DHAKA INTERNATIONAL UNIVERSITY

RESEARCH PAPER ON

The Roles of Lawyers in Alternative Dispute Resolution

(ADR)
Submitted By:
Name: Redoan Ahmed
REG: 237206
Roll No: 26
Batch: 37 (A)
Dept. Department of Law
LL.B (Hone’s)

Submitted To:
Barrister Mashiur Rahman
Department of Law
DHAKA INTERNATIONAL UNIVERSITY

SUBMISSION DATE:
27th September, 2016
 DECLARATION

The researcher, as a candidate for the degree of Bachelor of Laws (LL.B), is fully aware of the rules
and regulations of the DHAKA INTERNATIONAL UNIVERSITY relating to the preparation,
submission, retention and use of a research monograph.

He acknowledges that the University requires the research monograph to be retained in the library
for record purposes and that within Copyright privileges of the author it should be accessible for
consultation and copying at the discretion of the library authority and in accordance with the
Copyright Act 2000. I authorise the Dhaka International University to publish an abstract of this
research.

The researcher also declares that this research monograph entitled “The Roles of Lawyers in Alternative
Dispute Resolution” is solely the outcome of her own efforts and research for the partial fulfilment
of the degree of LL.B. No part of this research monograph in any form has been submitted to any
other department or institution for the award of any degree or diploma or to any journal for the
purposes of publication.

Researcher:

……………………………
Name: Redoan Ahmed
REG: 237206
Roll No: 26
Batch: 37 (A)
Dept. Department of Law
LL.B (Hone’s)

2
 ACKNOWLEDGEMENT

All praises are for Almighty Allah who has given me the opportunity and ability to conduct this
research. His special grace and blessing, in fact enabled me to complete this work within such a
short time.

I would like to express my deepest appreciation to my respected teacher and supervisor for his
proper guidance, valuable suggestions, and very useful comments on the earlier drafts and constant
encouragement during the whole period to complete research monograph. Without his help it would
not be possible for me to carry out this paper.

Finally, I offer my cordial thanks to my group-mates of research and well-wishers especially for
their assistance in various ways in compilation of this research monograph

Researcher:

……………………….
Name: Redoan Ahmed
REG: 237206
Roll No: 26
Batch: 37 (A)
Dept. Department of Law
LL.B (Hone’s)

3
 CERTIFICATE

The undersigned certify that the research monograph entitled “The Roles of Lawyers

in Alternative Dispute Resolution ” has been carried out under my constant

supervision as per as the rules, regulation stipulated by DHAKA INTERNATIONAL

UNIVERSITY, in the partial fulfilment of requirement for the degree of LL.B (4

Years).

With regards,

…………………………………..
Barrister Mashiur Rahman
Department of Law
DHAKA INTERNATIONAL UNIVERSITY

4
 CONTENTS
Abstract……………..……………………………………………………………………
Introduction……………………………………………………………………………...
1. Objective of the Study………………………………………………………………...
2. Methodology of the Study…………………………………………………………….
3. Historical background of ADR…………………………………………………………..
4. Definition of ADR…………………………………………………………………......
5. Goals and Objectives of ADR…………………………………………………….......
6. Characteristics of ADR……………………………………………………………….
7. The ADR landscape…………………………………………………………………...
8. Necessity of Alternative Dispute Resolution………………………………………...
9. Mechanisms of ADR………………………………………………………………......
10. Merits and Demerits of the ADR System………………………………………......
11. The Possible Role of the lawyer In Alternative Dispute Resolution…......
12. Role of ADR for Removing Harassment……………………………………………
13. Efficiency and effectiveness of ADR towards Access to Justice…………………..
14. Barriers in the way of Access to Justice…………………………………………….
15. The Way to Make ADR system Valuable………………………………………......
Conclusion…………………………………………………………………………….......
Reference………………………………………………………………………………….

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 ABSTRACT:

Alternative Dispute Resolution (ADR), which refers to the process of dispute resolution, denotes the
idea of making the system of delivering justice friendly to the disputed parties and ensuring quick
resolution of the cases. For its simplicity the popularity of this system is increasing day by day.

In this Article, I explore the roles of lawyers in alternative dispute resolution ("ADR"), including
traditional roles in arbitration and "new" roles in mediation and facilitation. I also discuss all
about ADR and its mechanism. The Centre for Public Resources Institute for Dispute Resolution
("CPR"), and the Association of Conflict Resolution, has adopted ethical codes for mediators and
arbitrators. Select professional associations are also developing "best practice" guides for the
provision of ADR services; however, the lack of clarity in the Model Rules is a serious problem. The
failure of the Model Rules to recognize the role of lawyers in "peace-making," dispute prevention or
resolution, and legal problem solving marks an absence in what is publicly recognized as among
the most important roles a lawyer performs - that of a "constructive lawyer." Furthermore, the
Model Rules misrepresent the legal profession by assuming that representing clients in adversarial
matters is the only role lawyers fulfil. Such an assumption fails to give adequate guidance to a
lawyer who fulfils a broader, and perhaps, more significant role than.

6
Introduction:
This paper is intended for lawyers who represent parties in mediation. It explains how attorneys can
use the structure of the process and the special powers of mediators to achieve their bargaining
goals.
Lawyers have traditionally seen mediation as a method to facilitate competitive bargaining. In this
view, a mediator’s primary role is to carry offers back and forth between the parties and shield them
from the impact of each other’s hard tactics—a combination of “telephone” and “boxing glove.”
When such bargaining breaks down, the mediator is expected to give each side a “dose of reality” in
the form of an opinion about their legal arguments, and perhaps also suggest terms of settlement.
Many lawyers still favor this approach, but it does not take full advantage of what a mediator can
do.
Lawyers have power. They cannot compel parties to settle, but they influence the process of
bargaining. Wise lawyers take advantage of this. As one mediator remarked about a litigator, a note
of admiration in his voice, “He moved me around like a chess piece!” Indeed good mediators are
like chessboard knights; they have many capabilities, and attorneys can use them to advance their
bargaining strategies.
Mediators can enhance a lawyer’s ability to negotiate in many ways. A mediator can, for example,
improve communication between parties by conveying messages or explaining what an offer means
(“Tell them we are at €25,000, but are prepared to talk seriously once they drop their claim to future
profits.”) Mediators can also provide information about the attitude of an opponent “Has the
plaintiff become any calmer since we met this morning?” and can arrange informal discussion “I
think it would be helpful if we set up a private discussion between the two CFOs.”
Advocates can use mediation to pursue both competitive and cooperative negotiation strategies.
Thus, for example, a lawyer can make an extreme opening offer in mediation with less risk than if
she used the same tactic in direct bargaining, because she can rely on the mediator to cushion the
impact of the tactic (“scrape the other side off the ceiling”). Lawyers can also use mediation to
support creative approaches, for example by pressing a claim for money while privately asking the
mediator to explore whether the other side is open to repairing a business relationship.

Particularly toward the end of the process, a lawyer is likely to find himself in a three-sided
negotiation, bargaining not only with the other party but also with the mediator. Advocates can
negotiate, for example, about whether the mediator uses a specific technique (“Before you give your
own view about liability, I’d appreciate it if you would let each side make another offer”) or can
7
request that the mediator use a tactic (“Why don’t you suggest to both sides that they…?).
Attorneys cannot expect a mediator to take sides in a dispute, but if a tactic is neutral the mediator
may well follow a lawyer’s suggestion to use it.

The key lesson is not to approach the process passively, but instead to use the mediation process in
an active way to advance your clients’ interests. Based on the author’s experience as a mediator
with attorneys from Europe, Asia and North America, this book offers suggestions about how a
lawyer can “borrow” a mediator’s powers to achieve an optimal outcome.

1. Objective of the Study:

Objectives of the study all types of Courts in Bangladesh are burdened with litigants. These
problems have been arisen due to the defects of adversarial system. The main objective of this study
is to analyze the significant role of Lawyers in ADR System and also to recognize the concept of
ADR in procedural law. This essay also focuses on the Mechanism of ADR System.

2. Methodology of the Study:

Methodology of the study this is a socio-legal research. This essay is Descriptive and suggestive in
nature. This study is based on both primary and secondary data collected from law reports, text-
books, journals, Newspaper, websites, and training workshops on ADR. The collected data have
been processed and prepared in the present form in order to make the study more informative,
analytical and useful for the users.

3. Historical background of ADR:

ADR is nothing new. This informal quasi judiciary system is as old civilization. Different forms of
ADR have been in existence for thousands of years. The firm Arbitration (a form of ADR) Act was
passed in 1698 under William III. This was an Act for rendering the award of arbitrators more
effectual in all cases for the final determination of controversies referred to them by merchants and
traders, or others. In 1854, Common Law Procedure Art expressly empowered courts to remit an
award for reconsideration by the arbitrators. It aim empowered courts to stay (stop) an action in
court if the parties had agreed m take the dispute to arbitration. Effectively, the Arbitration Act
1440 gifted a number of modem steps to be taken to agree disputes between the parties: the parties
appoint arbitrators court may also appoint arbitrators if the parties fail to do so; decide the disputes
informally, make an award, or settle the dispute by mediation, compromise or any other mama;

8
court pass a decree in tams of the award d found the decision was made properly, and Arbitration
Tribunal shall be competent m appoint expert or legal advisor to submit report to at an specified
question or assessor for assisting it on technical matters.

Later in Arbitration Act 1950, there was a consolidation of the Arbitration Aces 1889 and 1934. It
included the power of a court to stay actions where there was an applicable arbitration agreement.
In addition the Arbitration An 1975 gave effect to the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards.

In 1976 Professor frank Sander said in his book Varieties of Dispute Processing’, in future, not
simply a courthouse but a dispute resolution center or a multi-door courthouse where disputants
would be screened and channeled m a variety of dispute resolution processes such an mediation,
arbitration, fact-finding malpractice screening panel, superior court, or an ombudsman.

In 1976 in Bangladesh, Gram Adalat law was passed under the auspices of Union Parishad to settle
minor criminal and civil law suits. The law house bestowed an UP Chairman or Gram Adalat
Chairman with power of a third claw magistrate. The court is comprised of 5 members including the
Chairman, 2 General members and 2 members selected by the complainant and defender. The
judgment of the court will be validated with unanimous support or by majority of 4:1. No one came,
raise any question regarding the legality of the verdict.

The Arbitration Act 1979 dealt principally with regulating the courts’ powers to review arbitration
awards and to determine any question of law arising in the course of arbitration.

In 1980, the then Government of Bangladesh had passed a bill for introducing the office of an
ombudsman to meet a constitutional binding; following the same last year, the Government has
adopted a policy of introducing ombudsman sector-wise and has already set up a Tax Ombudsman.

In 1981, considering expenses and delays in disposal of cases through the legal system of India. a
judgment was made by the Supreme Court of India in the case ‘Guru Nanak Foundation vs. We
Rattan Singh & Sons, AIR 1481 SC 2075′ saying, Interminable, time-consuming, complex and
expensive court procedures impelled jurists to search for an alternative forum, leas formal, more
effective and seedy for resolution of disputes avoiding procedural claptrap and this led them to …’

In 1982, Richard Abel summarizes the political ambiguity that imbues the history of ADR in The
Politics of Informal Justice’: Yet if the goals of informal justice arc contradictory, and if it is
incapable of realizing them because of contradictions inherent in advanced capitalism, in formalism
9
should not simplistically be repudiated as merely an evil to be resisted, or be dismissed as a
marginal phenomenon that can safely be ignored. It is advocated by reformers and embraced by
disputants precisely because it expresses values that deservedly elicit broad allegiance: the
preference for harmony over conflict, for mechanisms that offer equal access to the many rather
than unequal privilege to the few, that operate quickly and cheaply, that permit all citizens to
participate in decision making rather than limiting authority to “Professionals; that are familiar
rather than esoteric, and that strive for and achieve substantive justice rather than frustrating it in the
name of form.

In 1982, Former Chief Justice W. Burger of the United States Supreme Court asked, Is not there a
Better Way? In the annual report on the stale of the judiciary to the American Bar Association.
Chief Justice Burger’s plea to the legal profession to consider their traditional role as healers of
human conflict and utilize more fully the negotiation and arbitration processes followed on the heels
of various initiatives in the United States examining alternatives to court adjudication.

4. Definition of ADR:
ADR is the abbreviation of Alternative Dispute Resolution. When the disputes between the parties
are resolved through means which are alternative to formal litigation, this is called Alternative
Dispute Resolution.
The term Alternative Dispute Resolution includes, in narrow sense, only those processes in which
the decision finally arrived at is with the consent of the parties. In wider sense, ADR includes
arbitration also along with negotiation, mediation and conciliation-because arbitration constitutes an
alternative to litigation .As Arbitration process settles the disputes Introducing Alternative Dispute
Resolution (ADR) in Criminal Justice System outside the Courts it is considered as ADR, as it
brings the parties to the negotiation table ,identifying the problems, establishing facts, clarifying
issues, developing the option of settlement and ultimately solving the disputes through award which
is binding on the parties.
In other words the term ADR can refer to everything from facilitated settlement negotiations in
which disputants are encouraged to negotiate directly with each other prior to some other legal
process, to arbitration systems that look and feel very much like a courtroom process. Processes
designed to manage community tension or facilitate community development issues can also be
included within the rubric of ADR. According to the case referred to Hilmond Investments v CIBC
1996 135 DLR 4th 471 (ONT Court of Appeal) 887574- 'ADR' is the method by which legal
conflicts and disputes are resolved privately and other than through litigation in the public courts,
usually through one of two forms: mediation or arbitration. So, from the above discussion it can be
10
said that Alternative Dispute Resolution refers to the means of settling disputes without going
through legal procedures. Through ADR settlement of disputes can be done in many formal and
informal ways but here ADR emphasis is mainly on the settlement of disputes by local community
initiatives.

Alternative Dispute Resolution (ADR)

Settlement of Disputes

Reconciliation between disputants

Create social bindings and justice

Positive outcomes help build

confidence in the community

Encourage settlement directly

Figure 01: A Framework on Alternative Dispute Resolution (ADR)

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 5. Goals and Objectives of ADR:
ADR procedure can support not only the legal objectives, but also support other development
objectives, such as economic and social objectives, by facilitating the resolution of disputes that are
impeding progress of these objectives. There are different goal and objectives of ADR in the World
for conflict or dispute resolution. Such as describe below-

Goals and Objectives of ADR

Minimize Resolve Maintain Maintain Get Set

Costs Quickly Privacy Relationshi neutral Precedent

p Opinion

Figure 02: Model of Goals and Objectives of ADR.

6. The Characteristics of ADR Approaches:

Although the characteristics of negotiated settlement, conciliation, mediation, arbitration, and other
forms of community justice vary, all share a few common elements of distinction from the formal
judicial structure. The elements permit them to address development objectives in a manner
different from judicial system&

1) Informality

Most fundamentally, ADR processes are less formal than judicial processes. In most cases, the rules
of procedure are, flexible, without formal pleadings, extensive written documentation, or rules of
evidence. This informality is appealing and important for increasing access to dispute resolution for
parts of the population who may be intimidated by or unable to participate in more formal systems
It is also important for reducing the delay and cost of dispute resolution. Most systems operate
without formal representation.

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2) Application of Equity

Equally important ADR programs are instruments for the application of equity rather than the rule
of law. Each caw is decided by a third party, Or negotiated between disputants themselves, based on
principles and terms that seem equitable in the particular case, rather than on uniformly applied
legal standards. ADR systems cannot be expected to establish legal precedent or implement changes
in legal and social norms. ADR systems tend to achieve efficient settlements at the expense of
consistent mid uniform justice.

In societies where large pails of the population do not receive any real measure of justice under the
formal legal system, the drawbacks of an informal approach to justice may not cause significant
concern. Furthermore, the overall system of justice can mitigate the problems by ensuring that
disputants have recourse to formal legal protections if the result of the informal system is unfair,
and by monitoring the outcomes of the informal system to test for consistency and fairness.

3) Direct Participation and Communication between Disputants

Other characteristics of ADR systems include mote direct participation by the disputants in the
process and in designing settlements, mom direct dialogue and opportunity for reconciliation
between disputants, potentially higher levels of confidentiality since public records are not typically
kept, more flexibility in designing creative settlements, less power to subpoena information, and
leas direct power of enforcement.

The impact of these characteristics is not clear, even in the United States where ADR systems have
been used and studied mom extensively than in most developing countries, many argue, however,
that compliance and satisfaction with negotiated and mediated settlements exceed those measures
for court-ordered decisions. The participation of disputants in the settlement decision, the
opportunity for reconciliation, and the flexibility in settlement design went to be important factors
in the higher reported rates of compliance and satisfaction.

7. The ADR landscape:

There is a vast range of ADR services within the civil justice system, both outside and within
courts and tribunals. The kind of ADR processes provided varies greatly. The main types of ADR
are mediation, conciliation, arbitration and expert referral. Differences can be identified based on

13
jurisdiction, location, the way in which services are provided, their quality, and how enmeshed
ADR processes are in the litigation process.
ADR can occur by way of court order, or encouragement, and by choice, and is delivered
through one of three mediums: a private mediator or arbitrator; a court authorized (or court
connected) scheme; or through community-based services. Legal professional associations also
provide avenues for legal practitioners to deliver or access ADR services. The Law Society of
NSW, for example, offers: accreditation through the Law Society Mediation Program; access to
experienced commercial arbitrators; nominations to Supreme, District and Local Court arbitration
panels; and a low-cost Early Neutral Evaluation Service.

8. Necessity of Alternative Dispute Resolution (ADR):

The ADR system is yet to be familiarized among the judges and lawyers and in particular among
the disputants and litigants in Bangladesh. The reasons, why disputants should consider ADR, are
described by Dr Belal Hussain Joy in his book. Law Management Skills (2005)’as:

1. gives a wider range of settlement solution comparing with formal litigations;

2. Makes substantial contribution to a mom efficient use of judicial resources;
3. Saves time arid money both, of both the parties,
4. Saves judicial time, accelerating the disposal of and reducing the backlog of Cases;
5. Preserves the trial court’s statutory Authority and jurisdiction to try the case should ADR
fail
6. ADR is non-binding, the arbitrators or mediators take on the rate of investigator as well as
impartial judge;
7. ADR proceedings are confidential, and not Admissible At the litigation.

ADR procedure can support not only the legal objectives, but also support other development
objectives, such as economic and social objectives, by facilitating the resolution of disputes that are
impeding progress of these objectives.

 Win-Win outcome
 Cost effective or no cost at all
 Requires less time
 Indigenous style
 Creates social binding
 Reconciliation between disputants

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  Positive outcome helps build confidence in the community
 Positive outcome encourage others to resolve disputes in the community

9. Mechanisms of ADR:
Alternative dispute resolution encompasses a variety of methods for the resolution of disputes
between the parties. The availability or deployment of any particular method of alternative dispute
resolution in any specific case depends on a number of factors. The clause relating to alternative
dispute resolution in the agreement between the parties, the availability of persons well versed in
the process of alternative dispute resolution, the support provided by the legal system of a country
to the alternative dispute resolution methods, the national or international institutional framework
for alternative dispute resolution, the availability of necessary infrastructure facilities, etc. play a
significant role in the selection of any particular method of the resolution of dispute. There are
various mechanisms of Alternative Dispute Resolution which is define in the below-

 Negotiation:

This is a voluntary and informal process by which the parties to a dispute reach a mutually
acceptable agreement. As the name implies the parties seek out the best options for each other
which culminates in an agreement. At their option, the process may be private. In this process, they
may or may not use counsels and there is no limit to the argument, evidence and interests, which
may be canvassed. There are many more ways of defining negotiation, but the last definition is a
very broad one and is wide in scope: “two or more parties communicate for the purpose of
influencing the other’s decision.” In negotiation, the parties agree to discuss and try to reach an
agreement among themselves, or through their representatives. The parties have control of the
process and the outcome. They try to find solutions that will satisfy the most interests of the parties.
The negotiation process can also be a process of joint problem solving, on a disputed or potentially
disputed issue.

In negotiation, a third party may or may not be involved. When a third party is not involved in the
negotiation process, someone usually breaks the ice and brings the parties to the negotiation table
and then withdraws from the negotiation process.

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  Mediation:

Mediation is a process that employs a neutral/impartial person or persons to facilitate negotiation

between the parties to a dispute in an effort to reach a mutually accepted resolution. Mediation is a
process close in its premises to negotiation: “mediation is an assisted and facilitated negotiation
carried out by a third party” (Goldberg at al., 1992). The mediators, who are hired, appointed, or
volunteer to help in managing the process, should have no direct interest in the conflict and its
outcome, and no power to render a decision. They have control over the process, but not over its
outcome. Power is vested in the parties, who have control over the outcome: they are the architects
of the solution.

The mediator’s role is multiple:

 to help the parties think in new and innovative ways,

 to avoid the pitfalls of adopting rigid positions instead of looking after their interests,

 To smooth discussions when there is animosity between the parties that renders the
discussions futile, and in general to steer the process away from negative outcomes and
possible breakdown towards joint gains.

Mediation has become a very important and viable alternative to adjudication and arbitration in the
legal system (labor disputes, family, business, and commercial disputes). In some countries and
states we find laws of mandatory mediation, as a way to encourage the parties to the dispute to use
the mediation process as a preferred way to resolve disputes.

Unlike the process of facilitation, where the third party merely hosts the parties and encourages
them to continue negotiating in a neutral, welcoming environment, the mediator plays a more active
role. The mediator not only facilitates but also designs the process, and assists and helps the parties
to get to the root of their conflict, to understand their interests, and reach a resolution agreed by all
concerned.

A mediator should study the substance of the dispute, and try to identify the issues in conflict, using
tools such as re-framing, active listening, open-ended questions, and his/her analytical skills.
Mediation is a voluntary process (except where there is a law of mandatory mediation in place). The
parties agree to the process, the content is presented through the mediation, and the parties control
16
the resolution of the dispute. Because the participation of the parties and the mediator is voluntary,
the parties and/or the mediator have the freedom to leave the process at any time. The mediator may
decide to stop the process for ethical or other reasons, and the parties may decide that they are not
satisfied with the process. The agreement, which is reached between the parties, is voluntary; the
parties own it and are responsible for implementing it. The agreement is validated and ratified by
the courts.

 Arbitration:

Arbitration is a form of alternative dispute resolution in which the parties hire a neutral third party
(or parties) to hear testimony, take evidence, and issue a decision or award. Arbitration is one of the
various methods of dispute resolution but undoubtedly the most popular. It is defined in the
Halsbury’s Laws of England as “the reference of a dispute or difference between not less than two
parties for determination, after hearing both sides in a judicial manner, by a person or persons other
than a court of competent jurisdiction”.

Arbitration is the closest form to adjudication. The parties agree on a third neutral party or a panel,
to whom they will present their case. The arbitrator has the power of decision in the dispute. It is a
private and less formal process than litigation in court. There are several varieties of arbitration; it
may be binding or non-binding, and the arbitrator’s decision may be with or without a written
explanation or opinion. The arbitrator meets with the parties to a dispute, hears presentations from
each side, and renders a decision.

 Conciliation:
Conciliation is a type of mediation whereby the disputing parties use a neutral third party (a
conciliator) who meets with the parties separately in an attempt to resolve their differences.
Conciliation differs from mediation in that the main goal is to conciliate, most of the time by
seeking concessions. In mediation, the mediator tries to guide the discussion in a way that
optimizes parties’ needs, takes feelings into account and reframes representations. In conciliation
the parties seldom, if ever, actually face each other across the table in the presence of the
conciliator, instead a conciliator meets with the parties separately “caucusing”. Such form of
conciliation (mediation) that relies on exclusively on caucusing is called “shuttle diplomacy”.
Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal
standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually
writes no decision, and makes no award. Mediation and conciliation systems are very similar in
17
that they interject a third party between the disputants, either to mediate a specific dispute or to
reconcile their relationship. Mediators and conciliators may simply facilitate communication, or
may help direct and structure a settlement, but they do not have the authority to decide or rule on a
settlement. Arbitration systems authorize a third party to decide how a dispute should be resolved.

10. Merits and Demerits of the ADR System:

ADR can be termed as an effective means to solve disputes by the help of a neutral third party as
popularly stated since time immemorial “Every coin has two faces”, the said methodology of
resolving disputes through alternative means also has some pros and cons.

The following section will vividly discuss the merits of the Alternate Dispute Resolution System.

Merits of the ADR Scheme:

Saves Money and Time:

It saves a lot of time by allowing the parties to resolve their differences/ disputes/ issues in a short
period of time as compared to the excessive stint taken by the Hon’ble Courts in resolving the very
same issues.

In an era, like our very own, where the population is humongous, there are a innumerable sectors
from where cases and disputes arise, not all of them can be brought to the court, as only important
issues ought to be dealt with there. The saying, “justice delayed is justice denied” can be sacked
through this system. The unnecessary burden upon the courts can be removed and hence elongation
can be avoided. Moreover these processes can commence at any point of time, unlike anticipating
the stipulation of dates as and when pleased by the court.

It saves a lot of money that is disbursed on lawyers and other miscellaneous expenses that one has
to undergo in the process of litigation.

The most elementary benefit of the ADR system is saving costs, giving control to the disputants and
thus avoiding the vicious litigation process. Such process (like ADR) results in substantial savings
of court fees, lawyer’s incentives, and other costs because they do not include time consuming and
expensive discovery that is quite prevalent in different courts. Other such elaborate practices are
also deemed redundant.

18
Freedom of expressing own views:

It puts the parties in control by giving them opportunities to discuss their case by giving them a
forum to put forth their own views and thereby giving them a chance to put themselves on a clean
slate.

The parties have the opportunity to air their own views and ideas directly in the presence of the
other party. There is no mind games involved because the victimized party addresses the opposite
party/ parties directly. This process thus provides a catharsis for the mindset of parties that can
endanger a willingness to resolve differences between them in courts. Moreover since they are
heard in the presence of a neutral authority figure, the parties often feel that they have had “their
day in the court.

Access to justice is much easier:

Access to justice is much easier and much faster in case of ADR, because it allows people, who
cannot afford fees or cannot afford to lose time, to acquire a remedy without getting into the sweat
breaking system of the court.

People solving their disputes through the ADR have the benefit of solving their own cases
themselves, and hence are representing themselves per se. Generally court litigation can be very
difficult for the per se litigant, who is unable to navigate himself through the court proceedings and
trial. With the downturn in the economy, studies show that fewer parties are represented by the
counsel, and that lack of representation negatively impacts the per se litigant’s case. Thus is this
manner access to justice is much faster and more number of people are encouraged to solve the
issue through ADR mechanism.

Focuses on the main issues:

It focuses on the issues that are important to the people instead of just stressing upon the legal rights
and obligations.

Resolutions through these systems are brief and brisk. Avoiding the unnecessary litigated outcomes,
the parties involved can just acquire the result they want and are comfortable with. The 3rd party
involved efficiently handles this plan. i.e. (mediator, arbitrator, conciliator etc.) they identify and

19
frame the relevant interests and issues of the parties, help them to access the quantity of risk,
suggest relevant options and hence lead them to a particular and appropriate solution. This is
accomplished by meeting with the parties separately and hence suggesting to them the issues upon
which they have to focus rather than just going by the rules stated in the black words on a white
paper.

Gives flexible remedies:

It leads to more flexible remedies than in court, i.e. the people make agreements that the court
cannot order or enforce upon.

There must be certain cases where the arbitration is required by contract. The parties to the same
can initiate proceedings to suit their needs, such as location of arbitration, scope of discovery and
the number of arbitrators involved. Once the process is started, a party seeking more streamlined
and less expensive process will be better to achieve than in courts. The parties can also schedule the
hearing time. This can even take place in any time as decided by the parties. Since one of this type
can be can be conducted more quickly, and less expensively, there is less emotional burden on the
individuals involved than proceedings in a stressful trial.

It keeps the disputes that are private as the same:

There is no public announcement of the arbitration/ mediation/ conciliation or any of the ADR
processes for that matter. The case is held in a confidential manner by keeping the private matters as
private. Full secrecy is maintained. While mediation can take place in the formal court system,
arbitration can be administered on a secretive basis. Here the parties involved and the arbitrator or
the mediator is invited who can solve the case within four walls of the said arbitration/ mediation
room. They are moreover barred from disclosing any information.

Reduce the stress:

It produces good results by reducing stress upon the people and satisfying them by giving them the
desired results and by preserving good relationships between them.

The process of litigation that is traditionally followed can be stressful and personally excruciating.
At the end of the litigated process the parties are generally not in good terms with each other, and
are unable to start any relationship afresh. However, in case of the resolution of disputes through
alternative means, other than litigation, the parties maintain cordial, business and personal relations
20
with each other. The reason of the aforementioned fact is that the parties are given a rightful chance
to express themselves and are suggested remedies consequently, they both agree to the same by
reaching to a common conclusion. They negotiate amongst themselves or the 3rd party helps them
by suggesting remedies. There are no winners or losers here. The 3rd party has no authority to
impose any advice or remedy atop the parties. The said resolutions are solely voluntary and on the
sole discretion of the parties. Here the parties retain their options.

ADR provides finality:

In courts, during the proceedings, the parties generally have a chance to appeal the decision of the
judge or the verdict of a jury. In contrast to this, the grounds for court review of an award received
through arbitration are very much limited. There is lesser chance for the award of arbitration to be
challenged. It is final and binding on the parties thereof.

Time to flip the coin as we go through the demerits of the said system. The following section of the
paper will discuss the demerits of the ADR system.

Demerits of the ADR scheme:

Compatibility in this blistering era of disputes:

Alternative dispute resolution system may not be suitable for each and every dispute. Agreed that
cases do pile up in the Hon’ble Courts of law all around the world, but the judge cannot always
refer a case to arbitration/ mediation/ conciliation. Some cases are to be dealt in the court of law;
there is no other ‘informal’ means of solving the said cases. Many a times, one of the parties is not
comfortable with the idea of ‘alternative’ means of resolutions being used to tackle their issues so
they prefer appearing in the court of law.

Wastage of time/ money if the case is not resolved:

A recent survey done by a prominent law database website suggests that nearly 90% of the cases,
which are dealt through the ADR system, are solved but the remainder, i.e. the remaining ten
percent, of the cases go unresolved, the parties to the unresolved cases have no choice but to file a
law suit thereby wasting same, sometimes more, amount of time and money in the proceedings of
the legal system.

21
The possibility of bias:

The possibility of bias, though negligible, or a conflict of interest or at least the appearance of
impropriety, may arise if a neutral in ADR gets a good deal of repeat business from the same
institution.

Compromisation of Confidentiality:

Prima facie, confidentiality of the proceedings seems to be a boon for such a dispute, however, in
practice, it might prove to be a double edged weapon, as it might lead to certain difficulties and
obstructions. In the proceedings confidential it may be difficult for the parties to use the award or
any other part of the arbitration in later proceedings. In many a cases, it is necessary to disclose the
time/ date and place of the said arbitration proceedings to the third parties and or patent officers and
thereby compromising the confidentiality of the system.

Limited Judicial Review:

Another everlasting problem faced by parties taking recourse to the ADR system is the power of
limited or negligible Judicial Review An arbitral award is final and binding on the parties and
excluded to appeal to the courts in connection with it. The court review of arbitral awards is quite
limited.

Informal, more opportunity of abuse of power:

Though very uncommon, power abuse sometimes is something to worry about in case of
Alternative Dispute Resolution systems. Since the mediator/ arbitrator/ conciliator does not have to
follow any formal code of prescribed text, he sometimes goes out of the way to make things good or
sometimes even worse for the parties to the dispute. Though not into practice, abuse of power due
to lack of formality sometimes gets to crack the bone of the whole system.

Lack of power to establish legal precedents:

The remedies established, or given out to the parties in dispute, in case of ADR cannot be binding
on future cases, i.e. the remedy of one case cannot be taken as the guiding stone for another or it,
the remedy, cannot be taken as a legal precedent.

22
Unfamiliarity with the procedure and Lack of awareness:

Last but not the least, one of the most glaring difficulties faced by the alternative methods of dispute
resolution is that most of the people, be it the patentee or the companies or the attorneys, are
unfamiliar with the processes since this is a fairly novel concept. It is the lack of knowledge and
awareness with respect to the various methods for dispute resolution that more often than not
discourage parties from considering this option seriously.

11. The Possible Role of the lawyer In Alternative Dispute Resolution:

Whatever type of lawyer you are in terms of your practice area, every attorney has the ability to be
involved in the ADR process. It is easy for us to think that ADR is purely for those litigators
amongst us and has no relevance for any other attorney.

The role of the attorney in ADR comes at the very earliest stage when parties are still happily
dealing with each other, cementing a particular deal and at the contract stage. The contract can be a
mega-commercial transaction, a consumer’s transaction or the sale and purchase of real estate.
Whatever the underlying transaction, ADR is an essential tool in every lawyer’s toolbox to be able
to draft an agreement that looks to the eventuality if this happy marriage between the contracting
parties ever goes sour. Therefore, the appropriate clause to add into the contract can have far-
reaching effects upon how the parties will resolve their differences should any disputes ever arise.

The nature of the ADR process and the roles and skills of lawyers:
The key roles that lawyers can play in the ADR context were identified as ADR practitioner, legal
representative for parties engaging in an ADR process, provider of community legal education
about ADR, or supporter of participants in a collaborative law process.

Whether the role of the third party to the other parties in dispute in an ADR process is facilitative
(e.g. mediation), advisory (e.g. conciliation) or determinative (e.g. arbitration) has an impact on
the role that a lawyer might usefully play. For example, some submissions suggested that legal
assistance is more important in facilitative rather than in advisory or determinative processes
because the neutrality of the facilitator’s role prevents them from providing legal advice to a
disadvantaged party. Others saw legal assistance as potentially counter-productive to a
facilitative process, because it brought an undesirably legalistic approach to a process that is

23
designed to be non-adversarial and to address underlying conflict issues that may not be legal in
nature.

Submissions unanimously agreed that it is vital that a lawyer be clear about the role he or she is
playing in an ADR process. For example, if acting as an ADR practitioner in mediation, the lawyer
should be impartial and thus avoid advocating for either party. However if acting as a lawyer for a
disadvantaged client, the role might include explaining the nature of the ADR process, ensuring
that the process is conducted fairly, advising on the strengths and weaknesses of the client’s
case, and ‘reality testing’ any settlement options against the likely outcome if the matter were
litigated.

Submissions revealed that in practice these roles may not be so clearly defined, with ADR
practitioners in facilitative processes sometimes providing an opinion on the likely outcome of
a matter if it were to be litigated.

The submissions stressed that to play their role in ADR effectively; lawyers need more than just
knowledge of the law and familiarity with legal issues. They need to have knowledge of the particular
type and model of ADR and the skills to enable them to use ADR processes to the benefit of their
clients, for example an understanding of how and when to use different negotiation styles.

Lawyers assisting party to the ADR:

A lawyer’s role during ADR is to help clients to best present their case and assist clients and the
ADR practitioner by giving practical and legal advice and support in a process that is intended to
be more about problem-solving and less adversarial.

Helping clients to prepare for ADR may involve:

 Undertaking a risk analysis and linking risks to the client’s interests


 Explaining the nature of the ADR process

 Identifying interests

 Developing strategies to achieve final outcomes

24
The existing pro bono mediation schemes that are canvassed in this paper rely on a relationship
between the organization referring to (or running) the scheme and the client to inform the service
about whether the client needs legal representation to participate in the ADR process. If the client
needs and does not already have legal representation, the organization will find legal
representation for the client.

Lawyers delivering community legal education on ADR:

If ADR becomes more frequently used as a way of addressing unmet legal need, lawyers may
increasingly be asked or even required, to provide information about ADR when acting for parties
to a dispute NADRAC has recommended the introduction of measures that require or encourage
the provision to disputants of information or advice concerning the full range of methods or
processes that are available to resolve their dispute.

Lawyers are often the first point of contact for people seeking to resolve a dispute and are
therefore in a position to provide general information about ADR, suggest ADR to appropriate
clients with appropriate cases, and advise clients when ADR is mandatory.

What a lawyer should do and not to do in mediation to achieve a client's objectives:

Litigation counsel is both an advocate and an officer of the court. There is a parallel in mediation
since counsel both advocates client interests and helps advance the mediation process. Certain
lawyer skills that may be extremely effective in litigation, however, are counter-productive in
mediation — in particular, any that reduce the likelihood of consensual decision-making. The key to
mediation is communication and understanding. Persuasiveness and advocacy play an important
role, but it is the clients, not the judge, who must be convinced.

For example, the use of closed questions — a cross-examination or discovery style — will elicit
little real information about the other participants' needs in settlement and, worse, may create an
atmosphere of anger or defensiveness that shuts down the exchange of ideas or information,
sometimes even resulting in breakdown of the mediation. Effective mediation counsel will ask open
questions that allow others at the table to provide information about needs and interests that will
later be useful in reaching a creative settlement.

Likewise, attentive listening without interrupting tends to encourage similar behavior on the other
side and moves the participants toward settlement more quickly. Counsel in mediation need to be
prepared to acknowledge the interests and points of view of the other participants, which does not
25
necessarily mean accepting the legal positions or solutions proposed to resolve the dispute.
Separating understanding from agreeing is a useful concept, as it can aid in developing a productive
working climate. At the same time, counsel can and should put forward the client's needs firmly and
in a forthright manner.

Another element of style is how forceful counsel wants to be in mediation on behalf of his or her
own client. This will depend primarily on the client's needs going into mediation. Confident or
settlement-minded clients may prefer that the lawyer be conciliatory from the outset. This client
may also take a more active and vocal role during the mediation. Anxious or timid clients, on the
other hand, may need a lawyer who will take a strong stance, and may be less comfortable
participating, particularly in the beginning. The role of counsel and client in mediation should be
canvassed with the client prior to mediation. The same comments apply whether counsel are present
at the mediation or are advising between sessions, and may indeed assist in deciding whether
counsel will be present at mediation.

There are other duties falling on mediation counsel, such as assisting the client to be reasonable
when potentially productive settlement proposals are received from other participants. This is one
way a lawyer responsibly advises any client on bona fide settlement proposals, whether in litigation
or mediation.

However, the momentum for settlement by agreement is greater in mediation because it is the goal
of the participants. If counsel does not have a client seriously consider settlement at the right
moment, the timing is lost and settlement will not result. Without settlement, the time and money
spent in mediation will appear to be less than productive. The most likely result is client
dissatisfaction and one or more of the participants may conclude that settlement is not possible in
any circumstances.

Mediation counsel's role in assessing settlement may therefore need to extend further than when the
trial is just around the corner and the client's motivation for settlement may be solely based on risks
and expenses of going to court rather than on other underlying interests.

Redress Unequal power:

The roles that pro bono lawyers could play to redress unequal power between the parties to ADR include: 1)
providing legal assistance to unrepresented parties to ADR, especially where one party does have
representation, and/or 2) being an ADR practitioner who understands both the law and practice in the area of
the dispute and can effectively make these disadvantaged parties aware of the strengths and weaknesses of

26
their case. The need for this kind of assistance is likely to increase as the number of mandatory and voluntary
ADR schemes increases.

From their experience as lawyers working with low income, marginalized and vulnerable clients, pro bono
lawyers may have the knowledge of types of legal issues that affect disadvantaged clients that would enable
them to accurately and thoroughly inform a disadvantaged party of the strengths and weaknesses of their
case. If they are also trained as ADR practitioners they would also have knowledge of ADR processes so
they can confidently advise a disadvantaged party on how ADR works and used strategies to address any
power imbalance between the parties to the dispute.

Ensure Opportunity to all in Participate and Have a Voice:

All identified stakeholders, whether direct constituents or in represented capacities, should have
adequate opportunities to be heard and to participate in proceedings that may result in decisions
affecting them. Parties and stakeholders should be able to choose representatives to represent or
express their interests. Lawyer should ensure it.

Justified Bases for Claims, Arguments, Needs, and Interests:

Participants should be able to express justifications for their views, arguments, needs, and
objectives by explaining why particular outcomes or principles are important. Justifications may
include reasons, data, values, beliefs, and emotions.

Enhanced Capacities:
Facilitators, mediators, intermediaries, or other third-party neutrals should enhance the capacities of
participants to participate in such processes in the present and in the future with other parties.
Where possible, process experts should be sure that parties learn how to negotiate, deal with
differences and conflicts, and deliberate and dialogue with each other effectively. Enhanced
capacity should occur not only to maximize effective participation in a particular event but also to
improve and facilitate future dealings with the same or different parties.

Following Decision Rules and the Law:

Agreements, decisions, and solutions should be approved according to the decision rules of the
participants and consistent with applicable legal or other contextually based authorities.
Agreements should be based on informed consent, not on coercion. A decision to not reach
agreement should be a legitimate outcome if the conditions for reaching an agreement are not met.

27
Avoiding Unjust or Unfair Results:
A facilitator, mediator, intermediary, or other third-party neutral should do everything within his or
her control to ensure that any agreement reached or decision taken is not unconscionable unfair,
unjust, or causes unnecessary harm to the participants or to any third parties not present during the
process. An effective consensus-building process should at least make the parties better off than
they were before they began, perhaps emerging with little more than mutual understanding.
However, a deliberative process should not be used to circumvent other legitimate laws or
processes or to deflect harm onto unrepresented parties. Third-party neutrals should not preside
over agreements that are obviously unfair, unjust, unconscionable, or that will harm the participants
or others outside of the process.

Examples of types of matters and areas of law where lawyers have successfully played
roles to assist clients:

The following are suggestions for types of matters and areas of law where pro bono legal
resources have been, and may continue to be focused usefully, as either ADR practitioners or
advocates for parties, or both. They are drawn from the case studies provided by existing pro
bono ADR schemes, and through other consultations and submissions.

 Complex civil proceedings involving self-represented litigants


 Disputes within and between Indigenous communities;

 Disputes within and between not-for-profit organizations;

 Small claims matters in courts;

 Family law (specifically the Co-ordinated Family Dispute Resolution Pilot and disputes
about children and property);

 Disputes between or involving small business;

 Estate disputes;

28

 Assisting parties to make agreements resulting from ADR processes binding/enforceable
by drawing up agreements or seeking consent orders;

 Some employment related disputes (including discrimination and harassment); and

 Collaborative law practices.

12. Role of ADR for Removing Harassment:

It has often been said in the class room lectures, seminars and other discussions that lawyers are
social engineers. Engineers build buildings, roads and bridges, machinery, vehicles, airplanes and
ships and, therefore, immensely contribute to the advancement of human civilization. They have
made our life easier by many inventions. What are the reasons that lawyers are seen at par with
the engineers? Why are they called social engineers? Lawyers are not even social scientists,
philanthropists, thinkers or mentors that the entire community should owe them for their societal
development. In fact, lawyers represent their client in the court of law and plead in favor of them.
In lieu, they take fees and enjoy honor and respect from the clients.
Some lawyers who have foreign degrees and/or professional trainings, like Barristers, Queen’s
Councilors (in short QCs) and Doctorates (PhDs) charge higher fees from their clients. The
profession itself is not a charity and had never been generous to poor, vagabond and insolvent. It
is because of the fact that lawyers are not salaried by the government or any other bodies and they
have possibly no other source of income within the profession. Clients are the sole source of
income for a lawyer; no brief, no work and thus no work, no money. They have to maintain their
family with the earnings from the profession. Like all other professions, it is a means of livelihood
for them. So it is beyond one’s expectation that a lawyer would help a client with no fees.
Again lawyers’ fees is not the first and last cost involved in a suit; there are court fees, lawyer’s
assistant fees, other incidental costs like expenses for collection of documents and materials,
buying stamps and other papers etc. So the least expectation that a reasonable man can form is that
a lawyer would take the incidental costs of the suit and no or only nominal fees from a poor client.
Is this the cause that labels it as a noble profession like medical practice? The answer that swiftly
comes in my mind is “no”.
There are few notable differences between the two professions: We expect doctors or medical
practitioners to be poor-friendly and not to be money seekers for every service they deliver to
them. It is because, apart from few private and individual medical practitioners, almost all of them

29
work for government or non-government hospitals, they are salaried and they have other source of
income within the profession too. Moreover, their profession is closely connected with life and
death, sufferings and happiness, illness and healthiness, pain and pleasure of human body and
soul. The pleasure of saving a human life is much more than the pleasure of earning extra amount
from a poor patient. But practically speaking, lawyers neither have the extent of enjoying such
immense contentment nor enough scope to work for free. To me, lawyering is social engineering
and a noble profession because, lawyers work for justice and peace, lawyers make equal the
strong and the weak. Lawyers are the social engineers because they are entrusted with the duty to
help the court in revealing the truth, upholding the justice and ensuring the equality. It is a noble
profession because it does not leave a person merely because he is accused of theft; it stands
beside him until he is finally proved in a free, fair and neutral court established by the law.
Society is not a body without feeling; it is an institution of human souls. It develops through many
strains and stresses, it breaks and forms, it has ups and downs. Lawyers are the silent engineers in
forming the contour of the society, in bringing positive change in it. They work for restoring the
faith of the common people in justice and equality, democracy, rule of law and human rights. As
an officer of the court, every lawyer must keep in mind the quintessence of upholding truth and
revelation of real fact. The ethics and responsibility of the profession is to guide the court in right
track, protect the client with the shield of law and vindicate for truth and justice only. That is why,
lawyers not only represent the victims, the innocents and the vulnerable, they also stretch their
hand to the criminals, the corrupts and other peace-breakers. By defending a habitual murderer or
a notorious criminal in the court, a lawyer serves the society in two ways: Firstly, establishing
everyone’s right to self defense and secondly, ensuring right to fair treatment from the court and
law enforcing agency. The realization of these two rights ensures the basic human rights, such as
right to food, clothing, medicine, pleasure, leisure, freedom from cruel and inhumane punishment,
maltreatment etc. for him who is entitled to enjoy those rights irrespective of his conviction or
acquittal.
We experienced that people lynched the muggers and hijackers in the street out of desperation.
They were frustrated with the existing condition of the administration of justice system. The huge
backlog of cases, procrastination in delivering justice, dishonesty of the police administration,
influence of the political parties and leaders, existing bad images of the lawyers propelled them to
take law in their hand and thereby to cause another extra-judicial killing. Wasn’t it an indication
of less confidence in our administration of justice system?
Though few eminent lawyers are reported to dub such popularity as unhealthy, they did very little
to stop the invisible conspiracy of tarnishing the image of the lawyers, judges and as a whole

30
undermine the efficacy of our judiciary. The ‘conspiracy’ was not only from outside of the
profession, it came from within too. The narrow partisanship, prioritizing party interest to
professional interest and integrity, exercising unfair means for availing favorable result in the
court and not seeing the profession as a noble one but completely a business tool etc. is few of the
practices of many of the lawyers that are destabilizing the image of the profession.
There are other good numbers of reasons also that encumber the development of good relation
between lawyers and clients, lawyers and lawyers, lawyers and judges. In Great Britain from
where we inherited our legal system, lawyers don’t bargain with the clients for their fees, don’t
personally attack their opponent friends, and don’t humiliate the persons in dock. The one and
only weapon to win a case is to master one’s skill and knowledge in legal technique. Therefore in
Britain the profession is a symbol of politeness, generosity, courtesy as well as excellence of legal
knowledge. Bangladesh stands far behind Great Britain and therefore no such comparison can
usher us a possible solution to rid the existing drawbacks of our legal practice.
However, this write-up is not an Endeavour to spotlight the slips of the legal practice in
Bangladesh; it is just a small effort to ask the lawyers for few definite acts to ensure access to
justice of the poor, the marginalized and the have-nots. It is not the duty of the government or
judiciary alone to work for ensuring access to justice for everybody, the task is very much due to
the lawyers too. We must want infrastructural changes and pro-people reformation from the
government, judicial activism from the Bench, but the ultimate result that we are looking for rests
in the hand of the Bar. Because lawyers are directly associated with the poor litigants. They could
assure them, sit beside them and make them known about the court proceedings. It is for sure that
few lawyers, chambers and human rights organizations headed and administered by the lawyers
are already engaged in the activities that realize the right to access to justice. Nevertheless this
general call intends to echo that once again in their minds.
Even after 35 years of our independence, there are thousands of poor and marginalized people,
particularly women, children and elders who do not know their constitutional and statutory rights,
who do not enjoy right to appear before a court, right to legal representation. There are thousands
of under trial prisoners who are languishing in the jail without any legal help from the government
and non-governmental side. There are religious, linguistic and racial minorities, economically
downtrodden, who do not enjoy minimum protection of law. The concept of “equality before
law”, “equal protection of law”, “equal opportunity of law” and “due process of law” appear very
futile to further the cause of their social, cultural and economical as well as political safety and
advancement. They hardly consider themselves safe, defended and protected by the laws of the
land. In fact, they have not been enjoying the constitutional safeguards which are as sacred as the

31
entity of the state itself. Under this setting, lawyers have the scope to come up for enhancing their
access to justice leading to their empowerment and poverty reduction by doing the following:
Social and Human Rights Advocacy: Lawyers can do social and human rights advocacy by
ensuring the participation of the poor and the marginalized in making decisions that affect their
life. They can advocate for pro-people changes in enactments, strict observation of the provisions
of the enactments by the government officials and law enforcing agencies. They can make forum
for asserting the rights of the poor and sketch out the possible measures for their realization. An
example of it can be given as follows: the workers of Ready Made Garment (RMG) sector have
the right to safe working environment by both domestic and international laws. But the garments
workers and the owners are not aware of it; factory inspectors are also not giving it priority.
Lawyers can definitely address the issue with high importance as such it relates with the safety of
the workers and their family.
Legal Awareness Building: The majority of our population is illiterate and ignorant about their
right. They are even not aware about their civic duties. One of the popular maxims goes as:
“ignorance of law is no excuse”. It means nobody can defend himself that he or she does not know
about the law. Lawyers can choose a particular field, e.g. family law or fundamental rights
guaranteed by the constitution, and therefore can make them aware about their rights, relief in
case of their violation, steps to be taken for their enforcement etc. Legal awareness building can
be an effective tool for unshackling the country from legal illiteracy.
Providing Legal Aid and Services: We have a Legal Aid Act passed in 2000 and it was amended
with few changes in 2005. It provides for legal aid to the poor and the distressed who cannot
afford lawyers’ fees and other incidental costs. The said Act establishes a Legal Aid Institution
governed by a National Legal Aid Board and provides for District Legal Aid Committee, Upazilla
Committee and Union Committee. Six years have passed but the Legal Aid Institution is yet to be
institutionalized. Research has shown that a large number of lawyers are not aware about the Act
and activities of the National and District Legal Aid Committees. Lawyers must equip themselves
with this rapidly growing branch of jurisprudence. They can render legal help and support to the
poor litigant without or with nominal cost. If not possible, at least they should channel them to the
government legal aid fund or refer them to other human rights organizations which have offices in
regions and/or districts and also close networking and coalition with local NGOs and other legal
organizations.

32
13. Efficiency and effectiveness of ADR towards Access to Justice:
Development of ADR in different countries of the world, especially in developing countries is a
step towards the proper administration of civil justice for all equally. It has successfully opened
the door of justice equally for rich and poor which the ordinary legal system has failed to do.
Through ADR the parties can reach to a harmonious settlement of the dispute which is opposed to
the win-lose outcome of the legalistic and formalistic approach of litigation. Usually the win lose
situation becomes a rigorous obstacle in the way of future relationship between the parties. As it
sequels win-win situation which not only settles the dispute but also brings peace and healing that
preserve the future relationship between the parties. Avoiding all kinds of legal procedural
complexities, technical legal principles it follows the process which the parties and their appointed
mediator think best for the settlement of their issue. In ADR the parties select and control the
process of it for smooth, correct, effective and efficacious remedy and they are under the liberty to
appoint any expert in the subject matter of the dispute. Through ADR, avoiding formal process of
the court, it is not impossible to settle more than one suit in a single sitting which not only saves
the time and energy of the litigants but reduces the cost to a significant extent. Apart from
ensuring these benefits it can provide social and psychological benefits to the parties. So a vast
number of disputes are settled through ADR which enormously reduces the tremendous pressure
on the current suits in the ordinary courts. One important positive side of ADR is absolute
maintaining of privacy because privacy is a key value which underpins human dignity and it is a
basic human right and the reasonable expectation of every person.13 Once a mediation settlement
is reached and a decree is passed the case is finally disposed of. Unlike a trial there is no
possibility of a dispute, settled through mediation, being revived.14 Another important advantage
of ADR is the liberty of the parties to withdraw the suit at any time, in any stage of the suit, from
the formal court and to send for the settlement through ADR and the resolution through formal
ADR bears the strength of a judicial decree that is expected to contribute greatly towards the level
of confidence and popularity of the mechanism amongst litigants.15 The informality of ADR and
NGO promoted dispute resolution initiatives, particularly mediation, paved the way for the
marginalized men and women and grassroots members of the community to participate in local
adjudication.16 For these advantages of ADR, judicial mediation and arbitration have been
introduced in many parts of the world and in many legislations of Bangladesh. Most of the family
court cases in Bangladesh involve financial claims. Statistics show that the total realization of
money through execution of decree in suits disposed of by trial is far below than the total
realization of money in dispute settled through mediation. From 1985 to 2000 total money
33
realized in connection with family suits in three courts is Tk.61, 99,759/50 whereas the total
realization through mediation since the introduction of mediation in the same courts from June
2000 up to 16th May 2001 i.e. in twelve months is Tk.50, 94,501/00.

14. Barriers in the way of Access to Justice:

There are some obstacles in the way of access to justice which can be described as follows:

 Delay:
The age old adage states “justice delayed justice denied”. Delay is the main obstacle to the
dispensation of justice. Delay in our judiciary has reached at a point where it is the main factor of
injustice, violator of human rights. One or two years necessary for the disposal of a suit may swell
up to 12-15 years or even more. By the time the judgment is pronounced the need for it in many
respects may have been over.18For illustration, in a suit for the restitution of conjugal right by
husband, the date on which the judgment was pronounced by the court the woman was married and
a child was born to her.19 These are many cases of the same kind where delay in disposal creates
many social human problems. The law commission20of Bangladesh points out six reasons for the
delay in the disposal of a suit i.e. abundant number of cases, procedural complexities etc.

 Prohibitive cost of litigation:

The principal object of the legal system is to ensure equal justice for all. We cannot conceive of
justice that is not fair and equal, which is given to one and denied to another. Justice should be done
alike to rich and poor. Where discrimination is done among the rich and the poor to deliver justice,
which is not justice but injustice. It was inserted in the charter of liberties of Henry 11and Magna
Carta, where it is inscribed. “To no man will we deny, to no man will we delay, justice or right”21
But equal justice is not possible in the ordinary court of law which involves huge amount of money
.i.e. the court fee, lawyers` fee, money to collect certified copies of the judgment, decree or order
and other incidental costs. So it becomes impossible to ensure equal access to justice.

 Procedural complexities:
The procedural complexities are the main interruptions to provide justice to the people. Justice
Krishna Iyer comments about the court system of India-
Watching the dilatory complexities of our forensic procedures, the meaningless waste of judicial
time and energy from the trail courts to the supreme courts and the easy possibility of economy of
time and money, one wonders why we hesitate to change.
34
 Backlogging of cases:
The judicial system of Bangladesh is jammed by a huge backlog of suits or cases .The backlog of
cases causes wearing delays in the adjudicating process which is, as described by professor M. Shah
Alam “eating Bangladesh judiciary” while delay in the judicial process causes backlog, mounting
backlog puts a tremendous load on the present cases.

 Corruption in judiciary:
Corruption is the vital cause for non- functioning the judiciary properly. It has destroyed our
judicial system.

 Want of efficient, independent and dutiful judges and lawyers:

To maintain access to justice properly, it is sine qua non that the judges and lawyers must be honest,
efficient, independent and dutiful to their duties. If the judges and the lawyers of a country are not
honest, efficient, independent and dutiful, the people of that country may be deprived of the benefits
of even good laws of the country. One author correctly stated: “truism that the quality of justice
depends more on the quality of persons who administer the law than on the content of the law they
administer”
7. Lawyers economic interest in the litigation.
8. Non- availability of legal aid.
9. Non- existence of separate court for the separate subject matter.
10. Centralization of judiciary.
Bangladesh legal study group (BLSG) identified the following problems in our legal system-
1. Lack of accountability
2. Absence of discipline and fragmentation in the litigation and
3. The absence of versatile alternatives to full trial
Possible way outs to overcome these problems:
Bangladesh is not only a country which is buffeted by these problems, even the developed
countries such as the United States of America, the United Kingdom, India and other countries of
the world. To solve these problems USA and following its inspiration many countries including
Australia, Germany, Hong Kong, New Zealand and United Kingdom have been using over the last
25 years, alternative way which is popularly known as ADR.
The abovementioned problems are faced by the courts in our country, especially in civil justice
system, but the existing legal system is unable to solve them. So initiative was taken in 1996 by Mr.
35
Justice Mustafa kamal the then chief justice of Bangladesh to commence reforms in our legal
system. Since then a co-operation has been built up with the Institute for the Study and
Development of Legal Systems (ISDLS) of USA to benefit our system with the American
experience in this field and to work out an appropriate mechanism for resolving problems faced by
our civil courts.
Subsequently, in January 2000, a trip by Judge Clifford Wallace in Dhaka finalized the selection of
a five member Bangladesh legal study group under the leadership of justice Mustafa kamal. The
BLSG made a report; one of the recommendations made in the report is to initiate immediately a
pilot project on mediation. On the basis of this recommendation, BLSG decided to introduce
mediation in family courts and started a pilot project.30 under this project the Family Court
acquired a great triumph which induced the lawmakers to insert this system in different laws in
Bangladesh.

15. The Way to Make ADR system Valuable:

We cannot stop the inflow of cases because the doors of justice cannot be closed, but we can
increase the outflow of cases either by strengthening (both qualitatively and quantitatively) the
capacity of the existing system or by way of finding some additional outlets.

In this situation ADR mechanism implementation can be such a drastic step for which three things
are required most:

• Mandatory reference to ADRs

• Case management by Judges

• Committed teams of Judges and Lawyers

Equal justice for all is a cardinal principle on which entire system of administration of justice is
based. We cannot conceive justice who is not fair and equal. We should aim to achieve earlier and
more proportionate resolution of legal problems and disputes by increasing advice and assistance to
help people resolve their disputes earlier and more effectively; increasing the opportunities for
people involved in court cases to settle their disputes out of court; and reducing delays in resolving
those disputes that need to be decided by the courts.

To implement the noble ideas and to ensure the benefits of ADR to common people, the four
essential players (government, bench, bar litigants) are required to coordinate and work as a whole

36
system. Case management includes identifying the issues in the case; summarily disposing of some
issues and deciding in which order other issues to be resolved; fixing time tables for the parties to
take particular steps in the case; and limiting disclosure and expert evidence.

• Government: Government has to support new changes. If the government support and implements
changes ADR institutes will have to be set up at every level from district to national level.

• Bench: unless mindsets of the judges are changed, there will be no motivation for the lawyers to
go to any of the ADR methods.

• Bar: the mindset of the members of the Bar is also to be changed accordingly otherwise it would
be difficult it is difficult to implement ADR. The myth that ADR was alternative decline in
Revenue or Alternative Drop in Revenue is now realizing that as more and more matters get
resolved their work would increase and not decrease.

• Litigants: few parties are usually interested in delay and not hesitate in taking a stand so as to take
the benefit if delay. Parties have to realize that at the end, litigation in court may prove very costly
to them in terms of both cost and consequence.

Conclusion:
The likelihood that ADR will become a more significant way of meeting unmet legal need than it is
currently, is evidenced inter alia by the growing number of government and industry sponsored
ADR schemes, the increasing cost of litigation, positive views on the utility of ADR for
disadvantaged clients and government sponsorship of the concept of ADR (including legislative
requirements to take steps to resolve disputes before going to court).
To identify where there may be gaps in ADR services which the lawyers could appropriately
address, consideration will need to be given as to whether:
 the relevant ADR process for the dispute is one that permits the involvement of lawyers
 The legal need is already being met by existing ADR schemes.
 the matter is appropriate for pro bono assistance (disadvantaged/low income client, cannot
obtain legal aid or other assistance)
 There are issues that affect how appropriate ADR is for resolving the dispute (e.g. power
imbalance, willingness of parties to participate and common interests in resolution, not a
public interest case which is more appropriate for adjudication.

37
  The skills of their lawyers are a good match for the legal need or whether training is
warranted.

Drawing on the experience of the few existing pro bono mediation schemes, the types of matters
that might be suitable for mediation on a pro bono basis include: self-represented litigants with
property law disputes, debt recovery matters, mortgage disputes and employment law matters, and
also where there are gaps in existing free ADR schemes, such as family law cases where there is a
restraining order in place.
The roles that lawyers might play in ADR include acting as ADR practitioners,
assisting/representing disadvantaged parties to ADR, and delivering community legal education on
ADR. Pro bono lawyers have the potential to provide the necessary combination of legal
knowledge, ADR skills and experience in dealing with disadvantaged clients which is needed to
effectively address the power imbalance that low income, marginalized and vulnerable parties face
when they participate in ADR.
If pro bono lawyers are going to play these roles they will need:
 Knowledge of ADR processes, particularly skills relevant to the areas of need e.g. strategies
for addressing power imbalances between the parties, particularly in cases involving family
violence;
 Knowledge of the legal issues affecting people experiencing disadvantage e.g. the rights of
Centrelink recipients in debt recovery cases; and
 Experience with assisting vulnerable clients who are unable to participate in ADR on an
equal footing. More specialist knowledge may be relevant for particular ADR contexts e.g.
Indigenous conflict management

Additionally lawyers who contribute as ADR practitioners will need the resources (cost and time
involved) to establish and maintain accreditation as mediators or other ADR practitioners.

38
Reference:

Akhtaruzzaman Md, Conflict Resolution: Introducing ADR in Criminal Justice Administration

in Bangladesh, Journal of 10th Human Rights Summer School (ELCOP), 2009.
ii
Samad Md. Atickus, A Text Book on ADR & Legal Aid, National Law Publications, First edition,
2013, p.185.
iii

S.R. Dr. Myneni, Alternative Dispute Resolution, Asia Law House, Hyderabad, Second edition,
2012, p.10.
iv
S.C. Dr. Tripathi, Alternative Dispute Resolution System (ADR), Central Law
PublicationsAllahabad, First edition, 2012, p.01.
v

Akhtaruzzaman Md, Concept and Laws on Alternative Dispute Resolution and Legal Aid,
Shabdakoli Printers, Fourth edition, 2011, p.09.
vi
Rahman Dr. Mizanur, “Alternative Dispute Resolution” HR Summer School Manual, Sep 2007,
p.148.
vii
S.C. Dr. Tripathi, Alternative Dispute Resolution System (ADR), Central Law
PublicationsAllahabad, First edition, 2012, p.03.
viii
Ibid.
ix
Samad Md. Atickus, A Text Book on ADR & Legal Aid, National Law Publications, First edition,
2013, p.11.
x
Akhtaruzzaman Md, Concept and Laws on Alternative Dispute Resolution and Legal Aid,
Shabdakoli Printers, Fourth edition, 2011, p.32.
1.
Hasan K.M.(former chief justice of Bangladesh), “A report on Mediation in the Family Courts:
Bangladesh experience” presented in the 25th Anniversary Conference of the Family Court of
Australia, Sydney,2 6-29,J uly 2001.
xii
Akhtaruzzaman Md, Concept and Laws on Alternative Dispute Resolution and Legal Aid,
Shabdakoli Printers, Fourth edition, 2011, p.34.
xiii
Halim Md. Abdul, The Legal System of Bangladesh, Dhaka, CCB Foundation, 2009, p.37.
xiv
Akkas Dr. Sarkar Ali, Law of Criminal Procedure, Ankur Prakashani, Dhaka, 2006.
xv
Huq Zahirul, Law and Practice of Criminal Procedure, Bangladesh law Book Company, Dhaka,
2003.
xvi
Kumar Anoop, Article on Applicability of ADR in Criminal Cases, Lucknow, 2011.

39
xvii
Section 101-114 of the Evidence Act, 1872.
xviii
Article 35(1) of the Constitution of the Peoples Republic of Bangladesh.
xix
Akhtaruzzaman Md. Interpretation of Statute and general Clauses Act, Dhaka, 2010.
xx
Halim Md. Abdul, Text Book on Code of Criminal Procedure, CCB Foundation, Dhaka, 2009.
xxi
Section 190 of the Code of Criminal Procedure, 1898.
xxii
Sections (260-265) of the Code of Criminal Procedure,1898.
xxiii
Ibid, Section (241-249).
xxiv
Huq Zahirul, Law and Practice of Criminal Procedure, Bangladesh law Book Company, Dhaka,
2003.
xxv
Akhtaruzzaman Md, Conflict Resolution: Introducing ADR in Criminal Justice Administration in
Bangladesh, Journal of 10th Human Rights Summer School (ELCOP), 2009.
xxvi
Halim Md. Abdul, ADR in Bangladesh : Issues and Challenges, CCB Foundation, Second
edition, 2011,p.194.
xxvii
Akhtaruzzaman Md, Concept and Laws on Alternative Dispute Resolution and Legal Aid,
Shabdakoli Printers, Fourth edition, 2011, p.173.

40