THE Alternative Dispute Resolution, which refers to other methods that are available to resolve a dispute apart from court proceedings, involves arbitration, mediation, negotiation, etc. Globally, ADR is gaining widespread significance. Despite the enactment of the Arbitration Act 2001, people in Bangladesh are quite unaware of the idea of ADR.
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Advantages of ADR听
BEFORE implementing ADR services or advocating for alternative dispute resolution methods in Bangladesh, its benefits must be assessed. To begin with, ADR is cost-friendly; this is because lower legal fees are associated with ADR methods. Also, since parties avoid court litigation, a huge sum of money is being saved, and usually parties going for ADR fully settle their issues, so there is no chance of appeal like in the court litigation scenarios, hence saving further costs. ADR services like mediation, arbitration, and negotiation are very time friendly compared to litigation since a settlement can be reached quickly, also because of a smaller number of procedural delays, and these methods also provide flexibility. ADR maintains confidentiality and privacy, providing protection to the secret and sensitive information of the parties. For example, if a large business implements ADR like arbitration, their trade secrets will be protected as a result, and both their corporate and personal reputations are safeguarded. Unlike the hectic procedure of court litigation, ADR services provide a more relaxed environment for the parties that ensures emotional well-being. Moreover, when a party goes through court litigation, the ruling of the court can be damaging for one party; however, ADR is focused on a win-win situation for both parties when resolving a dispute, causing minimal damage to both parties and saving their reputation in the long run. ADR also reduces the excess number of cases that go for litigation, which reduces the pressure from court, as unwanted or a huge number of cases can be solved through ADR.
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Challenges of ADR
IT IS important to examine the people鈥檚 lack of knowledge when it comes to ADR in Bangladesh. Only a handful of businesses, certain legal professionals, and a few institutions know about ADR, but in general, people still rely on court proceedings for dispute resolutions. The Arbitration Act 2001 and the Code of Civil Procedure (Amendment) Act 2003, ADR has not been institutionally promoted. People do not know about any well-established ADR centres. The Bangladesh International Arbitration Centre is not known by many and underutilised, although established in 2011. Litigants rarely communicate with clients about ADR, perhaps because lawyers themselves do not fully understand the potential of ADR, making the court litigation busier with unwanted cases. People also do not trust ADR services compared to litigation. They do not want to explore ADR like arbitration or mediation and risk their complaints. Some enforcement issues are also there. The provisions that are found in the Arbitration Act 2001 and the Code of Civil Procedure (Amendment) Act 2003 lack appropriate enforcement, as there is no proper body in Bangladesh to govern the ADR services.
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Addressing challenges
FORTUNATELY, regardless of all these challenges, it is still possible to make ADR popular in Bangladesh. First of all, a mechanism must be developed to promote ADR through court. For example, the UK鈥檚 pre-action protocol, which is followed in civil claims, or something similar to the pre-action protocol, can be introduced. In the UK, before commencing litigation, both parties have to follow the pre-action protocol, and in this pre-action, courts highly recommend ADR, like arbitration, and if a party skips ADR unnecessarily, they get penalised by the court later. If something similar to this is introduced, the knowledge of ordinary people of Bangladesh about ADR will increase. This simple method will make the public of Bangladesh explore ADR, which will make them more aware of the system of ADR, and once they explore it, chances are they may like the system due to the benefits it offers; thus, their trust in ADR will also increase.
The Bangladesh Bar Council can create a training certification programme for lawyers on ADR, and they can also consider incorporating ADR in bar examinations. For the new generation of lawyers, a subject of ADR can be added to their LLB programme in universities of Bangladesh, like in India, where ADR has been added as a subject in the undergraduate programme in many law schools and universities. A system of performance-based fees can be introduced for ADR so that lawyers do not think ADR is not financially rewarding and advise the clients about it. If this is done successfully, it will mean lawyers will be trained in the field of ADR, so whenever one corporation goes into a contract with another corporation, of course they seek a lawyer鈥檚 advice, and since the lawyers of the new generation hold knowledge of ADR, they are likely to advise their clients to add an ADR clause to the contract, thus further promoting the system.
Furthermore, the enforcement issue of ADR can be dealt with easily. This can be done by establishing a strong regulatory body for ADR in Bangladesh. Further, stronger rules and a regulatory body for ADR can also ensure and improve transparency in arbitration. Even backup from court can be used for enforcement of arbitral awards, which is clearly mentioned in the statutory provision of the Arbitration Act 2001. This will mean court-annexed ADR, which is already available in Bangladesh through the Code of Civil Procedure (Amendment) Act 2003.
Additionally, in order to bring more innovation and development to the system of ADR, all the nations that are implementing ADR or countries where the significance of ADR is increasing slowly can build a forum where ADR specialists from different countries can share their own experiences and ideas in order to promote ADR. This is highly beneficial since there is a growth of international commerce and businesses that usually go for ADR services like arbitration due to global enforceability, for being both time- and cost-friendly.
In Bangladesh, there is an excess number of cases in court litigation as about 4.2 million lawsuits are pending in the courts, pressurizing the courts with a lot of cases due to the absence of appropriate ADR services; as a result, many cases are pending for a long time. William Gladstone mentions, 鈥淛ustice delayed is justice denied,鈥� which has been the scene in Bangladesh鈥檚 judiciary because of the large number of cases; justice is not being served in a timely manner, and justice is costly, so this is the time to give ADR an active role in Bangladesh.
In 2010-2011, the court system in Italy was similarly burdened with legal cases. At the time, the number of cases that had been pending in the Italian courts rose to 5.4 million, for which mediation was made mandatory through Decree 28/2010. Making mediation mandatory is not suggested, but if ADR can make a huge change in Italy, then Bangladesh should implement it to sustain a better legal system. Another example would be Canada, where ADR grew in the 1980s and onwards. Canada鈥檚 Supreme Court in Hryniak v Mauldin mentions the rule of law can be upheld through proper access to justice and acknowledges the new adjudication methods. If implementing ADR helps countries like Canada and Italy to decrease pressure from courts, then enhancing the legal framework of ADR will also benefit Bangladesh.
Lastly, applying ADR in Bangladesh also upholds the constitution of Bangladesh. The preamble of the constitution of Bangladesh believes in the rule of law and access to justice for all the citizens, aligning with ADR services goals. Moreover, Article 27 of Bangladesh鈥檚 constitution ensures equality before the law, and Article 35 mentions, in respect of trial and punishment, both can be safeguarded via ADR methods.
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Conclusion
PEACEMAKER Kenneth Cloke, founder of Mediation Beyond Borders International, indicates that without disorder, no new world is created; likewise, the legal system of Bangladesh has already gone through a lot of issues; now it is time to heal it by proper integration of ADR, securing the future.
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Tasnim Noor is a student of BPP University, London.
