Throughout the 1970s and 1980s, a range of dispute resolution processes such as mediation, Conciliation, and arbitration, all of which fall within the umbrella of ADR, gained popularity as an alternative to traditional litigation. The use of ADR in a variety of dispute contexts has grown rapidly in recent years, and has been institutionalized to a large extent through the introduction of legislative schemes and through the development of professional bodies which have fostered the use of ADR processes. It has been noted by commentators that ADR processes are not ‘new’ but rather have been rediscovered, as informal justice mechanisms have long been the dominant method of dispute resolution in many societies, and in Indigenous communities in particular. The ‘rebirth’ of ADR is often associated with the development of community justice centers to resolve neighborhood disputes in the 1970s and 1980s. Subsequently, the use of ADR processes spread into other areas, such as family, environmental, commercial and industrial disputes. The term ‘ADR movement’ is in a sense misleading as it suggests a unity of agenda amongst ADR proponents. On the contrary, support for the development and implementation of ADR came from a variety of groups with differing agendas. Astor and Chinking note that ‘ADR enthusiasts were sometimes strange bedfellows, coming from within the legal system and from its critics, from government agencies and from opponents of bureaucracy who supported community empowerment.’ Part of the support for the use of ADR processes sprang from a radical critique of the traditional Western justice paradigm. Formal court processes were criticized as being expensive, inaccessible, conflict-inducing, and disempowering for those involved. On the other hand, ADR was seen as a more accessible, flexible and efficient form of justice which allowed for the active participation of all parties and assisted in the preservation of relationships. However, not all proponents of ADR were critical of formal justice processes. Some simply saw ADR as a cheaper more effective way of dealing with more minor disputes that did not warrant the use of court resources. It has been noted that ADR has now become so widely accepted, and even institutionalised and promoted by governments, that ‘what was born of resistance and opposition to the formal justice system has been extensively integrated and co-opted into the system’.
Historical Development of ADR in Sub-Continent and Bangladesh:
In India the origin of ADR could be traced to the origin of political institutions on the one hand and trade and commerce on the other hand. It is observed from the historical document, that ADR in the name of dispute resolution institutions prevalent during the ancient period. It was reported that resolution of disputes between members of a particular clan or occupation or between members of a. particular locality, by kulas (assembly of the members of a clan, srenis (guide of a particular occupation and pugas (neighborhood assemblies). In rural India panchayat (assembly of elders and respected inhabitants of a village) decided almost all disputes between the inhabitants of the village, which disputes between the members of a clan continued to be decided by the elders of the clan. One of the main characteristic of the traditional institutions is that they were recognized system of administration of justice and not merely “alternatives” to the formal justice system establish had by the sovereign the feudal lords kazis, the adalat system introduced by of the then ruling group and the existing court system. The two systems continued to operate parallelly to each other. It is pertinent to say that the procedure and the nature of preceding these institutions were very much similar to the ADR. This was also applicable to this country as because it was the part of the India.
The formal system of administration of justice introduced during the British rule replaced the old system of dispensing justice through feudal set-up. But the traditional institutions continue to play their role of dispute resolution though not known by their old name. As because we still have disputes between members of a clan. After math, arbitration and conciliation as the methods of ADR, received statutory recognition in the code of civil procedure code, 1908 (section 89, arbitration and order XXXII A rule 3, conciliation). Having passed the Arbitration Act, 1940, arbitration provision was repeated from the C.P.C. But it is pertinent to say that the application of the provisions this Act was not satisfied and the courts would not follow these provisions mandatory.
During the Pakistan period, arbitration as one of the important method of ADR, received statutory recognition in the Muslim family ordinance, 1961. Under this ordinance, arbitration, as a method of ADR is mandatory to resolve the dispute as to dissolution of marriage. Union Parishad would have to follow arbitration process to resolve this dispute. Having followed the above mentioned ordinance the Family Court Ordinance was promulgated in 1985 and as a result some family courts have been established in different places of Bangladesh. These courts are following ADR procedure in dispensing family cases restitution of conjugal rights dower, guardianship maintenance etc. So far the success rate of mediation judges of these courts is more than 70 percent. Innovation, as a method of conflict resolution is rare and ideal, but compromise is nowadays known as the Alternative Dispute Resolution (ADR). ADR isn’t new to India. It has been a practice inherent in our culture through the Laws of ‘Manu’ and the Muslim Laws. Our ‘Panchayat’ system (where elders of the village decide the conflicts between the inhabitants of the village) is based on the concept of peaceful settlement of conflicts. ADR is basically a conflict resolution process, which is an out – of – court settlement. In this the two parties in dispute willingly come together with the aims of arriving at a mutually agreeable settlement of their dispute with the assistance of a neutral third party mutually chosen. A successful completion of proceedings results in a mutually agreed settlement. Besides the above mentioned measures adopted as the process of the ADR, Government of Bangladesh has promulgated the following acts for the effective application of ADR procedure for dispensing the disputes outside the court:
(a) The Arbitration Act 2001 (Act no I of 2001)
(b) Insertion section89A, 89B and 89C in the CPC as the mechanism of ADR to dispose the pending civil cases which have laying without any decision for long period of time.
(c) Arthorin Adalat Ain, 2003
(d) Bangladesh Labour Law, 2006
(e) Family Court Ordinance, 1985
(f) Act for Dispute Resolution of municipal area.