Northern University Bangladesh

Term paper

On

Alternative Dispute Mechanism in Bangladesh

Course Name: Principle of Civil Litigation

Course Code: LLM-6101

Submitted To
Mr. Dr. Md. Zakir Hossain
Chairman
Judicial Service Tanning Institute
Guest Faculty Member
Department of Law
Northern University Bangladesh
Submitted By
Mohammed Moinul Islam
LLM (1 year)
Section- A
Department of Law
Northern University Bangladesh

Date of Submission: 13th December, 2013

 Contents

Introduction

Dispute Resolution

Alternative Dispute Resolution (ADR)

History of Alternative Dispute Resolution

Practices in the History of ADR

Goals of Alternative Dispute Resolution

Difficulties Encountered in Legal Procedure

ADR to Achieve Economic & Social Objective

History of ADR in Bangladesh

Mechanisms of ADR

Problems of ADR in Bangladesh

Recommendations toward Effective ADR

Conclusion
Introduction

Alternative Dispute Resolution is a practice that has been brought with the evolution of
history to bring real peace to human existence through consensus. People have been
searching for a real alternative to resolve oppression in social, political and economic area
and to make litigation process much cheaper, quicker and more effective. These lead to the
concept of Alternative Dispute Resolution.1 In cases where the exploited wish to challenge
the actions of a powerful oppressor, they would be wise to look to revolutionary tactics to
address their problems. Current legal systems must be revolutionized, because at present our
legal institutions primarily protect property rights, not human liberty. Today, the worldwide
alternative dispute resolution (ADR) movements function as a strong disempowering device.
Various effective tools are used in ADR to create a better harmonious society.

Dispute Resolution

Dispute or conflict resolution is a process that implies the causes of conflict as well as the
resolution of such conflicts. Conflict can be resolved or settled, but once resolved, new
conflicts may arise.2 It is also a continuous process – one is resolved and another one
emerges.3 Two purposes of dispute resolution are-

 To diagnose the root causes of disputes

 To transform actual and potential disputes into peaceful and positive processes

Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution refers to the means of settling disputes without going through
legal procedures with or without the help of a third party. It is also known as external dispute
resolution in some countries, such as Australia. It is an age-old tradition of society through

1
Prein, H. 1984. “A contingency approach for conflict intervention.” Group and Organization Studies, 9: 81-
102.
2
Fisher, R. J. 1997. Interactive Conflict Resolution. Syracuse, NY: Syracuse University Press.
3
Retrived from http://www.antiessays.com/join.php on April 15, 2013
which disputes are resolved amicably and which concerned parties accept. 4 ADR basically is
an alternative to a formal court hearing or litigation.

History of Alternative Dispute Resolution

The Roots of Alternative Dispute Resolution (ADR): The first event listed on ADR was in
1800 B.C. when mediation and arbitration were used to settle disputes between kingdoms in
the ancient Middle East. The practice of ADR can be found in the Bushmen of the Kalihari
Desert, the Hawaiian Islanders, and the Yoruba of Nigeria and in others area in 960 B.C. At
that time practice was based on wide range of religious faiths, beginning in the Biblical
Wisdom of Solomon5.

Early-Modern Era: In the early era of modern civilization ADR started to use in business
and land disputes and in international relations.6 Political conflicts among countries were
resolved with the help of third country.

Industrial Revolution: In the period of Industrial Revolution, ADR was used in labor-
management disputes. In this period ADR takes the form of mediation in disputes involving
labor and employment relations and equal employment opportunity. Several federal agencies
provide guides about ADR proceedings to prospective complainants and other constituents.

The Beginning of the 1960s: In the period of 1960s when there was revolution among black
civilians, disputes were raised and resolved using Alternative Dispute Resolution.7

Black Civilian Rights Revolution: Since the late 1980s, Congress has recognized that ADR
provides a cost-efficient alternative to traditional methods for dispute resolution.8 In 1988,

4
Ware, Stephen J. 2001. Alternative Dispute Resolution. St. Paul, Minn.: West Group.
5
Prein, H. 1984. “A contingency approach for conflict intervention.” Group and Organization Studies, 9: 81-
102.
6
Ross, M. H. 1993. The Culture of Conflict: Interpretations and Interests in Comparative Perspective. New
Haven, CT: Yale University Press.
7
Deutsch, M. and P. T. Coleman, eds. 2000. The Handbook of ConflictResolution: Theory and Practice. San
Francisco, CA: Jossey-Bass.
8
Prein, H. 1984. “A contingency approach for conflict intervention.” Group and Organization Studies, 9: 81-
102.
Congress enacted the Judicial Improvements and Access to Justice Act, which permitted
U.S. district courts to submit disputes to arbitration.

Late 1980s and Early 1990s: Many people became increasingly concerned that the
traditional method of resolving legal disputes in the United States, through conventional
litigation, had become too expensive, too slow, and too cumbersome for many civil lawsuits
(cases between private parties). This concern led to the growing use of alternative dispute
resolution (ADR).

Impact on Administrative Agencies: In 1990s ADR was extended to environmental

problems, Native American issues, prisoners’ rights and foreign relations matters.9 Congress
amended the Alternative Dispute Resolution Act of 1998, which requires each district court
to require, by local rule, that litigants in all civil cases consider using an ADR process at the
appropriate state of litigation.

Early 2000s: ADR techniques were being used more and more, as parties and lawyers and
courts realized that these techniques could often help them resolve legal disputes quickly and
cheaply and more privately than could conventional litigation. Moreover, many people
preferred ADR approaches because they saw these methods as being more creative and more
focused on problem solving than litigation, which has always been based on an adversarial
model.10

21st Century: ADR takes the form of modern institutionalization.11 ADR has gained
widespread acceptance among both the general public and the legal profession in recent
years. In fact, some courts now require some parties to resort to ADR of some type, usually
mediation, before permitting the parties’ cases to be tried. The European Mediation Directive
(2008) expressly contemplates so-called “compulsory” mediation.

Alternative Dispute Resolution: Alternative Dispute Resolution as a practice that promotes

the rhetoric of peace through consensus. There is a real alternative for concerned citizens

9
Lynch, J. “ADR and Beyond: A Systems Approach to Conflict Management”, Negotiation Journal, Volume
17, Number 3, July 2001, Volume, p. 213.
10
Avruch, K. 1998. Culture and Conflict Resolution. Washington, DC: United States Institute of Peace
11
Moore, C. W. 1996. The Mediation Process: Practical Strategies for Resolving Conflict. San Francisco, CA:
Jossey-Bass.
wishing to resolve oppressive social, political and economic conflicts; this under-utilized tool
to resolve conflict is Alternative Dispute Resolution. Today, the worldwide alternative
dispute resolution (ADR) movement functions as a strong disempowering device that the
dominant discourse makes attractive by the use of a variety of rhetorical practices, such as the
need to remedy the excesses of litigation, or of promoting the desirability of a more
harmonious society.12

Practices in the History of ADR

With the evolution of history Alternative Dispute Resolution has taken many forms, which in
turn has given many tools and techniques to resolve a legal dispute.13 Mediation,
arbitration, mediation-arbitration, Mini trial, early neutral evaluation, and summary
jury trial are the most common. These tools vary somewhat by country and culture.

Mediation: Mediation also known as conciliation—is the fastest growing ADR method.
Unlike litigation, mediation provides a forum in which parties can resolve their own disputes,
with the help of a neutral third party.14 Mediation permits the parties to design and retain
control of the process at all times and, ideally, eventually strike their own bargain.

Arbitration: In Arbitration a neutral third party hears the disputants’ arguments and imposes
a final and binding decision that is enforceable by the courts. The difference is that in
arbitration, the disputants generally agreed to the procedure before the dispute arose.

Mediation-Arbitration: As its name suggests, mediation-arbitration combines mediation

and arbitration. First, a mediator tries to bring the parties closer together and help them reach
their own agreement. If the parties cannot compromise, they proceed to arbitration—before
that same third party or before a different arbitrator—for a final and binding decision15.

12
Best Law Schools Specialty Rankings: Dispute Resolution.” US World and News Report
13
Retrieved From http://www.opm.gov/er/adrguide/section1-air_force.asp on 15th April, 2013
14
Kressel, K., D. Pruitt and Associates, eds. 1989. Mediation Research: The Process and Effectiveness of Third-
Party Intervention. San Francisco, CA:Jossey-Bass.
15
Touval, S. and I.W. Zartman, eds. 1985. International Mediation in Theory and Practice. Boulder, CO:
Westview.
Mini Trial: In a mini-trial, each party presents its case as in a regular trial, but with the
notable difference that the case is “tried” by the parties themselves, and the presentations are
dramatically abbreviated. The mini trial, a development in ADR, is finding its greatest use in
resolving large-scale disputes involving complex questions of mixed law and fact, such as
Product Liability, massive construction, and antitrust cases16.

Early Neutral Evaluation: An Early Neutral Evaluation (ENE) is used when one or both
parties to a dispute seek the advice of an experienced individual, usually an attorney,
concerning the strength of their cases.17 An objective evaluation by a knowledgeable outsider
can sometimes move parties away from unrealistic positions, or at least provide them with
more insight into their cases’ strengths and weaknesses.

Goals of Alternative Dispute Resolution

ADR techniques have not been created to undercut the traditional U.S. court system.18
Certainly, ADR options can be used in cases where litigation is not the most appropriate
route. However, they can also be used in conjunction with litigation when the parties want to
explore other options but also want to remain free to return to the traditional court process at
any point.

i. Suitability for multi-party disputes

ii. Flexibility of procedure – the process is determined and controlled by the
parties the dispute
iii. Lower costs
iv. Less complexity
v. Parties choice of neutral third party (and therefore expertise in area of dispute)
to direct negotiations/adjudicate
vi. Likelihood and speed of settlements
vii. Practical solutions tailored to parties’ interests and needs
viii. Durability of agreements

16
Sustac, Zeno, Ignat, Claudiu. “Alternative ways of solving conflicts (ADR)”, Publisher: University, p. 242.
17
Weeks, D. 1992. The Eight Essential Steps to Conflict Resolution. LosAngeles, CA: Jeremy P. Tarcher.
18
Rouhana, N. N. and S. H. Korper. 1997. “Power asymmetries and goals of unofficial third party intervention
in protracted intergroup conflict”.Peaceand Conflict: Journal of Peace Psychology, 3: 1-17.
 ix. Confidentiality
x. The preservation of relationships and the preservation of reputations.

Difficulties Encountered in Legal Procedure

People are increasingly finding it difficult to go through the legal procedure. Legal
procedures are less favorable to general people because of following reasons. These
difficulties in the legal system have added to the importance of Alternative Dispute
Resolution.

i. Very time consuming

ii. Requires a lot of money and energy
iii. Loss of property
iv. Complex procedure
v. Win-lose situation
vi. Sometimes stimulates further conflict
vii. No reconciliation process
viii. Chances of deception
ix. Dependency on lawyers
x. Lack of knowledge in legal procedure

ADR to Achieve Economic & Social Objectives

ADR procedure can support not only the legal objectives, but also support other development
objectives, such as economic and social objectives, by facilitating the resolution of disputes19.

i. Win-Win outcome
ii. Cost effective or no cost at all
iii. Requires less time
iv. Indigenous style
v. Creates social binding
vi. Reconciliation between disputants

19
Zartman, I.W. and J. L. Rasmussen, eds. 1997. Peacemaking in International Conflict: Methods and
Techniques. Washington, DC: United States Institute of Peace.
 vii. Positive outcome helps build confidence in the community
viii. Positive outcome encourage others to resolve disputes in the Community

History of ADR in Bangladesh

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 1870,20 the Panchayat system was introduced to manage and
rule the area for the collection of revenue. The Panchayat system was used to resolve minor
disputes within their area, 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 the21 Rin Shalishi Board to
keep peasants free from the Mahazons and the moneylenders and also to avoid clashes.22
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
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.23
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. 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.

20
Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M.
Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345.
21
Rahman, Mahfuzur (2004). The State of Media in Bangladesh. News Network. Dhaka.Rahman, Golam and
Ahmed, Helal Uddin (2004). Banglapedia: National Encyclopedia of Bangladesh.
22
Chowdhury, Afsan (2004). Media in Times of Crisis: National and International Issues. Shrabon. Dhaka.
23
Rahman, Golam and Ahmed, Helal Uddin (2004). Banglapedia: National Encyclopedia of Bangladesh
ADR Mechanisms

Negotiation, arbitration and mediation are the most common mechanisms of ADR practices
in Bangladesh law. ADR support legal objective as well as support other developments
objective also. Through ADR process mainly focus on win-win outcome and ingenious style.

Negotiation

Negotiation is the process through which the parties within disputes exchange ideas, identify
the irritant points of difference, and find a solution and get commitment from each other to
reach an agreement. The parties within dispute seek a common result to reduce the dispute.
Bargaining is the common feature in the negotiation process. This is the only mechanisms
that differ from arbitration and mediation. The negotiation is usually conducted by a third
party. When the third party is not involved then the parties among the disputant has to break
the ice to bring them into negotiation table and then withdraw from the negotiation process.

Arbitration

Arbitration is another dispute resolution mechanism. In arbitration system, to resolve the

dispute the court orders a third party or a third person. As the courts interfere, the court
appoints a neutral person that has acceptability for both the parties. This practice of the court
is not popular because a person may not be the right person.

Mediation:

Mediation is another part of the ADR mechanisms process. It is just an extension of dispute
resolution process. Mediation is individuals that are experienced personnel in the dispute
resolution process who bring the disputant parties together that both parties can accept or
reject it. The person generally makes an attempt to work out between the disputant parties.
Mediation is generally understood by a third party intervention. Through mediation promote
reconciliation, settlement and compromise.

A traditional alternative dispute resolution for conflict resolution in a community is Shalish, a

local process. It provides both criminal and civil cases in varying intensity and degree. This
system in the village has been placed for centuries. Women and poor people particularly
favor the system. They find that it is the most easily accessible and poor people in the village
do not have to pay money. The chance of not to have a fair justice is significantly low
because local Shalish are aware of the real nature of the conflict.24

Problems of ADR System in Bangladesh

We have many success stories of resolving issues through ADR. Many people who have
experience with ADR become very committed. People are also enthusiastic to resolve
disputes locally. Still people very frequently go for legal procedures due to the following
reasons:

i. Peoples` lack of trust of community leadership

ii. Sometimes faced with biased decisions.
iii. Too much interference in the process by powerful people
iv. Fear of losing dignity and prestige
v. Persons dealing with ADR do not have adequate knowledge and experience
vi. Decisions are not legally binding
vii. Cannot be a substitute for a formal judicial system.

Recommendations toward Effective ADR System

To make ADR more effective, extensive, and pro-active, coordination is needed among
different agencies. Other initiatives are given below:

i. Creating awareness about ADR

ii. Spreading the success story of ADR
iii. Encouraging NGOs to become involved in ADR
iv. Involving the Bar Associations in ADR
v. Providing training for mediators
vi. Matching Government and NGO efforts.

24
Ahmed. N. U. 2003. Alternative Dispute Resolution.[pdf]. Available at:
http://www.studycirclebangladesh.info/admin/publication/2007041164_photo.pdf [Accessed 15th April ,2011]
Conclusion

Alternative Dispute Resolution techniques are well established and frequently used. The
definition of alternative dispute resolution is constantly expanding to include new techniques.
The term alternative dispute resolution has become such well-accepted shorthand for the vast
array of non litigation processes that its continued use seems assured. But the process of
developing the current system in order to meet the unique needs of legal disputes should
come from all the institutions of the society.