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Assignment

On

The Practice of ADR in Bangladesh:


Challenges and Opportunities
Course No: 226
Course Title: Alternative Dispute Resolution

Prepare By:

Md Nazmul Islam
Department of Peace and Conflict Studies
University of Dhaka

May 22, 2013

Contents

Serial No
Page No

Topics Name

01.
01

Abstract

02.
02

Preamble

03.
03-04

Definition of ADR

04
04-05

Goals and Objectives of ADR

05
05-07

Mechanisms of ADR

06
08-15
07
15-18

The Practice of ADR in Bangladesh


Challenges of ADR in Bangladesh

08
18-20

Opportunities of ADR in Bangladesh

09.
20

Conclusion

10.
21

Reference

List of Figures

A Framework on Alternative Dispute Resolution (ADR)


04
Model
05
Formal
09
Informal
12

of

Goals
ADR
ADR

and
Practices
Practices

Objectives

of

ADR

in

Bangladesh

in

Bangladesh

Acknowledgement

I am student of 7th semester, Department of Peace and Conflict Studies. I


am happy to prepare an assignment on The ADR Practice in Bangladesh:
Challenges and Opportunities. First of all I would like to thank my course
teacher Obayedul Hoque Patwary for his co-operation and encourage me
to make this paper.

Although the assignment has been decorated individually but overall it is


not individual work at all. I am benefited much from my friends, mates
collective efforts. I am so much grateful to all our friends equally.

This paper has organized by secondary sources which had to depend


solely on some books, journals and from Website consequently it has been
a literature based paper where all data has been collected from only
secondary sources. So it might never reflect the actually of the thought
but I have tried to accumulate something in order to reflect the
International affairs in context to Iran. This is the first step; in future I need
many things to develop the thought. Finally I thank to my favorite teacher,
all of my friends and all other who somehow helped me. I hope to make
the best of my capability.

Abstract

Alternative" dispute resolution is usually considered to be alternative to


litigation. It also can be used as a colloquialism for allowing a dispute to
drop or as an alternative to violence. Societys world-over has long used
non-judicial, indigenous methods to resolve disputes. 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.1

Now a day the popularity of Alternative Dispute Resolution (ADR) system


is increasing day by day in Bangladesh.
The justice seekers of
Bangladesh are frequently harassed in the area of courts. In this respect
ADR comes to make them harassment free. In this paper has described
about the Alternative Dispute Resolution (ADR) with the practice of ADR in
Bangladesh within the process of informal and formal systems. By the
way this paper has proportionately described about the challenges of ADR
in Bangladesh with the advantages and opportunities.

Study Circle Discussion Guide on Alternative Dispute Resolution, Material Development,


Study Circle Program, NDI, August, 2003; Dhaka, P.7.
1

Preamble:
Injustice anywhere is a threat to justice everywhere
- Martin Luther King Jr.2
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 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 used and
simply the phrase "dispute resolution" is used, as a way to indicate that all
approaches to dispute resolution are potentially considered3. Conflict or
dispute is a natural and inevitable part of all human social relationships.
Conflict occurs at all levels of society from interpersonal, family, tribes to
national and international levels. In other words, conflict is ubiquitous. By
conflict or dispute, we mean conflict of interests between two or more
parties about resources, differences of opinion within the group, power,
prestige and others. Parties in conflict/disputes believe that they have
incompatible goals and here the desire to gain advantage over, win over,
injure, or defeat one another. Alternative Dispute Resolution (ADR,
sometimes also called Appropriate Dispute Resolution) is a general term,
used to define a set of approaches and techniques aimed at resolving
disputes in a non-confrontational way. It covers a broad spectrum of
approaches, from party-to-party engagement in negotiations as the most
direct way to reach a mutually accepted resolution, to arbitration and
adjudication at the other end, where an external party imposes a solution.
Somewhere along the axis of ADR approaches between these two
extremes lies mediation, a process by which a third party aids the
disputants to reach a mutually agreed solution. 4 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.5 The practices of ADR in Bangladesh by the way of
NGOs, Shalish, Village court and several systems but there are various
challenges to maintain this ADR in Bangladesh. In this assignment will be
Barash, David, Peace and Conflict Studies, 1998, p- 246
Samad, Atiqus, Assistant Judge, Peoples Republic of Bangladesh & Part-time Faculty
Memberr, Department of Law and Human Rights, University of Asia Pacific
4
Acland, A. F. 1995. Resolving Disputes Without Going To Court: A Consumer Guide to
Alternative
Dispute Resolution. London, Random House.
5
Ibid-2
2
3

explained about the practices of ADR with Challenges of ADR in


Bangladesh.

Definition of ADR:
The term Alternative Dispute Resolution or ADR is often used to
describe a wide variety of dispute resolution mechanisms that are
short of or alternative to full- scale court process.6
ADR is a general term used to describe a set of approaches and
techniques aimed at resolving disputes in a non- confrontational
way.7
The term ADR describes a number of methods used to resolve
disputes out of court including negotiation, conciliation, mediation
and the many types of arbitration. The common domination of all
ADR methods is that they are faster, less formalistic, cheaper and
often less adversial than a court trail.8
The term of ADR can refer to everything from facilitated settlement
negotiations in which disputants are encouraged to negotiate directly with
each other prior to some other legal process, to arbitration systems that
look and feel very much like a courtroom process. Processes designed to
manage community tension or facilitate community development issues
can also be included within the rubric of ADR. According to the case
referred to Hilmond Investments v CIBC 1996 135 DLR 4th 471 (ONT Court
of Appeal) 887574- 'ADR' is the method by which legal conflicts and
disputes are resolved privately and other than through litigation in the
public courts, usually through one of two forms: mediation or arbitration.9
So, from the above discussion it can be said that 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.

6
7
8
9

Alternative Dispute Resolution, A Study Guide Circle, 2003


Yona Samir, Alternative Dispute Resolution, Approaches and their Application, 2003, p-2
Totaro, Gianna, Avoid Court at all Costs, 2008, p- 35
www.asapcollect.com/Resources--Links.../index.html (accessed on 26.04.2013)

Alternative Dispute Resolution (ADR)

Settlement of Disputes

Reconciliation between
disputants

Create social bindings and justice

Positive outcomes help build


confidence in the community

Encourage settlement directly

Figure 01: A Framework on Alternative Dispute Resolution (ADR)

Goals and Objectives of ADR:


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 disputes that are impeding progress of these

objectives. There are different goal and objectives of ADR in the World for
conflict or dispute resolution. Such as describe below-

Goals and Objectives of ADR

Minimize
Costs

Resolve
Quickly

Maintai
n
Privacy

Maintain
Relations
hip

Get
neutral
Opinion

Set
Preceden
t

Figure 02: Model of Goals and Objectives of ADR.10

Mechanisms of ADR:
Alternative dispute resolution encompasses a variety of methods for the
resolution of disputes between the parties. The availability or deployment
of any particular method of alternative dispute resolution in any specific
case depends on a number of factors. The clause relating to alternative
dispute resolution in the agreement between the parties, the availability
of persons well versed in the process of alternative dispute resolution, the
support provided by the legal system of a country to the alternative
dispute resolution methods, the national or international institutional
framework for alternative dispute resolution, the availability of necessary
infrastructure facilities, etc. play a significant role in the selection of any
particular method of the resolution of dispute. There are various
mechanisms of Alternative Dispute Resolution which is define in the
belowFrank, Sander and Stephen Goldberg, Fitting the Forum to the Fuss, A User Friendly
Guide to Selecting ADR Procedures, Negotiating Journal, January 1994, pp: 49- 68
10

Negotiation:
This is a voluntary and informal process by which the parties to a dispute reach a mutually
acceptable agreement. As the name implies the parties seek out the best options for each other
which culminates in an agreement. At their option, the process may be private. In
this process, they may or may not use counsels and there is no limit to the
argument, evidence and interests, which may be canvassed. 11 There are
many more ways of defining negotiation, but the last definition is a very
broad one and is wide in scope: two or more parties communicate for the
purpose of influencing the others decision.12 In negotiation, the parties
agree to discuss and try to reach an agreement among themselves, or
through their representatives. The parties have control of the process and
the outcome. They try to find solutions that will satisfy the most interests
of the parties. The negotiation process can also be a process of joint
problem solving, on a disputed or potentially disputed issue.
In negotiation, a third party may or may not be involved. When a third
party is not involved in the negotiation process, someone usually breaks
the ice and brings the parties to the negotiation table and then withdraws
from the negotiation process.13

Mediation:
Parties to a dispute seek mediation when they are ready to discuss a
dispute openly and honestly. Usually in a dispute, there are varying
degrees of interests and concerns therefore it is usual that a trade off may
be made in a creative manner which a court may not consider. The
underlying factor in mediation is that the parties have bargaining power
and that a continuing relationship is essential after the dispute therefore
trial is to be avoided.14
11

Bazerman, M. Negotiator Judgment: A Critical Look at the Rationality Assumption.


American Behavioral Scientist, Vol. 27, No. 2, 1983
12
Goldberg, S. B.; Sander, F. E. A.; and Rogers, N. H. Dispute Resolution: Negotiation,
Mediation, and other Processes. Boston, Mass., Little Brown, 1992
13
Ibid- 11
14
United Nations Institute for Training and Research (UNITAR), 2001, www.unitar.org/dfm

Mediation is a form of alternative dispute resolution in which the parties


hire a trained, neutral, and impartial mediator to help them negotiate a
mediation agreement. Shalish, local process combination of negotiation
and mediation process, provides a traditional alternative to dispute
resolution in a community and covers both civil and criminal cases of
varying intensity and degree. This system in the village has been in place
for centuries. Local leaders provide an opportunity for resolving local
disputes. Women and the poor particularly, favor this option of conciliation
through Shalish. They feel comfortable about easy access to the resolution
process and are not required to pay money for it.15

Arbitration:
Arbitration is a form of alternative dispute resolution in which the parties
hire a neutral third party (or parties) to hear testimony, take evidence,
and issue a decision or award. Arbitration is one of the various methods of
dispute resolution but undoubtedly the most popular. It is defined in the
Halsburys Laws of England as the reference of a dispute or difference
between not less than two parties for determination, after hearing both
sides in a judicial manner, by a person or persons other than a court of
competent jurisdiction.16
Arbitration is the closest form to adjudication. The parties agree on a third
neutral party or a panel, to whom they will present their case. The
arbitrator has the power of decision in the dispute. It is a private and less
formal process than litigation in court. There are several varieties of
arbitration; it may be binding or non-binding, and the arbitrators decision
may be with or without a written explanation or opinion. The arbitrator
meets with the parties to a dispute, hears presentations from each side,
and renders a decision.17

Conciliation:
Conciliation is a process in which a third party brings together all sides of
the conflict for discussion among themselves. Conciliators do not usually
take an active role in resolving the dispute, but may help with agenda
setting, record keeping, and other administrative concerns. A conciliator
15

Goldberg, S. B. Dispute Resolution: Negotiation, Mediation, and other Processes:


Supplement. Boston, Toronto, London, Aspen, 1995
16
Halsburys Laws of England, 3 rd Edition, Volume 2 at pg.2 para 2.
17
Tversky, A. and Kahanman, D. Conflict Resolution: A Cognitive Perspective. In: A.
Tversky and R. Wilson, Barriers to Conflict Resolution. W. W. Norton, 1995

may act as a go-between when parties do not meet directly, and act as a
moderator when joint meetings are held.18

The Practice of ADR in Bangladesh


Historical Development of ADR in Bangladesh:
Historical development of ADR in Bangladesh traced from two different
viewpoints, it will be describe in the below1) History of Informal and Quasi formal ADR
2) Court- Connected ADR under Statutory Arrangements

History of Informal ADR:


Like any other society, Bangladesh has informal justice system and this
informal justice system is called Shalish; a dispute resolution process in
the village areas.

History of Formal ADR:


The formal ADR in Bangladesh traced from the two view point as likelegislation and general adjudicatory law.

18

Practices of ADR in Bangladesh:

Silbey, S. and Merry, S. Mediator Settlement Strategies. Law and Policy, Vol. 8, 1996

From the observation of Sumaiya Khair suggests that are three streams of
ADR in Bangladesh:

1.

Extra-judicial or community based ADR (Informa)

2.

ADR in quasi-formal systems and

3.

ADR in formal legal systems.19

From the types of ADR in Bangladesh of formal and informal ADR, it will be
discussed of their practice in Bangladesh with the brief discussion.

Formal ADR Practices in Bangladesh:

Formal ADR
Practices in
Bangladesh

Pre- Litigation

Part of Litigation

Negotiation,
Conciliation,
Arbitration (Sec.
210 of the Labor

Code of Civil
Procedure
(Sec. 89A,
89B, 89C)

Artharin Adalat
Ain, 2003 (Sec.
21, 22)

Muslim Family
Laws Ordinance,
1961 (Sec. 7, 8)

Family Courts
Ordinance, 1985
(Sec. 10)

Figure 03: Formal ADR Practices in Bangladesh20


Sumaiya Khair, Alternative Dispute Resolution: How it works in Bangladesh, Dhaka
University Studies, Part- F, Vol- XV (1), June, 2004
20
Halim, Abdul, ADR in Bangladesh: Issues and Challenges, January 2011, p- 49
19

The Court of Civil Procedure (Amendment) Act, 2003:

The Code of Civil Procedure, 2003 provides for the provisions of ADR
through section 89A, 89B and 89C. In 2003 through 3rd Amendment of the
CPC these provisions have been inserted. Here it is said that if all the
contesting parties are in attendance in the Court in person or by their
respective pleaders, the Court may, by adjourning the hearing, mediate in
order to settle the dispute or disputes in the suit, or refer the dispute or
disputes in the suit to the engaged pleaders of the parties, or to the party
or parties, where no pleader or pleaders have been engaged, or to a
mediator from the panel as may be prepared by the District Judge under
sub-section (10), for undertaking efforts for settlement through
mediation.21 Moreover section 89A of the CPC says about different
procedures for Mediation where section 89B and 89C says about the
Arbitration and Mediation in Appeal. As the basic process of ADR is
Negotiation, Mediation and Arbitration, the Code of Civil Procedure has
rightly discussed the ADR basic process and practices in Bangladesh.

The Artha Rin Adalat Ain, 2003:

Artha Rin Adalat or Money Loan Court was established under a law in 1990
to adjudicate the cases relating to the recovery of loans of financial
institutions. To strengthen the Artha Rin Adalat (Money Loan Court), the
law a new Artha Rin Adalat Ain was enacted in 2003. Under the law
specialized courts for the settlement of disputes between the borrowers
and the lenders were established in the premises of the District Judge's
Court. The Courts of Joint District Judge established under the new law
have overriding powers on other laws of the land. This means, in case of
conflict with any other law in force, the provisions of the new law relating
to money loan shall prevail. Under the provisions of the Act, subordinate
judges are appointed judges of the money loan courts in consultation with
the Supreme Court. The law requires filing of all suits for realisation of the
loan of the financial institutions, banks, Investment Corporation, house
building Finance Corporation, leasing companies and non-banking
financial institutions, constituted under the provisions of Financial
Institutions Act 1993, with the money loan courts for trial. A civil court, the
money loan court has all the powers of the civil court.

21

Section-89A(1) of the Code of Civil Procedure, 2003

The Muslim Family Law Ordinance, 1961:

Muslim Family Laws Ordinance of 1961 provides some restricted facilities


for women. The husband must give notice of talaq to the wife through
proper channel for breakdown of a marriage. He must take permission of
the wife before a second marriage. Polygamy is curtailed by this
Ordinance. This law is available to Muslims only, though polygamy is a
concern for other communities also. Any dispute under the Muslim Family
Law ordinance, 1961 will be solved by the arbitration council. According to
section 6 of the Muslim Family Law Ordinance, 1961 no man, during the
subsistence of an existing marriage, shall, except with the previous
permission in writing of the Arbitration Council, contract another marriage,
nor shall any such marriage contracted without such permission be
registered under the Muslim Marriages and Divorces (Registration) Act,
1974 (LII of 1974)].22

The Muslim Family Court Ordinance, 1985:

Family Courts were established in the country in 1985 to deal with the
family affairs relating to dissolution of marriage, restitution of conjugal
rights, dower, maintenance, guardianship and custody of children. The
emphasis on the mediation in the Family Courts is vivid at least in two
places of the Family Courts Ordinance 1985. Section 10 is a place which
provides for Pre-trial Proceeding as: when the written statement is filed,
the Family Court shall fix a date ordinarily of not more than thirty days for
a pre-trial hearing of the suit, on the date fixed for pre-trial hearing, the
Court shall examine the plaint, the written statement (if any) and the
summary of evidence and documents filed by the parties and shall also, if
it so deems fit, hear the parties. But if such mediation fails to reach a
compromise, then the Court shall frame the issues in the suit and fix a
date for recording evidence, as is usual in case of any suits in the civil
courts. But the door for mediation is not closed herewith. Section 13 of the
Ordinance is very clear with its provisions that after the close of evidence
of all parties, the Family Court shall make another effort to effect a
compromise of reconciliation between the parties. And it is only when this
final effort to a compromise or reconciliation becomes ineffective, the
Court shall pronounce judgment and, on such judgment, a decree shall
follow.

22

Section 6(1) of the Muslim Family Law Ordinance, 1961

Informal ADR Practices in Bangladesh:

Informal ADR
Practices in
Bangladesh

Shalish
Village Court

Traditional Shalish

NGOs Modified Shalish

Conciliati
on
Board

Figure 04: Informal ADR Practices in Bangladesh.23

Shalish: An Informal ADR Practices in Bangladesh:

Shalish is a traditional community based informal dispute resolution


process which is an indigenous method of dispute resolution process lies
in the fact that two third of rural disputes do not enter the formal court
processes.24 In other words, this huge number of rural dispute is resolved
by Shalish or the Village Courts or Arbitration Council. In Bangladesh,
traditional Shalish agreements are enforced through village peer pressure.
Agreements are announced and publicly proclaimed. The reformed village
mediation system relies on this traditional compliance mechanism and
succeeds despite the lack of formal court enforcement. 25 Traditional form
of Shalish is basically a practice of gathering village elders and concerned
parties, executive male, for the resolution of local disputes. Shalish has no
fixed dimension and its size and structure depend entirely on the nature
and gravity of the problem at hand.26

Actually the present Union Parishad is the first tier in the hierarchy of local
bodies in Bangladesh and has a mandate to settle disputes of the local
people through Shalish. The decision of the Shalish is binding to the
parties. In the process, the village elite are also involved. Major cases are
not settled locally.27

Practices of ADR by Village Court:

In 1972, the name of the Union Council was changed to Union Panchayat,
which was again changed to union parishad in 1973. Later the Village
Court Act of 1976 for village areas and conciliation of disputes (Municipal
Areas) Ordinance, 1979 for urban areas were introduced and authority
was vested respectively on the Chairman of Union Parishad and the
Commissioner of the Paruashava to try petty local cases and small crimes
Ibid-19
UNDP, Informal Systems and Village Courts: Poor Peoples Preferences in Human
Security in Bangladesh: In search of Justice and Dignity, 2002
25
Stephen Goldberg, Non-state Justice Systems in Bangladesh and Philippines, A research
prepared for DFID, January, 2003, P- 1-3
26
Sumaiya Khair, Alternative Approaches to Justice: A Review of ADR Initiatives under the
Democracy partnership, May 2011, Dhaka, p- 5
27
Study Circle Discussion Guide on Alternative Dispute Resolution, Material
Development, Study Circle Program, NDI, August, 2003; Dhaka, P-8
23
24

committed in their area and take consensual decisions. These were


subsequently replaced by the Village Courts Act, 2006 and Conciliation of
Dispute (Municipal Areas) Act, 2004.

The village court consists of UP Chairman, members and representatives


from concerned parties. Under the Village Court Act, 2006, the village
court can try disputes over properly valued not exceeding TK. 25,000. 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.28

NGOs Program and ADR in Bangladesh:

In the Bangladesh, there are many NGOs foreign funded ADR programmed
for three basic purposes such as-

1)

Reform of legal systems or courts

2)

Addresses social problems in Bangladesh

3)

Improving the quality of the dispute resolution process29

There are the following types of NGOs are contributing their service in
order to solving the disputes outside the court:-30
United Nations in Bangladesh
The UN Country Team in Bangladesh comprises all UN agencies based in
Dhaka including: UNDP, UNICEF, WFP, UNFPA, UNESCO, WHO, ILO and
including the wider UN family, the World Bank, IOM and IMF.
Care Programs Bangladesh
CARE works with poor communities in more than 70 countries around the
world to find lasting solutions to poverty.
Madaripur Legal Aid Association
MLAA conducts community-based mediation and is concerned with
women's access to justice. MLAA has a women's mediation training
project.
28
29
30

Ibid
Ibid-19
USAID: Alternative Dispute Resolution Practitioners Guide, 1998

Bangladesh National Women Lawyers Association


Women's economic and legal rights education, reports on trafficking of
women and children
Center for Policy Dialogue.
CPD's mission is to stimulate public debate, generate knowledge and
influence policy through multi stakeholder participatory processes. CPD
has conducted policy dialogue on land administration issues. Land
disputes are a large sources of civil and criminal cases in Bangladesh.

BLAST:
BLAST provides legal advice and representation at all levels of the justice
system with an emphasis on providing services to those living in poverty
or facing disadvantage or discrimination. Legal services, including
mediation, litigation and legal rights training, are provided through Blasts
head office and nineteen unit offices throughout Bangladesh.
And so on as like
Odhiker
Ain o Shalish Kendro (ASK)
BRAC

Challenges of ADR in Bangladesh:


ADR programs still face many of the same challenges that the first ADR
programs faced, as well as new challenges that have emerged as
programs have become institutionalized in the court system. There are a
number of common challenges from the different arena in Bangladesh
which will be described in the below-

Disconnect between the rules and reality:

Many courts have a court rule authorizing the use of ADR processes for
cases filed in the court, but the rule is rarely or seldom used. Among the
reasons for this disconnect is that some judges do not actively encourage
ADR and judges are the essential catalyst for new or voluntary ADR
programs, which depend upon judges for referrals.31

Brazil, W. D. "Court ADR 25 Years After Pound: Have We Found a Better Way?" 18 Ohio
State Journal on Dispute Resolution 93, 1998
31

Cooperation of the Lawyers:

Lawyer community may be against the introduction of ADR because they feel it will eat their
share of pie. One of the main causes of delay in disposal of cases lies in dilatory tactics
played by lawyer by way of seeking repeated time petitions. A successful mediation lawyer
will always attract new clients wanting to try mediation who would otherwise have shunned
the court.32

Resistance from the bar:

In some jurisdictions, members of the bar resist the use of ADR or simply
do not encourage their clients to use ADR for appropriate cases. Part of
this resistance results from a lack of knowledge about ADR processes. For
instance, some attorneys do not understand a significant difference
between mediation and arbitration-the role of the neutral. Mediation
involves a third-party neutral (the mediator) facilitating a negotiated
agreement between the parties, whereas in arbitration, an arbitrator is
empowered to make a final and often binding decision.33

Lack of public awareness:

In many areas of the country, the general public is not aware of ADR and,
therefore, litigants must rely upon their attorneys to recommend its use.
Those who do use ADR may not understand the process, for example,
expecting the mediator to "decide" the case or otherwise have the same
authority as a judge. These litigants may be dissatisfied with the process
because it did not meet their expectations.34

Need for program evaluation:

Court ADR programs often conduct evaluations to monitor program quality


and demonstrate that the program is meeting court-established goals,
which vary from court to court and typically include reducing dockets,
saving transaction costs, saving time, pro viding litigants with more
options, and increasing client satisfaction.35

K. M. Hasan, former CJ, A Reporter on Mediation in the Family Couts: Bangladesh


Experience, Published by BLAST in March, 2008
33
McAdoo, B., and A. Hinshaw, "The Challenge of Institutionalizing Alternative Dispute
Resolution: Attorney Perspectives on the Effect of Rule 17 on Civil Litigation in Missouri,"
67 Missouri Law Review 473, 2002
34
Ibid-32
35
Wissler, R. L. "The Effectiveness of Court-Connected Dispute Resolution in Civil Cases,"
22 Conflict Resolution Quarterly 55, 2004
32

Correction of Legal Shortcomings:

ADR provisions incorporated by the Code of Civil Procedure (Amendment) Act, 2003, It
seems that before incorporating the provisions of ADR in the CPC in 2003. Proper attention
was not given to the existing provisions in laws in neighboring countries. The success of
ADR is being blockade by these shortcomings and the govt. should consider these
shortcomings as soon as possible.

Risks to quality control:

In a time of too few resources, especially to fund ADR administrators,


many court programs struggle with the need to ensure the quality of
services and to enforce ethical rules for neutrals and attorney
representatives. While some courts have staff neutrals, many courts rely
upon a panel of outside neutrals to provide dispute resolution services.
Depending upon the court, these neutrals may be paid or may be pro
bono volunteers. Several programs report that one disastrous mediation
can become a legend and sour the legal community against the use of
mediation in general. Program administrators try to avoid such legends
and maintain a program's reputation for quality services by taking steps
to appoint and retain only well-qualified mediators for the court's panel.
These steps include establishing qualifications for panel membership,
requiring advanced training, interviewing the mediators, soliciting
participant evaluations through questionnaires, and observing mediation
sessions.36

Lack of funding:

Most courts struggle to maintain and increase their bud get to provide
ADR services. Court ADR programs have to compete for their funding with
other traditional court services, a competition that ADR programs often
lose, particularly in recent years when state and federal budgets for
nonessential programs have been slashed. Courts have experimented with
a number of funding options, including filing fees, user fees, and
certification fees but the funding for many programs remains uncertain. 37

Ibid
Skove, A. E. State Appropriations and Other Funding Sources for Court-Connected ADR.
Williamsburg, VA: National Center for State Courts, 1998
36
37

Retaining mediations core values:

Many proponents of mediation in the courts hoped that mediation would


provide a positive alternative to an adversarial, formal, and potentially
alienating justice system. However, some ADR programs have evolved to
incorporate many of the adversarial elements they were intended to
avoid. Experts are concerned that in some courts, mediation has come to
look more like settlement conferences, which tend to emphasize
settlement rather than provide litigants the opportunity to work together
to resolve the dispute.38

Requiring good faith:

Court rules in some states require that parties "medi ate in good faith."
Court programs have grappled with how to administer these rules, and
courts have grappled with how to interpret good-faith requirements.
Experts recommend programs be designed with stakeholder input to
prevent problems with a good-faith requirement.39

Opportunities of ADR in Bangladesh:

There are many opportunities and advantages of ADR in the Bangladesh


from the informal ADR and formal ADR practices in Bangladesh; it will be
described in below-

Speed - Settling a dispute using ADR is usually much quicker than


using the court system.

Senft, L. P., and C. A. Savage, "ADR in the Courts: Progress, Problems, and Possibilities,"
108 Penn State Law Review 327, 2003
39
Lande, J. "Using Dispute System Design Methods to Promote Good-Faith Participation in
Court-Connected Mediation Programs," 50 UCLA Law Review 69, 2004
38

Expertise - A specialist from within a particular trade or industry is


able to suggest a reasonable solution which will be acceptable to the
parties involved. A judge is unlikely to have specialist knowledge,

other than in the law.


Privacy - ADR is conducted in private, therefore avoiding publicity
from the media. The public are also unable to attend.

Parties may be able to remain on good terms - The aim of ADR is


to find a compromise solution which is acceptable to both parties.
Court proceedings create a winner and a loser. Using ADR to settle a
dispute means businesses can remain on good terms and continue to
trade with each other once their dispute is resolved.

Creating a better climate for resolution- Alternative dispute


resolution processes are voluntary, the participants are involved
because they believe that they can generate a more acceptable
agreement. In alternative dispute resolution techniques, a better
environment for communications and sharing of information often
exists. Individuals within the group are more prone to move from
positional bargaining to problem solving when they feel their needs
and values are seriously considered and valued in the process. As a
result a greater probability of resolving disputes exists.40

Expediting procedures- Initial investments in the alternative dispute


resolution process may be high. However, sustainable solutions to
disputes demand that parties trust and are committed to decisions
reached during negotiations. When they are not, total time invested in
a dispute is lengthened and the probability of implementing decisions
is reduced. Through alternative dispute resolution techniques, the
parties controlling the process can schedule meetings at their
discretion and make decisions when they are ready.

Enhancing flexibility- The parties in a dispute decide how they will


operate, what criteria they will use to reach agreement and if they will
reach agreement. They may agree to not agree, but they make the
decisions. This adds substantial flexibility to the process.

Lancaster, C.L., M.S. Millhauser, S. Lingenfelter, and R.M. Bunker, Alternative dispute
resolution round table. U.S. Army Corps of Engineers. Alternative Dispute Resolutions
Series. IWR Working Paper 90-ADR-WP1, 1990
40

Providing more control over the outcome- Decision-making


authority is retained by the parties in dispute, therefore they retain the
authority to decide, whereas in litigation a judge or arbitrator makes
the decision.

Costs to the Parties - All forms of ADR are far cheaper than taking a
case to court. Alternative dispute resolution processes usually involve
a third party mediator or negotiator but this is not always the case.
Costs for these services are much lower than lawyer and court
expenses.

Costs to the State - Every case resolved using ADR saves the

Government money.
Saving of Court Time - Every case solved through ADR stops the
courts being over burdened with cases.

Conclusion:
Finally this is called that Alternative Dispute Resolution (ADR) refers to a
method of resolving a dispute that is an alternative to taking the matter to
court. The concept is very broad, encompassing a wide range of dispute
resolution techniques from arbitration to mediation to ombudsmanry. In
Bangladesh the practice of ADR is uses from informal system such as kind of shalish,
village court and by NGOs program with the uses and practices by formal systems as like
Civil Court, Muslim Family Laws, and Family Court Laws etc. But this practice of ADR in
Bangladesh too much challenges for different reasons from the lack of fund, lack of lawyer
cooperation, lack of good faith etc. Here some of the opportunities for the practice of ADR
systems in Bangladesh from local level to state level. We should more and more practice
ADR in our country for dispute settlement with peacefully.

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