The philosophy of Alternate Dispute Resolution systems is well-stated by Abraham Lincoln: “discourage litigation; persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.” Litigation does not always lead to a satisfactory result. It is expensive in terms of time and money. A case won or lost in court of law does not change the mindset of the litigants who continue to be adversaries and go on fighting in appeals after appeals. Alternate Dispute Resolution systems enable the change in mental approach of the party’s. A Conference on ADR systems is being held in Mumbai on 20th November this year where, leading experts in the world on ADR system would be available for launching the movement on a large scale.
What is ADR?
One distinct advantage of ADR over traditional court proceedings is its procedural flexibility. It can be conducted in any manner to which the parties agree. It may be as casual as a discussion around a conference table or as structured as a private court trial. Also unlike the courts, the parties have the freedom to choose the applicable law, a neutral party to act as Arbitrator/Conciliator in their dispute, on such days and places convenient to them and also fix the fees payable to the neutral party. ADR being a private process offers confidentiality which is generally not available in court proceedings. While a court procedure results in a win-lose situation for the disputants, in an ADR process such as Mediation or Conciliation, it is a win-win situation for the disputants because the solution to the dispute emerges with the consent of the parties. Lastly, as compared to court procedures, considerable time and money is saved in ADR procedures. History :
n June 2000, formalized ADR was introduced in Bangladesh by means of court annexed judicial settlement pilot projects, in an effort to decrease delays, expenses, and the frustrations of litigants labouring through the traditional trial process.The pilot program began in a collaborative effort with ISDLS in a series of Bangladeshi legal studies of Californian ADR systems. Three Pilot Family Courts were established in the Dhaka Judgeship, which exclusively used judicial settlement to resolve family cases including: divorce, restitution of conjugal rights, dower, maintenance and custody of children. An amendment to the Code of Civil Procedure was not necessary due to an existing 1985 Family Courts Ordinance, which authorized the trial judge to attempt reconciliation between parties prior to and during trial. The pilot courts were staffed by 30 Assistant Judges selected from all over Bangladesh, lawyers and non-lawyers, who were given training by a United States mediation expert (organized by ISDLS). During this assignment, the Assistant Judges were relieved of all other formal trial duties107. All three pilot programs were fully functioning by January 2001.
Once judges had begun successfully settling cases, the program was expanded slowly to additional courts throughout the country. By the end of the first year of the program, the judicial settlement procedure in family disputes had effectively been introduced in 16 pilot family courts in 14 districts of Bangladesh. Due to the high settlement rates these courts were achieving, the Law Minister convened a conference in 2002 in order to spread awareness of the achievements. Bangladeshi mediation is a facilitative, informal, non-binding, confidential process directed by judicial officers.
The case, once filed, is immediately assigned to either an ADR track or a trial track. For cases assigned to ADR, mediation proceedings take place within two months of filing. If a settlement is not reached within this period, the case begins a continuous trial over the course of six months. If a resolution is reached through mediation, arties can request a refund of the fees paid to the court. Under this system, each case assigned to the ADR track is resolved by adjudication or by mediation within six months of filing. The majority of ADR in Bangladesh is court-annexed; a private mediation facility has not yet developed. Judicial mediators are compensated in the same amount as the traditional trial judges. The mediation program is coordinated through the court registration process, which assigns cases to either the mediation or the regular trial track.
Types of ADR.
1.Arbitration generally involves a binding determination of a dispute by a neutral third party following agreement to such by the disputants. a. The agreement to arbitrate usually specifies the number of arbitrators and their manner of selection. b. Many states enforce agreements to arbitrate and bar suits attempting to litigate issues reserved for arbitration. c. Judicial review of the arbitrator’s decision is limited to determining whether that arbitrator had jurisdiction over the dispute and, if so, whether the award was procured by fraud or violates public policy. d. Arbitration is an informal process where the technical rules of evidence and precedent are not followed. 2. Private court systems are similar to arbitration and provide for voluntary submission of disputes to a third party acceptable to both disputants. 3. Mediation is a process where an impartial third party attempts to guide the disputants to a mutually acceptable settlement rather than to issue a final decision. 4. A mini-trial is a process whereby lawyers of both sides present their case to an impartial third party approved in advance by both disputants and then both sides retire without their lawyers to a private session in which they attempt to negotiate an agreement. 5. A summary jury trial allows for the presentation of a summary version of the case before a judge and jury.