Basic Introduction of Comparative Alternative Dispute Resolution (CADR)

Abstract

Comparative Alternative Dispute Resolution (CADR) is an emerging field that seeks to understand and compare different forms of alternative dispute resolution (ADR) across cultures, legal systems, and dispute contexts. CADR provides an interdisciplinary and comparative perspective on the use of ADR methods and the resolution of disputes outside of traditional court systems. This article provides a basic introduction to CADR and its significance, highlighting its key concepts, methods, and challenges. The purpose of this article is to provide an overview of CADR and to encourage further research and exploration of this important and growing field.

Introduction

ADR stands for “Alternative Dispute Resolution.” It refers to a range of processes that can be used to resolve disputes between parties outside of the traditional court system. ADR methods include mediation, arbitration, and negotiation, and they can be used in a variety of contexts, including commercial disputes, employment disputes, and consumer complaints. The goal of ADR is to provide a faster, less formal, and often less expensive way for parties to resolve their differences, and to avoid the time, cost, and uncertainty of litigation.

Besides, Comparative Alternative Dispute Resolution (CADR) is a subfield of alternative dispute resolution (ADR) that seeks to understand and compare different forms of ADR across cultures, legal systems, and dispute contexts. CADR involves the study of ADR practices and processes from a comparative perspective, looking at how ADR is used in different countries, legal systems, and cultural contexts, and the factors that influence its use and effectiveness.

CADR seeks to identify common patterns and trends in the use of ADR and to understand the role that cultural, legal, and contextual factors play in the development and implementation of ADR methods. It also aims to compare the strengths and weaknesses of different ADR approaches and to determine best practices for resolving disputes through ADR.

Basically, CADR provides an interdisciplinary and comparative perspective on the use of ADR and its impact on resolving disputes and is an important tool for improving the effectiveness and efficiency of dispute resolution processes.

Origin of CADR

The origins of comparative alternative dispute resolution (CADR) can be traced back to the increasing recognition of the importance of alternative dispute resolution (ADR) in the resolution of disputes, both domestically and internationally. The growth of ADR methods, such as mediation and arbitration, has led to increased interest in understanding the factors that influence the use and effectiveness of these approaches in different cultural, legal, and dispute contexts. CADR emerged as a response to the need for a more interdisciplinary and comparative approach to the study of ADR. It draws on a variety of disciplines, including law, sociology, anthropology, and psychology, to provide a broader understanding of the use of ADR and its impact on resolving disputes.

So, the origins of Alternative Dispute Resolution (ADR) can be traced back to ancient civilizations, where various forms of dispute resolution were used to resolve conflicts between individuals and communities. In more recent times, the modern concept of ADR has its roots in the late 19th and early 20th centuries, when some countries started experimenting with alternative forms of dispute resolution in response to growing dissatisfaction with the traditional court system.

ADR stands for “Alternative Dispute Resolution,” which is a term used to describe a variety of methods used to resolve disputes outside of the traditional court system. ADR has a long history, with evidence of alternative dispute resolution methods being used dating back to ancient civilizations.

In ancient Greece, for example, disputes were often resolved through a process known as “agon,” which was a public competition or contest to resolve a dispute. In medieval England, disputes were often resolved through the use of arbitrators, who were individuals selected by the parties to the dispute to make a binding decision.

In the 20th century, the use of ADR methods gained greater recognition and acceptance, particularly in the United States. In the 1960s and 1970s, the US legal system saw an increased use of ADR methods, particularly in the form of mediation, which is a process where a neutral third party helps the parties to a dispute to reach a mutually acceptable resolution.

Basic Introduction of Comparative Alternative Dispute Resolution (CADR)

Since then, the use of ADR has continued to grow and expand, and today, ADR methods are used in a wide range of disputes, including disputes in the workplace, disputes between businesses, and disputes between individuals. In addition, many courts now require parties to attempt ADR before proceeding to trial, and many countries have established specialized ADR institutions and systems to promote and facilitate the use of ADR.

The development of CADR has been driven by the recognition that different cultural, legal, and contextual factors play a significant role in the success of ADR methods and that a one-size-fits-all approach to dispute resolution is unlikely to be effective. The growth of CADR has been further supported by the increasing globalization of commerce, which has led to the need for effective cross-border dispute resolution mechanisms.

Different Forms of ADR

MEDIATION

Mediation is a type of Alternative Dispute Resolution (ADR) mechanism in which a neutral third party, known as a mediator, helps disputing parties reach a mutually acceptable agreement. Mediation is a voluntary and confidential process, in which the mediator facilitates communication and negotiation between the parties.

The goal of mediation is to help the parties find a solution to their dispute that is acceptable to both sides. The mediator does not make decisions, but instead helps the parties identify the issues in dispute, explore potential solutions, and come to a mutually acceptable agreement.

Mediation is often used in a variety of disputes, including commercial disputes, employment disputes, family disputes, and community disputes. It can be used as a standalone process, or as a preliminary step before proceeding to more formal forms of ADR or litigation.

The benefits of mediation include:

1. Speed: Mediation can often be completed in a shorter amount of time than traditional litigation.
2. Flexibility: Mediation allows the parties to tailor a solution that meets their specific needs, rather than being bound by the rules and restrictions of the court system.
3. Confidentiality: Mediation is a confidential process, and the details of the dispute and its resolution are not made public.
4. Cost-effectiveness: Mediation is often less expensive than traditional litigation.
5. Improved relationships: Mediation can help improve relationships between the parties, which is particularly important in disputes that involve ongoing relationships, such as in employment or family disputes.

Overall, mediation is a valuable tool for resolving disputes in a less formal, quicker, and less expensive way than traditional litigation.

ARBITRATION

Arbitration is a type of Alternative Dispute Resolution (ADR) mechanism in which a neutral third party, known as an arbitrator, makes a binding decision to resolve a dispute between two or more parties. The decision of the arbitrator is final and binding and can be enforceable in the same way as a court order. Arbitration can be used to resolve a wide range of disputes, including commercial disputes, employment disputes, construction disputes, and international disputes. It is often used as an alternative to traditional litigation, as it is faster, less formal, and often less expensive than going to court.

The process of arbitration typically involves the following steps:

• Agreement to arbitrate: The parties agree to resolve their dispute through arbitration, either in a contract or by separate agreement.
• Appointment of the arbitrator: The parties either agree on the arbitrator, or the arbitrator is appointed by an arbitration institution, such as the International Chamber of Commerce.
• Preparation of the case: The parties prepare their cases and submit written statements and other evidence to the arbitrator.
• Hearings: The parties present their cases in person, through witnesses and other evidence. The arbitrator may ask questions and request further information from the parties.
• Decision: The arbitrator makes a decision, known as an award, which is binding on the parties. The award can include a resolution of the dispute, as well as an order for the payment of damages or other relief.

Arbitration has several advantages over traditional litigation, including:

• Speed: Arbitration is often faster than going to court, as there are fewer procedural requirements and less red tape.
• Confidentiality: Arbitration is a confidential process, and the details of the dispute and its resolution are not made public.
• Expertise: Arbitrators are often experts in the area of law or industry relevant to the dispute and can provide a more informed decision than a judge who may have limited knowledge of the subject matter.
• Flexibility: The parties can agree on the procedures and rules that will govern the arbitration, giving them more control over the process.

Overall, arbitration is a valuable tool for resolving disputes in a faster, less formal, and often less expensive way than traditional litigation.

How does Mediation differ from Arbitration?

Arbitration is different from mediation because the neutral arbitration has the authority to make a decision about the dispute. The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. Compared to traditional trials, arbitration can usually be completed more quickly, and it is less formal. For example, often the parties do not have to follow laws of evidence and, in some cases the arbitrator is not to apply the governing law.

CONCILIATION

Conciliation is a type of Alternative Dispute Resolution (ADR) mechanism in which a neutral third party, known as a conciliator, helps disputing parties reach a mutually acceptable agreement. Conciliation is similar to mediation, but with some key differences.

The goal of conciliation is to help the parties find a solution to their dispute that is acceptable to both sides. The conciliator facilitates communication and negotiation between the parties, and may make suggestions for a solution, but does not have the power to make decisions.

Conciliation can be used to resolve a wide range of disputes, including commercial disputes, employment disputes, family disputes, and community disputes. It is often used as a preliminary step before proceeding to more formal forms of ADR or litigation.

The benefits of conciliation include:

1. Speed: Conciliation can often be completed in a shorter amount of time than traditional litigation.
2. Flexibility: Conciliation allows the parties to tailor a solution that meets their specific needs, rather than being bound by the rules and restrictions of the court system.
3. Confidentiality: Conciliation is a confidential process, and the details of the dispute and its resolution are not made public.
4. Cost-effectiveness: Conciliation is often less expensive than traditional litigation.
5. Improved relationships: Conciliation can help improve relationships between the parties, which is particularly important in disputes that involve ongoing relationships, such as in employment or family disputes.

Overall, conciliation is a valuable tool for resolving disputes in a less formal, quicker, and less expensive way than traditional litigation. It provides a supportive environment for the parties to communicate, negotiate and reach a mutually acceptable agreement, with the assistance of a neutral third party.

NEGOTIATION

Negotiation is a process in which two or more parties communicate with each other with the goal of reaching an agreement to resolve a dispute or meet a common need. Negotiation is a form of Alternative Dispute Resolution (ADR) that can be used to resolve a wide range of disputes, including commercial disputes, employment disputes, and personal disputes.

In negotiation, the parties communicate directly with each other, without the assistance of a neutral third party. The goal is to find a mutually acceptable solution that satisfies the interests and needs of both parties.

Negotiations can take place informally, such as through a conversation between two individuals, or they can be more structured, such as in a collective bargaining process between an employer and a union.

The benefits of negotiation include:

1. Speed: Negotiation can often be completed in a shorter amount of time than traditional litigation.
2. Cost-effectiveness: Negotiation is often less expensive than traditional litigation.
3. Improved relationships: Negotiation can help improve relationships between the parties, which is particularly important in disputes that involve ongoing relationships, such as in employment or family disputes.
4. Customized solutions: Negotiation allows the parties to tailor a solution that meets their specific needs, rather than being bound by the rules and restrictions of the court system.
5. Control: Negotiation allows the parties to have more control over the outcome of the dispute, as they are the ones who reach the agreement.

However, it is important to note that negotiation is not always successful, and in some cases, the parties may not be able to reach an agreement. In such cases, other forms of ADR, such as mediation or arbitration, may be necessary to resolve the dispute.

Overall, negotiation is a valuable tool for resolving disputes in a less formal, quicker, and less expensive way than traditional litigation. It allows the parties to communicate directly with each other and find a mutually acceptable solution that satisfies their interests and needs.

The salient features of deference in techniques are as below:

ADR in the International Context

Alternative Dispute Resolution (ADR) is used in many countries around the world, but some countries are considered to be particularly prominent in their use and promotion of ADR mechanisms. Some of the countries that are well-known for their use of ADR include:

United States:

The United States has a long history of using ADR, and it is widely recognized as a leader in this field. ADR is used in a wide range of contexts, including commercial disputes, employment disputes, and consumer complaints. The history of Alternative Dispute Resolution (ADR) in the United States dates back to the early 20th century. In response to growing dissatisfaction with the traditional court system, which was seen as slow, expensive, and formal, some American lawyers and judges began experimenting with alternative forms of dispute resolution.

One of the earliest examples of ADR in the United States was the Federal Mediation and Conciliation Service, established in 1947. This agency was created to help resolve labor disputes and promote collective bargaining. Over the following decades, the use of ADR continued to grow, and today, it is widely used in a variety of contexts, including commercial disputes, employment disputes, and consumer complaints.

In the late 20th century, the ADR movement gained momentum with the publication of the 1979 book “Getting to Yes: Negotiating Agreement Without Giving In” by Roger Fisher and William Ury. This influential book popularized the concept of negotiation as a form of ADR and helped to establish it as a legitimate and effective way to resolve disputes.

In recent years, the use of ADR has continued to grow in the United States, and it is now recognized as a valuable tool for resolving disputes in a faster, less formal, and often less expensive way than traditional litigation. Many courts now require parties to engage in some form of ADR before proceeding with a lawsuit, and many businesses and organizations have established internal ADR processes to resolve disputes internally.

There are a few common forms of ADR in the United States, including:

1. Mediation: This is a process where a neutral third party, known as a mediator, helps the parties to communicate and reach a mutually acceptable resolution to their dispute. The mediator does not have the power to impose a solution, but instead facilitates communication and helps the parties find a solution on their own.
2. Arbitration: This is a more formal process in which a neutral third party, known as an arbitrator, listens to evidence and testimony from both sides of a dispute and makes a binding decision. The decision of the arbitrator is typically final and binding and is enforceable in a court of law.
3. Mini-trial: This is a process in which both sides of a dispute present their case to a panel of executives or senior managers from both parties, who then deliberate and make a recommendation for resolution.

These are some of the most common forms of ADR in the United States, and the choice of which method to use depends on the specific dispute and the preferences of the parties involved. Each method has its own strengths and weaknesses, and parties should carefully consider their options before choosing a particular form of ADR.

There are many examples of successful alternative dispute resolution (ADR) in the United States. Some of the most notable include:

1. Securities disputes: The Securities and Exchange Commission (SEC) has a program called the SEC Office of Dispute Resolution, which uses ADR to resolve disputes between investors and broker-dealers. The program has been successful in resolving a large number of disputes quickly and efficiently, saving both parties time and money compared to traditional court litigation.
2. Employment disputes: Many employers in the United States have implemented ADR programs for resolving disputes between employees and the company. These programs have been successful in resolving issues related to discrimination, harassment, and other employment-related disputes, helping to maintain positive employee relationships and reduce the risk of costly lawsuits.
3. Construction disputes: The American Arbitration Association (AAA) offers a Construction Industry Arbitration Rules and Mediation Procedures program, which has been successful in resolving disputes between contractors, subcontractors, and owners in the construction industry. This program has been effective in resolving disputes related to payment, delays, and other issues that can arise during construction projects.
4. Environmental disputes: The Environmental Protection Agency (EPA) has a program called the Environmental Dispute Resolution Program, which uses ADR to resolve disputes between parties over environmental issues. This program has been successful in resolving disputes related to air and water pollution, hazardous waste, and other environmental concerns, helping to protect the environment and the health of communities.

United Kingdom:

The United Kingdom has a strong tradition of using ADR, particularly mediation, and it is known for its well-developed ADR infrastructure and its commitment to promoting ADR as an alternative to traditional litigation.

The history of Alternative Dispute Resolution (ADR) in the United Kingdom dates back to the early 20th century, although the use of informal dispute resolution mechanisms, such as mediation and arbitration, has a long-standing cultural and historical basis in the country.

In the mid-20th century, the use of ADR began to grow in the United Kingdom, and the government took steps to promote and support its use. For example, the Arbitration Act 1950 was enacted to provide a legal framework for the use of arbitration in commercial disputes. Additionally, the Legal Aid and Advice Act 1949 provided for legal aid to be made available to individuals in certain types of disputes, including those that could be resolved through ADR.

In recent years, the use of ADR in the United Kingdom has continued to grow, and it is now widely recognized as a valuable tool for resolving disputes in a faster, less formal, and often less expensive way than traditional litigation. The government has taken further steps to promote and support the use of ADR, and many businesses and organizations have established internal ADR processes to resolve disputes internally.

The UK is also known for its strong tradition of using mediation as an ADR mechanism. In the 1990s, the UK government took steps to promote and support the use of mediation, and it is now widely used in the country, particularly in the areas of commercial and employment disputes. The UK is also home to many well-established ADR organizations and institutions, such as the Centre for Effective Dispute Resolution (CEDR) and the London Court of International Arbitration (LCIA).

In the United Kingdom, except the common forms like mediation, arbitration etc there are the following forms which is widely used as a form of ADR:

2. Expert determination: This is a process in which a neutral expert is appointed to make a binding decision on a dispute, based on their expertise in a particular field. This method is often used in disputes related to technical or specialized issues.
3. Adjudication: This is a process in which a neutral third party, known as an adjudicator, makes a binding decision on a dispute, based on the evidence and arguments presented by the parties. Adjudication is commonly used in construction disputes.

These are some of the unique forms of ADR in the UK, and the choice of which method to use depends on the specific dispute and the preferences of the parties involved. ADR has proven to be a cost-effective and efficient way to resolve disputes in the UK and is widely used by businesses and individuals alike.

There are many examples of successful alternative dispute resolution (ADR) in the United Kingdom. Some of the most notable include:

1. Commercial disputes: ADR is widely used in the UK to resolve commercial disputes, such as those arising from contracts, trade transactions, and intellectual property disputes. This has proven to be a cost-effective and efficient way for businesses to resolve disputes without the need for costly and time-consuming court proceedings.
2. Employment disputes: ADR is commonly used in the UK to resolve employment disputes, such as those arising from claims of discrimination, harassment, or unfair dismissal. This has helped to resolve many disputes between employees and employers, improving relationships and reducing the risk of costly lawsuits.
3. Construction disputes: The Construction Industry Council (CIC) offers a range of ADR services, including mediation and adjudication, to resolve disputes in the construction industry. This has been successful in resolving disputes related to payment, delays, and other issues that can arise during construction projects.
4. Environmental disputes: ADR is also used in the UK to resolve disputes related to environmental issues, such as those arising from pollution, waste management, and other environmental concerns. This has helped to resolve disputes between parties and protect the environment and the health of communities.

Australia:

Australia is another country that is well-known for its use of ADR. The Australian government has taken steps to promote ADR, and it is widely used in the country, particularly in the areas of commercial and employment disputes.

The history of Alternative Dispute Resolution (ADR) in Australia dates back to the early 20th century, although the use of informal dispute resolution mechanisms, such as mediation and arbitration, has a long-standing cultural and historical basis in the country.

In the mid-20th century, the use of ADR began to grow in Australia, and the government took steps to promote and support its use. For example, the Arbitration Act 1974 was enacted to provide a legal framework for the use of arbitration in commercial disputes. Additionally, the Australian Conciliation and Arbitration Commission was established in 1904 to provide a forum for the resolution of industrial disputes.

In recent years, the use of ADR in Australia has continued to grow, and it is now widely recognized as a valuable tool for resolving disputes in a faster, less formal, and often less expensive way than traditional litigation. The government has taken further steps to promote and support the use of ADR, and many businesses and organizations have established internal ADR processes to resolve disputes internally.

Australia is also known for its strong tradition of using mediation as an ADR mechanism. In the 1990s, the Australian government took steps to promote and support the use of mediation, and it is now widely used in the country, particularly in the areas of commercial and employment disputes. Australia is also home to many well-established ADR organizations and institutions, such as the Australian Disputes Centre and the Australian Centre for International Commercial Arbitration.

Canada:

Canada has a strong tradition of using ADR, and it is widely recognized for its well-developed ADR infrastructure and its commitment to promoting ADR as an alternative to traditional litigation.

The history of Alternative Dispute Resolution (ADR) in Canada dates back to the early 20th century, although the use of informal dispute resolution mechanisms, such as mediation and arbitration, has a long-standing cultural and historical basis in the country.

In the mid-20th century, the use of ADR began to grow in Canada, and the government took steps to promote and support its use. For example, the Arbitration Act of Canada was enacted in 1924 to provide a legal framework for the use of arbitration in commercial disputes. Additionally, the Canadian Industrial Relations Board was established in 1944 to provide a forum for the resolution of labor disputes.

In recent years, the use of ADR in Canada has continued to grow, and it is now widely recognized as a valuable tool for resolving disputes in a faster, less formal, and often less expensive way than traditional litigation. The government has taken further steps to promote and support the use of ADR, and many businesses and organizations have established internal ADR processes to resolve disputes internally.

Canada is also known for its strong tradition of using mediation as an ADR mechanism. In the 1990s, the Canadian government took steps to promote and support the use of mediation, and it is now widely used in the country, particularly in the areas of commercial and employment disputes. Canada is also home to many well-established ADR organizations and institutions, such as the Canadian Arbitration and Mediation Institute and the International Centre for Dispute Resolution.

Singapore:

Singapore is considered to be one of the leading countries for ADR, particularly in the area of commercial arbitration. The country has a well-developed legal system and a strong commitment to promoting and supporting ADR mechanisms.

The history of Alternative Dispute Resolution (ADR) in Singapore dates back to the mid-20th century, although the use of informal dispute resolution mechanisms, such as mediation and arbitration, has a long-standing cultural and historical basis in the country.

In the 1970s and 1980s, the use of ADR began to grow in Singapore, and the government took steps to promote and support its use. For example, the Arbitration Act was enacted in 1994 to provide a legal framework for the use of arbitration in commercial disputes. Additionally, the Singapore International Arbitration Centre (SIAC) was established in 1991 to provide a forum for the resolution of international disputes.

In recent years, the use of ADR in Singapore has continued to grow, and it is now widely recognized as a valuable tool for resolving disputes in a faster, less formal, and often less expensive way than traditional litigation. The government has taken further steps to promote and support the use of ADR, and many businesses and organizations have established internal ADR processes to resolve disputes internally.

Singapore is also known for its strong tradition of using mediation as an ADR mechanism. In the 1990s, the Singapore government took steps to promote and support the use of mediation, and it is now widely used in the country, particularly in the areas of commercial and employment disputes. Singapore is also home to many well-established ADR organizations and institutions, such as the Singapore International Mediation Centre and the Singapore Chamber of Maritime Arbitration.

These are just a few of the countries that are prominent in their use of ADR. Other countries, such as the Netherlands, Sweden, and South Africa, are also known for their use and promotion of ADR mechanisms.

Alternative Dispute Resolution in Bangladesh

Origin in the context of Bangladesh

The use of Alternative Dispute Resolution (ADR) in Bangladesh has a relatively recent history. However, the traditional systems of dispute resolution, such as community-based arbitration and mediation, have a long-standing cultural and historical basis in Bangladesh.

In recent years, there has been growing recognition in Bangladesh of the need for more effective and efficient dispute resolution mechanisms, particularly in the areas of commercial and business disputes. As a result, various initiatives have been taken to promote and develop ADR in Bangladesh. For example, the Bangladesh Centre for Development Journalism and Communication (BCDJC) has been working to promote mediation and other forms of ADR in Bangladesh since the 1990s.

Additionally, in recent years, the government of Bangladesh has taken steps to promote and strengthen the use of ADR in the country. For example, the Bangladesh Arbitration Act was enacted in 2001, providing a legal framework for the use of arbitration in commercial and business disputes. Other initiatives, such as the establishment of the Bangladesh Institute of Arbitration and the Bangladesh International Arbitration Centre, have also been established to promote and support the use of ADR in Bangladesh.

ADR Mechanism in Existing Laws of Bangladesh

The Civil Procedure Code, 1908

1. Mediation u/s 89A
2. Arbitration u/s 89B.

Family Court Ordinance, 1985

1. Pre-trial Proceeding u/s 10
2. Post-trial Proceeding u/s 13

Artha Rin Adalat Ain, 2003

1. Settlement Conference u/s 21
2. Mediation u/s 22

Gram Adalat Ain, 2006

Whole Act

The Arbitration Act, 2001

Whole Act

The Labor Code, 2006

1. Negotiation u/s 210(1, 2, 4)
2. Conciliation u/s 210(6)
3. Arbitration u/s 210(16)

ADR In Civil Litigation

In Family Court Suits, under the Family Court Ordinance, 1985 section 10 provides a pre-trial hearing of a suit within thirty days of filing written statement by the defendant has been incorporated. The Family Court shall endeavor to effect a compromise or reconciliation between the parties, and if no compromise is reached then the Court shall proceed with the trial of the suit. It is reported, a good number of suits are being compromised by the parties at this stage and the litigants are now enjoying the fruits of introducing the system.

In Artha Rin Adalat Suits, under the Artha Rin Adalat Ain 2003, there are provisions for settlement disputes through settlement conferences at the pretrial stage as well as after the trial of the suit. It is provided in section 24 that if the parties agree to resolve the dispute through mediation, the Adalat shall stay further proceedings of the suit and refer the matter to the lawyers of the parties or in the absence of lawyers to the parties. The Adalat may also authorize the local officers of the Financial Institutions by issuing necessary orders under section 24 for effecting mediation if they want to resolute their disputes under section 21 and 22. If any conciliation is reached between the parties an agreement incorporating the terms of settlement shall have to be signed by the parties.

The Artha Rin Adalat shall pass necessary order on the basis of such agreement. No appeal or revision lies against such order. Section 45 enjoins the parties to resolve their disputes at any stage of the proceedings notwithstanding anything contained in sections 21 and 22. We have noticed that the parties are now trying to dispose of their disputes even at the execution stage of the proceedings.

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. In recent years there has been more discussion about taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster “appropriate” dispute resolution.

A non-governmental organization (NGO) is a legally constituted organization created by natural or legal persons that operates independently from any government. In the cases in which NGOs are funded totally or partially by governments; the NGO maintains its nongovernmental status by excluding government representatives from membership in the organization. The term “non-governmental organization” has no generally agreed legal definition. In many jurisdictions, these types of organization are called “civil society organizations” or referred to by other names. Bangladesh has been perhaps the most important hearth on the globe for non-governmental organizations. So, estimates place the number of NGOs in Bangladesh in excess of 20,000.

Actually, ADR is a process of resolving disputes outside the ordinary judicial process & it is well known that the process of ADR is mainly regulated by the non-governmental organization (NGO). So, the Laws pertaining to ADR in Bangladesh:

Different Forms of ADR and their Application in Civil Justice System:

ADR is a means of resolving dispute which is an alternative to going to the court. It may be any one of the two forms either determinative or elective, all mechanisms of ADR fall within these two forms.

Determinative ADR is any non-court process which will determine the outcome of the dispute. It involves a third party, whether an arbitrator or an adjudicator or an expert acting as a determinative capacity. Elective ADR is that which facilitates discussion, which usually turns into negotiations which does not produce any judgment or finding which is binding on the parties. The various modalities of ADR, Conciliation, Mediation, Settlement Conference, Arbitration, Mini-trial, Negotiation, Appellate ADR, Village court, Board of Conciliation and Traditional Salish32 which are practiced in Bangladesh can be classified

under the following three categories –

1. Formal/judicial ADR
2. Quasi-formal/statutory ADR
3. Informal /Non-formal ADR

Formal /judicial ADR

This form of ADR indicates those processes of dispute resolution which have been enumerated in the statutes and conducted either by the court or by the third person upon the reference of the court. ADR processes in the formal ways are conducted by the following Statutes of Bangladesh-

Code of Civil Procedure, 1908

For the first time in our legal system the provision with regard to ADR has been introduced by amending the Code of Civil Procedure. In chapter V of Artha Rin Adalat Ain, the provisions of ADR have also been incorporated. Surely, this concept is a de novo in our civil justice delivery system. Now ADR has come within the domain of civil procedure code. By the recently enacted sections 89A/89B of CPC, the ADR system (mediation and arbitration) has been introduced, the two terms ‗mediation‘ and ‗arbitration‘.

Section 89A lays down that-

except in a suit under the Artha Rin Adalat Ain, 1990 (Act. no 4 of 1990)

After filing of written statement, if all the contesting parties are in attendance in the court in person or by their respective pleaders, the court many 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 the party or parties, where no pleader or pleaders have been engaged, or to a mediator form the panel as may be prepared by the District Judge under subsection 10, for undertaking efforts for settlement through mediation. Similarly, the term‗settlement conference‘ has been used to denote mediation process in the part V of Artha Rin Adalat. The provisions have been made in this regard that the court can mediate the suit matter after filing the written statement by the defendant or defendants, by adjourning the subsequent procedures of the suit. The government by amending the Code of Civil Procedure expands the avenue for shalishi. By The Code of Civil Procedure (Amendment) Act, 2003 two new sections were incorporated (section 89A, 89B) in the code. It empowers the court to solve the matter through mediation or conciliation before the beginning of the trial except case under Artha Rin Adalat Ain. However there remain some limitations too, it will not exempt the disputant parties from the appearance before the court. This law is only relating to the pending cases,

The Civil Procedure Code (Amendment) Act, 2002 has been enacted to introduce Alternative Dispute Resolution (ADR) system for early and consensual disposal of civil suits. Section 89A and 89B have been inserted to allow parties to settle their disputes in suits, through mediation or arbitration. In the mediation procedure, the court may take initiative to settle the dispute in the suit by itself or by making reference to independent mediators. Under section 89B parties will be allowed to withdraw pending suits and have those settled through arbitration. The provisions have been made effective from 1st July 2003. ADR system is gaining popularity. This procedure will help to reduce the huge backlogs of civil cases in courts. Public confidence in the judiciary will thereby increase. Access to justice will be expanded. The provisions will also help develop a new culture of consensual settlement of disputes doing away with the existing adversarial procedure. It will help protect and preserve cohesion and fraternity in society. Of the mediator here the advocate or any other person may be hired for mediation.

ADR in family court:

If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: for Allah hath full knowledge, and is acquainted with all things. Settlement of Dispute through Mediation in family court is started in Dhaka Judge Court from 2000. Then, it was expanded in different cities and districts. Family Court Ordinance 1985 in its section 10 and 13 is said about the Mediation process. The procedure provides in family court is-

i)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.

1. ii) On the date fixed for pre-trial hearing, the Court shall examine the plaint, the written statement and documents filed by the parties and shall also, if it so deems fit, hear the parties.

iii) At the pre-trial hearing, the Court shall ascertain the points at issue between the parties and attempt to affect a compromise or reconciliation between the parties, if this be possible.

1. iv) Then where a dispute is settled by compromise or conciliation, the Court shall pass a decree or give decision in the suit in terms of the compromise or conciliation agreed to between the parties.
2. v) If no compromise or reconciliation is possible, the Court shall frame the issues in the suit and fix a date ordinarily of not more than thirty days for recording evidence.
3. vi) After the close of evidence of all parties, the Family Court shall make another effort to effect a compromise or reconciliation between the parties.

vii) If such compromise or reconciliation is not possible, the Court shall Pronounce judgment and, on such judgment either at once or on some future day not beyond seven days of which due notice shall be given to the parties or their agents or advocates, a decree shall follow.

ADR in Hindu Marriage:

Section 23(2) of the Hindu Marriage Act, 1955 mandates the duty on the court that before granting relief under this Act, the Court shall in the first instance; make an endeavor to bring about reconciliation between the parties, where it is possible according to nature and circumstances of the case. For the purpose of reconciliation the Court may adjourn the proceeding for a reasonable period and refer the matter to person nominated by court or parties with the direction to report to the court as to the result of the reconciliation. [Section 23(3) of the Act].

ADR in Environmental Disputes:

Environmental problems are among the most complex and challenging areas of conflict in our modern world. They can include important elements such as science, sociology, economics, history and culture, property rights and legal or regulatory constraints. They can involve private individuals, the general public, multiple regulatory jurisdictions and special interests. They may include elements that have some unknown consequences and require an assessment of risks based on incomplete information. They may occur in areas where previous practices have already had

detrimental effects. Any new decisions now may make things worse. It is important to remember that new decisions may also mitigate previous errors and improve the overall situation. When environmental disputes (or any disputes for that matter) rise to the level of public concern, they may be emotionally charged and push stakeholders toward rigid postures making it more difficult to negotiate.

However, it is important to recognize that relying solely on regulatory regimes and legal actions to protect the environment have often proven to be only marginally effective because these approaches often forgo the opportunity for holistic problem solving. ADR takes a broader perspective on environmental systems and functions which are not constrained to a single parcel of land or a particular project. As an example, the problem of parcel-based approaches to environmental problems became a major element of consideration in the TPEAC process. Prior to TPEAC, regulatory agencies expressed a strong preference for “on-site” (same parcel) mitigation of wetland impacts for transportation projects. Usually, a formula was employed to establish a ratio of newly created compensatory wetland for natural wetlands destroyed or compromised. Typical ratios were 5 to 1 or 8 to 1. The assumption was these created wetlands were not as effective and therefore required larger mitigated acreages to approximate the environmental functions of the natural ones. In truth, the created wetlands often never achieved many of these functions. In TPEAC, a new strategy of watershed mitigation was developed. This approach required that the wetland systems and functions of the full watershed be inventoried and opportunities for mitigation be prioritized based on their overall value to the watershed. This allowed transportation planners and regulatory agencies to select mitigation strategies that maximized the desired functions impacted by the project. It often resulted in restoring previously compromised natural wetlands that achieved full environmental function quickly and provided mitigation for much broader segments of the overall watershed. Many of these issues can be dealt with more effectively when all appropriate stakeholders participate jointly in the process. Many problems of ignorance or omission can be thereby avoided. In addition, ―one size fits all‖ regulatory approaches may fail to take into consideration important local needs and aspirations that can be included in an ADR process. It is important to formulate a step-by-step process that

relies on the same procedures and strategies that are common to other mediation processes and for the mediator to be prepared to serve in facilitation and coordination roles to allow the process to move forward effectively. Complexity and human nature do not make these processes particularly efficient, but a deliberate incremental process can result in manageable goals that are achievable and produce better environmental outcomes and comprehensive durable agreements.

Conclusion

In conclusion, alternative dispute resolution (ADR) is a rapidly growing field around the world and is becoming increasingly popular as a means of resolving disputes outside of the traditional court system. The use of ADR varies from country to country, but some of the most common forms of ADR include mediation, arbitration, and conciliation.

Each country has its own unique approach to ADR, and there are a variety of successful ADR programs in countries such as the United States, United Kingdom, Australia, and Bangladesh. These programs have proven to be cost-effective and efficient ways to resolve disputes and improve relationships between parties.

In general, ADR provides an alternative to traditional court litigation and offers the potential for a more flexible, timely, and less formal solution to disputes. The use of ADR is likely to continue to grow in the coming years as more and more people seek alternative methods of resolving disputes.

Author: Faiyaz Ahmed Pantho; Advocate, District & Session Judge Court, Dhaka. Email: faiyazahmedpantho@gmail.com