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

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