Alternative Dispute

Resolution
Lecture 04
 Introduction

Alternative dispute resolution or ADR is an umbrella term used to describe

a variety of methods for resolving disputes outside of traditional methods
such as litigation.
Sometimes the "A" in ADR is defined as "appropriate" rather than
"alternative" as a way of indicating that ADR relates to finding the most
fitting way to resolve disputes. Sometimes there is no "A" used and simply
the phrase "dispute resolution" is used, as a way to indicate that all
approaches to dispute resolution are potentially considered.
Whichever way the acronym is spelled out – alternative, appropriate, or
just dispute resolution – the concept of ADR is based on expanding the
tools available for resolving disputes.
 What is Alternative Dispute Resolution
(ADR?)
Alternative Dispute Resolution refers to the means of settling disputes
without going through legal procedures.
Through ADR settlement of disputes can be done in many formal and
informal ways but here ADR emphasis is mainly on the settlement of
disputes by local community initiatives.
It is an age-old tradition of society through which disputes are resolved
amicably and which concerned parties accept. Normally authority does not
challenge it. It is not institutionalized, but both the community members
and the disputants accept it. There are different ways to resolve disputes.
Some are resolved formally, others informally, and some are resolved as
time passes by.
 What is Alternative Dispute Resolution
(ADR?)

Mr. Justice Mustafa Kamal, Former Chief Justice of Bangladesh

described ADR in a workshop, as: ‘The newness of ADR is the
purpose behind its adoption. The purpose of alternative dispute
resolution is not a substitute consensual disposal for adversarial
disposal or to abolish or discourage informal mediation or
arbitration outside the courts, but to make alternative dispute
resolution a part and parcel of the formal legal system, preserving
the trial court’s statutory authority and jurisdiction to try the case
should ADR fail’.
 Object of the ADR

Object of ADR is to solve the dispute outside the court and reduce huge
number of the case from the court system. The causes of backlog and delay in
our country are systemic and profound. The legal system’s failure to impose
the necessary discipline at different stages of trial of cases allows dilatory
practice to protract the case life. As a result, the current backlog and delay
problem in our country has reached such a proportion that it effectively denies
the rights of citizens to redress their grievance.
Alternative Dispute Resolution (ADR) has attracted a great deal of attention as
a method of reducing both the financial and emotional costs of litigation. It
appears that simply moving cases from the courts, and away from the
adversarial process, allows some cases to be resolved quicker and to the
greater satisfaction of the parties.
 Advantages of ADR

• Often quicker than going to trial: a dispute may be resolved in a matter or days or weeks
instead of months or years.
• Often less expensive: saving the litigants court costs, attorney's fees and expert fees.
• Permits more participation and empowerment, allowing the parties the opportunity to tell
their side of the story and have more control over the outcome.
• Allows for flexibility in choice of ADR processes and resolution of the dispute.
• Fosters cooperation by allowing the parties to work together with the neutral to resolve the
dispute and mutually agree to a remedy.
• Often less stressful than litigation. Most people have reported a high degree of satisfaction
with ADR. Because of these advantages, many parties choose ADR to resolve disputes
instead of filing a lawsuit. Even after a lawsuit has been filed, the court can refer the dispute
to a neutral before the lawsuit becomes costly. ADR has been used to resolve disputes even
after trial, when the result is appealed.
 Disadvantages of ADR

• ADR provides “second-class justice’ It is argued that people who cannot afford to go to court are
those most likely to use ADR procedures. As a result, these people are less likely to truly ‘WIN’ a
case because of the cooperative nature of ADR.
• ADR may not be suitable for every dispute.
• If the ADR process is binding, the parties normally give up most court protections, including a
decision by a judge or jury under formal rules of evidence and procedure, and review for legal error
by an appellate court.
• ADR may not be effective if it takes place before the parties have sufficient information to resolve
the dispute.
• The neutral may charge a fee for his or her services. If the dispute is not resolved through ADR, the
parties may then have to face the usual and traditional costs, such as attorney's fees and expert
fees.
• Lawsuits must be brought within specified periods of time, known as Statutes of Limitations. Parties
must be careful not to let a Statute of Limitation run while a dispute is in an ADR process.
 Application of ADR in different forms of
disputes
ADR techniques have been used successfully in a variety of disputes involving individuals, small and
large businesses, government, and the general public. Various types of ADR processes are available
depending on the nature of the dispute. Many types of conflict often lend themselves to an alternative
and informal method of dispute resolution. Some examples of disputes often settled by ADR include
but are not limited to:
• Business disputes- contracts, partnerships.
• Property / Land use disputes- property transfers, boundaries, easements.
• Family disputes- divorce, property, custody, visitation, support issues.
• Consumer / Collection disputes- repairs, services, warranties, debts.
• Employment disputes- employment contracts, terminations.
• Landlord/tenant disputes- evictions, rent, repairs, security deposits.
• Neighborhood disputes / Relational disputes or other civil or personal conflicts, Personal Injury.
• Insurance disputes- accidents, coverage, liability.
 Different forms of ADR

Negotiation, mediation and arbitration are the most common features of ADR
techniques. Let us discuss the three important ways of dispute resolution.

• Mediation” is voluntary process where a natural mediator attempts to help the

disputing parties to reach an agreement that is acceptable to both sides and
that will bring the dispute to an early conclusion without having to go to Court.

• Arbitration” means a process of adjudication of a dispute or controversy on

fact or law or both outside the ordinary civil courts, by one or more persons to
whom the parties who are at issue refer the matter for decision.
 Different forms of ADR

• “Negotiation” is a non-binding procedure in which discussions between the parties are

initiated without the intervention of any third party with the object of arriving at a negotiated
settlement of the dispute.

• ‘Conciliation’ is a process of facilitating an amicable settlement between the parties. Unlike

the Arbitration there is no determination of a dispute. There need not be a prior agreement
and it cannot be forced on a party not intending for conciliation. Conciliation is a process
where the third party, the conciliator, takes a more interventionist role in bringing the two
parties together and in suggesting possible solutions to help achieve an agreed settlement.

• “Med-Arb” is a procedure which combines, sequentially, conciliation/mediation and where

the dispute is not settled through conciliation/mediation within a period of time agreed in
advance by the parties, arbitration.
 Distinction among Mediation and
Arbitration

Mediation is a flexible process which is often more suitable for issues

which need a fair degree of positive intervention. It is not generally
regarded as an appropriate medium for the resolution of
straightforward distributive conflicts.
Mediation works better than arbitration when issues are particularly
complex and interdependent. Unlike arbitrators, mediators do not
impose solutions – they offer a solution by making recommendations,
which the parties are expected to treat seriously and to act upon.
Recommendations made by a mediator are likely to form the basis for
further negotiations. In arbitration parties are given a binding decision.
 Bangladeshi laws relating ADR

In Bangladesh there are many laws for end the dispute out side the court. The government
of Bangladesh want to make settle the dispute outside the court. For that reason they
passed many law, which make end the suit outside the court. This laws are given below.
• The Code Civil Procedure, 1908
• The Bangladesh Labour Act, 2006
• The Family Court Ordinance, 1985
• The Salish Ain 2001(the arbitration Act 2001)
• The Salish (amendment) Ain 2004
• The Artha Rin Adalat Ain 2003
• The Artha Rin Adalat(amendment) Act 2004
• The Conciliation of Dispute (municipal areas) board Act 2004
 Problems of ADR in Bangladesh

1. Injustice
2. Lack of Knowledge.
3. ADR Procedure does not codify as others procedural Law.
4. Lack impartial third party facilitator – The third party neutral, the mediator, is the person
who makes the entire process work. As long as there is a neutral facilitator, the parties can
trust that they have some safety and are not being abused by an interested party. All of these
programs work because the mediator in them is known to either be neutral or supportive of
the parties and not an involved party.
5. Third party who protects the integrity of the proceedings.
6. Good faith from the participants.
7. The presence of the parties.
8. An appropriate site or venue
 Suggestions for ADR to make more
effective in Bangladesh
To make ADR more effective, extensive, and pro-active, coordination is needed
among different agencies. Other initiatives are given below:
• Creating awareness about ADR.
• Make ADR mandatory in some specific law like (family dispute)
• Make clear about the advantage of ADR
• Spreading the success story of ADR.
• Encouraging NGOs to become involved in ADR.
• Involving the Bar Associations in ADR.
• Providing training for mediators.
• Matching Government and NGO efforts.
THANK YOU