Alternative Dispute Resolution in Bangladesh and what exactly is ADR?
The term “alternative dispute resolution” or “ADR” is frequently used to refer to a wide range of dispute resolution mechanisms that are abridged versions of or substitutes for full-scale court processes or judicial process. In other words, alternative dispute resolution refers to the practice of resolving disputes between parties through means other than formal litigation. ADR is a process that can be independent (non-judicial) or court-annexed (judicial), binding or non-binding, formal or informal, obligatory or voluntary.
It should be emphasized that the term “ADR” is misleading in the sense that it is not always an alternative to formal litigation and is frequently a part of formal litigation, particularly for court-connected ADR processes. According to Professor Thomas J. Stipanowich, ADR is an obsolete acronym that exists solely for convenience. “Not only is ‘alternative’ unhelpful- alternative to what?- but “appropriate” better conveys the concept of “method best suited to resolving the dispute,” as noted by the California Task Force. Professor Jean R. Sternlight prefers “Appropriate Dispute Resolution” to “Alternative Dispute Resolution.”
ADR typically includes the following mechanisms: negotiation, conciliation, mediation, and arbitration.
However, the variety of ADR models found in various nations can be described as follows:
(a) Court-annexed or stand-alone ADR
(b) Binding or Non-binding ADR
(c) Formal and Informal Alternative Dispute Resolution
(d) Basic and Hybrid ADR
Court Annexed ADR or Independent ADR:
ADR may be either standalone or court-annexed. In other words, ADR may or may not be tied to a lawsuit. When ADR is incorporated into a lawsuit or court proceeding, it is referred to as court-annexed ADR (judicial ADR).
(a) Court-Annexed ADR:
In this instance, resorting to ADR is contingent upon the court process, as it is tied to the country’s justice system. After filing a court case, a judge or court employee will examine the dispute and suggest or order the parties to attempt alternative dispute resolution, such as mediation, conciliation, negotiation, and mini-trials. Under each approach, the judge or a neutral third party will attempt to bring the parties to an amicable resolution.
If they do, the case is dismissed, saving the parties time and money. A court-administered alternative dispute resolution process may precede, follow, or intervene in the formal legal process. There is no obvious reason to favor one of these models over the others. A model that gives disputants access to an ADR process at any stage of a pending suit or case is arguably the best.
(b) Independent ADR:
On the other hand, independent ADR is unrelated to court proceedings. Freestanding ADR occurs when disputants independently engage in conciliation or approach a middleman or neutral third party to negotiate or mediate their dispute. Examples of independent ADR include I commercial arbitration and (ii) community or local ADR.
Commercial arbitration is a common form of independent alternative dispute resolution. The disputants agree on a neutral third party or a process for naming the neutral third party to resolve the dispute. In addition, they agree on the rules the arbitrator will use to decide the case and whether or not the decision will be binding or merely advisory. Complex contracts, such as those for the construction of a power plant, typically contain arbitration clauses outlining how disputes will be resolved in advance. In other instances, the parties do not agree to arbitrate until a dispute has arisen.
The Model Law on International Commercial Arbitration, published in 1985 by the United Nations Commission on International Trade Law, has been adopted by the vast majority of countries to facilitate commercial arbitration. This law makes arbitral awards legally enforceable, grants broad rights to commercial parties to choose how they will arbitrate their disputes, and directs courts to only overturn awards in the most limited circumstances.
Community-based alternative dispute resolution is a second independent type of alternative dispute resolution. It builds on traditional models of popular justice that rely on elders, religious leaders, or other community figures to assist in resolving local or community conflicts on a daily basis. In Bangladesh, for instance, the traditional Shalish system, in India lok adalat, and in the Philippines barangays or neighborhoods attempt to resolve minor disputes between villagers.
Different types of ADR in Bangladesh:
Sumaiya Khair suggests that there are three streams of ADR in Bangladesh:
- Extra- judicial or community based ADR (informal);
- ADR in Quasi-formal systems; and
- ADR in formal legal system.
All these ADR modes have been discussed in different chapters in this book with there merits and demerits. Formal ADR in different laws are shown in the diagram below:
|Laws related to ADR||Formal ADR in Bangladesh|
|Code of Civil Procedure (sec. 89A, 89B, 89C)|
|Family courts Ordinance, 1985 (sec. 10)|
|Muslim Family Laws Ordinance 1961 (sec. 7, 8)|
|ArtharinAdalat Ain, 2003 (sec. 21, 22)|
|Negotiation,Conciliation, Arbitration (sec. 210 of the Labour Code, 2006)|
|Part of litigation|
Informal ADR in Bangladesh
Informal ADR in Bangladesh includes traditional shalish and NGO modified Shalish. Quasi-formal ADR includes village court and Board of Conciliation have originated from the informal shalish system and this is why they all have been shown in the following single diagram.
ADR in different Bangladeshi Laws:
- The Code of civil procedure, 1908.
- The Code of Criminal procedure, 1898.
- The Artha Rin Adalat Ain, 2003.
- The arbitration Act, 2001.
- The Bankruptcy Act, 1997.
- The Muslim Family Court Ordinance, 1985.
- The Muslim Family Law Ordinance, 1961.
- The Gram Adalat Ain, 2006.
- The Settlement of Disputes (Paura Area) Board Act, 2004.
Binding or Non-binding:
|Type of ADR||Description|
|Mediation||A process in which a neutral third party (the mediator) helps the parties to a dispute communicate and negotiate a resolution. The mediator does not have the authority to make a decision on the dispute, but rather helps the parties come to an agreement on their own.|
|Arbitration||A process in which a neutral third party (the arbitrator) hears both sides of a dispute and makes a binding decision. Arbitration is similar to a trial, but is typically quicker, less formal, and less expensive.|
|Early neutral evaluation||A process in which a neutral third party evaluates the strengths and weaknesses of each side’s case at an early stage in the litigation process. The evaluator provides an opinion on the likely outcome of the case if it were to go to trial, which can help the parties to decide whether to pursue settlement or continue with the litigation.|
|Mini-trial||A process in which both sides to a dispute present their cases to a panel of decision-makers (usually senior executives or retired judges) in a condensed, informal trial. The panel then provides a non-binding recommendation for a resolution of the dispute.|
ADR (Voluntary or Mandatory): It is essential to differentiate between binding and non-binding ADR forms. The voluntariness of negotiation, mediation, and conciliation programs depends on the parties’ willingness to reach a voluntary agreement. Arbitration programs may be either enforceable or non-enforceable. Similar to a court decision, binding arbitration results in a third-party decision that the disputants must follow even if they disagree with the outcome. Arbitration that is not binding results in a third-party decision that the parties may reject.
Another aspect of the mandatory versus voluntary nature of ADR relates to the manner in which disputes enter the 0 ADR process. In other words, the use of the ADR system may be mandatory or optional. If the parties are compelled to use alternative dispute resolution (by a court or statute, for example), then the use is binding or mandatory. Conversely, if the use is based solely on the consent of all parties, it is entirely voluntary and non-binding. Prior to court action, some judicial systems require litigants to negotiate, conciliate, mediate, or arbitrate.
ADR processes may also be mandated by a prior contract between the parties. In voluntary processes, the submission of a dispute to an ADR process is determined solely by the parties’ volition.
ADR process is less formal than traditional legal proceedings, such as court cases. It is frequently emphasized that ADR is a less formal dispute resolution process than the formal legal system. The ADR process is informal in that the rules of procedure are flexible and lack formal pleadings, extensive written documentation, and rules of evidence, among others. Now, these informal ADR modes are separated into two categories: formal ADR modes and informal ADR modes. When a particular ADR mode is court-annexed, its records and proceedings may be required to be submitted to the court.
In contrast, when a mode of ADR is independent, it tends to be informal in the sense that neither the parties nor the mediator are required to keep a record of their proceedings, nor are they required to adhere to specific rules of procedure.
For the most part, negotiation is an informal process in which parties identify issues of concern, explore options for resolving those issues, and reach a consensus; if they fail to reach a consensus, the matter concludes without formality, leaving them open to other forms of ADR. Conversely, conciliation and mediation are considered informal when they are independent and formal when they are court-ordered or legally binding.
Traditional Shalish’ or mediation or conciliation through NGO efforts are examples of informal ADR processes, whereas mediation and conciliation through court intervention are examples of formal ADR processes. Arbitration is more formal than other forms of alternative dispute resolution, and it is extremely formal when it is binding on the parties and can be enforced by the court.
A benefit of informal ADR systems is that they are less expensive and less intimidating for disadvantaged communities, which tends to increase the poor’s access to justice.
Additionally, these systems are less expensive for the state and can be placed more easily in locations that will increase access for underserved populations.
Standard and Hybrid Alternative Dispute Resolution in Bangladesh:
Here is a table of different types of court-annexed alternative dispute resolution (ADR) processes:
The variety of ADR models found in developed and developing countries can be described in two fundamental ways: basic ADR processes, which include negotiation, conciliation, mediation, and arbitration; and hybrid ADR processes, in which specific elements of the basic processes have been combined to create a wide variety of ADR methods (e.g., med-arb. combines mediation and arbitration). Hybrid ADR processes may also incorporate court-based adjudication features; for instance, the minitrial combines an adjudication-like presentation of arguments and evidence with negotiation.
Here is a table that compares negotiation, mediation, conciliation, and arbitration:
|Negotiation||A process in which two or more parties communicate directly with each other to try to reach an agreement on a course of action or to resolve a dispute. Negotiation is voluntary and can take place informally or as part of a formal process. The parties have the freedom to agree on any terms they see fit, and they may seek the assistance of lawyers or other advisers.|
|Mediation||A process in which a neutral third party (the mediator) helps the parties to a dispute communicate and negotiate a resolution. The mediator does not have the authority to make a decision on the dispute, but rather helps the parties come to an agreement on their own. Mediation is typically less formal than arbitration or litigation and is often less costly.|
|Conciliation||A process in which a neutral third party (the conciliator) meets with the parties to a dispute and helps them to identify the issues in the dispute and explore options for resolution. The conciliator does not have the authority to make a decision on the dispute, but rather helps the parties come to an agreement on their own. Conciliation is similar to mediation, but may be more informal.|
|Arbitration||A process in which a neutral third party (the arbitrator) hears both sides of a dispute and makes a binding decision. Arbitration is similar to a trial, but is typically quicker, less formal, and less expensive. The parties may agree to arbitration as an alternative to litigation or as part of a contract. The arbitrator’s decision is final and binding, unless the parties agree to have it reviewed by a court.|
The Benefits of Alternative Dispute Resolution (ADR)
There are some potential benefits to using ADR. Examples include:
ADR can often settle or decide a dispute much faster; often in a matter of months, even weeks, whereas bringing a lawsuit to trial can take a year or more.
When cases are resolved earlier through ADR, the parties may be able to save money on attorney fees, court costs, and expert fees.’
Increase Control Over the Process and the Outcome:
In ADR, parties typically have more influence over both the process and the outcome. Parties have more opportunities to tell their side of the story in most ADR processes than they do at trial. Some ADR processes, such as mediation, allow the parties to devise novel solutions that would not be possible in court. Other forms of ADR, such as arbitration, allow the parties to select an expert in a specific field to resolve the dispute.
Alternative Dispute Resolution (ADR) can be a less adversarial and hostile way to resolve a dispute. An experienced mediator, for example, can assist the parties in effectively communicating their needs and points of view to the other side. This can be a significant advantage when the parties’ relationship is at stake.
In most trials, there is a winner and a loser. The loser is unlikely to be pleased, and even the winner may be dissatisfied with the outcome. ADR can assist parties in finding win-win solutions and achieving their true objectives. This, along with the other potential benefits of ADR, may increase the parties’ overall satisfaction with both the dispute resolution process and the outcome.
FAQ table in regards to Alternative Dispute Resolution in Bangladesh :
|What is arbitration?||A description of arbitration||Arbitration is a dispute resolution process in which a neutral third party (the arbitrator) hears the evidence and arguments of the parties involved in the dispute and makes a decision that is legally binding on the parties.|
|Is arbitration commonly used in Bangladesh?||Whether arbitration is a commonly used method of dispute resolution in Bangladesh||Yes, arbitration is a commonly used method of dispute resolution in Bangladesh, particularly in commercial and business disputes.|
|What types of disputes can be resolved through arbitration in Bangladesh?||The range of disputes that can be resolved through arbitration in Bangladesh||In Bangladesh, arbitration can be used to resolve a wide range of disputes, including commercial disputes, construction disputes, employment disputes, and disputes relating to the sale of goods or services.|
|How is the arbitration process initiated in Bangladesh?||The process for initiating arbitration in Bangladesh||The arbitration process in Bangladesh is typically initiated when one party to a dispute sends a written request for arbitration to the other party. This request must specify the nature of the dispute and the relief sought.|
|Who selects the arbitrator in an arbitration in Bangladesh?||The process for selecting the arbitrator in an arbitration in Bangladesh||In most cases, the parties to the dispute will agree on the arbitrator or arbitrators who will hear the case. If the parties are unable to agree on an arbitrator, the Bangladesh International Arbitration Centre (BIAC) can appoint an arbitrator.|
|Can the parties to an arbitration in Bangladesh choose the law that will be applied by the arbitrator?||Whether the parties can specify the law that will be applied in an arbitration in Bangladesh||Yes, the parties to an arbitration in Bangladesh can agree on the law that will be applied by the arbitrator. If the parties do not specify the law that will be applied, the arbitrator will typically apply the law of the country in which the arbitration is taking place.|
|Is the arbitration process in Bangladesh confidential?||Whether the arbitration process in Bangladesh is open to the publicYes, the arbitration process in Bangladesh is generally confidential. This means that the proceedings, as well as the arbitrator’s decision, are not open to the public.|
|Can the parties to an arbitration in Bangladesh appeal the arbitrator’s decision?||Whether the parties can appeal the arbitrator’s decision in an arbitration in Bangladesh||No, the parties to an arbitration in Bangladesh cannot appeal the arbitrator’s decision. The decision of the arbitrator is final and binding on the parties.|
|Can the parties to an arbitration in Bangladesh seek judicial review of the arbitrator’s decision?||Whether the parties can seek review of the arbitrator’s decision in a courtYes, the parties to an arbitration in Bangladesh can seek judicial review of the arbitrator’s decision if they believe that the decision was made in violation of the law or was otherwise flawed.|
|Can the parties to an arbitration in Bangladesh agree to waive their right to seek judicial review of the arbitrator’s decision?||Whether the parties can waive their right to seek judicial review of the arbitrator’s decisionYes, the parties to an arbitration in Bangladesh can agree to waive their right to seek judicial review of the arbitrator’s decision. This is known as an “arbitration agreement.”|
|What is the role of the Bangladesh International Arbitration Centre (BIAC) in the arbitration process?||The function of the BIAC in the arbitration process in Bangladesh||The BIAC is a non-profit organization that provides administrative support for arbitration proceedings in Bangladesh. This includes appointing arbitrators|
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