Alternative Dispute Resolution: How it works in Bangladesh

Introduction


“Injustice anywhere is threat to justice everywhere”-Martin Luther King Jr. Alternative Dispute Resolution is deemed as an aspiration to ensure access to justice for all. Every man inherits some human rights by born. Bangladesh constitution guarantees some rights as fundamental rights like equality before law, equal protection of Law and rule of law etc. It is responsibility of the legal institution or court to enforce these and provide fair justice to the people. Though Bangladesh theoretically provides laws but practically the legal system of Bangladesh is too narrow. Our honourable Ex-Chief Justice Mustofa Kamal stated ADR as a non-formal settlement of legal and judicial disputes. The disadvantaged sectors of Bangladesh can not reach the door of justice. In such circumstances ADR is a only one solution to resolve the problem. At present ADR plays a vital role in judicial system for other countries including Bangladesh.


Definition of ADR


ADR is the process of settling disputes by the parties at a lower cost and shorter time rather than by the traditional justice system. ADR is a general term used to describe a set of approaches and techniques aimed at resolving disputes in a non- confrontational way. The term ADR describes a number of methods used to resolve disputes out of court including negotiation, conciliation, mediation, and the many types of arbitration. The common domination of all ADR methods is that they are faster, less formalistic, cheaper, and often less adversarial than a court trail.

ADR in Bangladesh

In Bangladesh, for the first time the provisions of ADR were incorporated into the Family Court Ordinance in 1985. But those provisions were not totally functional. In 2012 after the amendment of the Code of Civil Procedure, 1908 the provisions of ADR now have been made compulsory for every civil matters through the incorporation of sections 89A and 89C of the Civil Procedure (Amendment) Act, 2012.Besides these two laws, the provisions of ADR have also been introduced in the following laws.

  1. The Code of Civil Procedure, 1908
  2. The Muslim Family Laws Ordinance, 1961.
  3. The Customs Act, 1969.
  4. The Income Tax Ordinance, 1984.
  5. The Family Court Ordinance, 1985.
  6. The Value Added Tax Act, 1991.
  7. The Legal Aid Rules, 2015.
  8. The Arbitration Act, 2001.
  9. The Artha Rin Adalat Ain, 2003.
  10. The Conciliation of Disputes (Municipal Areas) Board Act, 2004.
  11. The Labour Act, 2006.
  12. The Village Court Act, 2006.
  13. The EPZ Trade Union and Industrial Relation Act , 2004.

Reasons behind the incorporation of ADR in Bangladesh

Bangladesh Government has successfully incorporated the policy of ADR to ensure justice. There are some reasons for the incorporation of ADR in judicial system in Bangladesh which are follows:


▪ The main reason for the incorporation of ADR system to avoid delay procedure of judiciary.

▪ To avoid procedural complexities of the judicial systems of Bangladesh.
▪ To avoid corruption from judiciary.
▪ To reduce economic interests of the legal practitioner from litigation.
▪ To reduce the cost of litigation the ADR schemes are incorporated.
▪ Non-availability of help of the legal aid board or committees.

Weakness of ADR in Bangladesh

A dispute resolution outside of courts is not new in Bangladesh; non-judicial and indigenous methods have been used by the societies for a very long time. But the main problem is that there is no uniform ADR law in Bangladesh. Sometimes, the decision of an ADR is biased and politically motivated. There are many deficiencies which are barrier to fulfil the objective of ADR system. Lack of proper institutional trick, lack of proper education of people, lack of awareness, lack of separate code of ADR, lack of accountability of the judges, meditators and arbitrator’s, disconnect between reality cooperation of the lawyers, resistance from the bar ,risks of quality control etc. For this reason, the vulnerable party is not getting a proper justice.

Conclusion and Proposal for Improvement

To execute the objective of the ADR ,the following recommendation should be followed:
• Improve traditional informal system.
• There should be a harmonized uniform ADR legislation in Bangladesh will be applicable for all relevant cases.
• ADR should be applied criminal cases largely. Need for program evaluation and correction of legal shortcomings.
• Separate code should be enacted regarding ADR

Separate mediation court should be established
• The Government should provide adequate and sustainable fund for recruitment of judges, lawyers. Positive impression should be among them. An intensive training of them should be mandatory.
• Corruptions should be removed, and public awareness should be made in ADR schemes.
In recent years, many litigations are pending in the different types of court of Bangladesh. To get round the altercated hearings of the litigations the Alternative Dispute Resolution is a scheme which ensures the most important right of justice for all the citizens of Bangladesh. ADR can be considered as fuel to resolve the paternal conflicts or other minor conflicts through an amicable way to ensure the good relations between the parties. In considering the benefits of Alternative Dispute Resolution system almost every country of the world has established the ADR system in their judicial system for accessing to justice for all citizens.


References:
1.The Constitution of People’s Republic of Bangladesh, Article:27,29 and 31
2.The Daily Star, 2007,29:2
3.https:// definitions.uselegal.com
4.Yona Samir, Alternative Dispute Resolution, Approaches and their Application, 2003, p-2
5.Totaro, Gianna, Avoid Court at all Costs, 2008, p- 35
6.Ettie Ward, Mandatory Court-Annexed Alternative Dispute Resolution in the United States Federal Courts: Panacea or Pandemic? St. John’s Law Review, Vol. 81, 2007; Retrieved from SSRN: http:// ssrn. Com/ abstract= 9932206.Source: Ministry of Law Justice and Parliamentary Affairs.
7.The Code of Civil Procedure 1908 Section 89A.
8.Ibid

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