Assignment

On

“The Practice of ADR in Bangladesh:

Challenges and Opportunities”

Course No: 226
Course Title: Alternative Dispute Resolution

Prepare By:
Md Nazmul Islam
Department of Peace and Conflict Studies
University of Dhaka

May 22, 2013

Contents
Serial No Topics Name Page
No

01. Abstract
01

02. Preamble
02

03. Definition of ADR

03-04

04 Goals and Objectives of ADR 04-

05

05 Mechanisms of ADR
05-07

06 The Practice of ADR in Bangladesh 08-

15
07 Challenges of ADR in Bangladesh 15-
18

08 Opportunities of ADR in Bangladesh

18-20

09. Conclusion
20

10. Reference
21

List of Figures

A Framework on Alternative Dispute Resolution (ADR) 04

Model of Goals and Objectives of ADR 05

Formal ADR Practices in Bangladesh 09

Informal ADR Practices in Bangladesh 12

 Acknowledgement

I am student of 7th semester, Department of Peace and Conflict Studies. I am happy to

prepare an assignment on “The ADR Practice in Bangladesh: Challenges and Opportunities”.
First of all I would like to thank my course teacher Obayedul Hoque Patwary for his co-
operation and encourage me to make this paper.

Although the assignment has been decorated individually but overall it is not individual work
at all. I am benefited much from my friends, mate’s collective efforts. I am so much grateful
to all our friends equally.

This paper has organized by secondary sources which had to depend solely on some books,
journals and from Website consequently it has been a literature based paper where all data
has been collected from only secondary sources. So it might never reflect the actually of the
thought but I have tried to accumulate something in order to reflect the International affairs
in context to Iran. This is the first step; in future I need many things to develop the thought.
Finally I thank to my favorite teacher, all of my friends and all other who somehow helped
me. I hope to make the best of my capability.
 Abstract

Alternative" dispute resolution is usually considered to be alternative to

litigation. It also can be used as a colloquialism for allowing a dispute to
drop or as an alternative to violence. Society’s world-over has long used
non-judicial, indigenous methods to resolve disputes. In Bangladesh,
dispute resolution outside of courts is not new. What is new is the
extensive promotion and proliferation of ADR models and its increased
uses.1

Now a day the popularity of Alternative Dispute Resolution (ADR) system

is increasing day by day in Bangladesh. The justice seekers of
Bangladesh are frequently harassed in the area of courts. In this respect
ADR comes to make them harassment free. In this paper has described
about the Alternative Dispute Resolution (ADR) with the practice of ADR in
Bangladesh within the process of informal and formal systems. By the
way this paper has proportionately described about the challenges of ADR
in Bangladesh with the advantages and opportunities.

1
Study Circle Discussion Guide on Alternative Dispute Resolution, Material Development, Study Circle Program,
NDI, August, 2003; Dhaka, P.7.
 Preamble:

“Injustice anywhere is a threat to justice everywhere”

- Martin Luther King Jr.2

Alternative Dispute Resolution or ADR is an umbrella term used to describe a variety of

methods for resolving disputes outside of traditional methods such as litigation. Sometimes
ADR is defined as "appropriate" rather than "alternative" as a way of indicating that ADR
relates to finding the most fitting way to resolve disputes. Sometimes there is no used and
simply the phrase "dispute resolution" is used, as a way to indicate that all approaches to
dispute resolution are potentially considered3. Conflict or dispute is a natural and inevitable
part of all human social relationships. Conflict occurs at all levels of society – from
interpersonal, family, tribes to national and international levels. In other words, conflict is
ubiquitous. By conflict or dispute, we mean conflict of interests between two or more
parties about resources, differences of opinion within the group, power, prestige and others.
Parties in conflict/disputes believe that they have incompatible goals and here the desire to
gain advantage over, win over, injure, or defeat one another. Alternative Dispute Resolution
(ADR, sometimes also called “Appropriate Dispute Resolution”) is a general term, used to
define a set of approaches and techniques aimed at resolving disputes in a non-
confrontational way. It covers a broad spectrum of approaches, from party-to-party
engagement in negotiations as the most direct way to reach a mutually accepted resolution,
to arbitration and adjudication at the other end, where an external party imposes a solution.
Somewhere along the axis of ADR approaches between these two extremes lies “mediation,”
a process by which a third party aids the disputants to reach a mutually agreed solution. 4
Whichever way the acronym is spelled out - alternative, appropriate, or just dispute
resolution - the concept of ADR is based on expanding the tools available for resolving
disputes.5 The practices of ADR in Bangladesh by the way of NGOs, Shalish, Village court and
several systems but there are various challenges to maintain this ADR in Bangladesh. In this
assignment will be explained about the practices of ADR with Challenges of ADR in
Bangladesh.

2
Barash, David, Peace and Conflict Studies, 1998, p- 246
3
Samad, Atiqus, Assistant Judge, People’s Republic of Bangladesh & Part-time Faculty Memberr, Department of
Law and Human Rights, University of Asia Pacific
4
Acland, A. F. 1995. Resolving Disputes Without Going To Court: A Consumer Guide to Alternative
Dispute Resolution. London, Random House.
5
Ibid-2
 Definition of ADR:

 “The term Alternative Dispute Resolution or ADR is often used to describe a wide
variety of dispute resolution mechanisms that are short of or alternative to full- scale
court process”.6
 “ADR is a general term used to describe a set of approaches and techniques aimed at
resolving disputes in a non- confrontational way.”7
 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 adversial than a court trail”.8

The term of 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.9 So, from the above discussion it can be 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.

6
Alternative Dispute Resolution, A Study Guide Circle, 2003
7
Yona Samir, Alternative Dispute Resolution, Approaches and their Application, 2003, p-2
8
Totaro, Gianna, Avoid Court at all Costs, 2008, p- 35
9
www.asapcollect.com/Resources--Links.../index.html (accessed on 26.04.2013)
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)

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 Relationship neutral Precedent
Opinion

Figure 02: Model of Goals and Objectives of ADR.10

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-

10
Frank, Sander and Stephen Goldberg, Fitting the Forum to the Fuss, A User Friendly Guide to Selecting ADR
Procedures, Negotiating Journal, January 1994, pp: 49- 68
  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. 11 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.” 12 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.13

 Mediation:

Parties to a dispute seek mediation when they are ready to discuss a dispute openly and
honestly. Usually in a dispute, there are varying degrees of interests and concerns therefore
it is usual that a trade off may be made in a creative manner which a court may not consider.
The underlying factor in mediation is that the parties have bargaining power and that a
continuing relationship is essential after the dispute therefore trial is to be avoided. 14

Mediation is a form of alternative dispute resolution in which the parties hire a trained,
neutral, and impartial mediator to help them negotiate a mediation agreement. Shalish,
local process – combination of negotiation and mediation process, provides a traditional
alternative to dispute resolution in a community and covers both civil and criminal cases of
varying intensity and degree. This system in the village has been in place for centuries. Local
leaders provide an opportunity for resolving local disputes. Women and the poor
particularly, favor this option of conciliation through Shalish. They feel comfortable about
easy access to the resolution process and are not required to pay money for it. 15

11
Bazerman, M. Negotiator Judgment: A Critical Look at the Rationality Assumption. American Behavioral
Scientist, Vol. 27, No. 2, 1983
12
Goldberg, S. B.; Sander, F. E. A.; and Rogers, N. H. Dispute Resolution: Negotiation, Mediation, and other
Processes. Boston, Mass., Little Brown, 1992
13
Ibid- 11
14
United Nations Institute for Training and Research (UNITAR), 2001, www.unitar.org/dfm
15
Goldberg, S. B. Dispute Resolution: Negotiation, Mediation, and other Processes: Supplement. Boston,
Toronto, London, Aspen, 1995
  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”. 16

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.17

 Conciliation:

Conciliation is a process in which a third party brings together all sides of the conflict for
discussion among themselves. Conciliators do not usually take an active role in resolving the
dispute, but may help with agenda setting, record keeping, and other administrative
concerns. A conciliator may act as a go-between when parties do not meet directly, and act
as a moderator when joint meetings are held.18

16
Halsbury’s Laws of England, 3 rd Edition, Volume 2 at pg.2 para 2.
17
Tversky, A. and Kahanman, D. Conflict Resolution: A Cognitive Perspective. In: A. Tversky and R. Wilson,
Barriers to Conflict Resolution. W. W. Norton, 1995
18
Silbey, S. and Merry, S. Mediator Settlement Strategies. Law and Policy, Vol. 8, 1996
 The Practice of ADR in Bangladesh

 Historical Development of ADR in Bangladesh:

Historical development of ADR in Bangladesh traced from two different viewpoints, it will be
describe in the below-
1) History of Informal and Quasi formal ADR
2) Court- Connected ADR under Statutory Arrangements

 History of Informal ADR:

Like any other society, Bangladesh has informal justice system and this informal justice
system is called Shalish; a dispute resolution process in the village areas.

 History of Formal ADR:

The formal ADR in Bangladesh traced from the two view point as like- legislation and general
adjudicatory law.

 Practices of ADR in Bangladesh:

From the observation of Sumaiya Khair suggests that are three streams of ADR in
Bangladesh:

1. Extra-judicial or community based ADR (Informa)

2. ADR in quasi-formal systems and

3. ADR in formal legal systems.19

From the types of ADR in Bangladesh of formal and informal ADR, it will be discussed of their
practice in Bangladesh with the brief discussion.

19
Sumaiya Khair, Alternative Dispute Resolution: How it works in Bangladesh, Dhaka University Studies, Part- F,
Vol- XV (1), June, 2004
  Formal ADR Practices in Bangladesh:

Formal ADR Practices in

Bangladesh

Pre- Litigation Part of Litigation

Negotiation,
Conciliation, Arbitration
(Sec. 210 of the Labor
Code, 2006)

Family Courts
Code of Civil Artharin Adalat Muslim Family Laws
Ordinance, 1985
Procedure (Sec. Ain, 2003 (Sec. 21, Ordinance, 1961 (Sec.
(Sec. 10)
89A, 89B, 89C) 22) 7, 8)

Figure 03: Formal ADR Practices in Bangladesh20

 The Court of Civil Procedure (Amendment) Act, 2003:

The Code of Civil Procedure, 2003 provides for the provisions of ADR through section 89A,
89B and 89C. In 2003 through 3rd Amendment of the CPC these provisions have been
inserted. Here it is said that if all the contesting parties are in attendance in the Court in
person or by their respective pleaders, the Court may, by adjourning the hearing, mediate in
order to settle the dispute or disputes in the suit, or refer the dispute or disputes in the suit
to the engaged pleaders of the parties, or to the party or parties, where no pleader or
pleaders have been engaged, or to a mediator from the panel as may be prepared by the
District Judge under sub-section (10), for undertaking efforts for settlement through

20
Halim, Abdul, ADR in Bangladesh: Issues and Challenges, January 2011, p- 49
mediation.21 Moreover section 89A of the CPC says about different procedures for Mediation
where section 89B and 89C says about the Arbitration and Mediation in Appeal. As the basic
process of ADR is Negotiation, Mediation and Arbitration, the Code of Civil Procedure has
rightly discussed the ADR basic process and practices in Bangladesh.

 The Artha Rin Adalat Ain, 2003:

Artha Rin Adalat or Money Loan Court was established under a law in 1990 to adjudicate the
cases relating to the recovery of loans of financial institutions. To strengthen the Artha Rin
Adalat (Money Loan Court), the law a new Artha Rin Adalat Ain was enacted in 2003. Under
the law specialized courts for the settlement of disputes between the borrowers and the
lenders were established in the premises of the District Judge's Court. The Courts of Joint
District Judge established under the new law have overriding powers on other laws of the
land. This means, in case of conflict with any other law in force, the provisions of the new
law relating to money loan shall prevail. Under the provisions of the Act, subordinate judges
are appointed judges of the money loan courts in consultation with the Supreme Court. The
law requires filing of all suits for realisation of the loan of the financial institutions, banks,
Investment Corporation, house building Finance Corporation, leasing companies and non-
banking financial institutions, constituted under the provisions of Financial Institutions Act
1993, with the money loan courts for trial. A civil court, the money loan court has all the
powers of the civil court.

 The Muslim Family Law Ordinance, 1961:

Muslim Family Laws Ordinance of 1961 provides some restricted facilities for women. The
husband must give notice of talaq to the wife through proper channel for breakdown of a
marriage. He must take permission of the wife before a second marriage. Polygamy is
curtailed by this Ordinance. This law is available to Muslims only, though polygamy is a
concern for other communities also. Any dispute under the Muslim Family Law ordinance,
1961 will be solved by the arbitration council. According to section 6 of the Muslim Family
Law Ordinance, 1961 no man, during the subsistence of an existing marriage, shall, except
with the previous permission in writing of the Arbitration Council, contract another
marriage, nor shall any such marriage contracted without such permission be registered
under the Muslim Marriages and Divorces (Registration) Act, 1974 (LII of 1974)]. 22

21
Section-89A(1) of the Code of Civil Procedure, 2003
22
Section 6(1) of the Muslim Family Law Ordinance, 1961
  The Muslim Family Court Ordinance, 1985:

Family Courts were established in the country in 1985 to deal with the family affairs relating
to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship
and custody of children. The emphasis on the mediation in the Family Courts is vivid at least
in two places of the Family Courts Ordinance 1985. Section 10 is a place which provides for
Pre-trial Proceeding as: when the written statement is filed, the Family Court shall fix a date
ordinarily of not more than thirty days for a pre-trial hearing of the suit, on the date fixed for
pre-trial hearing, the Court shall examine the plaint, the written statement (if any) and the
summary of evidence and documents filed by the parties and shall also, if it so deems fit,
hear the parties. But if such mediation fails to reach a compromise, then the Court shall
frame the issues in the suit and fix a date for recording evidence, as is usual in case of any
suits in the civil courts. But the door for mediation is not closed herewith. Section 13 of the
Ordinance is very clear with its provisions that after the close of evidence of all parties, the
Family Court shall make another effort to effect a compromise of reconciliation between the
parties. And it is only when this final effort to a compromise or reconciliation becomes
ineffective, the Court shall pronounce judgment and, on such judgment, a decree shall
follow.

 Informal ADR Practices in Bangladesh:

 Informal ADR Practices in
Bangladesh

Shalish

Village Court
Conciliation
Board

Traditional Shalish NGOs Modified Shalish

Figure 04: Informal ADR Practices in Bangladesh.23

 Shalish: An Informal ADR Practices in Bangladesh:

Shalish is a traditional community based informal dispute resolution process which is an

indigenous method of dispute resolution process lies in the fact that two third of rural
disputes do not enter the formal court processes. 24 In other words, this huge number of
rural dispute is resolved by Shalish or the Village Courts or Arbitration Council. In
Bangladesh, traditional Shalish agreements are enforced through village peer pressure.
Agreements are announced and publicly proclaimed. The reformed village mediation system
relies on this traditional compliance mechanism and succeeds despite the lack of formal
court enforcement.25 Traditional form of Shalish is basically a practice of gathering village
elders and concerned parties, executive male, for the resolution of local disputes. Shalish has
no fixed dimension and its size and structure depend entirely on the nature and gravity of
the problem at hand.26

23
Ibid-19
24
UNDP, Informal Systems and Village Courts: Poor People’s Preferences in Human Security in Bangladesh: In
search of Justice and Dignity, 2002
25
Stephen Goldberg, Non-state Justice Systems in Bangladesh and Philippines, A research prepared for DFID,
January, 2003, P- 1-3
26
Sumaiya Khair, Alternative Approaches to Justice: A Review of ADR Initiatives under the Democracy
partnership, May 2011, Dhaka, p- 5
Actually the present Union Parishad is the first tier in the hierarchy of local bodies in
Bangladesh and has a mandate to settle disputes of the local people through Shalish. The
decision of the Shalish is binding to the parties. In the process, the village elite are also
involved. Major cases are not settled locally.27

 Practices of ADR by Village Court:

In 1972, the name of the Union Council was changed to Union Panchayat, which was again
changed to union parishad in 1973. Later the Village Court Act of 1976 for village areas and
conciliation of disputes (Municipal Areas) Ordinance, 1979 for urban areas were introduced
and authority was vested respectively on the Chairman of Union Parishad and the
Commissioner of the Paruashava to try petty local cases and small crimes committed in their
area and take consensual decisions. These were subsequently replaced by the Village Courts
Act, 2006 and Conciliation of Dispute (Municipal Areas) Act, 2004.

The village court consists of UP Chairman, members and representatives from concerned
parties. Under the Village Court Act, 2006, the village court can try disputes over properly
valued not exceeding TK. 25,000. The village court has also power to summon a person to
stand as a witness and can impose a fine of up to TK. 500 on contempt charges. 28

 NGOs Program and ADR in Bangladesh:

In the Bangladesh, there are many NGOs foreign funded ADR programmed for three basic
purposes such as-

1) Reform of legal systems or courts

2) Addresses social problems in Bangladesh

3) Improving the quality of the dispute resolution process29

27
Study Circle Discussion Guide on Alternative Dispute Resolution, Material Development, Study Circle
Program, NDI, August, 2003; Dhaka, P-8

28
Ibid
29
Ibid-19
 There are the following types of NGOs are contributing their service in order to solving the
disputes outside the court:-30

United Nations in Bangladesh

The UN Country Team in Bangladesh comprises all UN agencies based in Dhaka including:
UNDP, UNICEF, WFP, UNFPA, UNESCO, WHO, ILO and including the wider UN family, the
World Bank, IOM and IMF.
Care Programs Bangladesh
CARE works with poor communities in more than 70 countries around the world to find
lasting solutions to poverty.
Madaripur Legal Aid Association
MLAA conducts community-based mediation and is concerned with women's access to
justice. MLAA has a women's mediation training project.
Bangladesh National Women Lawyers Association
Women's economic and legal rights education, reports on trafficking of women and children
Center for Policy Dialogue.
CPD's mission is to stimulate public debate, generate knowledge and influence policy
through multi stakeholder participatory processes. CPD has conducted policy dialogue on
land administration issues. Land disputes are a large sources of civil and criminal cases in
Bangladesh.

BLAST:
BLAST provides legal advice and representation at all levels of the justice system with an
emphasis on providing services to those living in poverty or facing disadvantage or
discrimination. Legal services, including mediation, litigation and legal rights training, are
provided through Blast’s head office and nineteen unit offices throughout Bangladesh.
And so on as like
 Odhiker
 Ain o Shalish Kendro (ASK)
 BRAC

Challenges of ADR in Bangladesh:

ADR programs still face many of the same challenges that the first ADR programs faced, as
well as new challenges that have emerged as programs have become institutionalized in the

30
USAID: Alternative Dispute Resolution Practitioners Guide, 1998
court system. There are a number of common challenges from the different arena in
Bangladesh which will be described in the below-

 Disconnect between the rules and reality:

Many courts have a court rule authorizing the use of ADR processes for cases filed in the
court, but the rule is rarely or seldom used. Among the reasons for this disconnect is that
some judges do not actively encourage ADR and judges are the essential catalyst for new or
voluntary ADR programs, which depend upon judges for referrals. 31

 Cooperation of the Lawyers:

Lawyer community may be against the introduction of ADR because they feel it will eat their
share of pie. One of the main causes of delay in disposal of cases lies in dilatory tactics
played by lawyer by way of seeking repeated time petitions. A successful mediation lawyer
will always attract new clients wanting to try mediation who would otherwise have shunned
the court.32

 Resistance from the bar:

In some jurisdictions, members of the bar resist the use of ADR or simply do not encourage
their clients to use ADR for appropriate cases. Part of this resistance results from a lack of
knowledge about ADR processes. For instance, some attorneys do not understand a
significant difference between mediation and arbitration-the role of the neutral. Mediation
involves a third-party neutral (the mediator) facilitating a negotiated agreement between
the parties, whereas in arbitration, an arbitrator is empowered to make a final and often
binding decision.33

 Lack of public awareness:

In many areas of the country, the general public is not aware of ADR and, therefore, litigants
must rely upon their attorneys to recommend its use. Those who do use ADR may not
understand the process, for example, expecting the mediator to "decide" the case or
otherwise have the same authority as a judge. These litigants may be dissatisfied with the
process because it did not meet their expectations.34

31
Brazil, W. D. "Court ADR 25 Years After Pound: Have We Found a Better Way?" 18 Ohio State Journal on
Dispute Resolution 93, 1998
32
K. M. Hasan, former CJ, A Reporter on Mediation in the Family Couts: Bangladesh Experience, Published by
BLAST in March, 2008
33
McAdoo, B., and A. Hinshaw, "The Challenge of Institutionalizing Alternative Dispute Resolution: Attorney
Perspectives on the Effect of Rule 17 on Civil Litigation in Missouri," 67 Missouri Law Review 473, 2002
34
Ibid-32
  Need for program evaluation:

Court ADR programs often conduct evaluations to monitor program quality and demonstrate
that the program is meeting court-established goals, which vary from court to court and
typically include reducing dockets, saving transaction costs, saving time, pro viding litigants
with more options, and increasing client satisfaction.35

 Correction of Legal Shortcomings:

ADR provisions incorporated by the Code of Civil Procedure (Amendment) Act, 2003, It
seems that before incorporating the provisions of ADR in the CPC in 2003. Proper attention
was not given to the existing provisions in laws in neighboring countries. The success of
ADR is being blockade by these shortcomings and the govt. should consider these
shortcomings as soon as possible.

 Risks to quality control:

In a time of too few resources, especially to fund ADR administrators, many court programs
struggle with the need to ensure the quality of services and to enforce ethical rules for
neutrals and attorney representatives. While some courts have staff neutrals, many courts
rely upon a panel of outside neutrals to provide dispute resolution services. Depending upon
the court, these neutrals may be paid or may be pro bono volunteers. Several programs
report that one disastrous mediation can become a legend and sour the legal community
against the use of mediation in general. Program administrators try to avoid such legends
and maintain a program's reputation for quality services by taking steps to appoint and
retain only well-qualified mediators for the court's panel. These steps include establishing
qualifications for panel membership, requiring advanced training, interviewing the
mediators, soliciting participant evaluations through questionnaires, and observing
mediation sessions.36

 Lack of funding:

Most courts struggle to maintain and increase their bud get to provide ADR services. Court
ADR programs have to compete for their funding with other traditional court services, a
competition that ADR programs often lose, particularly in recent years when state and
federal budgets for nonessential programs have been slashed. Courts have experimented

35
Wissler, R. L. "The Effectiveness of Court-Connected Dispute Resolution in Civil Cases," 22 Conflict Resolution
Quarterly 55, 2004
36
Ibid
with a number of funding options, including filing fees, user fees, and certification fees but
the funding for many programs remains uncertain.37

 Retaining mediations core values:

Many proponents of mediation in the courts hoped that mediation would provide a positive
alternative to an adversarial, formal, and potentially alienating justice system. However,
some ADR programs have evolved to incorporate many of the adversarial elements they
were intended to avoid. Experts are concerned that in some courts, mediation has come to
look more like settlement conferences, which tend to emphasize settlement rather than
provide litigants the opportunity to work together to resolve the dispute. 38

 Requiring good faith:

Court rules in some states require that parties "medi ate in good faith." Court programs have
grappled with how to administer these rules, and courts have grappled with how to interpret
good-faith requirements. Experts recommend programs be designed with stakeholder input
to prevent problems with a good-faith requirement.39

Opportunities of ADR in Bangladesh:

There are many opportunities and advantages of ADR in the Bangladesh from the informal
ADR and formal ADR practices in Bangladesh; it will be described in below-

37
Skove, A. E. State Appropriations and Other Funding Sources for Court-Connected ADR. Williamsburg, VA:
National Center for State Courts, 1998
38
Senft, L. P., and C. A. Savage, "ADR in the Courts: Progress, Problems, and Possibilities," 108 Penn State Law
Review 327, 2003
39
Lande, J. "Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected
Mediation Programs," 50 UCLA Law Review 69, 2004
  Speed - Settling a dispute using ADR is usually much quicker than using the court
system.

 Expertise - A specialist from within a particular trade or industry is able to suggest a

reasonable solution which will be acceptable to the parties involved. A judge is unlikely
to have specialist knowledge, other than in the law.
 Privacy - ADR is conducted in private, therefore avoiding publicity from the media. The
public are also unable to attend.

 Parties may be able to remain on good terms - The aim of ADR is to find a compromise
solution which is acceptable to both parties. Court proceedings create a winner and a
loser. Using ADR to settle a dispute means businesses can remain on good terms and
continue to trade with each other once their dispute is resolved.

 Creating a better climate for resolution- Alternative dispute resolution processes are
voluntary, the participants are involved because they believe that they can generate a
more acceptable agreement. In alternative dispute resolution techniques, a better
environment for communications and sharing of information often exists. Individuals
within the group are more prone to move from positional bargaining to problem solving
when they feel their needs and values are seriously considered and valued in the
process. As a result a greater probability of resolving disputes exists. 40

 Expediting procedures- Initial investments in the alternative dispute resolution process

may be high. However, sustainable solutions to disputes demand that parties trust and
are committed to decisions reached during negotiations. When they are not, total time
invested in a dispute is lengthened and the probability of implementing decisions is
reduced. Through alternative dispute resolution techniques, the parties controlling the
process can schedule meetings at their discretion and make decisions when they are
ready.

 Enhancing flexibility- The parties in a dispute decide how they will operate, what
criteria they will use to reach agreement and if they will reach agreement. They may
agree to not agree, but they make the decisions. This adds substantial flexibility to the
process.

40
Lancaster, C.L., M.S. Millhauser, S. Lingenfelter, and R.M. Bunker, Alternative dispute resolution round table.
U.S. Army Corps of Engineers. Alternative Dispute Resolutions Series. IWR Working Paper 90-ADR-WP1, 1990
 Providing more control over the outcome- Decision-making authority is retained by the
parties in dispute, therefore they retain the authority to decide, whereas in litigation a
judge or arbitrator makes the decision.

 Costs to the Parties - All forms of ADR are far cheaper than taking a case to court.
Alternative dispute resolution processes usually involve a third party mediator or
negotiator but this is not always the case. Costs for these services are much lower than
lawyer and court expenses.

 Costs to the State - Every case resolved using ADR saves the Government money.
 Saving of Court Time - Every case solved through ADR stops the courts being over
burdened with cases.

Conclusion:

Finally this is called that Alternative Dispute Resolution (ADR) refers to a method of resolving
a dispute that is an alternative to taking the matter to court. The concept is very broad,
encompassing a wide range of dispute resolution techniques from arbitration to mediation
to ombudsmanry. In Bangladesh the practice of ADR is uses from informal system such as
kind of shalish, village court and by NGOs program with the uses and practices by formal
systems as like Civil Court, Muslim Family Laws, and Family Court Laws etc. But this
practice of ADR in Bangladesh too much challenges for different reasons from the lack of
fund, lack of lawyer cooperation, lack of good faith etc. Here some of the opportunities for
the practice of ADR systems in Bangladesh from local level to state level. We should more
and more practice ADR in our country for dispute settlement with peacefully.

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