Alternative Dispute Resolution in Bangladesh

Barrister Tahmidur Rahman

on 4th January 2023

INDEX
Table of Contents (Jump through sections)
1) Alternative Dispute Resolution in Bangladesh and what exactly is ADR?
2) Court Annexed ADR or Independent ADR:
3) (a) Court-Annexed ADR:
4) (b) Independent ADR:
5) Commercial Arbitration:
6) Informal ADR in Bangladesh
7) ADR in different Bangladeshi Laws:
8) Binding or Non-binding:
9) Standard and Hybrid Alternative Dispute Resolution in Bangladesh:
10) The Benefits of Alternative Dispute Resolution (ADR)
11) 10.1) There are some potential benefits to using ADR. Examples include:
12) FAQ table in regards to Alternative Dispute Resolution in Bangladesh:
13) Are you planning to do arbitration or looking for alternative dispute resolution
remedies in Bangladesh?
Alternative Dispute Resolution in Bangladesh and what exactly is ADR?

The term “alternative dispute resolution” or “ADR” is frequently used to refer to a

wide range of dispute resolution mechanisms that are abridged versions of or substitutes
for full-scale court processes or judicial process. In other words, alternative dispute
resolution refers to the practice of resolving disputes between parties through means other
than formal litigation. ADR is a process that can be independent (non-judicial) or court-
annexed (judicial), binding or non-binding, formal or informal, obligatory or voluntary.

It should be emphasized that the term “ADR” is misleading in the sense that it is not
always an alternative to formal litigation and is frequently a part of formal litigation,
particularly for court-connected ADR processes. According to Professor Thomas J.
Stipanowich, ADR is an obsolete acronym that exists solely for convenience. “Not only is
‘alternative’ unhelpful- alternative to what?- but “appropriate” better conveys the concept
of “method best suited to resolving the dispute,” as noted by the California Task Force.
Professor Jean R. Sternlight prefers “Appropriate Dispute Resolution” to “Alternative
Dispute Resolution.”

ADR typically includes the following mechanisms: negotiation, conciliation, mediation,

and arbitration.
However, the variety of ADR models found in various nations can be described as
follows:
 (a) Court-annexed or stand-alone ADR
(b) Binding or Non-binding ADR
(c) Formal and Informal Alternative Dispute Resolution
(d) Basic and Hybrid ADR

Court Annexed ADR or Independent ADR:

ADR may be either standalone or court-annexed. In other words, ADR may or may not
be tied to a lawsuit. When ADR is incorporated into a lawsuit or court proceeding, it is
referred to as court-annexed ADR (judicial ADR).

(a) Court-Annexed ADR:

In this instance, resorting to ADR is contingent upon the court process, as it is tied to the
country’s justice system. After filing a court case, a judge or court employee will examine
the dispute and suggest or order the parties to attempt alternative dispute resolution, such
as mediation, conciliation, negotiation, and mini-trials. Under each approach, the judge or
a neutral third party will attempt to bring the parties to an amicable resolution.
If they do, the case is dismissed, saving the parties time and money. A court-administered
alternative dispute resolution process may precede, follow, or intervene in the formal
legal process. There is no obvious reason to favor one of these models over the others. A
model that gives disputants access to an ADR process at any stage of a pending suit or
case is arguably the best.

(b) Independent ADR:

On the other hand, independent ADR is unrelated to court proceedings. Freestanding
ADR occurs when disputants independently engage in conciliation or approach a
middleman or neutral third party to negotiate or mediate their dispute. Examples of
independent ADR include (i) commercial arbitration and (ii) community or local ADR.

Commercial Arbitration:
Commercial arbitration is a common form of independent alternative dispute resolution.
The disputants agree on a neutral third party or a process for naming the neutral third
party to resolve the dispute. In addition, they agree on the rules the arbitrator will use to
decide the case and whether or not the decision will be binding or merely advisory.
Complex contracts, such as those for the construction of a power plant, typically contain
arbitration clauses outlining how disputes will be resolved in advance. In other instances,
the parties do not agree to arbitrate until a dispute has arisen.
The Model Law on International Commercial Arbitration, published in 1985 by the
United Nations Commission on International Trade Law, has been adopted by the vast
majority of countries to facilitate commercial arbitration. This law makes arbitral awards
legally enforceable, grants broad rights to commercial parties to choose how they will
arbitrate their disputes, and directs courts to only overturn awards in the most limited
circumstances.
Community-based alternative dispute resolution is a second independent type of
alternative dispute resolution. It builds on traditional models of popular justice that rely
on elders, religious leaders, or other community figures to assist in resolving local or
community conflicts on a daily basis. In Bangladesh, for instance, the traditional Shalish
system, in India lok adalat, and in the Philippines barangays or neighborhoods attempt to
resolve minor disputes between villagers.

Different types of ADR in Bangladesh:

Sumaiya Khair suggests that there are three streams of ADR in Bangladesh:
 Extra- judicial or community-based ADR (informal);
 ADR in Quasi-formal systems; and
 ADR in formal legal system.
All these ADR modes have been discussed in different chapters in this book with there
merits and demerits. Formal ADR in different laws are shown in the diagram below:
 Laws related to ADR Formal ADR in Bangladesh
Code of Civil Procedure (sec. 89A, 89B, 89C)
Family courts Ordinance, 1985 (sec. 10)
Muslim Family Laws Ordinance 1961 (sec. 7, 8)
Artharin Adalat Ain, 2003 (sec. 21, 22)
Negotiation, Conciliation, Arbitration (sec. 210 of the Labour Code, 2006)
Pre-Litigation
Part of litigation

Informal ADR in Bangladesh

Informal ADR in Bangladesh includes traditional shalish and NGO modified Shalish.
Quasi-formal ADR includes village court and Board of Conciliation have originated from
the informal shalish system and this is why they all have been shown in the following
single diagram.

ADR in different Bangladeshi Laws:

 1) The Code of civil procedure, 1908.
2) The Code of Criminal procedure, 1898.
3) The Artha Rin Adalat Ain, 2003.
4) The arbitration Act, 2001.
5) The Bankruptcy Act, 1997.
6) The Muslim Family Court Ordinance, 1985.
7) The Muslim Family Law Ordinance, 1961.
8) The Gram Adalat Ain, 2006.
9) The Settlement of Disputes (Paura Area) Board Act, 2004.

Binding or Non-binding:
Type of ADR Description
Mediation A process in which a neutral third party (the mediator) helps the
parties to a dispute communicate and negotiate a resolution. The
mediator does not have the authority to make a decision on the
dispute, but rather helps the parties come to an agreement on their
own.
Arbitration A process in which a neutral third party (the arbitrator) hears both
sides of a dispute and makes a binding decision. Arbitration is similar
to a trial, but is typically quicker, less formal, and less expensive.
Early neutral A process in which a neutral third party evaluates the strengths and
evaluation weaknesses of each side’s case at an early stage in the litigation
process. The evaluator provides an opinion on the likely outcome of
the case if it were to go to trial, which can help the parties to decide
whether to pursue settlement or continue with the litigation.
Mini-trial A process in which both sides to a dispute present their cases to a
panel of decision-makers (usually senior executives or retired judges)
in a condensed, informal trial. The panel then provides a non-binding
recommendation for a resolution of the dispute.

ADR (Voluntary or Mandatory): It is essential to differentiate between binding and non-

binding ADR forms. The voluntariness of negotiation, mediation, and conciliation
programs depends on the parties’ willingness to reach a voluntary agreement. Arbitration
programs may be either enforceable or non-enforceable. Similar to a court decision,
binding arbitration results in a third-party decision that the disputants must follow even if
they disagree with the outcome. Arbitration that is not binding results in a third-party
decision that the parties may reject.
Another aspect of the mandatory versus voluntary nature of ADR relates to the manner in
which disputes enter the 0 ADR process. In other words, the use of the ADR system may
be mandatory or optional. If the parties are compelled to use alternative dispute resolution
(by a court or statute, for example), then the use is binding or mandatory. Conversely, if
the use is based solely on the consent of all parties, it is entirely voluntary and non-
binding. Prior to court action, some judicial systems require litigants to negotiate,
conciliate, mediate, or arbitrate.

ADR processes may also be mandated by a prior contract between the parties. In
voluntary processes, the submission of a dispute to an ADR process is determined solely
by the parties’ volition.

ADR process is less formal than traditional legal proceedings, such as court cases. It is
frequently emphasized that ADR is a less formal dispute resolution process than the
formal legal system. The ADR process is informal in that the rules of procedure are
flexible and lack formal pleadings, extensive written documentation, and rules of
evidence, among others. Now, these informal ADR modes are separated into two
categories: formal ADR modes and informal ADR modes. When a particular ADR mode
is court-annexed, its records and proceedings may be required to be submitted to the
court.

In contrast, when a mode of ADR is independent, it tends to be informal in the sense that
neither the parties nor the mediator are required to keep a record of their proceedings, nor
are they required to adhere to specific rules of procedure.

For the most part, negotiation is an informal process in which parties identify issues of
concern, explore options for resolving those issues, and reach a consensus; if they fail to
reach a consensus, the matter concludes without formality, leaving them open to other
forms of ADR. Conversely, conciliation and mediation are considered informal when
they are independent and formal when they are court-ordered or legally binding.

Traditional Shalish’ or mediation or conciliation through NGO efforts are examples of

informal ADR processes, whereas mediation and conciliation through court intervention
are examples of formal ADR processes. Arbitration is more formal than other forms of
alternative dispute resolution, and it is extremely formal when it is binding on the parties
and can be enforced by the court.
A benefit of informal ADR systems is that they are less expensive and less intimidating
for disadvantaged communities, which tends to increase the poor’s access to justice.
Additionally, these systems are less expensive for the state and can be placed more easily
in locations that will increase access for underserved populations.

Standard and Hybrid Alternative Dispute Resolution in Bangladesh:

Here is a table of different types of court-annexed alternative dispute resolution (ADR)
processes:

The variety of ADR models found in developed and developing countries can be
described in two fundamental ways: basic ADR processes, which include negotiation,
conciliation, mediation, and arbitration; and hybrid ADR processes, in which specific
elements of the basic processes have been combined to create a wide variety of ADR
methods (e.g., med-arb. combines mediation and arbitration). Hybrid ADR processes may
also incorporate court-based adjudication features; for instance, the minitrial combines an
adjudication-like presentation of arguments and evidence with negotiation.

Here is a table that compares negotiation, mediation, conciliation, and arbitration:

 Process Description
Negotiation A process in which two or more parties communicate directly with
each other to try to reach an agreement on a course of action or to
resolve a dispute. Negotiation is voluntary and can take place
informally or as part of a formal process. The parties have the
freedom to agree on any terms they see fit, and they may seek the
assistance of lawyers or other advisers.
Mediation A process in which a neutral third party (the mediator) helps the
parties to a dispute communicate and negotiate a resolution. The
mediator does not have the authority to make a decision on the
dispute, but rather helps the parties come to an agreement on their
own. Mediation is typically less formal than arbitration or litigation
and is often less costly.
Conciliation A process in which a neutral third party (the conciliator) meets with
the parties to a dispute and helps them to identify the issues in the
dispute and explore options for resolution. The conciliator does not
have the authority to make a decision on the dispute, but rather helps
the parties come to an agreement on their own. Conciliation is
similar to mediation, but may be more informal.
Arbitration A process in which a neutral third party (the arbitrator) hears both
sides of a dispute and makes a binding decision. Arbitration is similar
to a trial, but is typically quicker, less formal, and less expensive. The
parties may agree to arbitration as an alternative to litigation or as
part of a contract. The arbitrator’s decision is final and binding,
unless the parties agree to have it reviewed by a court.

The Benefits of Alternative Dispute Resolution (ADR)

There are some potential benefits to using ADR. Examples include:

Save Time:
ADR can often settle or decide a dispute much faster; often in a matter of months, even
weeks, whereas bringing a lawsuit to trial can take a year or more.

Save Money:
When cases are resolved earlier through ADR, the parties may be able to save money on
attorney fees, court costs, and expert fees.’
Increase Control Over the Process and the Outcome:
In ADR, parties typically have more influence over both the process and the outcome.
Parties have more opportunities to tell their side of the story in most ADR processes than
they do at trial. Some ADR processes, such as mediation, allow the parties to devise
novel solutions that would not be possible in court. Other forms of ADR, such as
arbitration, allow the parties to select an expert in a specific field to resolve the dispute.

Maintain Relationships:
Alternative Dispute Resolution (ADR) can be a less adversarial and hostile way to
resolve a dispute. An experienced mediator, for example, can assist the parties in
effectively communicating their needs and points of view to the other side. This can be a
significant advantage when the parties’ relationship is at stake.

Increase Satisfaction:
In most trials, there is a winner and a loser. The loser is unlikely to be pleased, and even
the winner may be dissatisfied with the outcome. ADR can assist parties in finding win-
win solutions and achieving their true objectives. This, along with the other potential
benefits of ADR, may increase the parties’ overall satisfaction with both the dispute
resolution process and the outcome.