Md Mostafizur Rahman

Joint District and Sessions Judge

Part Time Faculty Member
Department of Law
North South University
Law 200
Legal Environment of Business

Alternative Dispute Resolution

Definition

Dispute resolution is an indispensable process for making social life peaceful.

Dispute resolution process tries to resolve and check conflicts, which enables
persons and group to maintain co-operation. It can thus be alleged that it is the sin
qua non of social life and security of the social order, without which it may be
difficult for the individuals to carry on the life together.

Alternative Dispute Resolution (ADR) is a term used to describe several different

modes of resolving legal disputes. It is experienced by the business world as well
as common men that it is impracticable for many individuals to file suits and get
timely justice. The Courts are backlogged with dockets resulting in delay of year or
more for the parties to have their cases heard. To solve this problem of delayed
justice ADR Mechanism has been developed in response thereof.

Alternative Dispute Resolution or ADR is usually an umbrella term for

processes, other than judicial determination, in which an impartial person
assists those in a dispute to resolve the issues between them. ADR is commonly
used as an abbreviation for alternative dispute resolution. ADR processes may be
facilitative, advisory, determinative or, in some cases, a combination of these.

It is the procedure for settling disputes without litigation outside of the courtroom.
Such as arbitration, conciliation, mediation and negotiation are the forms of ADR.
ADR procedures are usually less costly and more expeditious. They are
increasingly being utilized in disputes that would otherwise result in litigation,
including high-profile labor disputes, divorce actions, and personal injury claims.
 Different Modes of ADR
Negotiation and settlement

This is the most common method used in resolving disputes and controversies.
Parties who engage in negotiation meet in good faith to discuss their dispute with
the goal of coming to a mutually agreeable resolution. Negotiation can take place
with or without a lawyer. The aggrieved party approaches the offending party to
discuss their concerns and reasons why there should not be a settlement in
resolving the matter. If the matter is resolved and the controversy/dispute is over,
a signed written outcome between the parties is not necessary although it would be
useful in the event any of the parties involved breaching the agreed outcome. If
the negotiation fails, then the action would move onto Arbitration, mediation or
litigation.
Advantages of the Negotiation process
It can be conducted directly by the concerned parties or can take place during the
mediation process. In negotiation, the concerned parties meet to resolve a dispute.
Negotiation is especially useful in informal situations -- to resolve differences
among parties, avoid engaging a broader group with local disputes, or address
several aspects of a dispute simultaneously. Negotiation can be brought into a
process at any time but is most effective.

Mediation
Mediation is an ADR process where an independent third party, the mediator,
assists the people in dispute to identify the disputed issues, develop options,
consider alternatives and try to reach an agreement. However, the mediator does
not give their advice or opinion about the issues or have any role in deciding the
outcome of the mediation.
About the mediation process
A mediation session is usually a structured, face-to-face meeting with all the
people in dispute and one or more mediators.At mediation, you will generally be
asked to talk directly to the others involved in the dispute and may also have
separate sessions with the mediator. There will usually be breaks for each person to
reflect on the discussion and get advice or support if they need it.Mediation may be
voluntary, court ordered or required as part of a contract
 Role of the mediator
The mediator will:

 explain the mediation process and set the guidelines for how it will work
 ensure each person has a chance to talk, be heard and respond to the issues
 keep everyone focused on communicating and resolving the dispute
 ask questions to help people identify and communicate about what their goals
and desires are and why they feel that way
 help clarify the issues and suggest ways of discussing the dispute
 help the people in dispute develop options and consider whether possible
solutions are realistic
 try to assist the parties reach an agreement where appropriate and make sure
everyone understands any agreement reached

The mediator will not:

 take sides, make decisions or suggest solutions

 decide who is right or wrong
 give legal, financial or other expert advice
 provide counseling

How it will conduct;
While most mediation sessions are held face-to-face, in some circumstances
sessions can be held over the telephone. Another option is shuttle mediation, where
the people in dispute sit in separate rooms and the mediator speaks to them
separately and acts as a messenger between them.
When is mediation suitable?
Mediation may be suitable if the parties:

 feel comfortable and safe having a conversation with the others involved
 want a third person to assist the discussion
 want to make the decision by themselves
 want to maintain the best possible ongoing relationship with the other
participants
 want to control the outcome.
 want to keep discussions confidential
 Mediation may be unsuitable if:

 The parties do not feel safe when communicating with the other participants
 There is a power imbalance that means one or more of the participants are not
able to participate equally in the process and negotiate on their own behalf
effectively.

Conciliation
Conciliation is an ADR process where an independent third party, the conciliator,
helps people in a dispute to identify the disputed issues, develop options, consider
alternatives and try to reach an agreement.
A conciliator has professional expertise in the subject matter in dispute and will
generally provide advice about the issues and options for resolution. However, a
conciliator will not make a judgment or decision about the dispute.
Conciliation may be voluntary, court ordered or required as part of a contract. It is
often part of a court or government agency process.
About the conciliation process
The role of conciliators is similar to that of mediators except that the conciliator
may also:

 have specialist knowledge and give parties some legal information

 suggest parties and the other participants expert advice on the possible options
for sorting out the issues in your dispute
 actively encourage parties and the other participants to reach an agreement.

The conciliator will not:

 take sides or make decisions

 tell you what decision to make, although they may make suggestions
 decide who is right or wrong
 provide counseling.

Conciliation is usually held face to face, so that you can talk to each other directly.
However, you may also have separate sessions with the conciliator.
 Conciliation is likely to be suitable if parties:

 want to reach an agreement on some technical and legal issues

 want assistance with the process
 want to make the decision with the other participants involved
 want advice on the facts in your dispute.

Conciliation may also be suitable if you have tried mediation and still cannot reach
agreement with the other participants.

Arbitration
Arbitration is an ADR process where the parties present arguments and evidence to
an independent third party, the arbitrator, who makes a determination. Arbitration
is particularly useful where the subject matter is highly technical, or where the
parties seek greater confidentiality than in an open court.
Arbitration may be voluntary, ordered by the court or required as part of a contract.
About the arbitration process
Arbitration can be a much more formal and structured process than mediation or
conciliation. In some ways it is more similar to court, because at the end of the
session the arbitrator makes a binding decision.
Some of the main differences between arbitration and other forms of ADR, such as
mediation and conciliation, include:

 the people in dispute need to agree before the process that the arbitrator's
decision will be binding and enforceable
 there is a much greater need to produce evidence on facts
 there may be one arbitrator or a group of arbitrators to hear dispute
 the arbitrator may be a specialist in the subject matter of the dispute or have legal
qualifications
 at the end of the process the arbitrator will make a decision for the parties.

If an arbitrator makes a decision and the parties are not happy with, they may be
able to appeal to a court or other higher authority.
When is arbitration suitable?
Arbitration can be particularly useful where mediation or conciliation have not led
to an agreement or if you want a process where a decision is made for you, but is
confidential and generally cheaper and quicker than going to court.

Advantages of Alternative Dispute Resolution

Sometimes people become involved in disputes which, although very important
and worrying to those concerned, are better resolved outside the comparatively
expensive court system. There are a number of advantages of Alternative Dispute
Resolution in general over litigation:

 it is usually faster and less costly

 People have a chance to tell their story.
 it is more flexible and responsive to the individual needs of the people
involved
 it is more informal
 the confidential nature of the process
 Alternative Dispute Resolution is more likely to preserve goodwill or at least
not escalate the conflict.
 Its maintain win win situation.
 The dispute is resolved forever.
 It is helpful to remove the case backlogs.

Practice of ADR in Bangladesh

Apart from introducing ADR mechanism in some special legislation, ADR

mechanism has been introduced for the first time in 2003 by way of the Code of
Civil Procedure (Amendment) Act, 2003. This act created three new sections
designed for ADR mechanism in all civil suits. The different ways have been
applying alternatively in our country to reduce pressure from the Court which is
inserted in different statute laws. Most of them are described in below:

ADR under the Labour Court, 2006

The first legislation where the concept of ADR in the form of negotiation and
conciliation has been effectively introduced and recognized by law is in the field of
labour law, namely, Industrial Relations Ordinance, 1969 which is now replaced
by the Labour Code, 2006.
(i) pure legalistic approach to individual employment dispute; and

(ii) socio-legalistic approach to industrial dispute.[39]

ADR under Muslim Family Law ordinance, 1961

Both the Muslim Family Laws Ordinance, 1961 and the Family Courts Ordinance,
1985 provide for avenues for reconciliation or alternative dispute resolution. The
Muslim Family Laws Ordinance, 1961 provides mechanism for reconciliation
through the Arbitration Council .Example, polygamy under section 6; giving talaq
and making it effective under section 7; and failure of the husband to provide
maintenance of his wife under section 9.

On the other hand, the Family Courts Ordinance, 1985 provides for mechanism for
reconciliation through judges as a necessary part of judicial proceeding
Example; Pre-trial Reconciliation proceeding under section 10; and Post-trial
Reconciliation proceeding under section 13.[42]

ADR under the Code of Civil Procedure, 1908

Taking into account of the success and achievement of the mediation in the Pilot
Family Court project initiated in 2000-2001, the government the day was
committed to bring necessary changes into the Code of Civil Procedure so that
alternative dispute resolution mechanism may be introduced into the field of
general civil litigation. The Code of Civil Procedure (Amendment) Act, 2003
inserted a new chapter titled “Alternative Dispute Resolution” with three new
sections .Example Section 89A, 89B, 89C for mediation and arbitration.

The Village Court Act, 2006

Given the appalling conditions of pending cases in both the lower and higher
judiciary and at the same time enormous pressure and workload in the formal
justice system in Bangladesh revamping the informal or quasi-formal justice
dispensation system at both rural and urban area has been one of the recent mottos
of the government of Bangladesh.
Arthorin Adalat Ain, 2003 (Money Loan Court Act)

In Arthorin Adalat Ain disputes concerned with loan money is settled through two
processes, one is Settlement conference and another is Arbitration. These
alternative mechanisms are conducted by concern court, so these are also called
judicial

Arbitration Act 2001.

Bangladesh has enacted the Arbitration Act 2001 (the Act). Such legislative steps
were urgent in the face of increasing foreign investment in Bangladesh in various
sectors, especially in natural gas and power, and the ever-growing export trade
with the rest of the world. The Act consolidates the law relating to both domestic
and international commercial arbitration. It thus creates a single and unified legal
regime for arbitration in Bangladesh