Alternative dispute resolution (ADR) is defined as a process in which a neutral third party participates to assist in dispute resolution unlike adjudication of disputes by a presiding judge in court-litigation. It is a consensual dispute resolution process which produces a win-win solution.
The ultimate intention of ADR is to avoid delay, cost and complexity that are the three main negative features of civil justice system found out by the historic Lord Woolf report in 1955. Section 23(2) of Bangladesh Arbitration Act, 2011 also says that: “The arbitral tribunal shall deal with a dispute submitted to it as quickly as possible.”
The main processes of ADR are: arbitration, mediation, negotiation and conciliation. Apart from these four there are some other forms as well, eg settlement conference, private judging, summary jury trial, neutral evolution process model, mini trial etc. Among these, arbitration and mediation are the most commonly used forms in present world.
In 1800 BC, Mari Kingdom in modern Syria used mediation and arbitration with other Kingdoms. In 1400 BC Ancient Egyptian Amama system used arbitration in their diplomacy for international relations. During the time of 1200-900 BC Phoenicians (in the Eastern Mediterranean) practised entrepreneurship and negotiations. In 960 BC, Israel’s King Solomon arbitrated dispute over a baby by threatening to split the child. In 700 BC, Rhodian Sea Law codified traditional rules for determining liability for ship cargo losses and dispute resolution. In Indian sub-continent, Panchayat system was popularly used from 500 BC as a form of arbitration. In 400 BC, Greeks also used public arbitrator in city-states. Arbitral decisions between city-states were published on temple columns. Aristotle also in his time (300 BC) praised arbitration over courts.
Therefore, it is evident that ADR is actually an ancient system and the city-states and Kingdoms used its different forms in the past, but by the introduction of modern court system and its manifold development, ADR system has taken a back seat.
If we analyse from religious perspectives, we see that all religions encourage addressing disputed issues among the arbitrators, appointed by the two sides, before going for public trial.
For the enforcement of foreign arbitral awards, the contention of “Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958” known as “New York Convention 1958” is that, arbitral awards are generally easier to enforce in other nations than court judgment.
In ADR the parties have options to choose languages for their better understanding which is not available in court procedure.
In the modern world new issues are emerging everyday and often courts need time to develop expertise before it starts dealing with the new situations, or example, sports law, media commodities dispute, medical malpractice, environmental issues, education law, workers’ compensation, sale of goods dispute, anti-trust, product liabilities, construction, hi-tech disputes etc. To shift the huge burden over the court, ADR system is the better option.
In our legal education system there is no specific ADR course in seven public universities where law is taught. Among the 79 private universities law is taught in 33 but only a few private universities offers ADR as a full course. There is no special ADR course in law colleges under national university curriculum. Unfortunately, the syllabus of Bangladesh bar Council, the government body that oversees legal education and legal professionals, does not include the topic of ADR in their exams both for Districts and High Court.
So there is a huge gap between necessity and availability. It is recommended that the universities and the Bar Council re-evaluate their syllabi and include ADR as a compulsory course. At the same time it is the duty of the government to encourage citizens to avail this alternative way of dispute resolution which is speedy and cost-effective.
