

 Saving Money

Courts see ADR as potentially saving parties money by reducing the number of attorney hours spent on the case, by decreasing the amount of discovery done and/or settling the case sooner and with fewer court appearances. For the courts, savings are seen as coming from the lower number of court hearings and trials, and other time that would be spent by the judge and other court personnel on the case.

Bureaucratic, Political and Other Motivators

There are countless human and organizational motivators that may be involved in the decision by courts to use ADR. For some courts, ADR programs are implemented as a response to a mandate from higher up in the court system or because of a legislative mandate. There may be a desire on the part of judicial or other leadership to accomplish a political goal, such as appeases a county board, or follows through on a campaign promise to modernize the courts. A court may decide that a particular form of ADR is simply the way that law is being practiced in a given area and so a program should be adopted.

Different types of ADR and common ADR mechanism

Alternative Dispute Resolution generally varies from country to country and culture to culture. But the two types of ADR are historically common. First is, formal methods for resolving disputes outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. It is imperative to understand that conflict resolution is one main goal of all the ADR processes. It is a dispute resolution process of a process leads to the resolution.

What it is

Like Arbitration, adjudication involves an independent third party – the adjudicator – considering the claims of both sides and making a decision. This is usually done on paper. Both sides send in written details of their argument, with copies of any letters, reports or other evidence. The adjudicator then makes a decision based on this information, and on what is generally considered to be good practice in the business concerned. The adjudicator is usually an expert in the subject matter in dispute.

Note: Most consumer adjudication schemes – such as CISAS, the Furniture Ombudsman (Qualitas) and the Postal Redress Service – produce decisions that are binding on the company but not on the consumer. However, the schemes to resolve Tenancy deposit disputes produce decisions that are binding on the consumer as well. That means that if you agree to use one of these tenancy deposiit schemes instead of county court, you cannot appeal the decision of the adjudicator and you cannot take your claim to court later.

When it is used

You are most likely to come across adjudication is dispute resolution schemes run by trade associations to deal with consumer complaints about their members, or in schemes set up to deal with common disputes about service providers, but which are not about large sums of money.

You may also find that the term ‘adjudication’ is used to describe any process where an independent third party makes a decision about the best way to resolve a dispute. In this sense, ombudsmen, arbitrators and judges are all types of adjudicators.

Furniture Ombudsman (Qualitas) tries to resolve disputes about furniture, kitchens and bathrooms using Conciliation. Where this fails, you can ask for an adjudicator to make a decision.

The Postal Redress Service resolves disputes between consumers and postal services.

There are three government-approved adjudication schemes to resolve Tenancy deposit disputes between landlords and tenants at the end of tenancies. Note that unlike other consumer adjudication schemes, these schemes result in decisions that are binding on the consumer as well as the company/landlord.

IDRS is an independent adjudication service run by the Chartered Institute of Arbitrators, which runs adjudication schemes for a number of businesses and trade associations. For example, IDRS runs CISAS and POSTRS as well as the ABTA scheme for travel disputes.

How it works

Each scheme is slightly different, but there is a common procedure which will be followed in most cases.

 Usually you are expected to first try to resolve your dispute directly with the company you are complaining about. You can get advice and information about dealing with consumer disputes from Consumer Direct Gov.Resolving your dispute may be impossible for a number of reasons:  The company may not agree with your complaint, The company may send you a letter making an offer that you are not happy with, The company may fail to respond to your complaint within a reasonable time

 At this stage you can apply to the relevant adjudication scheme. Some schemes require you to have a ‘deadlock letter’ from the company stating their final offer. Some require you to have tried to pursue your complaint for a minimum of 8 or 12 weeks. You can check the details with each scheme.

 In adjudication schemes you need to provide the adjudicator with written details of your complaint. They will not usually talk to you about the problem, investigate the issues, or ask for more evidence from you or the company. This means that you need to fill in the application form carefully, giving all the relevant information, and make sure you send copies of all the letters and supporting evidence that you have. Adjudication schemes may have staff who will talk to you on the phone and help you do this. You could also get help from your local CAB or advice agency.

Once you have made your complaint, it will usually be sent to the company, and they will be invited to respond with their side of the story. This will also be in writing. You will often be given a chance to respond to what the company has said – though you can’t raise any new issues at this stage.

 An adjudicator will then be appointed, and all the papers sent to her/him to read and to make a decision. If the adjudicator finds in your favour, s/he will state what action the company should take to put things right. This may include compensation.

 If you accept the decision (in those schemes which are not binding on the consumer and where you have the right to reject the decision and take the claim to court instead), the company is required to do what the adjudicator has said. This is because most schemes are either run by trade associations, or companies are required by law to be a member of an approved adjudication scheme. Compliance with the adjudicator’s decision is a requirement of membership.

 Arbitration

What it is

In arbitration an independent third party considers both sides in a dispute, and makes a decision that resolves the dispute. The arbitrator is impartial; this means he or she does not take sides. In most cases the arbitrator’s decision is legally binding on both sides, so it is not possible to go to court if you are unhappy with the decision.

Most types of arbitration have the following in common:

    Both parties must be willing to use the proces  It is private

    The decision is made by a third party, not the people involved

    The arbitrator often decides on the basis of written information

    If there is a hearing, it is likely to be less formal than court

    The process is final and legally binding

    There are limited grounds for challenging the decision

When it is used

Arbitration is used widely for international disputes, disputes between major corporations, employment rights disputes, and consumer disputes. Arbitration is defined, and the rules set out, in the Arbitration Act 1996, which applies to disputes in England and Wales and in Northern Ireland. Only the parts of the Act relating to consumer disputes currently apply in Scotland.

 Contracts often have a clause stating that arbitration will be used to resolve any dispute between the parties. This will be agreed at the time the contract is signed, and the clause is intended to prevent expensive and time-consuming disputes ending up in court. If you sign a contract with an arbitration clause, it is usually binding – you can’t change your mind later. And arbitration is also binding – if you don’t like the arbitrator’s decision, you can’t go to court afterwards. The only exception is in a consumer contract: if the amount in dispute is less than the small claims limit (usually £5,000 in England and Wales) then an arbitration clause is not binding on the consumer.

 The parties to the contract can usually choose an arbitrator, providing they can agree on one! IDRS, an independent body run by the Chartered Institute of Arbitrators, provides arbitration for consumer and business disputes. IDRS also runs tailor-made schemes for particular consumer sectors, such as the ABTA arbitration scheme for travel and holiday disputes.

 The other well-known use of arbitration is in employment disputes. The Advisory, Conciliation and Arbitration Service (Acas) runs an arbitration scheme which is often used in collective disputes between unions and employers in large businesses. Acas also offers an arbitration scheme to handle individual unfair dismissal claims and claims related to flexible working requests, though this is not used very often.

 How it works

The Arbitration Act 1996 lays down strict rules for how arbitration should work. However, arbitration is intended to be less expensive, less formal, and more flexible than court, so the rules of evidence are not as strict, and parties can usually have a say in how they want the hearing to be conducted. Parties can choose a single arbitrator with relevant experience, or select an arbitral panel of three or five arbitrators. Obviously, the larger the panel, the more expensive the process is going to be, and this model is likely to be used in high value commercial disputes.

When arbitration is used in lower value consumer disputes, the arbitrator often makes a decision based on the written evidence which the parties send in, and doesn’t hold a hearing. This is a much quicker, cheaper process. Many arbitration schemes are run on behalf of a consumer sector such as the travel industry, and the organisation that runs the scheme will appoint an independent arbitrator. In employment disputes the arbitrator is appointed by Acas from its panel of independent arbitrators.

Once the parties have decided to use arbitration and the process has begun, they usually give up their right to seek a resolution of the matter elsewhere, such as in court or tribunal.

Some providers offer an internet-based arbitration service for money and consumer claims. Others, such as The Association of British Travel Agents (ABTA) make their arbitration service available online, so that all documents can be submitted by email.

 The arbitration award

After considering the parties’ submissions, the arbitrator issues a final and binding ‘award’, which can be based on good practice and reasonableness as well as on the law. The award usually includes reasons for the decision.

Under the 1996 Act there is very limited scope for appeal against an arbitrator’s award. Usually, appeals can only be based on a claim that the arbitrator behaved unfairly. The ABTA arbitration scheme does have an appeal process, but there is a substantial fee which is not refunded even if you win your appeal.

In most schemes the arbitrator’s decision is binding on both parties. Arbitration awards can be enforced in court if necessary.

Conciliation

What it is

Conciliation is much the same as mediation. In conciliation, as in mediation, an independent person (the conciliator) tries to help the people in dispute to resolve their problem. The conciliator should be impartial and should not take sides. The parties in dispute are responsible for deciding how to resolve the dispute, not the conciliator.

In certain types of problem, the most common ADR scheme for resolving disputes is called ‘conciliation’ rather than ‘mediation’ even though it is essentially the same process.

All conciliation should have the following elements in common:

    It is voluntary – the parties choose to conciliate or not

    It is private and confidential

    The parties are free to agree to the resolution or not

When and how it is used

There are two commonly used conciliation schemes which you may come across in the UK. It’s easy to get confused, since the way conciliation works is slightly different in each of these schemes. They are:

    Acas conciliation in employment disputes – the parties do not meet, but the conciliator speaks to the employer and the employee separately, usually over the telephone.

    The Furniture Ombudsman scheme for disputes about furniture, fitted kitchens and bathrooms – the first stage of the procedure is referred to as conciliation, and involves a caseworker contacting both sides to try to resolve the dispute.

There are profiles of these schemes on this site – the links are listed on the right of this page.

It is also easy to confuse conciliation in two other ways:

    Conciliation can appear very similar to the negotiation stage of resolving a dispute. But in negotiation, the negotiator usually represents one side in the dispute: in conciliation, the conciliator may well try to resolve the dispute through negotiation, but s/he is independent and impartial, and does not take sides.

    Confusingly, the initial stage of some internal complaints procedures, such as the NHS complaints procedure, is often called ‘conciliation’. In such cases, the conciliator will try to negotiate a way to resolve the dispute with both parties. However, the conciliator is not independent but instead represents the organization involved, either directly or through a member organization.

     In Acas conciliation, the service is paid for by the government, which funds Acas.

    The Furniture Ombudsman Scheme is funded by FIRA, the trade association of furniture retailers.

 Outcomes

In each conciliation scheme, there is a slightly different approach to how binding the agreement is.In Acas conciliation, a signed agreement is binding on both employee and employer. In the Furniture Ombudsman conciliation process, a conciliated agreement is binding on the retailer if the consumer accepts it. If the consumer is not happy, s/he can request an independent inspection and adjudication.Because conciliation is private, the terms of settlement are not made public unless the parties agree. The sort of outcomes agreed through conciliation are likely to be similar to those in mediation and include:

    an apology

    an explanation

    compensation

    changes in practice and procedure

    agreements for future behaviour or communication

Conciliation agreements can be made into legally binding settlements if both parties agree.

 Mediation

What it is

In mediation, an independent third party (the mediator) helps parties with a dispute to try to reach an agreement. The people with the dispute, not the mediator, decide whether they can resolve things, and what the outcome should be.

Mediation is more than just negotiation. It has a carefully staged process. You can read more about this under How it works on this page. The mediator is there to help the discussions run smoothly, and to manage this process.

All types of mediation have the following in common:

    It is voluntary – you can choose whether to mediate or not

    It is private and confidential – what you talk about in mediation can’t normally be used in court later unless you both agree

    You and the other party make the final decision on how to resolve your dispute

    The mediator is impartial – he or she does not take sides or say who is right and who is wrong

    The mediator is independent

When it is used

Mediation is the most wide-ranging ADR process and is used in many areas of dispute, including:

    Business consumer goods and services divorce and separation education – schools, colleges, universities discrimination housin international politics

    medical negligence

    neighbours

    personal injury

    small claims

    hate crimes

    workplace and employment

    young people at risk of homelessness

    youth crime

Mediation can be used in cases involving only two parties and those involving a large number of parties or entire communities.

How it works

Ideally, mediations take place in a neutral venue – a place that is not associated with one side or the other. Many mediation providers have their own offices where mediations can take place. They can also arrange for mediations to take place in convenient local venues. Provision can also be made for accessible premises and any special needs.

Mediation usually takes place at a face-to-face meeting between the parties in dispute. But in some cases the parties stay in separate rooms and the mediator moves from room to room with ideas and responses (‘shuttle mediation’). In other cases mediation can take place on the telephone (for example, in Small claims mediation).

Mediation meetings have a structure. There are a number of stages, which will include:

    Working out what your issues are – the mediator will start by finding out from both parties what you think are the important issues that need to be sorted out.

    Working out what your options are – there is always more than one solution to a problem. Mediation gives you the freedom to think about a wider variety of options than a court would consider. The mediator will help you to explore all the choices open to you, and to think about what the advantages and disadvantages of each might be, but won’t tell you what to do.

    Working out an agreement – the mediator will make sure that you are both clear about what you have agreed, and may put together a document setting it out in writing. If you both agree to it, you can get your solicitors to make it legally binding.

Most mediation meetings are concluded within one day, but it is possible for mediation to take place over several meetings, particularly family mediation.

Cost

The cost of mediation varies.

     Most community mediation – used for resolving disputes between neighbours, for example – is free to the parties. Community mediation services are often funded by a local authority to provide mediation in the local area.

    Family mediation is usually offered at an hourly rate, sometimes on a sliding scale according to the income of the participants. If you are eligible for legal aid, then your mediation costs, and the cost of your legal advice, will be paid from the legal aid fund. You won’t have to pay this back.

 Outcomes

There are no set outcomes in mediation. The range of remedies that can be achieved is as wide as you want it to be. You are not restricted to the outcomes which a court could order. You could make an agreement which includes:

     an apology

    an explanation

    a change in behaviour, policy or procedure

    a promise to do or avoid doing something

    an agreement about contact or residence arrangements for children

    an agreement about property or financial arrangements after separation or divorce

    an agreement to return to work, or to resume a course at university

    compensation

    refunds

    replacement of goods

 Mediation is a non-binding process. This means that any agreement you make is not automatically legally binding. However, mediation has a good track record when it comes to keeping to agreements. If both parties have agreed an outcome that they think will work, they are more likely to stick to the terms of their agreement. For example, research into court-based small claims mediation schemes in 2006 found that people complied with nearly all the agreements reached through mediation. However, one in five small claims decided by a judge at a hearing needed some kind of enforcement through the court.

 Ombudsmen

What they are

Ombudsmen investigate and resolve complaints about organisations and government bodies. They also encourage good practice in the way complaints are handled. There are two main types of ombudsmen:

    public sector ombudsmen, who look at complaints about local councils, government departments and the NHS

    private sector ombudsmen, who look at complaints about a range of businesses such as banks and insurers, telecommunication providers, estate agents

This is not such a clear distinction as it once was, as many ‘private sector’ ombudsmen have a statutory basis, and are approved by the regulator for their sector, or by the relevant government department.

 Most ombudsmen in Britain and Ireland are members of the British and Irish Ombudsman Association (BIOA). Not all complaint-handling bodies are full members, however, which means they may not meet all the requirements to be a member. For details of what this means for you, have a look at An ombudsman overview.

 Full voting members of BIOA meet the following criteria:

     They are independent of the bodies they investigate

    They are free to complainants

    They are well publicised by the organisations they investigate

    Their procedures should be easy and straightforward to understand and to use

    Either the organisations should be legally bound to follow their decisions, or there should be a ‘reasonable expectation’ that they will do so

 How ombudsmen work

Each ombudsman service has its own procedures and timescales. Generally, they can only consider a complaint once it has been through the internal complaints procedure of the organisation complained about.

There are also time limits; most ombudsmen require the complainant to approach the ombudsman within this time limit (usually six or twelve months).

Access and advice

Ombudsmen are expected to be user-friendly and help complainants in making their complaint. Many of them run helplines and have staff who will discuss a problem on the phone informally before a formal complaint is made. Some of them will fill in a complaint form on your behalf, and send it to you to check and sign.

 However, ombudsmen do not give advice. It’s worth getting independent advice before making a complaint to an ombudsman in order to make an informed decision about whether this is the best way to try to resolve a dispute. There may be other options, such as going to a tribunal, or making a court application, which you should also think about. Some of these may also have deadlines, so you need to make sure you are not restricting your choices by going down a particular complaints route.

 The decisions made by ombudsmen are not binding on complainants unless the complainant accepts the decision. [The exception is the Pensions Ombudsman, whose decisions are binding on both the complainant and the provider.] This means that if you are not satisfied with the outcome, and if you are still within any time limit, you can choose to use another route such as a court claim instead. This makes ombudsmen different from arbitration: with arbitration, once you agree to use the process you cannot then change your mind and go to court, and the decision made by the arbitrator is legally binding on both parties.

 Most ombudsmen have special services to help disabled consumers and those who are not fluent in English. Advisers can also make a complaint on behalf of a client, with the client’s permission. Legal Aid is available for advice and assistance in preparing a complaint for an ombudsman.

 Process

Ombudsmen use an inquisitorial method of dispute resolution; this means that the ombudsman is responsible for asking questions to both sides in order to establish the truth of the situation. This is unlike the procedure in arbitration and litigation, which is adversarial; this means that each side is responsible for presenting their own case, and the judge or arbitrator has to decide between them.

 The ombudsman’s inquisitorial approach means that you do not have to argue your own case, or put together a lot of evidence. You will make your complaint to the ombudsman, and the ombudsman staff will investigate what happened. This may involve meeting you or talking to you on the phone. It may also involve interviewing staff at the organization you are complaining about, and requesting copies of documents, files, and records.

Most ombudsmen attempt to resolve complaints informally at first. Usually this involves helping both side try to reach an agreement that resolves the matter. In some ombudsman services, such as the Financial Ombudsman Service, it is up to you whether or not to accept an agreement reached through informal dispute resolution. If you are unhappy with the proposals, you can ask the ombudsman to continue the investigation, and make a recommendation. In other ombudsman services, such as the Local Government Ombudsman, it is up to the ombudsman to decide whether the proposed solution is appropriate. If the ombudsman caseworker believes that the remedy is fair, then he or she can close the case at this point. You still have the right to take your original complaint to the courts if you are not happy with the ombudsman decision.

Remedies available

An ombudsman can recommend or order a range of remedies, including:

    an explanation

    an apology

    a change in practice

    out of pocket expenses

    compensation

 They can also ask an organisation or government department to review complaints that involve similar issues. This is one of the main advantages of public sector ombudsmen. It means that a sample complaint about housing benefit payment, for example, can result in a review of the whole system, which will improve things for many other people who have not yet approached the ombudsman. In recent years reports by the Parliamentary and Health Service Ombudsman on Tax Credit overpayments and the cost of Continuing Care have resulted in major changes to the way these issues have been dealt with nationally.

All ombudsmen can award or recommend financial compensation, within limits. This is often significantly lower than the level of compensation which would be ordered by a court, and this should be taken into account when deciding how best to resolve a dispute.

 The Limitations of ADR:

 Although ADR programs can play an important role in many development efforts, they are ineffective, and perhaps even counterproductive, in serving some goals related to rule of law initiatives. In particular, ADR is not an effective means to

•  Define, refine, establish, and promote a legal framework.

•  Redress pervasive injustice, discrimination, or human rights problems.

•  Resolve disputes between parties who possess greatly different levels of power  or authority.

•  Resolve cases that require public sanction.

•  Resolve disputes involving disputants or interested parties who refuse to participate, or cannot participate, in the ADR process.

 4.1 Conclusion

ADR programs can serve as useful vehicles for promoting many rule of law and other development objectives. Properly designed ADR programs, undertaken under appropriate conditions, can support court reform, improve access to justice, increase disputant satisfaction with outcomes, reduce delay, and reduce the cost of resolving disputes. In addition, ADR programs can help prepare community leaders, increase civic engagement, facilitate public processes for managing change, reduce the level of community tension, and resolve development conflicts. The chart on page 50, Developing an ADR Program, provides in graphic form an overview of the issues covered in the Guide. An advantage of informal ADR systems is that they are less costly and intimidating for underprivileged communities, and therefore tend to increase access to justice for the poor. These systems are also less expensive for the state, and can be more easily placed in locations that will improve access for underserved populations. It is not possible, based on available data, to measure accurately ADR’s ability to increase access or ADR’s cost relative to formal litigation systems. This inability to measure accurately, however, does not mean that the impact is not observable or significant.

Although ADR programs can accomplish a great deal, no single program can accomplish all these goals. They cannot replace formal judicial systems, which are necessary to establish a legal code, redress fundamental social injustice, provide governmental sanction, or provide a court of last resort for disputes that cannot be resolved by voluntary, informal systems.

Furthermore, even the best-designed ADR programs under ideal conditions are labor intensive and require extensive management. In the development context, particular issues arise in considering the potential impacts of ADR. First, some are concerned that ADR programs will divert citizens from traditional, community-based dispute resolution systems. This study has found a number of instances in which ADR programs have been effectively designed to build upon, and in some cases improve, traditional informal systems. Second, while ADR programs cannot handle well disputes between parties with greatly differing levels of power, they can be designed to mitigate class differences; in particular, third parties may be chosen to balance out inequalities among disputants. Third, there is no clear correlation between national income distribution and ADR effectiveness. ADR programs are serving important social functions in economies as diverse as those of the United States, Bangladesh, South Africa, and Argentina. Finally, it is not clear from the evidence to date whether ADR programs are more suitable for civil or common law jurisdictions. ADR programs are operating effectively within both, but not enough data exists to compare success rates under the two types of legal systems.

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Barrister Abdul Halim -ADR in Bangladesh: Issues and Challenges

(CCB Foundation, Dhaka, 2010)