Friday, January 4, 2013

What is the modes of dispute resolution?

Generally, you can initiate dispute resolution in two ways[1]:
  1. By peaceful means
  2. By use of force.
The first implies using alternative ways such as dialogue, negotiation or third party intervention instead of using force or aggressive measures to resolve a dispute.
The second implies that a powerful third party uses force, not necessarily physical force, but aggressive persuasion to create social or structural pressure and influence on the parties to resolve existing disputes. The third party might have some interest, but not on the dispute itself. The third party works as a pressure factor and may or may not be neutral. However, it is not uncommon for disputes resolved this way to reemerge in the future.

Traditional dispute resolution mechanisms
In general, Traditional Dispute Resolution Mechanism implies the existing process of resolving dispute in our society. There are two diverse processes of dispute resolution. 
  • Community initiative
  • Legal procedures

Community initiative
The community sometimes takes a leading role in resolving local disputes. In Bangladesh, these are popularly known as Shalish and Mimangsha. These are usually undertaken through mediation, negotiation, and reconciliation. In the Shalish or Mimangsha the community leaders delve deep into the root cause/s in the presence of both parties, hear viewpoints of disputants, and try to find a solution agreeable to the parties concerned. Resolving disputes through community initiatives with the above tools are commonly known as Alternative Dispute Resolution[2].

Advantages of community initiative
  • It is easier to resolve the dispute since the nature of the dispute is well known and understood by all parties involved.
  • Meeting all-round social obligations.

Problems of community initiative
  • Not a very systematic procedure
  • Can be biased
  • Not legally binding, but driven by social obligation.
  • Sometimes problems arise due to community’s indifference
  • Sometimes leaders make decision by use of power and influence

Legal procedure
Legal procedures are a process of dispute resolution that takes place in the courts of law. Basically, people go to the legal authority to obtain a favorable verdict but also to have a feeling of victory over the other, which may in the minds of the victors exceed the actual gains made out of the resolution of the problem or dispute. It is a win-lose game[3]. This process often holds disputes, and leaves permanent scars on the mind of the losing party rather than resolving the problem, and it may end in making the disputes endemic and long lasting. When the losing party gets a chance, they look for revenge.

Difficulties encountered in legal procedure
  • Very time consuming
  • Requires a lot of money and energy
  • Loss of property
  • Complex procedure
  • Win-lose situation
  • Sometimes stimulates further conflict
  • No reconciliation process
  • Chances of deception
  • Dependency on lawyers
  • Lack of knowledge in legal procedure

[1] Study Circle Discussion Guide on Alternative Dispute Resolution, Material Development, Study Circle Program, NDI, August, 2003;  Dhaka, p.5
[2] Ibid, P.6
[3] Ibid, P.7

Development & Popularity of ADR in Bangladesh

The Civil Procedure Code (Amendment) Act, 2002 has been enacted to introduce Alternative Dispute Resolution (ADR) system for early and consensual disposal of civil suits. Section 89A and 89B have been inserted to allow parties to settle their disputes in suits, through mediation or arbitration. In the mediation procedure, the court may take initiative to settle the dispute in the suit by itself or by making reference to independent mediators[1]. Under section 89B parties will be allowed to withdraw pending suits and have those settled through arbitration. The provisions have been made effective from 1st July 2003.
The Ministry of Law has undertaken different measures to motivate and sensitize judges, lawyers and the litigant public about the merits and advantages of the ADR. Workshops, seminars, training programs have been organized for judges, lawyers and court support staff in the divisional headquarters and selective districts. A widely acclaimed documentary film titled "Settlement of Disputes through Mediation" has been made and shown to the participants and the stakeholders all over the country.
ADR system is gaining popularity. This procedure will help to reduce the huge backlogs of civil cases in courts. Public confidence in the judiciary will thereby increase. Access to justice will be expanded[2]. The provisions will also help develop a new culture of consensual settlement of disputes doing away with the existing adversarial procedure. It will help protect and preserve cohesion and fraternity in society.
ADR has been both; increasingly used alongside, and integrated formally, into legal systems internationally in order to capitalize on the typical advantages of ADR over litigation:
  • Suitability for multi-party disputes;
  • Flexibility of procedure - the process is determined and controlled by the parties the dispute;
  • Less complexity ("less is more");
  • Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate;
  • Likelihood and speed of settlements;
  • Practical solutions tailored to parties’ interests and needs (not rights and wants, as they may perceive them);
  • Durability of agreements; 
  • Confidentiality; and, 
  • The preservation of relationships.

[1] Halim, Md. Abdul, ADR in Bangladesh: Issues and Challenges, 2nd Edition (January, 2011), CCB Foundation, P.76
[2] Hoque, Kazi Ebadul Houqe, Administration of Justice in Bangladesh, Asiatic Socity of Bangladesh, Dhaka (2003), P.102

Existing Practices of ADR in Bangladesh

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].

In the traditional system, disputes are resolved within the village. However depending on the intensity of the dispute or gravity of the situation, neighboring villages are also sometimes involved. During the British period, in 1870, the Panchayat system was introduced to manage and rule the area for its collection of revenue. The Panchayat system was used to resolve minor disputes within their area, and the major disputes were forwarded for legal procedures. In 1919, the Bengal Village Self Government Act was introduced and Union Courts were set up to resolve disputes locally. Later, the government established the Rin Shalishi Board to keep peasants free from the Mahazons and the moneylenders and also to avoid clashes. Later, the Family Court Ordinance of 1961 and the Village Court Act of 1976 were introduced and authority was vested on the Chairman of Union Parishad to try petty local cases and small crimes committed in their area and take consensual decisions. These were later strengthened in 1985 with additional power to cover women and children’s rights. The village court consists of UP chairman, members and representatives from concerned parties. Under the Village Court Act of 1976, the village court can try disputes over property valued not exceeding Tk. 5,000. 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. The village court provides easy access to the local people without any obstacle and allows them to defend their position without any outside assistance or lawyer. It is also less cumbersome and less expensive. However, this system has some disadvantages, such as the court decisions are sometimes biased and the members of the court may or may not have adequate knowledge and experience to conduct trial procedure.
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 is also involved. Major cases are not settled locally[2].
Political influences are very frequent and often biased in the Shalish. Today, many NGOs are quite successfully involved in mediation between disputants. Still, many disputes are not mediated nor are local people acquainted with the ADR system.

[1] Study Circle Discussion Guide on Alternative Dispute Resolution, Material Development, Study Circle Program, NDI, August, 2003;  Dhaka, P.7.
[2] Ibid, P.8.

Existing procedure of ADR in Bangladesh

Sum-up of all legal provisions available in Bangladesh
In Civil Suits:
1. Code of Civil Procedure
  • Mediation u/s 89A
  • Arbitration u/s 89B.
     2. Muslim Family Laws Ordinance,1961
  • Polygamy u/s 6
  • Divorce u/s 7
  • Maintenance u/s 9
     3. Family Court Ordinance,1985
  • Pre-trial Proceeding u/s 10
  • Post-trial Proceeding u/s 13
    4. Artha Rin Adalat Ain, 2003
  •  Settlement Conference u/s 21
  • Mediation u/s 22
    5. Gram Adalat Ain, 2006 [all sections] 

   6. The Conciliation of Disputes (Municipal) Board Act, 2004 [all sections] 

   7. The Arbitration Act, 2001 [all sections]

    8. The Labor Code, 2006

  •   Negotiation u/s 210(1,2,4)
  • Conciliation u/s 210(6)
  • Arbitration u/s 210(16)

In Criminal Cases: 
1. The Criminal Procedure Code,1898 
  • Compounding offences u/s 345

Brief discussion of some of the aforesaid Statutes & its provisions
Code of Civil Procedure
There is no provision related Alternative Dispute Resolution directly in Civil Procedure Code by mediation. But in previous we perceived that Section 89 and sub section 1 of Section 104 in CPC had been for dispute resolution. After that in year 2000, ADR in civil procedure is the effect of success of Pilot project 2000 on mediation in Dhaka judge court and besides some other courts of Bangladesh. In Section 89a and 89b of the Code of Civil Procedure 1908, mediation and arbitration respectively has been incorporated through the Amendment, 2003[1].
As to the provision of Section 89(a) of CPC, mediation can be define that mediation mean flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or directing the term of such compromise.
As to the provision of 89 after filling of plaint by the plaintiff and written statement by defendant, the court may take an initiative to settle the dispute by Mediation. If the contesting parties agree to settle the dispute through mediation, the court shall so mediate or refer to District Judge for settle the penal. The mediator will be selected from the District Judge itself, any retired judge, a lawyer nominated by the parties who is not involve with either parties, except person holding office of profit in the service of Republic. When the court shall mediate, it shall determine the procedure of the mediation and conducted by court and the pleader, their respective client and the mediator will mutually determine the fees and the procedure. If the mediation process is filed, the court shall precede the suit for hearing from the stage at where the suit stood before refer to mediation. And if the mediation by the court and it fails, the same court shall not hear and the suit shall be heard by another court of competent jurisdiction. If the mediation is successfully over, the term of such compromise shall be reduced into writing in the form of agreement and taken signatures or thumbs impressions of the parties as executants and pleaders and mediator as witness. Finally, the court will pass an order or decree to the reliant provision of Order 23 that code.