Evolution of the process of ADR in Bangladesh
Subject: Law | Topics:

1.1 Introduction

The attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration in which the third party (arbitrator) acts much like a judge but in an out-of-court less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation), and is often ordered by the judge in such cases. Mediation also has become more frequent in contract and civil damage cases. There are professional mediators, or lawyers who do some mediation for substantial fees, but the financial cost is less than fighting the matter out in court and may achieve early settlement and an end to anxiety. However, mediation does not always result in a settlement.[1]

1.2 What is ADR?

Alternative Dispute Resolution (ADR) is a general term encompassing various techniques for resolving conflict outside of court using a neutral third party. When strategically applied in the context of enforcement negotiations, ADR has proven to be a useful tool in overcoming impasse, improving the efficiency of difficult negotiations, and achieving durable settlements. Outside of the enforcement context, ADR has been effectively used to enhance public involvement in environmental decisions, to facilitate technical inquiries and information exchanges, and to identify creative solutions to daunting problems.

1.3 What is Arbitration

Arbitration is a way to resolve a dispute without going to court. Arbitration can be used to settle any type of dispute including (but not limited to) employment disagreements, property disagreements, medical malpractice claims, and landlord tenant disagreements. This website concentrates on employment disputes, but the procedure is similiar for any dispute in arbitration

1.4 What is Mediation

In a mediation procedure, a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. Any settlement is recorded in an enforceable contract.

Experience shows that intellectual property litigation often ends in settlement. Mediation is an efficient and cost-effective way of achieving that result while preserving, and at times even enhancing, the relationship of the parties.

The principal characteristics of mediation are:

Mediation is a non-binding procedure controlled by the parties

A party to mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator’s role is, rather, to assist the parties in reaching a settlement of the dispute.

Indeed, even when the parties have agreed to submit a dispute to mediation, they are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests.

However, parties usually participate actively in mediations once they begin.

If they decide to proceed with the mediation, the parties decide on how it should be conducted with the mediator.

Mediation is a confidential procedure

In mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot, under the WIPO Mediation Rules, be provided to anyone – including in subsequent court litigation or arbitration – outside the context of the mediation.

Under the WIPO Mediation Rules, the existence and outcome of the mediation are also confidential.

Mediation’s confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.

Mediation is an interest-based procedure

In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In a mediation, the parties can also be guided by their business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their past conduct.

When the parties refer to their interests and engage in dialogue, mediation often results in a settlement that creates more value than would have been created if the underlying dispute had not occurred.

Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Indeed, one could say that, even when a settlement is not achieved, mediation never fails, as it causes the parties to define the facts and issues of the dispute, thus in any event preparing the ground for subsequent arbitration or court proceedings.

1.5 History of Alternative Dispute Resolution

Mediation and Arbitration are conventional methods of dispute resolution for settling controversies between individuals, businesses and countries. The parties may consent to their utilization after a controversy has taken place or may necessitate it for potential conflicts by counting a compulsory mediation and/or arbitration clause in their contract. In mediation, an unbiased third party meets with the disputants, both as a group and on an individual basis, then offers non-binding suggestions in order to resolve their controversy. If the parties cannot resolve their dispute by mediation, they will often submit it to binding arbitration by a neutral arbitrator. This arbitrator is either selected directly by the parties or is designated by an arbitration agency. The arbitrator performs the role of both the judge and the jury while considering the dispute and issues a decision called an award. The award is final and binding upon the parties.

Historically, arbitration and mediation have been used to settle many different types of disputes[8]. These disputes have typically fallen into one of the following categories – international disputes, commercial disputes, and labor disputes. A recent example of the successful employment of an international mediation is that conducted by former President Jimmy Carter in Bosnia. Additionally, there are numerous examples of the historic resolution of international conflicts by arbitration, such as its use by warring Greek city states and by various Catholic Popes who acted as arbitrators of conflicts between European countries during the Renaissance.

International attempts to provide a foundation for lasting, global peace have also incorporated arbitration. Two examples of this are the Permanent Court of Arbitration, which resulted from international meetings conducted between 1899 and 1907 in Hague, Netherlands and the development of the League of Nations in 1918 which employed arbitration as one mechanism of dispute resolution.

Outside the political arena, arbitration and mediation have been used by businesses worldwide to settle their commercial disputes. In Europe, businesses of differing national origin have frequently submitted their controversies to arbitration. In the United States, arbitration and mediation are often used to settle labor disputes. The submission of a commercial dispute to mediation and/or arbitration may be done voluntarily or at the prompting of a governmental agency.

The federal government of United States of America, has promoted commercial arbitration since as early as 1887, when it passed the Interstate Commerce Act. The Act set up a mechanism for the voluntary submission of labor disputes to arbitration by the Railroads and their employees. Then, in 1925, Congress passed the Federal Arbitration Act which governs the arbitration of contractual disputes involving commerce. More recently, the federal judiciary has found employment disputes, civil rights violations, securities fraud, RICO and anti-trust claims to present arbitrable issues.

While for the most part, the decision of whether or not to engage in commercial mediation and/or arbitration is a matter of contract and has been historically decided by the parties, there have been several occasions in which a government has intervened to require mediation and/or arbitration of a commercial dispute when it felt that the dispute threatened national interests.

For example, in 1926 the United States government enacted the Railway Labor Act to monitor the labor-management relations of both the railways and the airlines. Under the Act, the National Mediation Board may intervene in a dispute and require mediation. If the dispute is not resolved by mediation, the Board will ask, but cannot require, that the parties submit to binding arbitration.

There is also historical precedent for governments requiring the submission of commercial disputes to compulsory, binding arbitration when they felt their national interests so required. This has been done by several countries, including Australia, New Zealand, the United States and Norway. The United States required mandatory arbitration of a railway labor-management dispute in 1963 after a lengthy strike by railroad workers.

1.6 History of Alternate Dispute Resolution In INDIA

Today when about more than two and half crores (As per the Ministry of Law and Justice press release 48,838 cases are pending in Supreme Court, 38,82,074 cases pending in high Court and 2,52,40,185 are pending in subordinate courts as on 31.1.2008) of case pending in our courts, that means at least five crore people are directly involved in litigation that about 4 percent of our population, and we have only 12,500 judges at lower court level and about 647 judges at various High Court and 26 judges in Supreme Court of India. Our Justice Administration system is “adversarial” in nature in which there are two parties and they are on face to face with each other in the Court, and we have seen that its not the legal issues which are involved in most of the cases put before us rather its ego which come in between and it ultimately ends in blood amongst the litigants, and hatretism.

It is also observed that our courts have very limited time for example 10:00 AM to 5:00 PM we are in Court but during that time we have to manage out time for various things like signing of files, and day to day orders, meetings, compliances of directions of higher courts, and other miscellaneous work, which a judge has to see.

What is justice, in layman’s term its something which a aggrieved person deserves and it has been encroached upon by another, and now our conventional system of justice needs overhauling and need to develop a new approach, the alternative dispute resolution is an steps towards that end, and in India we have yet not developed a full fledged system, the time has come that as a judge we need to take initiative at the court of first instance, which plays the most important role in the justice delivery system, as the seed of justice is sowed over there, because the case takes off from there and we lack a strong system at that which can be easily rectified, the Shetty Commission envisages 50 judges per million we have only 10.5 judges per million, the judges really are over burdened with work, and due to this the work is hotched potched and become out of control, which can be easily managed by systematic approach and firstly by enhancing the number of judges, not that we should right now recruit all the judges at one go, but in a phased manner, the Hon’ble Supreme Court has pronounced in its judgment that the living conditions of the judges at lower level should be improvised and they deserve better living standard and all states and Centre should take initiative because we implement laws which are passed by both Parliament and State legislature, and its joint liability of both the state and Centre to make budgetary allocation to fulfill the need of the courts. I am sure the Presiding officer of the court will be able to work with more efficiency if his basic needs are taken care properly.

Judge’s work is divine work and the justice is done by god and we are doing delegated work of God so, as a judge we should never forget that our judgments have direct impact on the society, and public have lots of expectations from us, and we should try to come up to their expectations.

Today we have seen that everyone take resort to strikes, road blocks, and other modes of disobedience, this situation has not arisen over night, rather it’s a consistent development, people are slowly losing their faith in judicial system also, as they end up getting justice at a very later stage, which is too late, as justice delayed is justice denied. Today the public at large gave lost faith in government and police deptt; their FIRs are not getting registered, which is a settled law, law is social engineering, and the role of judges is the important in this whole episode, and law is governed by two rules, firstly equality before law, and no one is above law.

The Legal Services Authorities Act, 1987 has also been amended from time to time to endorse use of ADR methods. Section89 of the Code of Civil Procedure as amended in 2002 has introduced conciliation, mediation and pre-trial settlement methodologies for effective resolution of disputes. Mediation, Conciliation, Negotiation, Mini-Trial, Consumer Forums, Lok Adalats and Banking Ombudsman have already been accepted and recognized as effective Alternative dispute resolution methodologies.

Alternative dispute resolution has greatly expanded over the last several years to include many areas in addition to the traditional commercial dispute in the form of arbitration; mediation has become an important first step in the dispute resolution process. Arbitrators and mediators have an important role in resolving disputes. Mediators act as neutrals to reconcile the parties’ differences before proceeding to arbitration or litigation. Arbitrators act as neutral third parties to hear the evidence and decide the case. Arbitration can be binding or non-binding.

What is ADR? In simple terms it is Alternate Dispute Resolution the conventional Courts use formal system of redressal applying various rules of law, as we have erstwhile mentioned that our system is adversial. The concept of Conflict Management through Alternative Dispute Resolution (ADR) has introduced a new mechanism of dispute resolution that is non adversarial. A dispute is basically ‘lis inter parties’ and the justice dispensation system in India has found an alternative to Adversarial litigation in the form of ADR Mechanism in which two parties contest their case and one party wins and the other party looses, but in case of alternate dispute resolution (Section 89 – Code of Civil Procedure), which can be categorized in four broad heads which are-

  1. arbitration;
  2. mediation;
  3. conciliation;
  4. judicial settlement including settlement through Lok Adalat.

It is win – win situation and no party wins no party looses, today the need of time is that we resort to non conventional systems as well, we should not forget that its not something new to us, we had for ages, like panchayats etc, it was self sufficient, every village has panchayat and it was a powerful authority for redressing the disputes. The best part of ADR is that since both parties come face to face and they work out the modalities and reach to an amicable solution, there is no likelihood of winning or losing the case, i.e. it’s a win – win situation and thereafter no appeal, and thus it reduces the burden of appellant courts as well, the arbitration and conciliation Act, 1996 provides for Arbitration and the award given by the arbitrator is deemed to be a decree. It was step towards the ADR. The labor legislation has already incorporated conciliation and mediation system in their enactments, to have an amicable solution in case of tussle between the labor and the management. The conventional courts are already overburdened with loads of cases, and at least a sizable number of cases can be disposed off by way of ADR. The CPC envisages for use of ADR in section 89 in amended section as mandatory for court to refer the dispute after the issues are framed for settlement of disputes outside the Court (Clause 7 of the CPC Amendment (Bill), 1999). The Law Commission of India in its 129th Report recommended for the Alternate modes of Dispute Redressal to be obligatory on the courts after framing of issues. It is only after the parties fail to get their disputes settled through any one of the alternate dispute resolution methods that the suit shall proceed further in the court where it was filed.

The purpose of this special provision seems to help the litigant to settle his dispute outside the Court instead of going through elaborate process in the court trial. This is a special procedure for settling the dispute outside the courts by a simpler and quicker method. The litigants on the institution of the suit or proceedings may request the Court to refer the disputes and if the court feels that there exist any element of settlement which may be acceptable to the parties; it may refer them to any of the forums abovementioned at any stage of the proceedings. In fact new rules in Order X were inserted in consequence to the insertion of the sub section (1) of section 89. These new rules namely 1A, 1B and 1C have been inserted by the Amending Act. The settlement can be made by adopting any of the modes specified in the section 89 of the CPC inserted by the Amendment Act. As per the Rule 1A the parties to the suit are given an option for settlement of the dispute outside court. When the parties have exercised their option it shall fix the date of appearance before such person as may be opted by the parties. As per the Rule 1-B the parties are required to appear before such forum opted by them. Rule 1C provides for the Presiding Officer of the Forum to refer the matter again to the Court in case he feels that in the interest of justice he should not proceed with the matter.

On the basis of above analysis it is apparent that the ADR is the best and most effective solution to reduce the Himalayan pendency in various courts of our country. It is not to forget that the ADR is more effective as it is an amicable solution and both parties are in win – win position and brings about harmonious relationship between both the parties unlike in the conventional courts, thus it is permanent solution to any dispute, as it don’t lead to appeal or

Today when about more than two and half crores (As per the Ministry of Law and Justice press release 48,838 cases are pending in Supreme Court, 38,82,074 cases pending in high Court and 2,52,40,185 are pending in subordinate courts as on 31.1.2008) of case pending in our courts, that means at least five crore people are directly involved in litigation that about 4 percent of our population, and we have only 12,500 judges at lower court level and about 647 judges at various High Court and 26 judges in Supreme Court of India. Our Justice Administration system is “adversarial” in nature in which there are two parties and they are on face to face with each other in the Court, and we have seen that its not the legal issues which are involved in most of the cases put before us rather its ego which come in between and it ultimately ends in blood amongst the litigants, and hatretism.

It is also observed that our courts have very limited time for example 10:00 AM to 5:00 PM we are in Court but during that time we have to manage out time for various things like signing of files, and day to day orders, meetings, compliances of directions of higher courts, and other miscellaneous work, which a judge has to see.

What is justice, in layman’s term its something which a aggrieved person deserves and it has been encroached upon by another, and now our conventional system of justice needs overhauling and need to develop a new approach, the alternative dispute resolution is an steps towards that end, and in India we have yet not developed a full fledged system, the time has come that as a judge we need to take initiative at the court of first instance, which plays the most important role in the justice delivery system, as the seed of justice is sowed over there, because the case takes off from there and we lack a strong system at that which can be easily rectified, the Shetty Commission envisages 50 judges per million we have only 10.5 judges per million, the judges really are over burdened with work, and due to this the work is hotched potched and become out of control, which can be easily managed by systematic approach and firstly by enhancing the number of judges, not that we should right now recruit all the judges at one go, but in a phased manner, the Hon’ble Supreme Court has pronounced in its judgment that the living conditions of the judges at lower level should be improvised and they deserve better living standard and all states and Centre should take initiative because we implement laws which are passed by both Parliament and State legislature, and its joint liability of both the state and Centre to make budgetary allocation to fulfill the need of the courts. I am sure the Presiding officer of the court will be able to work with more efficiency if his basic needs are taken care properly.

Judge’s work is divine work and the justice is done by god and we are doing delegated work of God so, as a judge we should never forget that our judgments have direct impact on the society, and public have lots of expectations from us, and we should try to come up to their expectations.

Today we have seen that everyone take resort to strikes, road blocks, and other modes of disobedience, this situation has not arisen over night, rather it’s a consistent development, people are slowly losing their faith in judicial system also, as they end up getting justice at a very later stage, which is too late, as justice delayed is justice denied. Today the public at large gave lost faith in government and police deptt; their FIRs are not getting registered, which is a settled law, law is social engineering, and the role of judges is the important in this whole episode, and law is governed by two rules, firstly equality before law, and no one is above law.

The Legal Services Authorities Act, 1987 has also been amended from time to time to endorse use of ADR methods. Section89 of the Code of Civil Procedure as amended in 2002 has introduced conciliation, mediation and pre-trial settlement methodologies for effective resolution of disputes. Mediation, Conciliation, Negotiation, Mini-Trial, Consumer Forums, Lok Adalats and Banking Ombudsman have already been accepted and recognized as effective Alternative dispute resolution methodologies.

Alternative dispute resolution has greatly expanded over the last several years to include many areas in addition to the traditional commercial dispute in the form of arbitration; mediation has become an important first step in the dispute resolution process. Arbitrators and mediators have an important role in resolving disputes. Mediators act as neutrals to reconcile the parties’ differences before proceeding to arbitration or litigation. Arbitrators act as neutral third parties to hear the evidence and decide the case. Arbitration can be binding or non-binding.

What is ADR? In simple terms it is Alternate Dispute Resolution the conventional Courts use formal system of redressal applying various rules of law, as we have erstwhile mentioned that our system is adversial. The concept of Conflict Management through Alternative Dispute Resolution (ADR) has introduced a new mechanism of dispute resolution that is non adversarial. A dispute is basically ‘lis inter parties’ and the justice dispensation system in India has found an alternative to Adversarial litigation in the form of ADR Mechanism in which two parties contest their case and one party wins and the other party looses, but in case of alternate dispute resolution (Section 89 – Code of Civil Procedure), which can be categorized in four broad heads which are-

1.      arbitration;

2.      mediation;

3.      conciliation;

4.      judicial settlement including settlement through Lok Adalat.

It is win – win situation and no party wins no party looses, today the need of time is that we resort to non conventional systems as well, we should not forget that its not something new to us, we had for ages, like panchayats etc, it was self sufficient, every village has panchayat and it was a powerful authority for redressing the disputes. The best part of ADR is that since both parties come face to face and they work out the modalities and reach to an amicable solution, there is no likelihood of winning or losing the case, i.e. it’s a win – win situation and thereafter no appeal, and thus it reduces the burden of appellant courts as well, the arbitration and conciliation Act, 1996 provides for Arbitration and the award given by the arbitrator is deemed to be a decree. It was step towards the ADR. The labor legislation has already incorporated conciliation and mediation system in their enactments, to have an amicable solution in case of tussle between the labor and the management. The conventional courts are already overburdened with loads of cases, and at least a sizable number of cases can be disposed off by way of ADR. The CPC envisages for use of ADR in section 89 in amended section as mandatory for court to refer the dispute after the issues are framed for settlement of disputes outside the Court (Clause 7 of the CPC Amendment (Bill), 1999). The Law Commission of India in its 129th Report recommended for the Alternate modes of Dispute Redressal to be obligatory on the courts after framing of issues. It is only after the parties fail to get their disputes settled through any one of the alternate dispute resolution methods that the suit shall proceed further in the court where it was filed.

The purpose of this special provision seems to help the litigant to settle his dispute outside the Court instead of going through elaborate process in the court trial. This is a special procedure for settling the dispute outside the courts by a simpler and quicker method. The litigants on the institution of the suit or proceedings may request the Court to refer the disputes and if the court feels that there exist any element of settlement which may be acceptable to the parties; it may refer them to any of the forums abovementioned at any stage of the proceedings. In fact new rules in Order X were inserted in consequence to the insertion of the sub section (1) of section 89. These new rules namely 1A, 1B and 1C have been inserted by the Amending Act. The settlement can be made by adopting any of the modes specified in the section 89 of the CPC inserted by the Amendment Act. As per the Rule 1A the parties to the suit are given an option for settlement of the dispute outside court. When the parties have exercised their option it shall fix the date of appearance before such person as may be opted by the parties. As per the Rule 1-B the parties are required to appear before such forum opted by them. Rule 1C provides for the Presiding Officer of the Forum to refer the matter again to the Court in case he feels that in the interest of justice he should not proceed with the matter.

On the basis of above analysis it is apparent that the ADR is the best and most effective solution to reduce the Himalayan pendency in various courts of our country. It is not to forget that the ADR is more effective as it is an amicable solution and both parties are in win – win position and brings about harmonious relationship between both the parties unlike in the conventional courts, thus it is permanent solution to any dispute, as it don’t lead to appeal or revision, and hence reducing the burden of appellate courts as well and also it saves valuable time and energy of the courts which can be utilized erstwhile in other matters pending before court and it renders justice on time (Justice delayed is justice denied, but ADR saves time and timely judgment is possible). As a judge it is our duty as envisaged by the new CPC to encourage the ADR, in civil maters in the interest of justice. Despite many advantages of using Alternative dispute resolution mechanisms, our society has been reluctant to give it its due recognition. The predominant reason being that a litigation ridden society is generally unable to explore consensual dialogue or arrive at an amicable solution. The ADR practitioner therefore acts like a healer of conflicts rather than a combatant. It is similar to the Panchayat system we have in our villages. The resolution of disputes is so effective and widely accepted that Courts (In sitanna v. Viranna; AIR 1934 SC 105, the Privy Council affirmed the decision of the Panchayat and Sir John Wallis observed that the reference to a village panchayat is the time-honoured method of deciding disputes) have more often recognized them. It avoids protracted litigation and is based on the ground realities verified in person by the adjudicators and the award is fair and honest settlement of doubtful claims based on legal and moral grounds.[2]

1.7 History of Alternative Dispute Resolution (ADR) PAKISTAN

The term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms that are alternative to full-scale court processes. The term 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 or mini-trials 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 community based ADR.

ADR systems may be generally categorized as negotiation, conciliation/mediation, or arbitration systems.  Negotiation systems create a structure to encourage and facilitate direct negotiation between parties to a dispute, without the intervention of a third party. Mediation and conciliation systems are very similar in 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.

Two kinds of ADR have been practiced in Pakistan; traditional ADR and public bodies based ADR. The formal refers to the traditional, centuries old system (which was good for simple cases but when it came to status quo issues, would readily succumb to elite capture) including Panchayat (in Punjab) and Jirga (in NWFP and Balochistan). The later includes the ADR attached to public bodies and included Arbitration Councils, Union Councils and Conciliation Courts.Arbitration Councils were confined to issues of divorce, permission for second marriage, and maintenance for existing wives. Union Councils provided the arbitration forum (through elected councilors) under Muslim Family law Ordinance 1961 and looked after a few selected family related issues. Conciliation courts were established under Conciliation Courts Ordinance 1961 and were vested with limited civil/criminal/pecuniary jurisdiction. Majority of the above initiatives were rendered ineffective as the local councils (which had an important role in these forms of ADR) were dissolved frequently and no clear strategies for capacity building of the members of these bodies were ever formulated.

Recent Initiatives regarding ADR in Pakistan

  1. Code Of Civil Procedure (CPC) which is the primary procedural law for civil matters in Pakistan, has been amended (under AJP) for providing enabling mechanism for Court Annexed ADR in Pakistan (Section 89-A)

Small Claims and Minor Offences Ordinance 2002 has been promulgated for providing exclusive forum (at the district level) for facilitating the resolution of smaller disputes. This law also provides ADR mechanism for facilitating the resolution and settlement of disputes within the framework of the formal court system. This could be transformed into an excellent forum for addressing disputes in the emerging justice sector in Pakistan;

  1. Under the Access to Justice Program, the review of Arbitration Act represents a significant policy action. This review needs to be undertaken and capacity building initiatives put in place to promote effective arbitration regime in Pakistan.
  2. A new local government system has been introduced in Pakistan, establishing elected local governments at the level of Union Council, Tehsil (Sub District Level) and the District level. The institution of Musalihat Anjuman (literally meaning conciliation forums) has been provided at the level of Union Councils for dispute resolution through ADR (including conciliation, mediation and arbitration). The finalization of the rules of Business for these bodies is essential to popularize the use of ADR.

The conference will explore the opportunities to promote and encourage use of ADR and highlight its importance in strengthening good governance.

1.8 History of ADR in Bangladesh

Bangladesh has an age-old history of Alternative Dispute Resolution (ADR). The term “Alternative Dispute Resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms, which fall short of, or is alternative to, full-scale court proceedings. It is applied in different situations in different ways, both formally and informally. The village people usually preferred settling disputes amongst themselves and do not appreciate any intervention from other villages. They relate this intervention with loss of face for themselves and image of their village. With the gradual breakdown of the more traditional values of the social fabric, the traditional system of resolving disputes now stands virtually extinct and has been replaced by police cases, legal procedures and other methods.

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.

Societies world-over have 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. 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. 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.

 

Chapter 2

Alternative Dispute Resolution (ADR)

2.1 Introduction:

Alternative Dispute Resolution (ADR) is an alternative route for reaching a speedier and less-expensive mode of settlement of disputes. It includes mediation, settlement of disputes, arbitration and other ways that are voluntary and not compulsory.[3]

Most countries of the world have adopted ADR mechanism and achieved tremendous success in reducing backlog and increasing access to justice for the poor. The concept of ADR was first inserted in Section, 10(3) and 13(1) of the Family Court Ordinance of 1985, wherein there is provision for compromise or reconciliation even before pronouncement of judgment.

However, there was no implementation of these provisions until a special pilot project was taken on “Mediation as a measure of ADR” in June, 2000, under the supervision of the then chief justice of Bangladesh. Under that project, three assistant judge’s courts of Dhaka were specified as exclusive Family Courts for the purpose of mediation.[4]

At that time, a circular was issued from the High Court Division of the Supreme Court providing credit of two trials for one successful mediation in a family dispute and the credit of one trial for two unsuccessful mediations. This circular inspired the Family Court judges to give more efforts to mediation in Family Court cases, achieving success in disputes resolution through “mediation” in the family courts.

The great success in realisation of dower money and amicable, peaceful and quick settlement of disputes through mediation in the Family Courts inspired the government and the policy makers as well to widen the scope of ADR through other legislation.

Accordingly, ADR mechanism was introduced for the first time in general civil litigation in 2003 by the Code of Civil Procedure, (Amendment) Act, 2003 and by the Artha Rin Adalat Ain, 2003, with effect from July 1, 2003 and May 1, 2003, respectively. The Code of Civil Procedure (Amendment) Act, 2003 embodied two new sections (89A, 89B) designed for ADR mechanism in all civil suits and cases.

On the other hand, the mechanisms of ADR in the Artha Rin Adalat (Money Loan Court Act, 2003) are (a) settlement conference, which is to be presided over by the trial judge and to be held in camera and (b) arbitration, which is to be presided over by a neutral arbiter and to be held in camera.

The latest amendment in this regard is incorporation of ADR at appellate stage in non-family civil disputes. A new section, 89 C, was inserted in the Code of Civil Procedure by Act No. VIII of 2006. The use of ADR in Artha Rin cases is a success story. Besides, ADR is gradually progressing and becoming a popular forum for the litigants of civil cases.

Alternative dispute resolution in today’s world is a widely accepted and appreciated method for reducing the number as well as cost of suits. Many developed and developing countries have gained tremendous success in reducing backlog by adopting ADR.

Disposal of suits/litigation through ADR is bound to enhance the quality of social justice and thereby contribute to the promotion of harmony and peace in society, both of which are pre-conditions for meaningful development in social, cultural economic and other spheres.

Actually, mediation, conciliation/reconciliation, arbitration and other forms of ADR are important vehicles for promoting social harmony. Our country should develop the system of ADR without any delay, and this should be of prime importance in view of the fact that ADR process can be of great help in strengthening the legal framework, which, in turn, can certainly bring about changes so that people can get justice speedier.

2.2 What is ADR

Alternative Dispute Resolution (ADR) is a collection of processes used for the purpose of resolving conflict or disputes informally and confidentially. ADR provides alternatives to traditional processes, such as grievances and complaints; however, it does not displace those traditional processes. The ADR Office is a resource available to all CDC and ATSDR employees. The ADR Office is a resource when you need advice about how to deal directly with a concern, you are uncertain about taking a problem through other established channels, are not sure who to talk with about a problem or concern, want an informal, no escalating approach, need a fresh, impartial perspective, want to discuss strategies or possible options for resolving a concern and if you want to maintain the greatest possible flexibility in how to approach a concern or simply need a sounding board[5].

According to Glossary Law Dictionary “The term ‘ADR’ describes, a number of methods used to resolve disputes out of court, including negotiation, concilia.ion, mediation and the many types of arbitration.^The common denominator of all ADR methods is that they are faster, less formalistic, cheaper and often less adversarial than a court trial.”

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.

According to Barrister Maudud Ahmed (Former Minister for Law, Justice and Parliamentary Affairs) said that- “To me, the generic term Alternative Dispute Resolution (ADR) is a real, practical and traditional approach of outside court justice system, saves time and mone), uses simple common sense of the common people of the society with the guidance of 1he experts, respects community beliefs & values, acts to preserve peace and harmony among the parties, resolves disputes with assistance of neutral persons, involves with a range of processes like negotiation, mediation, arbitration, conciliation, ombudsman or even malpractice screening panel as appropriate; and creates an innovative dimension in legal profession for better effectiveness of the over-all justice delivery system’,( An exclusive television interview with Channel I on 24th March 2006).

2.3 Origin of ADR

As a means of non adversarial system, alternative dispute resolution (ADR) is a buzz phrase and much talked about mechanism at almost every legal system varying from adversarial to inquisitorial one. ADR as a consensual form of dispute resolution is being practiced almost in all disputes from family to business except grievous criminal issues and also has proven to be effective mechanism for dispensation of justice. It refers the ways of settling disputes outside of the traditional court room setting and also within court as a format of court sponsored one with and without the intervention of the court. Over the ages, the disillusionment and frustration of people over the cost, inordinate delay in dispensation of justice through judicial dispute resolution (JDR) looms large as a great threat to erode the confidence of people in the justice system expanding the use and scope of ADR.

The means of JDR can be traced throughout history in various laws and religious codes over the past 5000 years, starting with the laws of Hammurabi, a Babylonian ruler from about 2500 BC while the ADR perhaps can be founded even long before the development of code and laws but with the existence of human being in the earth. The basis for JDR is to determine the rights and obligations of the parties and award the winners and also punish the losers reflecting a zero some theory of game while the basis of ADR is social consciousness and moral obligation with voluntary participation to settle the disputes to restore social harmony and peace.[6]

The philosophical basis of ADR is perhaps drawn from Confucianism which in a phrase ‘calling for ruling by virtue’ during 551-478 BC, although the Chinese predisposition to seek dispute resolution through ADR as opposed to litigation is rooted in at least three sources viz. Confucian philosophy, the unavailability and inadequacy of the court system, and a social structure that emphasized small, stable units.

In ancient China, inspired by Confucianism, ADR became the primary method of settling disagreements. The philosophy of Confucius, was, in essence, one of harmony, of peace and of compromise and according to him the best way of resolving disagreement or dispute is by moral persuasion and compromise instead of by sovereign coercion. Chinese agreed that the foundations of the community are ethical rules which require that the state of a natural harmony in human affairs should not be disrupted. These are based on the strong belief that laws are the not the appropriate way to regulate daily life and hence should only play a secondary role reflecting ancient adages of China i.e. ‘in death avoid hell and in life avoid the law courts’ and also ‘going to court means getting a goat selling a cow’.

All countries, following the common law system, have faced this problem of delay and excessive expenses in the disposal of civil cases at some point or the other in their respective legal history, as also the problem of apathy of judges and lawyers. Developed countries like the U.S.A., Australia and Canada have witnessed a few decades back huge backlog of cases, excessive legal costs and expenses and litigants’ misery, as we are witnessing now in our country.

Lawyers and judges of developed countries did not look upon the Government to solve what was essentially a problem of administration of justice that concerned lawyers and judges themselves. In many areas of these countries, some thirty plus years back, public-spirited judges and lawyers put their heads together and devised a common strategy to solve the problem of huge backlog of cases, delay in the disposal of cases and excessive expenses in litigation.

2.4 Their Perception of Adversarial System

What they found was that the adversarial system prevalent in common law countries were no longer adequate to address the growingly complicated technical legal problems of modem-day litigation. The adversarial system creates two mutually contending, exclusive, hostile, competitive, confrontational and uncompromising parties to litigation. This system does not generate a climate of consensus, compromise and co-operation. As litigation progresses it generates conflict after conflict. At the end of litigation one party emerges as the victor and the other party is put to the position of the vanquished. Adversarial litigation does not end in a harmony. It creates more bitterness between the parties that manifests itself in more litigation between them or even their successors. However, judges and lawyers of developed countries found that the alternative is not to do away altogether with the adversarial system. The adversarial system plays a positive role too. It settles through adversarial hearing complicated and disputed questions of fact and law. The law that superior courts lay down to be followed by subordinate courts and tribunals can never be arrived at without following the adversarial procedure. Any court cannot lay down any law by way of compromise, consent or consensus of parties to litigation.

2.5 Their Adoption of Consensual System as an Alternative not Substitute

Beyond the territory of complicated questions of fact and law there lies a vast area of litigation where the adversarial system must yield to a consensual type of dispute resolution, even though there are complicated technical legal problems in this vast area as well. The consensual type is essentially a type and a process of dispute resolution that requires judges, lawyers and the litigant public to change their century’s old mind-set and to adjust gradually to play a combined and co-operative role in the resolution of disputes. In an adversarial system a judge has a passive role to play. He/she will take the evidence as it comes, hear the parties and deliver his/her judgment without getting involved in the entire dispute resolution process. In a consensual system the judge, the lawyers, litigants and outside mediator or evaluator are all active parties to the resolution of dispute. It is informal, confidential, speedy and less expensive. It preserves the jurisdiction of the trial court to try the case on merit, if A.D.R. fails.

2.6 Settlement Conference or Judicial Conference

Settlement Conference or Judicial Conference may be held at any time during the life of a civil case upon request of a party or recommendation of a trial judge. The judge who is assigned to adjudicate the dispute in question is not involved in this method of A.D.R. Another judge of co-equal jurisdiction is requested to involve him/herself in this method. The settlement judge acts as a mediator or facilitator at the Conference, promoting communication among the parties, holding one-on-one sessions with each side, offering an objective assessment of the case and suggesting settlement options. The settlement judge has not the power to enforce settlement and does not communicate any information about the case to the trial judge. If settlement is reached, the parties sign an agreement, thereby avoiding the cost of trial or other litigation. If no settlement is reached, the case proceeds to trial before the previously appointed trial judge.

The success of this process is attributable to two factors. First, the parties get the advantage of utilizing for free judicial experience in evaluating the settlement value of a civil claim and secondly, they have the opportunity to separate their private and confidential negotiations from public ad judicatory trials.

2.7 Introducing A.D.R. in Bangladesh

  1. D. R. means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the issues of a case are seldom framed following the Code of Civil Procedure, the case takes several years to reach a settlement date and on the date of positive hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none. In the meantime years roll by, presiding judge of a single case is transferred a number of times, witnesses of a single case may be heard by more than one presiding judge, arguments are listened to may be by another presiding judge and judgment may be delivered by a presiding judge who had had no connection with the case ever before. Our legal system has thus been rendered uncaring, non-accountable and formalistic. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades. When they win a case the result is much worse than winning it[7]. When they lose a case they lose not only the subject matter of the dispute, but also a good part of their fortune. If interlocutory matters are dragged up to the appellate or revision courts, their woos know no bounds and their agonies are prolonged for an indefinite period. Appeals from trial court decrees may reach unto the Appellate Division by which time the parties are thoroughly drenched in misery. When a decree is thus obtained after protracted litigation, it does not end there. Execution proceedings then re-starts a fresh litigation between the parties or even their successors which may take years or decades to come to a conclusion and which may end up with no real or positive benefit to the decree-holder plaintiff. This is the experience of a common litigant in Bangladesh. Added to this inherent and in-built delay and expenses, corruption and often terrorism at almost each stage of litigation is eating into the vitals of the justice delivery system.

Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness. Many conscientious judges and lawyers have done what they could under the circumstances, but their sincerity has been drowned into the general morass of malfunctioning of the court system.

Early Neutral Evaluation” for the same reasons described therein.

2.8  Different types of ADR in Bangladesh:

Sumaiya Khair suggests that there are three streams of ADR in Bangladesh[8]:

  • Extra- judicial or community based ADR (informal);
  • ADR in Quasi-formal systems; and
  • ADR in formal legal system.

All these ADR modes have been discussed in different chapters in this book with there merits and demerits. Formal ADR in different laws are shown in the diagram below:

Formal ADR in Bangladesh
Code of Civil Procedure (sec. 89A, 89B, 89C
Family courts Ordinance, 1985 (sec. 10)
Muslim Family Laws Ordinance 1961 (sec. 7, 8)
ArtharinAdalat Ain, 2003 (sec. 21, 22)
Negotiation,Conciliation, Arbitration (sec. 210 of the Labour Code, 2006)
Pre-Litigation
Part of litigation

2.9 Informal ADR in Bangladesh

Informal ADR in Bangladesh includes traditional shalish and NGO modified Shalish. Quasi-formal ADR includes village court and Board of Conciliation have originated from the informal shalish system and this is why they all have been shown in the following single diagram.

2.10 ADR in different Bangladeshi Laws:

  1. The Code of civil procedure, 1908.
  2. The Code of Criminal procedure, 1898.
  3. The Artha Rin Adalat Ain, 2003.
  4. The arbitration Act, 2001.
  5. The Bankruptcy Act, 1997.
  6. The Muslim Family Court Ordinance, 1985.
  7. The Muslim Family Law Ordinance, 1961.
  8. The Gram Adalat Ain, 2006.
  9. The Settlement of Disputes (Paura Area) Board Act, 2004.

2.11 ADR Under code of civil procedure 1908

89B. Arbitration.- (1) If the parties to a suit, at any stage of the proceeding, apply to the Court for withdrawal of the suit on ground that they will refer the dispute or disputes in the suit to arbitration for settlement, the Court shall allow the application and permit the suit to be withdrawn; and the dispute or disputes, thereafter, shall be settled in accordance with Salish Ain, 2001 (Act No. 1 of 2001) so far as may be applicable:

Provided that, if, for any reason, the arbitration proceeding referred to above does not take place or an arbitral award is not given, the parties shall be entitled to re-institute the suit permitted to be withdrawn under this sub-section.

(2) An application under sub-section (1) shall be deemed to be an arbitration agreement under section 9 of the Salish Ain, 2001 (Act No. 1 of 2001).[9]

89C. Mediation in Appeal.- (1) An Appellate Court may mediate in an appeal or refer the appeal for mediation in order to settle the dispute or disputes in that appeal, if the appeal is an appeal from original decree under Order XLI, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties.

(2) In mediation under sub-section (1), the Appellate Court shall, as far as possible, follow the provisions of mediation as contained in section 89A with necessary changes {mutatis mutandis) as may be expedient.

2.12 Modes of ADR in Artharin Adalat Ain:

The Act provides for single mode of ADR and this is mediation s defined and described in section 22 of the Act. Unlike before the adoption of the process of mediation is compulsory after Submission of written statement. Once the written statement is submitted, the court must send the suit to appointed lawyer or to ite parties to settle the suit matter by way of mediation.

2.13 ADR in Criminal Cases:

ADR in criminal cases may be of two types: compounding of offences and plea bargaining. In Bangladesh section 345 of the Criminal Procedure Code provides for in-built provisions for compounding although there is no such provision of plea bargaining in the Code.

2.14 ADR in the village court Act 2006:

Section 5 specifies hat a Village Court shall consist of a Chairman and four members. Of these four members two are to be nominated by each of the parties to the dispute. One of two members to be nominated by each party should be a member of die Union Parishad concerned. However, any party to dispute, with the permission of the Chairman, may nominate any person other than the members of the Union Parishad members of the Village Court.

Sub-section (2) of section 5 states that the Chairman of the Union Parishad shall be the Chairman of the Village Court. However if the Chairman is unable to act as Chairman for any reason, or if his impartiality is challenged by any party to the dispute, any other member of the Union Parishad will become Chairman of the Village Court.

2.15 ADR in the Muslim Family court ordinance 1985[10] :

  1. The Family Courts Ordinance 1985 provides the courts with arms to exercise mediation in suits pending before it both at the pre trial stage under section 10 and after close of evidence following framing of issues and fixing a date of preliminary hearing under section 13.
  2. Another reason for recommending mediation in Family Courts is that it involves the direct participation of the parties in dispute. They are required to meet along with their legal representatives and other interested persons at confidential meetings at any time during the law suit in the presence of a neutral third party who, a judge, is a trained facilitator at conflict resolution.

2.16 ADR in Labor Act 2006 :

Negotiation:

If a dispute is likely between an employer and an employee, the employer or the CBA shall communicate the same in writing to the other party. Within ten days the parties will try to resolve the matter by way of negotiation; if a settlement reached, a memorandum shall be recorded accordingly (Section 210(1, 2, 3)). Under sub-section 210(4) 30 days time is allowed to complete negotiation.

Conciliation:

Failing a negotiation under sub-section 210(1, 2), any party may report to the conciliator that the negotiation have failed and request the conciliator in writing to conciliate the dispute and conciliator shall, on receipt of such request, proceed to conciliate in the dispute. Under section 210(6) the conciliator has ten days time for conciliation.

Arbitration:

If conciliation fails the conciliator shall try to persuade the parties to agree to refer to the dispute to an Arbitrator. In case the parties agree, they shall make a joint request in writing for reference of the dispute to an Arbitrator agreed upon by them. The arbitrator shall give his award within thirty days from the date on which the dispute is referred to him or within such period as may be agreed upon by the parties. The award of the arbitrator shall be final and no appeal shall lie against it (section 210(16)).

2.18 ADR under the Muslim Family Laws Ordinance, 1961:

Under this law provision for reconciliation or alternative dispute resolution through arbitration council has been provided for in three circumstances:

(i) in case of polygamy under section 6;

(ii) in case of giving talaq and making it effective under section 7; and

(iii) in case of failure of the husband to provide maintenance of his wife under section

  

2.19 Basic ADR process :

Negotiation, mediation and arbitration are the most common features of ADR techniques in Bangladesh. Let us discuss the three important ways of dispute resolution[11].

  • Negotiation:Negotiation is the process whereby the parties within the dispute seek to settle or resolve the dispute. The negotiation process provides the parties or disputants and opportunity to exchange ideas, identify the irritant points of differences, find a solution, and get commitment from each other to reach an agreement. Bargaining is a common feature of the negotiation process.
  • Mediation:Mediation is simply an extension of the negotiation process. Mediators are individuals experienced in the negotiation process who bring disputing parties together and make attempts to work out a settlement or agreement that both parties can accept or reject. Mediation is used for a wide ganrulof case types, including interpersonal, local business and national issues. Mediation is generally understood as a third party intervention between conflicting parties to promote reconciliation, settlement or compromise. 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. Shalish is used in settling 60 to 70% of local disputes.
  • Arbitration:Next to mediation and negotiation, arbitration is another dispute resolution tool. In arbitration systems, the court authorizes a neutral person or a third party to resolve -the dispute at the place of occurrence. The Arbitration Act of 1940 was introduced to settle disputes through this process. But the practice of arbitration by the courtisnpt popular.

2.20 Advantages of Alternative Dispute Resolution (ADR)

There are some potential advantages of using ADR. Such as:

  1. Save Time:A dispute often can be settled or decided much sooner with ADR; often in a matter of months, even weeks, while bringing a lawsuit to trial can take a year or more.
  2. Save Money:When cases are resolved earlier through ADR, the parties may save some of the money they would have spent on attorney fees, court costs, and experts’ fees.’
  3. Increase Controlover the Process and the Outcome: In ADR, parties typically play a greater role in shaping both the process and its outcome. In most ADR processes, parties have more opportunity to tell their side of the story than they do at trial. Some ADR processes, such as mediation, allow the parties to fashion creative resolutions that are not available in a trial. Other ADR processes, such as arbitration, allow the parties to choose an expert in a particular field to decide the dispute.
  4. Preserve Relationships:ADR can be a less adversarial and hostile way to resolve a dispute. For example, an experienced mediator can help the parties effectively communicate their needs and point of view to the other side. This can be an important advantage where the parties have a relationship to preserve.
  5. Increase Satisfaction:In a trial, there is typically a winner and a loser. The loser is not likely to be happy, and even the winner may not be completely satisfied with the outcome. ADR can help the parties find win-win solutions and achieve their real goals. This, along with all of ADR’s other potential advantages, may increase the parties’ overall satisfaction with both the dispute resolution process and the outcome.

Improve Attorney-Client Relationships: Attorneys may also benefit from ADR by being seen as problem-solvers rather than combatants. Quick, cost-effective, and satisfying resolutions are likely to produce happier clients and thus generate repeat business from clients and referrals of their friends and associates.

Because of these potential advantages, it is worth considering using ADR early in a lawsuit or even before you file a lawsuit,

2.21 Disadvantages of ADR[12]

Generally ADR are usually faster, and cheaper than litigation they are also private and informal when also compared to litigation and it gets both parties involved in the settlement process and the decisions are not necessarily final. However ADR does not alway guarantee an agreed upon decision and with arbitration the decision is final. The problems of ADR are given below:

  1. Unequal Bargaining Power– In certain situations one side is able to dominate the other, for example, employment and divorce cases, making the courts a better option for a weak party.
  2. Lack of Legal Expertise– Where a .dispute involves”-difficult legal points a mediator or arbitrator is unlikely to have the same legal expertise and knowledge as a judge.
  3. No System of Precedent– It isn’t easy to predict the outcome of a dispute decided through ADR as there is no system of precedent.
  4. Enforceability– Most •forms of ADR are not legally binding, making any award difficult to enforce.
  5. A Court action may still be required– If using ADR fails to resolve the parties’ dispute, court action may Still be needed. This adds to the costs and delays compared to taking a dispute direct to the courts in the first place.
  6. No guaranteed resolution-There is no guaranteed resolution. With the exception of arbitration, alternative dispute resolution processes do not always lead to a resolution. That means it is possible that you could invest the time and money in trying to resolve the dispute out-of-court and still end up having to go to court.

Though there are some disadvantages of ADR, it is the most easier and swiftest trial process in the judicial system of any country. So its popularity is increasing day by day.

2.22 Training and Commencement of First Pilot Courts

ISDLS and the Legal Study Group then took a joint decision to start two or three pilot family courts at Dhaka Judgeship from June 2000. A Project Implementation Committee was formed with Justice K.M. Hasan as Chairman. It was at his instance that the Chief Justice and the Minister of Law were persuaded to make an amendment to the performance measurement of Assistant Judges. They would be given two credits, i.e., credit of holding two trials for performing one successful mediation and one credit, i.e., credit of holding one trial for two unsuccessful mediations. I may mention here in passing that all Assistant Judges are ex-officio judges of Family Courts. The credit would be enjoyed by all of them, whether they would preside over a pilot court or not.

ISDLS then arranged an experienced Mediator of the Ninth Federal Circuit Court of the U.S.A, Mr. William C. Rack, to visit Dhaka and impart training on mediation, both theoretical and practical, to 30 Assistant Judges assembled from all over Bangladesh, some lawyers and NGOs. The American Center, Dhaka and the Ministry of Law provided all cooperation. During the training for 3 days some of the members of the Legal Study Group, including myself, watched from the beginning to the end, what the subject matter of the training was, how it was imparted, what impact it made and how effective the training program was. We selected three Assistant Judges to operate three pilot courts at Dhaka Judgeship. Accordingly 2 pilot courts started functioning from 1 June 2000 and the other from 1 January 2001 at Dhaka Judgeship. Cases had to be transferred to those courts exclusively for mediation, parties were to be notified and during these preparatory days, the pilot courts, without wasting time, conducted trials of cases till sufficient number of cases were ready for mediation with the consent of both parties. It need not be emphasized that nothing would have been possible without the active support of the Chief Justice, Minister of Law and the District Judge of Dhaka and without the outside help of ISDLS and the inside logistic assistance of the American Center.

2.23 Continuous Training and Expansion of Pilot Courts

After a gap of two or three months we three, myself, Mr. Justice Anwar-ul-Huq and Mr. A. K. Roy (then Deputy Secretary of the Ministry of Law and now Judge, Women and Children Repression Prevention Court, Sylhet) started touring the divisional headquarters, namely, Chittagong, Rajshahi, Khulna, Barisal and Sylhet imparting training both to Assistant Judges coming from each Division and to the local lawyers on mediation techniques for two or three days on each visit. We also spread out to district headquarters, namely, Comilla and Mymensingh, and imparted the same training to other batches of Assistant Judges and lawyers. Sometimes the training sessions were inaugurated by the Chief Justice of Bangladesh and sometimes by the Minister of Law. Mr. Justice K. M. Hasan made himself available on most of the occasions to apprise the audience of the progress of mediation in the family courts of Bangladesh. Mrs. Mary Ann Peters, Ambassador of the U.S.A to Bangladesh, made an invaluable speech at the opening of the training session at Comilla. After a year or so we started taking one of the Dhaka family pilot court judges to narrate their mediation experiences and achievements and to interact with the trainee participants. Everywhere the trainee participants volunteered immediate participation. Needless to say the Ministry of Law and the American Center were cooperative on each occasion and rendered all administrative and logistic assistance required.

After completion of a training session at a certain place, a Pilot Court was set up in that town or elsewhere within the jurisdiction of the judgeship where the training was held. The District Judges followed the matter through. Now there are 3 pilot courts at Dhaka, 2 at Chittagong and 1 each at Sylhet, Rajshahi, Khulna (not exclusive though), Bogra, Jessore, Rangpur, Kushtia, Comilla, Faridpur, Barisal and Mymensingh. Out of 65 districts, only 14 have pilot courts, but it is our information that not all districts need an exclusively mediation pilot court, because the number of family cases does not justify it. It is also our belief that many districts, where there is a genuine need for an exclusively mediation pilot court, can well be served initially by transferring to those districts some Assistant Judges who have already received training from us. It is however necessary to keep the training process ongoing so that all the districts of Bangladesh are covered by pilot courts. In due course, all districts will have at least one exclusively mediation court and they will no longer be called pilot courts.

In Civil Suits:

  1. Code of Civil Procedure
  • Mediation u/s 89A
  • Arbitration u/s 89B.
  1. Muslim Family Laws Ordinance,1961
  • Polygamy u/s 6
  • Divorce u/s 7
  • Maintenance u/s 9
  1. Family Court Ordinance,1985
  • Pre-trial Proceeding u/s 10
  • Post-trial Proceeding u/s 13
  1. Artha Rin Adalat Ain, 2003
  • Settlement Conference u/s 21
  • Mediation u/s 22
  1. Gram Adalat Ain, 2006 [all sections]
  2. The Conciliation of Disputes (Municipal) Board Act, 2004 [all sections]
  3. The Arbitration Act, 2001 [all sections]
  4. 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

2.24 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.

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.

The mediation shall be conducted within 60 days from the day on which the court is so informed. But the time of execution for further period shall not exceed 30 days. After a successful mediation the parties will get return court fees. No appeal shall lie against the order or decree passed the court of mediation.

Section 89 (b) has extended the opportunity to settle the dispute alternative way through arbitration. Under this section, any stage of the proceeding parties can make an application to solve the dispute through the arbitration and withdraw the suit to the court. The court shall allow the applicant and permit to withdraw the suit. This arbitration shall comply with the Shalish Ain, 2001. If any reason the arbitration dose not take place or fail to give award, the parties shall be entitle to re-institute the suit. That application shall be deemed to be arbitration under Section 9 of the Shalish Ain, 2001.

As if mediation has accomplished on the application of contesting parties, the court passed a order and the contesting parties must be submissive on that order. But the court cannot create any kinds of pressure for the mediation, which has been described on the section 89 of CPC. The contesting parties can be settle their dispute wholly or partly by mediation.

Former Justice of Bangladesh High Court and First Director of Judicial Administration Training Centre Justice Md. Baruzzaman would be answering that, “under the present provision of law it is not mandatory for the Judge himself to mediate or refer the dispute for mediation, but in doing so the Judge must exercise his discretion by taking into consideration the intention of the legislature and the cause of just, speedy and inexpensive justice[2]”.

As per the provision of the Sub-section (4) of section 89 a  Within 10 days from the date of submission of written statement, the parties shall inform the court in writing as to whether they have agreed to try to settle the dispute or disputes in the suit by mediation and whom they have appointed as mediator, failing written statement will stand cancelled and the suit shall be proceeded with for hearing by the court their agreement to try to settle the dispute or disputes in the suit through mediation and appointment of mediator, the mediator shall be conclude within 60 days from the date on which the court is so informed, unless the court of its own motion or upon a joint prayer of the parties extends the time for a further period of not exceeding 30 days.

As to the provision of sub-section (12) of the section 89(a) of CPC, no appeal or revision shall lie against any order or decree passed by the court in pursuance of settlement between the parties.

Though trial courts have been exercised ADR in civil suit according to the provision of Act III of 2003, but there is no jurisdiction of appellate court. For that, So many cases were pending for settlement in the Appellate court year to year. At last, Act 8 of 2006 has created an opportunity to settle the cases by using mediation. Provision of mediation in Appeal is as follows –

Appellate Court may mediate in an appeal or refer the appeal for us the shining mediation in order to settle the dispute here are or disputes in that appeal, if the appeal is an appeal from original decree under Order XLI, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties.

In mediation under sub-section (1), the appellate court shall follow the provisions of mediation as contained in section 89a with necessary change as may expedient as far as possible.

Above discussion shows that application of ADR in our civil court is epoch making decision. Though the ADR, the people of our country get privilege as far as possible. As well as the judges and appellate court get relief from the cases which are filed year to year. On that achievement Justice K. M. Hasan give opinion that, “the greatest achievement of the mediation court is changing of mental attitudes of the judges, lawyer, litigants and general public who were skeptical about mediation. Initially, there were feelings of opposition and suspicion by some in the legal profession for this entirely different based discipline but it is changing. Those who used to come the court with confrontation mode are accepting the idea of mediation and more are coming prepared to settle dispute through mediation. It is interesting to note that the same lawyer who fight tooth and nail to win a suit in trail also try hard to find out solution through mediation.”

Muslim Family Law Ordinance

Muslim Family Law Ordinance had been effected from 15th July, 1961. Such Ordinance has been applied on every Muslim citizen of Bangladesh both who lives inside in or abroad of Bangladesh. No distinction between Sia or Sunni in front of the Muslim Family Law Ordinance. In the leading case named Nirmal Kanti Das v. Sreemati Bavi Rani  states that application of Muslim Family Law Ordinance,1961 has been overridden by section 3 of Family Court Ordinance in clear language providing that this Ordinance shall have effect not withstanding anything contained in any other law.[13]

In the mentioned provision subsection (a) of Section 2 of the Muslim Family Law Ordinance ‘Arbitration Council’ means a body consisting of the chairman and a representative of each of the parties to a matter dealt with in this Ordinance.

The chairman constructs an arbitration to settle any kind of dispute related with Muslim Family Law Ordinance. He constructs such council consisting of him and the representative of both the wife and husband. The chairman asked the representative both of wife and husband within seven days from the date of complain. Where any contesting party fails to nominate their representative within the prescribed period, the council shall not stay for any one. They are continued their works.

The chairman can give time for conciliation of nominated representative or new nomination of representative, where their nominated representative is or any kinds of reason he is not start form such situation where previous nominated representative is rescinded.

Where the chairman is not Muslim or he is not desired to attend arbitration council, he may apply the council for nominated the other chairman who is Muslim. The council does the same according the Muslim Family Law Ordinance.

The contesting parties may apply to the collector to stay the hearing of council, where they might be seemed that the chairman support the opposite party. The collector may be staying the hearing until investigation on application is not completed.

As to the provision of Section 6 of the Muslim Family Law Ordinance, no man shall contract another marriage without the permission of arbitration council during the subsistence of an existing marriage.

An application for permission from arbitration council shall submitted to the chairman in the prescribe manner with prescribe fees. The applicant shall state the reason for proposed marriage even though the consent of existing wife or wives has been obtained.

On the reception of application the chairman shall call the applicant and his existing wife or wives each to nominate a representative. If the constitute arbitration council satisfied that the proposed marriage is necessary, just, grant, and fit, may give the permission.

The arbitration council may justify situation of the husband and physical and mental capacity of his wife. Then they decide whether he required permission or not.

Any contesting parties may apply for revision against decision of the arbitration. Any man who contracts another marriage without the permission of the arbitration council shall pay immediately entire amount of the dower due to existing wife or wives. If the amount is not paid by husband, shall be recoverable as arrears of land revenue.

In the leading named Ayessa Sultana v. Shajahan Ali[5] the court states that marriage of 2nd wife without permission of an arbitration council violate law and punishable. As to the provision of the Muslim Family Law Ordinance, any man who contacts another marriage without the permission of the arbitration council shall be punishable with simple imprisonment which may extent to one year or with fine which may extend to ten thousands taka or both.

Sub-section (5) (a) (b) of section 6 of the Ordinance refers to the penalties to which a man exposes himself for contracting another marriage without the permission of the Arbitration Council. Amount of the dower money shall be recoverable under certificate procedure under the provision of the Public Demand Recovery Act on application made on behalf of his wife. A complaint will have to be lodge on behalf his wife, and the offence is triable by the Magistrate of 1st class with a right of an appeal to Sessions Judge with a further right for moving the high court in its revisional jurisdiction under Section 439 of Code of Criminal Procedure.

It may be noted in this connection that the words “without the permission to the Arbitration Council” not only mean when no application has been made by the husband but also include the case of an application for permission to contract another marriage but permission has been refused by the Arbitration Council.

The Arbitration Act, 2001

Peaceful arbitration for settlement of dispute had been applied from the ancient period. Arbitration had been introduced in Greece, China, Arabia and Italy in 12th century and 13th century. Arbitration took effective impact for settling the international dispute in the end of the 18th century. After, International Arbitration had successfully finished almost 100 cases. In those 100 cases, the United Kingdom and United States of America had participated near about 70 cases. Hague Peace Conference created ordinary impact on International Arbitration in 1899 and 1907. In Hague Peace conference, it had been described about rules, procedure and structure of the arbitration and established Permanent Court of Arbitration. Cordially the arbitration is to be proved as a part of international law. Eventually, arbitration was pronounced as state law.

Concept of Arbitration

The arbitration process begins with an arbitration agreement which is a contract governing the terms and process of the arbitration itself.  Appointment of arbitrator or arbitrator court, condition of arbitration and procedure, jurisdiction of the tribunal etc are decided on the basis of the agreement of the contesting parties.[14] Any kinds of dispute can be solved by the arbitration except the criminal cases. Even the commercial dispute can be solved. Agreement of the contesting parties shows on which law and principal on which the arbitrator settles the matter. The contesting parties may apply to the court to use the principal of Equity, justice and Good Conscience. The decision of the arbitrator is mandatory. On the above statement Greferry M. Beresford Hartwell states in ‘Arbitration as The Moral High Ground of The New Century’ that “ ……..the parties to an arbitration have agreed to some alternative court, they have agree to some alternative court, they have agreed not to go to Court at all. They have agreed to abide by the decision of a friend. That friend may be someone they both know and trust, he or she may be selected by some process they have devised and adopt, but still their direct or indirect choice. They may decide to approach the doyen of their profession or industry they may be happy enough with less exalted. If they have an obscure problem of law, they may ask a lawyer, of technology perhaps someone who knows the tricks of the trade. They may seek the decision of a priest or even a king.”

As to the provision of the Arbitration Act, 2001 ‘Arbitration’ means any arbitration whether or not administrated by permanent institution and ‘Arbitration Agreement’ means an agreement by the parties to submit to arbitration council all or certain dispute which have arisen or which may arise between them in respect of a define legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Such agreement shall be in writing and signed by the parties. It is contained in an exchange statement of claim and defense in which the existence of the agreement is alleged by one party and not denied by the other party.

The Arbitration Tribunal has no power to settle all kinds dispute. Some particular dispute might be solved by the Council. That kind of ability of the council is called arbitrability of dispute. Where any party to an arbitration agreement or any person claiming under him commence any legal proceeding against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred to arbitration, any party to such legal proceeding may apply to the court before which the proceeding are pending to refer the matter to arbitration at any time before filing a written statement. If it is satisfied that an arbitration agreement exists, the court refer the parties to arbitration and stay the proceeding unless the find that the arbitration agreement is void.

Composition of Arbitral Tribunal

The parties are free to determine the number of arbitrator. The parties should be appointed the arbitrator within thirty days.  Failing to determine the arbitrators, the tribunal shall consist of three arbitrators. On that point such kinks of arbitrator can be appointed. If it is satisfied by the parties, where there is one man tribunal, District Judge or Justice of the Supreme Court who is nominated by Chief Justice may be appointed as arbitrator. In arbitration with three arbitrators, each party shall appoint one arbitrator and two appointed arbitrator shall appoint third arbitrator who shall be the chair man of the arbitration tribunal. If a party fails to appoint their arbitrator within prescribe period or the appointed arbitrator fails to nominate the third arbitrator, District Judge in case of non-commercial dispute or Justice of Supreme Court designed by Chief Justice in case of commercial dispute are appointed as the third arbitrator.

Arbitrator’s mandate can be terminated for the reason as he withdraws himself from office or he dies or all the parties terminate his mandate or he is unable to perform his function. On the termination of the arbitrator’s mandate the replacement of the arbitrator shall be appointed accordance with above proceedings.

Jurisdiction and Duties of the Tribunal

The arbitral tribunal may rule on its own jurisdiction on any question as whether there is existence of a valid arbitration agreement or whether the arbitration tribunal is properly constituted or whether the arbitration tribunal agreement is against the public policy or whether agreement is incapable of being performed or what matters have been submitted to arbitration in accordance with the arbitration of agreement.[15]

The arbitration tribunal may use mediation, conciliation or any other procedures at any time during the tribunal proceeding to encourage the settlement. Where the parties settle the

dispute, the arbitration tribunal shall record the settlement in any form of the arbitral award on agreed terms. Such arbitral award shall have same status as any other arbitral award made in respect of the dispute.

The arbitral tribunal shall deal with any of the dispute submitted to it fairly and impartially on the evidence as quick as possible and for this purpose each party shall be given reasonable opportunity to present his case orally or in writing or both, or to examine all the document and other relevant material file by other party or any other person concerned before the tribunal. The arbitral tribunal may take evidence by orally or in writing. Even he may administer on oath.

Unless agreed by the parties, the arbitration tribunal may appoint expert or legal adviser to report on specific issue to be determined by the tribunal or appoint assessor tom assist it on technical matter.

Family Court Ordinance

The Family Court has been established in 15th June of 1985 under The Family Court Ordinance. First time mediation was introduced in family court in Dhaka Judge Court in 2000. After that it extended in Chittagong from 12th February of 2001, in Khulna from 1stSeptember, 2001, in Rajshahi from 7th May, 2001. Afterward it expands all over the court of the country.

Mediation has been denoted in Family Court Ordinance, 1985 under Section 10, 11, and 13. And also compromise decree has been prescribed in Section 18 of the Family Court Ordinance

As to the provision of the above Section of the Family Court Ordinance, when the written statement is filed, the family court shall fix a date ordinarily of not more than thirty days for pre-trial hearing. The court shall examine the plaint, the written statement and documents which filed by the parties and shall hear the parties. At the pre-trial hearing, the court shall ascertain the point at issue between the parties and attempt to affect a compromise or reconciliation between the parties, if it is possible for the court. If no compromise is possible, the court shall frame the issue in the suit and fix a date for recording evidence.

A family court may hold the whole or any part of the proceeding under this Ordinance in camera under Section 11 of the Family Court Ordinance. Even where both the parties to the suit request the court to hold the proceeding in camera, the court shall do so.

In Section 13 of the said Ordinance it is mentioned that after the close of evidence of all parties, the family court shall make another effort to a compromise between the parties. If such compromise is not possible, the court shall pronounce judgment either or on some future day not exceeding seven days of which due notice shall be given to the parties of their agents or advocates and a decree shall follow the judgment The Family Court has been established in 15th June of 1985 under The Family Court Ordinance. First time mediation was introduced in family court in Dhaka Judge Court in 2000. After that it extended in Chittagong from 12th February of 2001, in Khulna from 1st September, 2001, in Rajshahi from 7th May, 2001. Afterward it expands all over the court of the country.

Mediation has been denoted in Family Court Ordinance, 1985 under Section 10, 11, and 13. And also compromise decree has been prescribed in Section 18 of the Family Court Ordinance.

As to the provision of the above Section of the Family Court Ordinance, when the written statement is filed, the family court shall fix a date ordinarily of not more than thirty days for pre-trial hearing. The court shall examine the plaint, the written statement and documents which filed by the parties and shall hear the parties. At the pre-trial hearing, the court shall ascertain the point at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if it is possible for the court. If no compromise is possible, the court shall frame the issue in the suit and fix a date for recording evidence.

A family court may hold the whole or any part of the proceeding under this Ordinance in camera under Section 11 of the Family Court Ordinance. Even where both the parties to the suit request the court to hold the proceeding in camera, the court shall do so.

In Section 13 of the said Ordinance it is mentioned that after the close of evidence of all parties, the family court shall make another effort to a compromise between the parties. If such compromise is not possible, the court shall pronounce judgment either or on some future day not exceeding seven days of which due notice shall be given to the parties of their agents or advocates and a decree shall follow.

Arthorin Adalat Ain, 2003

As to the provision of the Section 21 of the Arthorin Adalat Ain, 2003, where the court deems proper may convene a settlement conference for settlement of dispute after submission of written statement by defendant in an alternative way keeping pending all proceeding of the court and the court may ask to the Parties, their lawyers and their representative to remain present in the settlement conference.

The Judge of the Artho Rin Adalat shall preside over such conference and hall determines the venue, procedure and function of the Settlement conference which shall take place in camera. The court shall explain the point of dispute before the parties, their lawyer and their representative and shall streamline his endeavors in arriving at a settlement but the court shall not exert any influence upon the parties to accept his own proposal. The process of settling the dispute shall be completed within 60 days of passing order by the court settling the dispute through Settlement Conference until the time is extended not exceeding 30 days on the basis of written statement of the disputed parties or the court own initiatives sufficient  cause being shown in the record.

The term and conditions of the settlement shall be recorded in agreement and the parties in dispute shall sign as executor, lawyers and the representative present shall sign over the agreement as witness. Afterward the court shall pass an order or necessary decree under the provision of related rule of Order XXIII of the Code of Civil Procedure, 1908. Eventually, no appeal shall lie in the higher court against any order pronounced by the court through Settlement Conference under the provision of this Act[16].

Where no order has been given for settling the dispute through Settlement Conference according to Section 21, the court may keep pending all subsequent proceeding subject to the provision of Section 24 after submission of written by the defendant and may refer the case to lawyers or may send the dispute to the parties for settlement. The lawyers engaged for conducting the case may engage a lawyer who is not engaged by neither of the parties or may engage any retired judge or retired officer as arbitrator in the interest of settle the dispute on mutual consultation of the parties.[17] The process of settling the dispute shall be completed within 60 days of passing order by the court settling the dispute through Settlement Conference until the time is extended not exceeding 30 days on the basis of written statement of the disputed parties or the court own initiatives sufficient  cause being shown in the record.

The arbitrator shall submit a report to the court on his arbitration activities without leaking out of the parties. The court shall give necessary order or pronounce decree on the basis of that report as may be applicable according to the relevant rules of Order XXIII of the Code of Civil Procedure, 1908.

The Bangladesh Labor Code, 2006

As to the provision of this code, where at any time an employer or a collective bargaining agent finds that an industrial dispute is likely to raise between the employer and the workers, the employer or the collective agent shall communicate his or its views in writing to the other party. Within 15 days from receiving its views, the party shall arrange a meeting with the other party for collective bargaining and settle the dispute.

Where the receiver of the letter fails to arrange a meeting within the prescribe period or no settlement can be reached within one month from the date of first meeting held for settlement of the dispute through the process of reciprocal dialogue of the both parties, the Government shall appoint as many persons as it considers necessary by the notification of official Gazette for the purpose of settle the dispute. Within 10 days of receipt of such request the conciliator shall start his conciliation and call a meeting of parties to the dispute for the purpose of bargaining about a settlement. The parties will open the issue of the dispute before the conciliator on the fixed date. If the settlement of dispute is arrived at in the course of conciliation, the conciliator shall send a report to the Government together with a memorandum of settlement signed by the parties.

If the conciliation fails, the conciliator shall try to persuade parties to agree to refer the dispute to an arbitrator for settlement. Where the parties do not agree to refer the dispute to an arbitrator for settlement the conciliator shall give a certificate to the parties within 3 days.

Where the parties agree to refer the dispute to an arbitrator, they shall make a joint request in writing for reference of dispute to an arbitrator agreed upon by the parties. The arbitrator shall give his award within a period of 30 days from the date on which the dispute is referred to him. After, he has made award the arbitrator shall forward to the parties and to the Government. The award of the Arbitrator shall be final and no appeal shall lie against it

Chapter 3

3.1 Introduction

Arbitration is a way to resolve a dispute without going to court. Arbitration can be used to settle any type of dispute including (but not limited to) employment disagreements, property disagreements, medical malpractice claims, and landlord tenant disagreements. This website concentrates on employment disputes, but the procedure is similiar for any dispute in arbitration

3.2 Types of Arbitration

  1. Grievance Arbitration
    Grievance arbitration is a procedure that is provided for in a labor contract between a union and an employer. A grievance is a claim that the labor contract has been violated.  A neutral arbitrator is chosen by the parties to resolve the dispute. The arbitration award is binding on both parties.
  2. Interest Arbitration
    Interest arbitration is similar to fact finding in that a neutral listens to the parties and then states in writing how to settle the collective bargaining agreement. Interest arbitration for police and fire employees in Michigan, known as Act 312 arbitration, is binding on the parties. The award is in essence the labor agreement for the parties.
  3. Arbitration of Statutory Disputes

Arbitration of Statutory Disputes is the resolution of disputes, such as discrimination claims, through arbitration. This type of arbitration is usually the result of a non union contract agreement. Some employers require their employees to sign agreements stating that they will use arbitration rather than litigation for any disputes involving their employment. These agreements between the employer and employee are typically held by the courts to be binding on both parties

3.3 Arbitration

The submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the award—a decision to be issued after a hearing at which both parties have an opportunity to be heard.

Arbitration is a well-established and widely used means to end disputes. It is one of several kinds of Alternative Dispute Resolution, which provide parties to a controversy with a choice other than litigation. Unlike litigation, arbitration takes place out of court: the two sides select an impartial third party, known as an arbitrator; agree in advance to comply with the arbitrator’s award; and then participate in a hearing at which both sides can present evidence and testimony. The arbitrator’s decision is usually final, and courts rarely reexamine it.

Traditionally, labor and commerce were the two largest areas of arbitration. However, since the mid-1970s, the technique has seen great expansion. Some states have mandated arbitration for certain disputes such as auto insurance claims, and court decisions have broadened into areas such as Securities, antitrust, and even employment discrimination. International business issues are also frequently resolved using arbitration.

Arbitration in the United States dates to the eighteenth century. Courts frowned on it, though, until attitudes started to change in 1920 with the passage of the first state arbitration law, in New York. This statute served as a model for other state and federal laws, including, in 1925, the U.S. Arbitration Act, later known as the Federal Arbitration Act (FAA) (9 U.S.C.A. § 1 et seq.). The FAA was intended to give arbitration equal status with litigation, and, in effect, created a body of federal law. After World War II, arbitration grew increasingly important to labor-management relations. Congress helped this growth with passage of the Taft-Hartley Act (29 U.S.C.A. § 141 et seq.) in 1947, and over the next decade, the U.S. Supreme Court firmly cemented arbitration as the favored means for resolving labor issues, by limiting the judiciary’s role. In the 1970s, arbitration began expanding into a wide range of issues that eventually included prisoners’ rights, medical malpractice, and consumer rights. In 2003, all 50 states had modern arbitration statutes.

Arbitration can be voluntary or required. The traditional model is voluntary, and closely linked to contract law: parties often stipulate in contracts that they will arbitrate, rather than litigate, when disputes arise. For example, unions and employers almost always put an arbitration clause in their formal negotiations, known as collective bargaining agreements. By doing so, they agree to arbitrate any future employee grievances over wages, hours, working conditions, or job security—in essence, they agree not to sue if disagreements occur. Similarly, a purchaser and a provider of services who disagree over the result of a business deal may submit the problem to an arbitrator instead of a court. Mandatory arbitration is a more recent phenomenon. States such as Minnesota, New York, and New Jersey have enacted statutes that force disputes over automobile insurance claims into this forum. In addition, courts sometimes order disputants into arbitration.

In theory, arbitration has many advantages over litigation. Efficiency is perhaps the greatest. Proponents say arbitration is easier, cheaper, and faster. Proponents also point to the greater flexibility with which parties in arbitration can fashion the terms and rules of the process. Furthermore, although arbitrators can be lawyers, they do not need to be. They are often selected for their expertise in a particular area of business, and may be drawn from private practice or from organizations such as the American Arbitration Association (AAA), a national non-profit group founded in 1926. Significantly, arbitrators are freer than judges to make decisions, because they do not have to abide by the principle of stare decisis (the policy of courts to follow principles established by legal precedent) and do not have to give reasons to support their awards (although they are expected to adhere to the Code of Ethics for Arbitrators in Commercial Disputes, established in 1977 by the AAA and the American Bar Association). These theoretical advantages do not always hold up in practice. Even when efficiency is achieved, some critics argue, the price is a lower quality of justice, and it can be made worse by the difficulty of appealing an award. The charge is frequently made that arbitration only results in “splitting the baby”—dividing awards evenly among the parties. The AAA roundly rejects this claim. Yet even arbitrators agree that as arbitration has become increasingly formal, it sometimes resembles litigation in its complexity. This may not be an inherent problem with the process as much as a result of flawed use of it. Parties may undermine arbitration by acting as lawyers do in a lawsuit: excessively demanding discovery (evidence from the other side), calling witnesses, and filing motions.

Ultimately, the decision to use arbitration cannot be made lightly. Most arbitration is considered binding: parties who agree to arbitration are bound to that agreement and also bound to satisfy any award determined by the arbitrator. Courts in most jurisdictions enforce awards. Moreover, they allow little or no option for appeal, expecting parties who arbitrate to assume the risks of the process. In addition, arbitration is subject to the legal doctrines of Res Judicata and Collateral Estoppel, which together strictly curtail the option of bringing suits based on issues that were or could have been raised initially.

Res judicata means that a final judgment on the merits is conclusive as to the rights of the parties and their privies, and, as to them, operates as an absolute bar to a subsequent action involving the same claim, demand, or Cause of Action. Collateral estoppel means that when an issue of ultimate fact has been determined by a valid judgment, that issue cannot be relitigated between the same parties in future litigation. Thus, often the end is truly in sight at the conclusion of an arbitration hearing and the granting of an award.

The FAA gives only four grounds on which a court may vacate, or overturn, an award: (1) where the award is the result of corruption, Fraud, or undue means; (2) where the arbitrators were evidently partial or corrupt; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing or hear pertinent evidence, or where their misbehavior prejudiced the rights of any party; and (4) where the arbitrators exceeded their powers or imperfectly executed them so that a mutual, final, and definite award was not made. In the 1953 case Wilkov. Swan, 346 U.S. 427, 74 S. Ct. 182, 98 L. Ed. 168, the U.S. Supreme Court suggested, in passing, that an award may be set aside if it is in “mani-fest disregard of the law,” and federal courts have sometimes followed this principle. Public policy can also be grounds for vacating, but this recourse is severely limited to well-defined policy based on legal precedent, a rule emphasized by the Supreme Court in the 1987 case United Paperworkers International Union v. Misco, 484U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286.

The growth of arbitration is taken as a healthy sign by many legal commentators. It eases the load on a constantly overworked judicial system, while providing disputants with a relatively informal, inexpensive means to solve their problems. One major boost to arbitration came from the U.S. Supreme Court, which held in 1991 that Age Discrimination claims in employment are arbitrable (Gilmer v. Inter-state/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26). Writing for the majority, Justice byron r. white concluded that arbitration is as effective as a trial for resolving employment disputes. Gilmer led several major employers to treat all employment claims through binding arbitration, sometimes as a condition of employment.

Arbitration clauses have become a standard feature of many employment contracts. This has led to conflicts concerning the applicability of these clauses when an employee seeks to sue an employer for a Civil Rights violation under Title VII of the Civil Rights Act of 1964, as amended by the civil rights act of 1991. A provision of this law addressed, for the first time, the arbitration of Title VII claims. Section 118 of the act states that the parties could, “where appropriate and to the extent authorized by law,” choose to pursue alternative dispute resolution, including arbitration, to resolve their Title VII disputes. Since its enactment, the federal courts have been required to determine what this clause means in practice. For example, in the securities industry disputes arose over whether employers could require their employees to waive their right to bring a Title VII claim in court. The circuit courts of appeal have uniformly ruled that Congress did not mean to preclude compulsory arbitration of Title VII claims.

The Equal Employment Opportunity Commission (EEOC) has contended that employment arbitration clauses do not prohibit the EEOC from filing an action against an employer for a civil rights violation. The Supreme Court agreed in Equal Employment Opportunity Commission v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002), holding that the EEOC could seek damages on behalf of an employee. The commission could also seek injunctive relief to change a company’s discriminatory methods. In so ruling, the Court resolved an issue that had divided the circuit courts of appeal.

The employee in question was fired from his job at the Waffle House after he suffered a seizure. He filed a claim with the EEOC, arguing that his rights under Title I of the Americans with Disabilities Act (ADA) had been violated. Under this act, the EEOC has the authority to bring its own enforcement actions against employers and to seek reinstatement, backpay, and compensatory and Punitive Damages on behalf of an employee. Moreover, the ADA makes no exception for arbitration agreements, nor does it even mention arbitration. Therefore, the EEOC, which had not signed an arbitration agreement with the employer, was free to pursue its claims in court. The Court also concluded that the general policies surrounding the ADA, and the EEOC’s enforcement arm, justified the pursuit by the EEOC of victim-specific relief. It stated that punitive damages “may often have a greater impact on the behavior of other employers than the threat of an injunction.”

The Supreme Court also has validated the enforceability of arbitration awards relating to Collective Bargaining agreements. In Eastern Associated Coal Corporation v. United Mine Workers of American, District 17, 531 U.S. 57, 121S.Ct. 462, 148 L.Ed.2d 354 (2000), the issue involved a labor arbitrator who ordered an employer to reinstate an employee who had twice tested positive for marijuana use. The employer filed a lawsuit in federal court seeking to have the arbitrator’s decision vacated, arguing that the award went against a public policy against the operation of dangerous machinery by workers who test positive for drugs.

The Court unanimously agreed that the employee should be reinstated. The Court made it clear that the question was not whether the employee’s drug use itself violated public policy, but whether the agreement to reinstate him did so. However, the Court also pointed out that the public policy exception is a narrow one. Based on these principles, the Court ruled that the reinstatement did not violate public policy, as the award did not condone drug use or its impact on public safety. In addition, the arbitrator placed conditions on the employee’s reinstatement, which included suspension of work for three months without pay, participation in a substance abuse program, and continued random drug testing. The fact that the employee was a recidivist did not tip the balance in favor of discharge.

3.4 What Is Legal Arbitration?

Legal arbitration is an out-of-court method for resolving disputes between two or more parties. In a typical arbitration proceeding, an independent arbitrator or a panel of arbitrators play the role of a judge and jury. The arbitrator usually performs functions like hearing each party’s case, examining the evidence, and making rulings on procedural issues. During the proceedings, an arbitration lawyer represents each of the parties. After all of the evidence has been presented, the arbitrator makes a decision, which may or may not be legally binding, depending on the terms of the legal arbitration.

Arbitration can be used to resolve a variety of issues – from business disputes and consumer cases to divorce and child custody proceedings. Parties may prefer legal arbitration over going to court because it is often less expensive, faster, and less formal. Arbitration can also provide parties with greater privacy and more convenience. A legal arbitration is generally more formal than other alternative dispute resolution (ADR) methods like mediation and negotiation. These ADR methods usually involve a more collaborative approach to resolving a dispute and do not end in a binding judgment

In the business world, companies often include arbitration clauses in their contracts with suppliers, customers, and other entities. Some contracts require mandatory arbitration, meaning the parties must resolve any disputes through a legal arbitration. Other contracts allow for voluntary arbitration, in which case the parties are not required to resolve a dispute using arbitration methods. In the case of a voluntary proceeding, the parties still maintain the right to bring a lawsuit in court and to appeal the arbitrator’s final decision.

An arbitration contract clause usually specifies whether the legal arbitration will be binding on the parties. In a binding arbitration proceeding, the parties must adhere to the arbitrator’s final decision, just as they would in a court of law. Non-binding arbitration, on the other hand, means that the parties can still elect to bring the case to court or to use another form of dispute resolution.

Even in a binding legal arbitration, an arbitrator’s decision may be appealed in limited circumstances. For example, a court may reverse the decision if it can be shown that the arbitrator acted in a corrupt manner or was unfairly biased towards one party. A court may also consider an appeal if the arbitrator was bribed or exceeded his or her authority.

Arbitration clauses range greatly in scope. Some contracts include simple clauses that state an agreement to a legal arbitration if a dispute arises. Other clauses include specific requirements like the location for the arbitration, the number of arbitrators to be selected, who pays attorney fees and court costs, and which set of formal arbitration rules apply. As noted above, contract terms can also dictate whether the arbitration will be binding or not and whether it will be mandatory or voluntary.

In Bangladesh, the present law of arbitration is contained mainly in the Arbitration Act, 1940, there being separate Acts dealing with the enforcement of foreign awards.  There are also stray provisions as to arbitration, scattered in special Acts.  Three types of arbitration are contemplated by the Arbitration Act of 1940, namely (i) Arbitration in the course of a suit, (ii) Arbitration with the intervention of the court, and (iii) Arbitration otherwise than in the course of a suit and without the intervention of the court In practice, the last category attracts the maximum number of cases.

Under the Act of 1940, an arbitration agreement must be in writing, though it need not be registered. The agreement might make a reference about present or future differences. The arbitrator may be named in the agreement, or left to be designated later, either by consent of the parties or in some other manner specified in the agreement. Very often, the rules of prestigious commercial bodies lay down that a person who becomes a member of the association must accept the machinery of arbitration created or recognized by the rules of the association.  This also amounts to an “arbitration agreement” for the purposes of the

Arbitration  Act, 1940.

Once an arbitration agreement is entered into for submitting future differences to arbitration, it is not, necessary to obtain the fresh consent of all the parties for a reference to arbitration at the time when the dispute actually arises.

Matters referable

Generally speaking, all justiciable matters of a civil nature can be referred to arbitration, but there are certain exceptions to the rule.  For example, it is not permissible to refer a matrimonial dispute to arbitration, since the issues in such dispute are not only those of fact or law but also involve questions of public welfare.

Types of institutional arbitration

Arbitration has been used customarily for the settlement of disputes between members of trade associations and between different exchanges in the securities and commodities trade.  Many contracts contain a standard arbitration clause, referring to the arbitration rules of the respective organization.  Numerous arrangements between the parties in industry and commerce also provide for the arbitration of controversies arising out of contracts for the sale of manufactured goods, for terms of service of employment, for construction and engineering projects, for financial operations, for agency and distribution arrangements, and for many other undertakings.

Selection of arbitrators

The matter of selecting arbitrators is an important aspect of the arbitration process, as the arbitrators’ ability and fairness is the decisive element in any arbitration.  The general practice is for both the parties to select an arbitrator at the time the arbitration agreement is concluded.  Selection of arbitrators is also often made by agencies administering commercial arbitration, under pre-established rules of procedure.  These organizations, including various trade associations, and Chambers of Commerce, maintain panels of expert arbitrators.  The parties may either make their own selection or entrust the appointment of the arbitrators to the organization.

Procedure in arbitration

The arbitration process is governed by the rules to which the parties refer in the agreement.  In the absence of specific legal rules, the procedure will be determined by the arbitrators.  The arbitration proceeding must be so conducted as to afford the parties a fair hearing on the basis of equality.  The arbitrator generally has the authority to request the parties and third persons to produce documents and books and to enforce such a request by issuing subpoenas through court.  If a party fails to appear at a properly convened hearing, without showing a legitimate cause, the arbitrator in most instances will proceed in the absence of the party and then render an award after investigation of the matter in dispute.  The technical rules of evidence do not apply to arbitrations. “See section 1, read with section 3, Indian Evidence Act, 1872″ as in force in Bangladesh.

The Arbitration Act adopts the approach, that in the working of an arbitration agreement, the parties are free to lay down provisions regarding various matters of procedure.  But in the absence of an agreement, the rules contained in the First Schedule to the Arbitration Act,

1940, apply.
An arbitrator can be removed for misconduct.  In applying this provision courts generally follow the wide construction adopted in most commonwealth countries, so that, it is not merely misconduct involving moral turpitude that attracts this power, but also misconduct of a technical nature, for example, a breach of the rules of natural justice.

Detailed provision exist for settling the problems that might arise where two or more arbitrators are contemplated by the arbitration agreement and a difference of opinion arises

between them.
Law to be applied in transnational transactions

The statutory law of various countries and the rules of agencies administering commercial arbitration contain provisions on the form, certification, notification, and delivery of the award.  The arbitrator must comply with these requirements.

Substantive Law

A much debated question in commercial arbitration concerns the substantive law to be applied by the arbitrators.  Generally, the award must be based upon the law as determined by the parties in their agreements.  This failing, the arbitrator must apply the law which he considers proper an accordance with the rules of conflict of laws.  In both the cases, the arbitrator will have to take account of the terms of the contract and the usages of the specific trade.

The arbitrator and the court

Challenges to the process of arbitration are not uncommon.  A party may claim, for example, that no valid arbitration agreement came into existence, because the person signing the agreement had no authority to do so or that a condition precedent to arbitration had not been fulfilled.  More often, the validity of an arbitration is contested on the ground that the specific controversy is not covered by the agreement.  In such cases, the question whether the arbitrator has authority to deal with the conflict is usually determined by a court.

Challenges before the courts against the award cannot be excluded by agreement of the parties, since the fairness of the arbitration process as a quasi judicial proceeding has to be maintained by the legal system.

Challenges before the court are, however, confined to specific grounds and specific matters.  A review of the award by a court will not generally deal with the arbitrators decisions as to facts or with his application of the law.  The jurisdiction of the court is thus restricted.  The arbitration process must be the end and not the beginning of litigation.

Filing the award

An award of the arbitrator must be filed in the court and a decree obtained in terms thereof.  The decree so obtained can be executed, like any other decree of the court.  However, the court may, instead of confirming the award, remit it to the arbitrator, modify it or set it aside for the specified causes.  Most of the orders passed by a court under the provisions of the Arbitration Act, 1940 in this regard are subject to appeal.

Competent Court

The court having jurisdiction under the Arbitration Act 1940 is the court in which a suit on the matter under dispute could be instituted.

Provisions have been enacted in the Act to deal with questions concerning the cost of arbitration and the procedure to be followed by the arbitrators regarding filing of the awards.  In case of difference of opinion between an even number of arbitrators, the parties can provide for an umpire.  Generally, most of the provisions applicable to arbitrators apply, with necessary modifications, to umpire also.[18]

Chapter 4

4.1 Mediation vs. Arbitration – Know the Difference

Litigation can be a long, frustrating and expensive experience.  Given the choice, most of us prefer to avoid litigation if at all possible. The two most widely used forms of Alternative Dispute Resolution (ADR) to avoid litigation are mediation and arbitration. Each process is distinctive.  If you are considering using either of these alternatives to traditional litigation, knowing their similarities and differences is essential to choosing the right process for your specific situation.

Mediation is a confidential legal process that uses a neutral third party to act as a facilitator to the agreement, but not a decision-maker.  It is used to avoid settling a dispute in court. The mediation process is informal and does not follow the rigid rules of evidence or procedure used in litigation.  The parties to the dispute are in control.  Ultimately, success depends upon the parties’ ability to reach an agreement.  The mediator stimulates discussion between the disputing parties to help the negotiation process and move the dispute toward a resolution.  Mediation is a non-binding process.  It does not restrict the ability to pursue the dispute further unless the parties reach an agreement and choose to be bound by the agreement’s terms.

Arbitration is also a confidential legal process used to avoid settling a dispute in court.  However, the neutral third party is appointed to review the case and make a final decision in favor of one of the parties.  The arbitrator renders a decision that is generally binding and cannot be appealed.  The process is more formal than mediation, although it is still usually less formal than litigation.

4.2 How Mediation and Arbitration are Alike

  • Arbitration offers many of the same benefits as mediation.  Both allow disputing parties to settle their conflicts outside of the traditional court system.  Mediation and arbitration are also similar in that they both:
  • Can resolve disputes quickly and usually less expensively that litigation.
  • Are confidential proceedings in which the resolution doesn’t become a matter of public record.
  • Use a neutral third party (arbitrator or mediator) to oversee the proceedings.
  • May result in legally enforceable resolutions.
  • Require voluntary participation from the disputing parties (unless a mediation or arbitration contract has been previously signed).

4.3 Differences between Mediation and Arbitration

One of the most important differences between mediation and arbitration is that an arbitrator makes a final decision on a case, while a mediator does not. During the arbitration proceeding, an arbitrator listens to and considers all relevant information, then decides which party should win.  Essentially, the arbitrator acts as the judge and jury.  In contrast, a mediator doesn’t impose a final resolution on the disputing parties.  The mediator acts as a middleman who facilitates discussions for possible settlements or resolutions and encourages the disputing parties to arrive at their own decision.

When an arbitrator makes a final decision (an Award), it is legally binding.  Appeals are accepted only under special circumstances.  In contrast, mediation settlements are never legally binding unless both parties specifically request binding mediation.  In most cases, if disputing parties sign a mediation clause, they are required to participate in mediation, but the settlements or decisions remain legally non-binding.  If the disputing parties wish to make their mediation agreement binding, the judge must sign the mediation agreement settlement.

Another difference between mediation and arbitration is in the ability to withdraw from the process.  While a mediation agreement can require persons to participate initially, neither party is required to complete the process or find resolution because mediation agreements are not legally binding. Conversely, parties involved in arbitration can withdraw only before a final decision is made and only if no arbitration clause has been signed.  Arbitration clauses require that all parties use arbitration to make a decision according to the stated stipulations.

Arbitration is generally less flexible and more costly than mediation.  There is a tendency in arbitration to split the pot, which can leave the parties involved feeling dissatisfied.

4.4 Advantages and Disadvantages of Mediation

if mediation follows no set procedure, results in no assured outcome, and cannot compel parties to agree unless those parties wish to do so, what advantages are there to mediation?

  1. Mediation is relatively inexpensive. Seeing a case through trial is an expensive proposition.
  2. Mediation is relatively swift. There is no dearth of mediators ready and willing to assist parties whose goal is to try to settle a matter. A quick web search will result in hundreds of mediators and mediation websites, some specializing in certain types of cases and some more experienced and able than others. Mediation does not run by a clogged court schedule and sessions can be easily scheduled any time at the mutual convenience of the parties and the mediator, and can take place in a variety of locations.
  3. Mediation is relatively simple. There are no complex procedural or evidentiary rules which must be followed. While most would agree that a general rule of fairness applies, the maximum penalty a party can impose for foul play is to walk away from the mediation and take his chances in court.
  4. Mediation allows the parties to revise and adjust the scope of their conflict. In a trial, initial pleadings and rules of procedure limit the issues which a party can raise. In mediation, as circumstances change so can the topics up for discussion. This increased flexibility makes it easier for negotiators to act as problem-solvers instead of adversaries.
  5. Mediation allows for flexible solutions and settlements. The relief available in court is usually based on pecuniary damages, and equitable relief is hard to come by. In mediation, however, the parties can agree to a settlement requiring, or restraining, action by one party which was not originally envisioned as something beneficial to the other party.
  6. Settlements reached in mediation are more agreeable to both parties than court judgments. Because any settlement arrived at through negotiation is necessarily agreed to voluntarily by both parties, obligations under the agreement are more likely to be fulfilled than obligations imposed by a court.

This list is by no means exhaustive, but at least presents a framework in which we can consider the advantages of mediation. In addition, there is a similar list which can be constructed in which we can start to consider some of the typically mentioned disadvantages of mediation.

  1. Mediation does not always result in a settlement agreement. Parties might spend their time and money in mediation only to find that they must have their case settled for them by a court. Opting for mediation, therefore, presents something of a risk. Further, if mediation fails, much of a party’s “ammunition” might have already been exposed to the opposing party, thereby becoming far less useful in the ensuing trial.
  2. Mediation lacks the procedural and constitutional protections guaranteed by the federal and state courts. The lack of formality in mediation could be a benefit, as noted above, or a detriment. Mediation between parties of disparate levels of sophistication and power, and who have disparate amounts of resources available, might result in an inequitable settlement as the less-well positioned party is overwhelmed and unprotected.
  3. Legal precedent cannot be set in mediation. Many discrimination cases, among others, are brought with the intention of not only securing satisfaction for the named plaintiff, but also with the hope of setting a new legal precedent which will have a broader social impact. These cases are only “successful” if a high court (usually the United States Supreme Court) hands down a favorable decision on the main issue. Mediation is therefore not beneficial for such cases.
  4. Mediation has no formal discovery process. If one of the parties to a dispute cannot fully address the case without first receiving information from the other party, there is no way to compel disclosure of such information. The party seeking disclosure must rely instead on the other party’s good faith, which may or may not be enough.

So is mediation a good thing? Should you encourage a client to mediate a matter rather than litigate? The answers to these questions depend on which of the various advantages and disadvantages of mediation apply in any given case.

EXAMPLE 1: Nora is a long-time client of the firm for which you work. Most of her legal issues revolve around the family-owned bakery which she inherited from her father and which, with her at the helm, has grown substantially in recent years. Unfortunately, spending so much energy on her business leaves Nora little time to tend to her own affairs. As a result, she has failed to pay rent on her house for quite some time and is being sued by her landlord. Nonpayment of rent is a clear breach of the lease, and if the landlord is able to prove in court that his story is true (and it is), he will be able to force Nora out of the house. Because Nora is very likely to lose the house if the case goes to trial, and because she very much wants to stay in the house which she has rented and lived in for the past 5 years, mediation (if agreed to by the landlord) is an excellent option. The landlord is too angry at present to respond to direct negotiation, and the presence of a neutral party might help Nora and her landlord arrive at an agreement. Perhaps arranging for automated payment of future rent along with a one-time payment to cover back rent with a substantial compensatory fee to cover attorney’s fees, interest, etc. would be agreeable to the landlord. This would still be less expensive than the cost to Nora of paying a real estate broker (tenant’s pay fees in her state) and hiring movers to pack her very large, very fragile collection of antique glass cats.

EXAMPLE 2: Nora’s brother, Sam, is not involved in the family business. In fact, he’s not involved in any business, but instead lives a frugal life, temporarily residing at the house of whichever friend or sibling will endure his snoring for the time. One day he is walking down the street when a large chunk of iron falls and hits him on the head. Nobody seems to know how or why the metal fell, although the company which occupies the building claims it wasn’t their fault, and that the construction signs they placed on the sidewalk should have given Sam enough notice to steer clear of the area. Even while in the hospital, Sam is already thinking about a lawsuit, and Nora gives him the name of your firm. Robert, the attorney who is assigned Sam’s case, is considering asking the defendant if they would like to enter into mediation, hoping to bring this case to a swift end. Fortunately, you are there to point out that without compulsory discovery it will be impossible to show that the company had a poor safety training program or other important facts which would hopefully be gathered through the discovery process, which is available in a trial.

4.5 Types Of Mediation

Mediation is a process that can be used to resolve a number of different types of disputes. Because different disputes involve particular issues or interests that may need to be handled in specific manners, disputing parties can choose between many different types of mediation to find an appropriate resolution.

The different types of mediation are categorized by the type of relationship the disputing parties are involved in, as well as the type of dispute they may be having. Some different types of mediation include:

  • Consumer Mediation
  • Discrimination Mediation
  • Eldercare Mediation
  • Environmental Mediation
  • Estate Planning and Family Mediation
  • Interpersonal Mediation
  • Landlord / Tenant Mediation
  • Nonprofit Organizations Mediation
  • School Mediation
  • Workplace Mediation.

The best practice for mediation is one that will most accurately fit your particular situation. However, as you are choosing between different types of mediation, keep in mind that mediation styles can also differ.

The Five Stages Of The Mediation Process

Regardless of the type of mediation you choose, nearly all mediation proceedings move forward through the following five steps:

  1. a presentation of opening statements and the exchange of facts between disputing sides
  2. an identification of the main facts to be discussed (These are generally prioritized in cases with a lot of issues.)
  3. a discussion of possible resolutions
  4. a decision made to resolve or terminate the proceedings
  5. closing process whereby agreements are written up and the mediation process is ended.

Types Of Mediation Styles

For any dispute brought to mediation, mediators can approach the case with one of the following three mediation styles. The main difference between these mediation styles lies in the amount of control given to the disputing parties:

Evaluative mediation focuses on the legal rights of the parties rather than their interests. The mediator”s role is to hear the different points of view and speculate on what a judge and jury would decide if this case were brought to court. Mediators using this mediation style evaluate based on legal rights and fairness and try to come to a workable resolution that meets these standards. Because this type of evaluation requires a mediator with legal expertise, evaluative mediators are often attorneys. Additionally, evaluative mediators may determine whether or not it would be more cost effective to litigate.

Facilitative mediation allows the disputing parties to maintain control over most of the mediation process. The mediator does not give an opinion about the outcome. Instead, he searches for underlying interests and helps find and analyze options for resolution. In facilitative mediation, the emphasis lies on making sure the disputing parties come to an agreement on their own.

Transformative mediation is similar to facilitative mediation because it also emphasizes the empowerment of the disputing parties. The disputing parties structure the process and determine the outcomes. The mediator’s role is to help the conflicted parties recognize each other’s values, interests and points of view. This process of understanding and communicating is intended to solve the dispute and change or repair broken relationships. Accordingly, transformative mediation is often used for disputes involving interpersonal conflicts.

4.6 Ethics Of Mediation And Advocacy

Ethical practices in mediation and advocacy are vital to the success of the mediation process. Although the mediator does not make any final decisions, his or her participation can heavily influence the way disputing parties view the conflict and each other. As a result, mediation practice standards and ethics are essential to the effectiveness and fairness of this process.

The American Bar Association (ABA), Association for Conflict Resolution (ACR) and the American Arbitration Association (AAA) have defined a “Model Standards of Practice for Mediators” that can be generally applicable to all types of mediation. Additionally, mediators hired through mediation services are also expected to follow the company’s own set of mediation standards.

While this model of standards improves the overall mediation practice, different types and styles of mediation help ensure the most appropriate and suitable results for different types of disputes

Chapter 5

5.1 The Origin of Mediation

  1. Mediation’s Historical Underpinnings

Aspiring mediators must keep abreast with mediation milestones, i.e., trends in the development of the mediation profession. By understanding the forces that changed the course of mediation practice, law students can better evaluate whether a new opportunity to mediate conforms to traditional notions, or would be more risky to implement. The innovative mediator must seize the opportunity to chart her own path through uncharted territory at the risk of perishing among professionals who have already staked a claim. Instead of tracking mediation from the beginning of recorded history, which would be difficult to do, this section explores how dedicated mediators with different goals changed the development of the mediation profession. This skill to spot current developmental trends will depend on a mediator’s intuition and her motivation to practice. Since mediation has moved in two different directions, aspiring mediators should become familiar with identifying which of the two mediation theories provides the foundation for a potential self-employment opportunity.
Aside from looking at conflicting developmental goals, law students can also find value in determining how the public has reacted to mediation over the last few decades, especially whether their initial feelings have changed. Some dispute resolution specialists might argue that an inquiry into public perceptions would be premature at this stage because the practice of mediation is relatively new. They might argue that practitioners do not know enough about the field to characterize its development. Others might argue that this investigation is useless because everybody knows that conflict is inevitable and there will always be a demand for ADR services. Both of these critiques do not obtain in this analysis. In the first case, mediation has existed for centuries in a number of forms. Even if some methods are relatively new, they surely came into existence to meet a particular need or to fill a void.  This last statement shows why we must monitor the development of the field–precisely to see whether the void has been filled. In the second case, the comment that there will always be a need for mediation is not the relevant question. Rather, the question is whether all the need will be met. While there may be a constant demand for mediation services, not all of the demand for mediation services will necessarily be met. Many people involved in conflict purposely avoid seeking out mediation services. Others cannot afford the services they need. Many more disputants demand professional expertise that beginning mediators will not have. Therefore, in all cases, the novice mediator will be better served by understanding how to analyze the history of mediation so that she may better spot new mediation opportunities.

  1. Mediation as a Profession

It is difficult to chart the precise origin of mediation. One reason why is because the history of mediation has often been approached with an “ethnocentric” and “monoculture” viewpoint. It is possible that we may never gain a complete view of the origin of mediation since colonization suppressed or totally extinguished certain cultural practices. On another view, many scholars attempt to address these issues by tracing mediation back to biblical times. On balance, historical mediation examples provide enough diversity to make important

historicaldistinctions.
However, scholarly mediation literature existed as early as 1680, when Johann Wolfgang Text or described essential international mediation standards[19]. Tribal communities have also practiced mediation techniques for centuries. In China, for example, the People’s Mediation Committees that “resolve over 7.2 million disputes [annually]…throughout both rural and urban communities” are based on aged societal principles that have long supported peaceful coexistence. Additionally, Native Americans adopted their own dispute resolution procedures long before the American settlement. Just recently, the Navajo have returned to the dispute resolution procedure named Hozhooji  Naat’aanii, which they have not practiced since 1829, when the government first imposed its own judicial standards on their clans.
American settlers also developed dispute resolution in the early years. Mediation historians often note this early dispute resolution mindset by citing the fact that “George Washington put an arbitration clause in his will to resolve disputes among his heirs” and Abraham Lincoln “arbitrated a boundary dispute between two farmers” as a fledgling lawyer. And, assuming that wise men and elders were mediators, granted their apparent partiality, town sheriffs, clergymen, and even pioneers like Charles Ingalls from the Little House on the Prairie television series actually practiced some form of mediation. Yet, it would be difficult to say that these influential members of the community were professional mediators.
As opposed to occasional or part-time mediators, full-time mediation professionals were probably first employed as direct appointees of the Secretary of Labor to fill the position of “Commissioners of Conciliation” in 1913. On a larger scale, mass employment of mediators came with the creation of the Federal Mediation and Conciliation Service (FMCS) in 1946. The primary focus of the FMCS was to resolve labor disputes. Cases such as Youngstown Sheet & Tube Co. v. Sawyershow the importance of providing trained neutral parties to resolve heated labor conflicts. The FMCS exists today with a much broader mission that includes aiding federal agencies in developing their own mediation programs.
Aside from the creation of the FMCS, there were few employment opportunities for full-time mediators. In fact, thirty years passed before mediators were again employed at any measurable level. In the 1970s, the development of mediation broke off in two distinct directions. One destination was based on the notion that mediation was an extension of the legal system. On this view, many advocates even saw mediation as an effective means of narrowing issues for litigation in courts. The other destination was detached from the legal system, offering mediation as a process that could deliver better results than the adversarial system only because it was separate from the legal bureaucracy. A beginning mediator must be careful to note the path on which she is traveling because serious financial repercussions
may result from confused expectations.
Ironically, these two divergent mediation approaches emanated from the same historical origin, i.e., the Roscoe Pound Conference of 1976. Roscoe Pound had been an influential force in critiquing the legal system early on in American history.In 1976, legal scholars met to continue his legacy by brainstorming possible improvements for the American legal system. The urgent need for alternatives to litigation materialized in the concept of the “Multi-door Courthouse,” as well as the contrary notion of the Neighborhood Justice Center. On the one hand, the Multi-door Courthouse concept, originated by Professor Frank Sander, envisioned a scenario in which an aggrieved party could simply go to a kiosk at the entrance of a courthouse where a facilitative attendant would then direct her to one of many doors. Each door would provide a different alternative for resolving the problem. In this respect; the legal system could help achieve the most satisfactory result, in effect placing responsibility for alternative processes like mediation in the hands of the judicial system. Contrarily, the Neighborhood Justice Center grew from the need to escape the institutionalization of a legal system that was attacked for distancing those who could not afford its services. Both of these views resulted in enabling legislation, such as the initial amendment to Rule 16 of the Federal Rules of Civil Procedure, which forever altered conceptions of legal justice by recognizing mediation as a valuable practice.
New mediators should take note that the goal of the Neighborhood Justice Center was training volunteers to mediate, not paying them. Although America recognized a mediation calling, community mediators were paid minimally or not at all. In fact, those who received compensation at the centers usually conducted a number of administrative tasks and were paid for executing those duties, rather than mediating disputes. Thus, when mediation historians note that “[20]lawyers, therapists, retired judges, and entrepreneurs with no particular professional identity are hanging out shingles as mediators or judges for hire,” they are probably speaking with the Multi-door Courthouse concept in mind. The problem for novice mediators is that the market for Multi-door Mediators is as saturated as the market for lawyers–possibly because there are so few differences between the two markets.

History

The concept of mediation is ancient and deep rooted in our country. In olden days disputes used to be resolved in a panchayat at the community level. Panches used to be called Panch Parmeshwar.

Now we have grown into a country of 125 crore people and with liberalization and globalization, there is tremendous economic growth. All this has led to explosion of litigation in our country. Though our judicial system is one of the best in the world and is highly respected, but there is lot of criticism on account of long delays in the resolution of disputes in a court of law. Now an honest litigant is wary of approaching the court for a decision of his dispute. Hence, we have turned to Alternative Dispute Resolution mechanisms.
The Supreme Court of India has started the process of reforms in the Indian Judicial System. Hon’ble Mr. Justice A.H. Ahmedi, the then Chief Justice of India in the year 1966 invited the Institute for the Study and Development of Legal Systems (ISDLS), USA to participate in a national assessment of the backlog in the civil courts. Studies were made in respect of the causes of delay in the civil jurisdiction in our country[21]

 

5.2 History of Mediation

Mediation consists of a process of alternative dispute resolution in which a neutral third party, the mediator, using proper techniques, assists two or more parties to help them negotiate an agreement, with concrete effects, on a matter of common interest.

  • 80% of mediations come to a mutual agreement
  • 90% of the agreements are met by both parties as they are invested in the outcome of their dispute

Most people have limited knowledge of the distinction between mediation and arbitration. Mediation is a process of communication in which persons with a dispute, assisted by a mediator, reach an agreement, understanding, or reconciliation. Mediators are facilitators, which is they are there to assist disputants who will make their own decisions about resolution of their conflict. They are a neutral party and impartial to the parties and the outcome. Mediators are ethically bound not to impose on an outcome or decision on the parties. Arbitration involves decision making by a person who hears both sides and makes a decision about the disposition or resolution of the dispute. Disputants may or may not be bound by that decision. The arbitrator is a decision-maker; the mediator is not.*

Historically and presently mediation has been used all over the world including the following countries:

China and Asia

Confucius believed that the best way to resolve a dispute was through moral persuasion and agreement rather than coercion. There is a natural harmony in human affairs that should not be disrupted. Peace and understanding were central to his philosophy. Buddhist traditions encourage dispute resolution through compromise rather than coercion. In these cultures, litigation is a last resort and involves a loss of face. Today in the People’s Republic of China there is still an emphasis on conciliation, self-determination, and mediation to be used in the resolution of disputes.

Japan

There is a relative absence of lawyers in Japan, probably because of their rich history of mediation. The leader of the village was expected to help people resolve their disputes. There are also many procedural barriers to formal litigation and this may contribute to an emphasis on the informal procedures of mediation. Today mediation is part of the business culture, where intermediaries are introducers, shokai-sha and mediators chukai-sha to smooth business relationships.

Africa

Any disputant may call for an informal neighborhood assembly called a moot. A respected member of the community serves as a mediator to help parties resolve conflicts cooperatively. The success of this form may be successful due to the extended kinship patterns within many African communities.

Islam

Islamic culture has a strong tradition of mediation and conciliation as preferred approaches as seen in the use of quadis, specialized go-betweens who attempt to preserve social harmony by reaching an agreed upon solution to a dispute.

Western, Judeo-Christian Culture

In the West there is a long tradition of mediation. Churches have been used as places of sanctuary and clergy often acted as mediators between criminals and authorities. In the Middle Ages, Christian clergy were called upon to mediate disputes between families and even in diplomatic disputes. Rabbinical courts used traditions and the Torah to settle disputes.

United States

The Quakers have a long history of practicing both mediation and arbitration. Much of the early U.S. model of mediation was based on the work of the Quakers. In New York City the Jewish community established its own mediation forum. Chinese immigrants established the Chinese Benevolent Society to resolve disputes within the family and within the community by mediation.

Twentieth Century

Early History: United Kingdom: Mediation became institutionalized in the twentieth century in the secular arena where it began to be recognized as having a role in and of itself. The Conciliation Act relating to the conduct of industrial relations was enacted in the United Kingdom as early as 1896, and Early History: United States: Then in the United States alternative dispute resolution (ADR) processes were being formalized as an alternative to litigation early on with the U.S. Department of Labor (established in 1913) appointing a panel called the “commissioners of conciliation” to deal with labor/management disputes. These commissioners became the U.S. Conciliation Service and in 1947 that entity became the Federal Mediation and Conciliation Service. Some of the early writing in ADR drew on the experiences of labor and industrial dispute resolution and adapted it to the resolution of interpersonal conflict[22].

Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.

The term “mediation” broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.

Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement. Much depends on the mediator’s skill and training. As the practice gained popularity, training programs, certifications and licensing followed, producing trained, professional mediators committed to the discipline[23].

The benefits of mediation include:

  • Cost—While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.
  • Confidentiality—While court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the mediator(s) know what happened. Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.
  • Control—Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jury cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.
  • Compliance—Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.
  • Mutuality—Parties to mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to “move” their position. The parties thus are more amenable to understanding the other party’s side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.
  • Support—Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think “outside of the box” for possible solutions to the dispute, broadening the range of possible solutions.

Workplace matters

The implementation of human resource management (HRM) policies and practices has evolved to focus on the individual worker, and rejects all other third parties such as unions and AIRC. HRM together with the political and economic changes undertaken by Australia’s Howard government created an environment where private ADR can be fostered in the workplace.

The decline of unionism and the rise of the individual encouraged the growth of mediation. This is demonstrated in the industries with the lowest unionization rates such as in the private business sector having the greatest growth of mediation.

The 2006 Work Choices Act made further legislative changes to deregulate industrial relations. A key element of the new changes was to weaken the AIRC by encouraging competition with private mediation.

A great variety of disputes occur in the workplace, including disputes between staff members, allegations of harassment, contractual disputes and workers compensation claims. At large, workplace disputes are between people who have an ongoing working relationship within a closed system, which indicate that mediation or a workplace investigation would be appropriate as dispute resolution processes. However the complexity of relationships, involving hierarchy, job security and competitiveness can complicate mediation.

Community mediation

Disputes involving neighbors often have no official resolution mechanism. Community mediation centers generally focus on neighborhood conflict, with trained local volunteers serving as mediators. Such organizations often serve populations that cannot afford to utilize the courts or professional ADR-providers. Community programs typically provide mediation for disputes between landlords and tenants, members of homeowners associations and small businesses and consumers. Many community programs offer their services for free or at a nominal fee.

Experimental community mediation programs using volunteer mediators began in the early 1970s in several major U.S. cities. These proved to be so successful that hundreds of programs were founded throughout the country in the following two decades. In some jurisdictions, such as California, the parties have the option of making their agreement enforceable in court.

Peer Mediation

A peer mediator resembles the disputants, such as being of similar age, attending the same school or having similar status in a business. Purportedly, peers can better relate to the disputants than an outsider.

Peer mediation promotes social cohesion and aids development of protective factors that create positive school climates. The National Healthy School Standard (Department for Education and Skills, 2004) highlighted the significance of this approach to reducing bullying and promoting pupil achievement. Schools adopting this process recruit and train interested students to prepare them.

Peace Pals is an empirically validated peer mediation program. was studied over a 5-year period and revealed several positive outcomes including a reduction in elementary school violence and enhanced social skills, while creating a more positive, peaceful school climate.

Peer mediation helped reduce crime in schools, saved counselor and administrator time, enhanced self-esteem, improved attendance and encouraged development of leadership and problem-solving skills among students. Such conflict resolution programs increased in U.S. schools 40% between 1991 and 1999.

Peace Pals was studied in a diverse, suburban elementary school. Peer mediation was available to all students (N = 825). Significant and long-term reductions in school-wide violence over a five-year period occurred. The reductions included both verbal and physical conflict. Mediator knowledge made significant gains pertaining to conflict, conflict resolution and mediation, which was maintained at 3-month follow-up. Additionally, mediators and participants viewed the Peace Pals program as effective and valuable, and all mediation sessions resulted in successful resolution.

Commercial disputes

Mediation was first applied to business and commerce. and this domain remains the most common application, as measured by number of mediators and the total exchanged value. The result of business mediation is typically a bilateral contract.

Commercial mediation includes work in finance, insurance, ship-brokering, procurement and real estate. In some areas, mediators have specialized designations and typically operate under special laws. Generally, mediators cannot themselves practice commerce in markets for goods in which they work as mediators.

Procurement mediation comprises disputes between a public body and a private body. In common law jurisdictions only regulatory stipulations on creation of supply contracts that derive from the fields of State Aids (EU Law and domestic application) or general administrative guidelines extend ordinary laws of commerce. The general law of contract applies in the UK accordingly. Procurement mediation occurs in circumstances after creation of the contract where a dispute arises in regard to the performance or payments. A Procurement mediator in the UK may choose to specialise in this type of contract or a public body may appoint an individual to a specific mediation panel.

Native-title mediation

In response to the Mabo decision, the Australian Government sought to engage the population and industry on Mabo’s implications for land tenure and use by enacting the Native Title Act 1993 (Cth), which required mediation as a mechanism to determine future native title rights. The process incorporated the Federal Court and the National Native Title Tribunal (NNTT). Mediation can occur in parallel with legal challenges, such as occurred in Perth.

Some features of native title mediation that distinguish it from other forms include lengthy time frames, the number of parties (ranging on occasion into the hundreds) and that statutory and case law prescriptions constrain some aspects of the negotiations.

Global relevance

Mediation’s relevance in trans-border disputes is likely to be limited, Mediation explicitly requires that the parties identify themselves, that they participate willingly, that an overarching legal authority enforce the agreements that emerge and that they can overcome language and cultural differences, each of which presents an obstacle to mediation’s success.

Process Roles

Mediator

The mediator’s primary role is to act as a neutral third party who facilitates discussions between the parties. In addition, the mediator can contribute to the process ensuring that all necessary preparations are complete

Finally, the mediator should restrict pressure, aggression and intimidation, demonstrate how to communicate through employing good speaking and listening skills, and paying attention to non-verbal messages and other signals emanating from the context of the mediation and possibly contributing expertise and experience. The mediator should direct the parties to focus on issues and stay away from personal attacks.

Parties

The role of the parties varies according to their motivations and skills, the role of legal advisers, the model of mediation, the style of mediator and the culture in which the mediation takes place. Legal requirements may also affect their roles.

Preparation[24]

The parties’ first role is to consent to mediation, possibly before preparatory activities commence. Parties then prepare in much the same way they would for other varieties of negotiations. Parties may provide position statements, valuation reports and risk assessment analysis. The mediator may supervise/facilitate their preparation and may require certain preparations.

Disclosure

Agreements to mediate, mediation rules, and court-based referral orders may have disclosure requirements. Mediators may have express or implied powers to direct parties to produce documents, reports and other material. In court-referred mediations parties usually exchange with each other all material which would be available through discovery or disclosure rules were the matter to proceed to hearing, including witness statements, valuations and statement accounts.

Participation

Mediation requires direct input from the parties. Parties must attend and participate in the mediation meeting. Some mediation rules require parties to attend in person. Participation at one stage may compensate for absence at another stage.

Preparation[25]

Choose an appropriate mediator, considering experience, skills, credibility, cost, etc.[ The criteria for mediator competence is under dispute. Competence certainly includes the ability to remain neutral and to move parties though various impasse-points in a dispute. The dispute is over whether expertise in the subject matter of the dispute should be considered or is actually detrimental to the mediator’s objectivity.

Preparatory steps for mediation can vary according to legal and other requirements, not least gaining the willingness of the parties to participate.

In some court-connected mediation programs, courts require disputants to prepare for mediation by making a statement or summary of the subject of the dispute and then bringing the summary to the mediation. In other cases, determining the matter(s) at issue can become part of the mediation itself.[26]

Consider having the mediator meet the disputants prior to the mediation meeting. This can reduce anxiety, improve settlement odds and increase satisfaction with the mediation process.

Ensure that all participants are ready to discuss the dispute in a reasonably objective fashion. Readiness is improved when disputants consider the viability of various outcomes.

Provide reasonable estimates of loss and/or damage.

Identify other participants. In addition to the disputants and the mediator, the process may benefit from the presence of counsel, subject-matter experts, interpreters, family, etc.

Secure a venue for each mediation session. The venue must foster the discussion, address any special needs, protect privacy and allow ample discussion time.

Ensure that supporting information such as pictures, documents, corporate records, pay-stubs, rent-rolls, receipts, medical reports, bank-statements, etc., are available.

Have parties sign a contract that addresses procedural decisions, including confidentiality, mediator payment, communication technique, etc.

Meeting[27]

The typical mediation has no formal compulsory elements, although some elements usually occur:

  • establishment of ground rules framing the boundaries of mediation
  • parties detail their stories
  • identification of issues
  • clarify and detail respective interests and objectives
  • search for objective criteria
  • identify options
  • discuss and analyze solutions
  • adjust and refine proposed solutions
  • record agreement in writing

Individual mediators vary these steps to match specific circumstances, given that the law does not ordinarily govern mediators’ methods.

Ratification and review

Ratification and review provide safeguards for mediating parties. They also provide an opportunity for persons not privy to the mediation to undermine the result. Some mediated agreements require ratification by an external body—such as a board, council or cabinet. In some situations the sanctions of a court or other external authority must explicitly endorse a mediation agreement. Thus if a grandparent or other non-parent is granted residence rights in a family dispute, a court counselor will be required to furnish a report to the court on merits of the proposed agreement to aid the court’s ultimate disposition of the case. In other situations it may be agreed to have agreements reviewed by lawyers, accountants or other professional advisers.

The implementation of mediated agreements must comply with the statues and regulations of the governing jurisdiction.

Parties to a private mediation may also wish to obtain court sanction for their decisions. Under the Queensland regulatory scheme on court connected mediation, mediators are required to file with a registrar a certificate about the mediation in a form prescribed in the regulations. A party may subsequently apply to a relevant court an order giving effect to the agreement reached. Where court sanction is not obtained, mediated settlements have the same status as any other agreements.

Referrals

Mediators may at their discretion refer one or more parties to psychologists, accountants, social workers or others for post-mediation professional assistance.

Mediator debriefing

In some situations, a post-mediation debriefing and feedback session is conducted between co-mediators or between mediators and supervisors. It involves a reflective analysis and evaluation of the process. In many community mediation services debriefing is compulsory and mediators are paid for the debriefing session.

Measuring effectiveness

Mediation recognized that in addition to the fact of reaching a settlement, party satisfaction and mediator competence could be measured. Surveys of mediation parties reveal strong levels of satisfaction with the process. Of course, if parties are generally satisfied post-settlement, then such measures may not be particularly explanatory.

Mediators

Education and training

The educational requirements for accreditation as a mediator differ between accrediting groups and from country to country. In some cases legislation mandates requirements; in others professional bodies impose accreditation standards. Many US universities offer graduate studies in mediation, culminating in the PhD or DMed degrees.

Australia

In Australia, for example, professionals wanting to practice in the area of family law must have tertiary qualifications in law or in social science, undertake 5 days training in mediation and engage in 10 hours of supervised mediation. Furthermore, they must also undertake 12 hours of education or training every 12 months.

Other institutions offer units in mediation across a number of disciplines such as law, social science, business and the humanities. Not all kinds of mediation-work require academic qualifications, as some deal more with practical skills than with theoretical knowledge. Membership organizations provide training courses. Internationally a similar approach to the training of mediators is taken by organizations such as the Centre for Effective Dispute Resolution.

No legislated national standards on the level of education apply to all practitioner’s organizations. However, organizations such as the National Alternative Dispute Resolution Advisory Council (NADRAC) advocate for a wide scope on such issues. Other systems apply in other jurisdictions such as Germany, which advocates a higher level of educational qualification for practitioners of mediation.

Codes of conduct

Common elements of codes of conduct include:

  • informing participants as to the process of mediation
  • adopting a neutral stance
  • revealing any potential conflicts of interest
  • maintaining confidentiality within the bounds of the law
  • mindfulness of the psychological and physical wellbeing of all participants
  • directing participants to appropriate sources for legal advice
  • engaging in ongoing training
  • pracising only in those fields in which they have expertise.

Australia

In Australia mediation codes of conduct include those developed by the Law Societies of South Australia and Western Australia and those developed by organisations such as Institute of Arbitrators & Mediators Australia (IAMA) and LEADR. The CPR/Georgetown Ethics Commission, the Mediation Forum of the Union International des Avocats, and the European Commission have promulgated codes of conduct for mediators.

France

In France, professional mediators have created an organization to develop a rational approach to conflict resolution. This approach is based on a “scientific” definition of a person and a conflict. These definitions help to develop a structured mediation process. Mediators have adopted a code of ethics which guarantees professionalism.[25]

Accreditation

Australia

A range of organizations within Australia accredit mediators. Standards vary according to the specific mediation and the level of specificity that is desired. Standards apply to particular ADR processes.

The National Mediator Accreditation System (NMAS) commenced operation on 1 January 2008. It is an industry-based scheme which relies on voluntary compliance by mediator organisations that agree to accredit mediators in accordance with the requisite standards.[26]

Mediator organizations have varying ideals of what makes a good mediator which reflect the training and accreditation of that particular organization. Australia did not adopt a national accreditation system, which may lead to suboptimal choice of mediators.

Mediator selection is of practical significance given varying models of mediation, mediators’ discretion in structuring the process and the impact of the mediator’s professional background and personal style on the result.

In community mediation programs the director generally assigns mediators. In New South Wales, for example, when the parties cannot agree on a mediator, the registrar contacts a nominating entity, such as the Bar Association which supplies the name of a qualified and experienced mediator.

As of 2006, formal mechanisms for objecting to the appointment of a particular mediator had not been established. Parties could ask the mediator to withdraw for reasons of conflict of interest. In some cases, legislation establishes criteria for mediators. In New South Wales, for example, the Family Law Act 1975 (Cth) proscribes qualifications for mediators.

Criteria

The following are useful criteria for selecting a mediator:

  • Personal attributes—patience, empathy, intelligence, optimism and flexibility
  • Qualifications—knowledge of the theory and practice of conflict, negotiation and mediation, mediations skills.
  • Experience— mediation experience, experience in the substantive area of dispute and personal life experience
  • Training
  • Professional background
  • Certification and its value
  • Suitability of the mediation model
  • Conflicts of interest
  • Cost/fee

Third party nomination

Contracts that specify mediation may also specify a third party to suggest or impose an individual. Some third parties simply maintain a list of approved individuals, while others train mediators. Lists may be “open” (any person willing and suitably qualified can join) or a “closed” panel (invitation only).

In the UK and internationally, lists are generally open, such as The Chartered Institute of Arbitrators, the Centre for Dispute Resolution. Alternatively, private panels co-exist and compete for appointments e.g.,Savills Mediation.

Liability

Legal liability may stem from a mediation. For example, a mediator could be liable for misleading the parties or for even inadvertently breaching confidentiality. Despite such risks, follow-on court action is quite uncommon. Only one case reached that stage in Australia as of 2006. Damage awards are generally compensatory in nature. Proper training is mediators’ best protection.

Liability can arise for the mediator from Liability in Contract; Liability in Tort; and Liability for Breach of Fiduciary Obligations.

Liability in Contract arises if a mediator breaches (written or verbal) contract with one or more parties. The two forms of breach are failure to perform and anticipatory breach. Limitations on liability include the requirement to show actual causation.

Liability in Tort arises if a mediator influences a party in any way (compromising the integrity of the decision), defames a party, breaches confidentiality, or most commonly, is negligent. To be awarded damages, the party must show actual damage, and must show that the mediator’s actions (and not the party’s actions) were the actual cause of the damage.

Liability for Breach of Fiduciary Obligations can occur if parties misconceive their relationship with a mediator as something other than neutrality. Since such liability relies on a misconception, court action is unlikely to succeed.

Tapoohi v Lewenberg (Australia)

As of 2008 Tapoohi v Lewenberg was the only case in Australia that set a precedent for mediators’ liability.[28]

The case involved two sisters who settled an estate via mediation. Only one sister attended the mediation in person: the other participated via telephone with her lawyers present. An agreement was executed. At the time it was orally expressed that before the final settlement, taxation advice should be sought as such a large transfer of property would trigger capital gains taxes.

Tapoohi paid Lewenberg $1.4 million dollars in exchange for land. One year later, when Tapoohi realized that taxes were owed, she sued her sister, lawyers and the mediator based on the fact that the agreement was subject to further taxation advice.

The original agreement was verbal, without any formal agreement. Tapoohi, a lawyer herself, alleged that the mediator breached his contractual duty, given the lack of any formal agreement; and further alleged tortious breaches of his duty of care.

Although the court dismissed the summary judgment request, the case established that mediators owe a duty of care to parties and that parties can hold them liable for breaching that duty of care. Habersberger J held it “not beyond argument” that the mediator could be in breach of contractual and tortious duties. Such claims were required to be assessed at a trial court hearing

This case emphasized the need for formal mediation agreements, including clauses that limit mediators’ liability.

United States

Within the United States, the laws governing mediation vary by state. Some states have clear expectations for certification, ethical standards and confidentiality. Some also exempt mediators from testifying in cases they’ve worked on. However, such laws only cover activity within the court system. Community and commercial mediators practising outside the court system may not have such legal protections. State laws regarding lawyers may differ widely from those that cover mediators. Professional mediators often consider the option of liability insurance.

Variants

Evaluative mediation

Evaluative mediation is focused on providing the parties with an evaluation of their case and directing them toward settlement. During an evaluative mediation process, when the parties agree that the mediator should do so, the mediator will express a view on what might be a fair or reasonable settlement. The Evaluative mediator has somewhat of an advisory role in that s/he evaluates the strengths and weaknesses of each side’s argument and makes some predictions about what would happen should they go to court. Facilitative and transformative mediators do not evaluate arguments or direct the parties to a particular settlement.

Facilitative mediation

Facilitative mediators typically do not evaluate a case or direct the parties to a particular settlement. Instead, the Facilitative mediator facilitates the conversation. These mediators act as guardian of the process, not the content or the outcome. During a facilitative mediation session the parties in dispute control both what will be discussed and how their issues will be resolved. Unlike the transformative mediator, the facilitative mediator is focused on helping the parties find a resolution to their dispute and to that end, the facilitative mediator provides a structure and agenda for the discussion.

Transformative mediation

Transformative mediation looks at conflict as a crisis in communication. Success is not measured by settlement but by the parties shifts toward (a) personal strength, (b) interpersonal responsiveness, (c) constructive interaction, (d) new understandings of themselves and their situation, (e) critically examining the possibilities, (f) feeling better about each other, and (g) making their own decisions. Those decisions can include settlement agreements or not. Transformative mediation practice is focused on supporting empowerment and recognition shifts, by allowing and encouraging deliberation, decision-making, and perspective-taking. A competent transformative mediator practices with a microfocus on communication, identifying opportunities for empowerment and recognition as those opportunities appear in the parties’ own conversations, and responding in ways that provide an opening for parties to choose what, if anything, to do with them.

Mediation with arbitration

Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called ‘mediation/arbitration’. The process begins as a standard mediation, but if mediation fails, the mediator becomes an arbiter.

This process is more appropriate in civil matters where rules of evidence or jurisdiction are not in dispute. It resembles, in some respects, criminal plea-bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor—rendering what, in Western European court procedures, would be considered an arbitral (even ‘arbitrary’) decision.

Mediation/arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator’s unique role as someone who wields no coercive power over the parties or the outcome. The parties awareness that the mediator might later act in the role of judge could distort the process. Using a different individual as the arbiter addresses this concern.

Online mediation employs online technology to provide disputants access to mediators and each other despite geographic distance, disability or other barriers to direct meeting. Online approaches also facilitate mediation when the value of the dispute does not justify the cost of face-to-face contact. Online mediation can also combine with face-to-face mediation—to allow mediation to begin sooner and/or to conduct preliminary discussions.

Alternatives

Mediation is one of several approaches to resolving disputes. It differs from adversarial resolution processes by virtue of its simplicity, informality, flexibility, and economy.

Not all disputes lend themselves well to mediation. Success is unlikely unless:

  • All parties’ are ready and willing to participate.
  • All (or no) parties have legal representation. Mediation includes no right to legal counsel.
  • All parties are of legal age (although see peer mediation) and are legally competent to make decisions.

Conciliation

Conciliation sometimes serves as an umbrella-term that covers mediation and facilitative and advisory dispute-resolution processes. Neither process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.

One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps ensure that agreements comply with relevant statutory frameworks. Therefore conciliation may include an advisory aspect.

Mediation is purely facilitative: the mediator has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.

Both mediation and conciliation work to identify the disputed issues and to generate options that help disputants reach a mutually satisfactory resolution. They both offer relatively flexible processes. Any settlement reached generally must have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the party with the strongest legal argument. In-between the two operates collaborative law, which uses a facilitative process where each party has counsel.

Counselling

A counsellor generally uses therapeutic techniques. Some—such as a particular line of questioning—may be useful in mediation. But the role of the counsellor differs from the role of the mediator. The list below is not exhaustive but it gives an indication of important distinctions:

  • A mediator aims for clear agreement between the participants as to how they will deal with specific issues. A counselor is more concerned with the parties gaining a better self-understanding of their individual behavior.
  • A mediator, while acknowledging a person’s feelings, does not explore them in any depth. A counselor is fundamentally concerned about how people feel about a range of relevant experiences.
  • A mediator focuses upon participants’ future goals rather than a detailed analysis of past events. A counselor may find it necessary to explore the past in detail to expose the origins and patterns of beliefs and behavior.
  • A mediator controls the process but does not overtly try to influence the participants or the actual outcome. A counselor often takes an intentional role in the process, seeking to influence the parties to move in a particular direction or consider specific issues.
  • A mediator relies on all parties being present to negotiate, usually face-to-face. A counselor does not necessarily see all parties at the same time.
  • A mediator is required to be neutral. A counselor may play a more supportive role, where appropriate.
  • Mediation requires both parties to be willing to negotiate. Counseling may work with one party even if the other is not ready or willing to participate.
  • Mediation is a structured process that typically completes in one or a few sessions. Counseling tends to be ongoing, depending upon participants’ needs and progress.

Early neutral evaluation

The technique of early neutral evaluation (ENE) provides early focus in complex commercial disputes, and—based on that focus—offers a basis for sensible case-management or a suggested resolution of the entire case in its very early stages.

In early neutral evaluation, an evaluator acts as a neutral person to assess the strengths and weaknesses of each of the parties and to discuss the same with parties jointly or in caucuses, so that parties gain awareness (via independent evaluation) of the merits of their case.

Parties generally call on a senior counsel or on a panel with expertise and experience in the subject-matter under dispute in order to conduct ENE.

Arbitration

Binding Arbitration is a more direct substitute for the formal process of a court. Binding Arbitration is typically conducted in front of one or three arbitrators. The process is much like a mini trial with rules of evidence, etc. Arbitration typically proceeds faster than court and typically at a lower cost. The Arbiter makes the ultimate decision rather than the parties. Arbiters’ decisions are typically final and appeals are rarely successful even if the decision appears to one party to be completely unreasonable.

Litigation

In litigation, courts typically impose binding decisions on the disputing parties.[ Courts in some cases refer litigants to mediation. Mediation is typically less costly, less formal and less complex. Unlike courts, mediation does not ensure binding agreements and the mediator does not decide the outcome.

Shuttle diplomacy

While mediation implies bringing disputing parties face-to-face with each other, the strategy of “shuttle diplomacy”, where the mediator serves as a liaison between disputing parties, also sometimes occurs as an alternative.

Philosophy

Conflict prevention

Mediation can anticipate difficulties between parties before conflict emerges. Complaint handling and management is a conflict prevention mechanism designed to handle a complaint effectively at first contact, minimizing the possibility of a dispute. One term for this role is “dispute preventer”.

Confidentiality

One of the hallmarks of mediation is that the process is strictly confidential. Two competing principles affect confidentiality. One principle encourages confidentiality to encourage people to participate, while the second principle states that all related facts should be available to courts.

The mediator must inform the parties of their responsibility for confidentiality.

Steps put in place during mediation to help ensure this privacy include:

  1. All sessions take place behind closed doors.
  2. Outsiders can observe proceedings only with both parties’ consent.
  3. The meeting is not recorded.
  4. Publicity is prohibited.

Confidentiality is a powerful and attractive feature of mediation. It lowers the risk to participants of disclosing information and emotions and encourages realism by eliminating the benefits of posturing. In general, information discussed in mediation cannot be used as evidence in the event that the matter proceeds to court, in accord with the mediation agreement and common law.

Few mediations succeed unless the parties can communicate fully and openly without fear of compromising a potential court case. The promise of confidentiality mitigates such concerns. Organizations often see confidentiality as a reason to use mediation in lieu of litigation, particularly in sensitive areas. This contrasts with the public nature of courts and other tribunals. However mediation need not be private and confidential. In some circumstances the parties agree to open the mediation in part or whole. Laws may limit confidentiality. For example mediators must disclose allegations of physical or other abuse to authorities. The more parties in a mediation, the less likely that perfect confidentiality will be maintained. Some parties may even be required to give an account of the mediation to outside constituents or authorities.

Most countries respect mediator confidentiality.

Without-prejudice privilege

The without-prejudice privilege in common law denotes that in honest attempts to reach settlement, any offers or admissions cannot be used in court when the subject matter is the same. This applies to the mediation process. The rule comes with exceptions.

The privilege is visible in AWA Ltd v Daniels (t/as Deloitte Haskins and Sells). AWA Ltd commenced proceedings in the Supreme Court of NSW against Daniels for failing to properly audit their accounts. Mediation failed to produce an agreement. During mediation AWA Ltd disclosed that they had a document that gave its directors full indemnity with respect to any legal proceedings. AWA Ltd was under the impression that they had given this information without prejudice preventing its use in court.

During the subsequent litigation Daniels asked for a copy of the indemnity deed. AWA Ltd claimed privilege, but the presiding Rolfe J, admitted the document. Further to this Rolfe, J added that Daniels was “only seeking to prove a fact which was referred to in the mediation”.

The without-prejudice privilege does not apply if it was excluded by either party or if the privilege was waived in proceedings. Although mediation is private and confidential, the disclosure of privileged information in the presence of a mediator does not represent a waiver of the privilege.

Legal implications

Parties who enter into mediation do not forfeit legal rights or remedies. If mediation does not result in settlement, each side can continue to enforce their rights through appropriate court or tribunal procedures. However, if mediation produces a settlement, legal rights and obligations are affected in differing degrees. In some situations, the parties may accept a memorandum or moral force agreement; these are often found in community mediations. In other instances, a more comprehensive deed of agreement, when registered with a court, is legally binding. It is advisable to have a lawyer draft or provide legal advice about the proposed terms.

“Court systems are eager to introduce mandatory mediation as a means to meet their needs to reduce case loads and adversarial litigation, and participants who understand the empowerment of mediation to self-determine their own agreements are equally as eager to embrace mediation as an alternative to costly and potentially harmful litigation.”

Principles

Principles of mediation include non-adversarialism, responsiveness, self-determination and party autonomy.

Non-adversarialism is based on the actual process of mediation. It treats the parties as collaborating in the construction of an agreement. By contrast, litigation is explicitly adversarial in that each party attempts to subject the other to its views. Mediation is designed to conclude with an agreement rather than a winner and loser.

Responsiveness reflects the intent to allow the parties to craft a resolution outside of the strict rules of the legal system. A responsive mediation process also is informal, flexible and collaborative.

Self-determination and party autonomy allow and require parties to choose the area of agreement, rather than ceding the decision to an outside decision-maker such as a judge. This turns the responsibility for the outcome onto the parties themselves.

In the United States, mediator codes-of-conduct emphasize “client-directed” solutions rather than imposed solutions. This has become a common, definitive feature of mediation in the US and UK.

Ethics

Theorists, notably Rushworth Kidder, claimed that mediation is the foundation of a ‘postmodern’ ethics—and that it sidesteps traditional ethical issues with pre-defined limits of morality.

Mediation can also be seen as a form of harm reduction or de-escalation, especially in its large-scale application in peace and similar negotiations, or the bottom-up way it is performed in the peace movement where it is often called mindful mediation. This form derived from methods of Quakers in particular.

Conflict manageme

Society perceives conflict as something that one should resolve as quickly as possible. Mediators see conflict as a fact of life that when properly managed can benefit the parties. The benefits of conflict include the opportunity to renew relationships and make positive changes for the future.[29]

See also

  1. Mediati

Aspiring mediators must keep abreast with mediation milestones, i.e., trends in the development of the mediation profession. By understanding the forces that changed the course of mediation practice, law students can better evaluate whether a new opportunity to mediate conforms to traditional notions, or would be more risky to implement. The innovative mediator must seize the opportunity to chart her own path through uncharted territory at the risk of perishing among professionals who have already staked a claim. Instead of tracking mediation from the beginning of recorded history, which would be difficult to do this section explores how dedicated mediators with different goals changed the development of the mediation profession. This skill to spot current developmental trends will depend on a mediator’s intuition and her motivation to practic Since mediation has moved in two different directions, aspiring mediators should become familiar with identifying which of the two mediation theories provides the foundation for a potential self-employment opportunity.

Aside from looking at conflicting developmental goals, law students can also find value in determining how the public has reacted to mediation over the last few decades, especially whether their initial feelings have changed. Some dispute resolution specialists might argue that an inquiry into public perceptions would be premature at this stage because the practice of mediation is relatively They might argue that practitioners do not know enough about the field to characterize its develop me Others might argue that this investigation is useless because everybody knows that conflict is inevitable and there will always be a demand for ADR services Both of these critiques do not obtain in this analysis. In the first case, mediation has existed for centuries in a number of forms. Even if some methods are relatively new, they surely came into existence to meet a particular need or to fill a void.  This last statement shows why we must monitor the development of the field–precisely to see whether the void has been filled In the second case, the comment that there will always be a need for mediation is not the relevant question. Rather, the question is whether all the need will be met. While there may be a constant demand for mediation services, not all of the demand for mediation services will necessarily be met. Many people involved in conflict purposely avoid seeking out mediation services. Others cannot afford the services they need many more disputants demand professional expertise that beginning mediators will not have. Therefore, in all cases, the novice mediator will be better served by understanding how to analyze the history of mediation so that she may better spot new mediation opportunities.

  1. Mediation as a Profession

It is difficult to chart the precise origin of mediation. One reason why is because the history of mediation has often been approached with an “ethnocentric” and “monocultural” viewpoint. It is possible that we may never gain a complete view of the origin of mediation since colonization suppressed or totally extinguished certain cultural practices. On another view, many scholars attempt to address these issues by tracing mediation back to biblical times. On balance, historical mediation examples provide enough diversity to make important historical distinctions.
However, scholarly mediation literature existed as early as 1680, when Johann Wolfgang Textor described essential international mediation standards. Tribal communities have also practiced mediation techniques for centuries. In China, for example, the People’s Mediation Committees that “resolve over 7.2 million disputes [annually]…throughout both rural and urban communities” are based on aged societal principles that have long supported peaceful coexistence. Additionally, Native Americans adopted their own dispute resolution procedures long before the American settlement. Just recently, the Navajo have returned to the dispute resolution procedure named Hozhooji Naat’aanii, which they have not practiced since 1829, when the government first imposed its own judicial standards on their clans.
American settlers also developed dispute resolution in the early years. Mediation historians often note this early dispute resolution mindset by citing the fact that “George Washington put an arbitration clause in his will to resolve disputes among his heirs” and Abraham Lincoln “arbitrated a boundary dispute between two farmers” as a fledgling lawyer. And, assuming that wise men and elders were mediators, granted their apparent partiality, town sheriffs, clergymen, and even pioneers like Charles Ingalls from the Little House on the Prairie television series actually practiced some form of mediation. Yet, it would be difficult to say that these influential members of the community were professional mediators.
As opposed to occasional or part-time mediators, full-time mediation professionals were probably first employed as direct appointees of the Secretary of Labor to fill the position of “Commissioners of Conciliation” in 1913. On a larger scale, mass employment of mediators came with the creation of the Federal Mediation and Conciliation Service (FMCS) in 1946. The primary focus of the FMCS was to resolve labor disputes Cases such as Youngstown Sheet & Tube Co. v. Sawyer show the importance of providing trained neutral parties to resolve heated labor conflicts. The FMCS exists today with a much broader mission that includes aiding federal agencies in developing their own mediation programs.
Aside from the creation of the FMCS, there were few employment opportunities for full-time mediators. In fact, thirty years passed before mediators were again employed at any measurable level. In the 1970s, the development of mediation broke off in two distinct directions. One destination was based on the notion that mediation was an extension of the legal system. On this view, many advocates even saw mediation as an effective means of narrowing issues for litigation in courts. The other destination was detached from the legal system, offering mediation as a process that could deliver better results than the adversarial system only because it was separate from the legal bureaucracy. A beginning mediator must be careful to note the path on which she is traveling because serious financial repercussions may result from confused expectations.
Ironically, these two divergent mediation approaches emanated from the same historical origin, i.e., the Roscoe Pound Conference of 1976. Roscoe Pound had been an influential force in critiquing the legal system early on in American history. In 1976, legal scholars met to continue his legacy by brainstorming possible improvements for the American legal system. The urgent need for alternatives to litigation materialized in the concept of the “Multi-door Courthouse,” as well as the contrary notion of the Neighborhood Justice Center. On the one hand, the Multi-door Courthouse concept, originated by professor Frank Sander, envisioned a scenario in which an aggrieved party could simply go to a kiosk at the entrance of a courthouse where a facilitative attendant would then direct her to one of many doors. Each door would provide a different alternative for resolving the problem. In this respect, the legal system could help achieve the most satisfactory result, in effect placing responsibility for alternative processes like mediation in the hands of the judicial system. Contrarily, the Neighborhood Justice Center grew from the need to escape the institutionalization of a legal system that was attacked for distancing those who could not afford its services. Both of these views resulted in enabling legislation, such as the initial amendment to Rule 16 of the Federal Rules of Civil Procedure, which forever altered conceptions of legal justice by recognizing mediation as a valuable practice.
New mediators should take note that the goal of the Neighborhood Justice Center was training volunteers to mediate, not paying them. Although America recognized a mediation calling, community mediators were paid minimally or not at all. In fact, those who received compensation at the centers usually conducted a number of administrative tasks and were paid for executing those duties, rather than mediating disputes. Thus, when mediation historians note that “lawyers, therapists, retired judges, and entrepreneurs with no particular professional identity are hanging out shingles as mediators or judges for hire,” they are probably speaking with the Multi-door Courthouse concept in mind. The problem for novice mediators is that the market for Multi-door Mediators is as saturated as the market for lawyers–possibly because there are so few differences between the two markets.[30]

Chapter 6

6.1 Conclusion

Did you ever wonder what people used to do before there were written laws and courts and judges?  Was it really like what we saw in the movies?  Let’s see – there was a sword fight, and the man who won the fight was judged to be the winner of the argument[31].  We’re going to have to narrow that movie down a little…

From what historians tell us, arguments were frequently “settled” by the sword.  However, in more peaceful civilizations, they were more often settled by the wise men or elders of each village, or the leaders of the local church.  In ancient times, the history of mediation was the history of diplomacy.

The Eastern Civilizations were known for peaceful persuasion rather than coercive conflict.  Confucians and Buddhists have a long history of respecting the natural harmony of life.  To this day, if a person cannot resolve local conflicts peacefully, that person might lose the respect of others.

Several other ancient cultures had similar traditions.  Villages had at least one leader who was skilled at helping people solve problems.  People who followed the Roman example even created professional job descriptions – intercessors, conciliators, etc. – for those who ran back and forth between the bickering parties and traded offers of goods and services for the promise of peace.

Eventually, as populations increased, the king or the wise men ceased to be able to hear each dispute individually.  With the Code of Hammurabi and the signing of the Magna Carta, laws began to be written down, and there were formal positions created for those delegated to use those laws to resolve disputes.

Mediation really came into play with the advent of international treaties.  Since there was no existing “world law”, groups like the League of Nations or the United Nations incorporated provisions for mediation into their rules, or what we now call international law.

In the United States, we have the example of the Quakers to thank for our modern ideas of how mediation should work.  Its earliest public applications came with the Industrial Revolution, forming the basis of modern labor law.  From 1913 to 1947, the United States government formed the Federal Mediation and Conciliation Service which, among other things, adapted labor conflict resolution techniques to other areas of civil law.

Mediation is now used in most areas of legal conflict, with excellent results.  Early roundtables agreed that, due to variations in traditions, mediation programs are best developed locally – which is why each local jurisdiction may do things just a little differently from its neighbors.  The theory reinforces our basic belief that, if given the chance, the people involved in a dispute are the best ones to decide how to resolve it

6.2 Concluding Suggestions

The key to success of A.D.R. in Bangladesh lies in the manner of its introduction. A.D.R. is no longer an unheard of concept of dispute resolution among judges, litigants and lawyers of Bangladesh. The Family Courts all over Bangladesh are actively engaged in A.D.R. The pilot family courts are only exclusively engaged in mediation, but other Assistant Judges, who received training in mediation, are also mediating apart from trying cases. The mediation output of all the Assistant Judges, taken together, is something to be proud of. The Ministry of Law only needs to collect, maintain and update all relevant statistics in this regard.

Before we extend the frontiers of A. D. R. to other types of litigation, I would suggest the following:

  1. Amend the Code of Civil Procedure giving the trial court an enabling and discretionary power to refer a case or part of a case for only mediation or non­binding arbitration at any stage of the suit. Although the proper stage to do so is after receiving the written statement, I would suggest ‘at any stage of the suit’ to cover backlogs. When the amendment comes into force, the judges will be trained to refer a case for mediation or non-binding arbitration after receiving the written statement in all suitable cases, but they will be further trained to refer pending cases for mediation or non-binding arbitration when both parties agree or according to the judge’s own discretion, the stage of the suit not being very important. It is necessary to define mediation and non-binding arbitration correctly and precisely in the amendment to avoid unnecessary dispute about their nature and character.
  2. Make the presiding judge, a judge of co-equal jurisdiction, lawyers of the local court or a court of adjacent jurisdiction of more than 10 years’ standing, and Private Mediation Firms, adequately staffed by either experienced ex-judges of not less than 10 years’ standing or retired judges and/or non-practicing lawyers of not less than 15 years’ standing, recommended by the District Judge and approved by the Chief Justice of Bangladesh, as qualified for appointment as mediator or arbitrator. As a matter of practice the presiding judge may not assume that function, but the enabling provision should be there, because in many places a judge of co-equal jurisdiction or a lawyer of stated standing or a private legal firm might not be available. The District Judge will keep a constant eye on A.D.R., provide the Ministry of Law with regular up-ta-date information about disposal of cases by mediation by various pilot courts, amount realized each month by the pilot courts, pending mediations in the pilot courts, comparison in terms of disposal and realization of money with the rate of disposal and rate of realization of money prior to mediation, amount realized by execution of decree on a previous 5-year average prior to mediation etc. and oversee the progress of A.D.R. diligently and constantly.
  3. Before introducing A.D.R. in any other field intensive training of concerned judges, lawyers and the court staff is a must. The training will be on a continuous basis and JATI should have an instructor on its pay roll to impart training on different methods of A.D.R. to different tiers of trainee-judges, including new entrants to the Judicial Service. A batch of trainers should be created to take up this arduous job in all the districts.
  4. A. D. R. will have a-smooth transition if it is introduced on a pilot court basis. The performances, results, reactions among pilot court judges, practicing lawyers and the litigants should be carefully monitored and recorded and suitable adjustments in the A. D. R. project should be made at each stage of extension after an exhaustive study of the experiences gained.
  5. Mediation or non-binding arbitration, in my opinion, may not be a suitable form of A.D.R. in big commercial cases involving heavy amounts, Artha Rin Adalat cases, applications before the District Judges in house building loan cases, Bangladesh Shilpa Rin Shangstha and Bangladesh Shilpa Rin cases and insolvency cases under the Insolvency Act. We have suggested Early Neutral Evaluation or Settlement Conference as the proper result-yielding method of A.D.R. in such cases. We would also advise an amendment to the special legislations covering these types of cases enabling trial judges to refer a case or part of a case at any stage of the suit for application of ENE or Settlement Conference, although the ideal time to start this process is after receiving the written statement. We are in favor of adding ‘at any stage of the suit or application’ to cover the backlogs. Also ENE and Settlement Conference should be suitably defined to avoid any conflicting interpretation of these concepts.
  6. The Government is the major litigant in this country, either as a plaintiff or as a defendant. Under P.D. No. 142 of 1972, the Government is a necessary party in all title suits, suits for specific performance of contract and so on. In most cases the Government does not make any appearance, because the Government do not find, at any rate for the time being, any interest of the Government involved in the case. Yet when the parties in dispute compromise the matter, even without mediation, the option remains for the Government to challenge the compromise at a belated stage, claiming an interest in the subject matter of litigation. The Government is thus responsible in many cases to prolong the litigation. To make the A.D.R. successful, P.D. No. 142 of 1972 should be amended providing that where in a case covered by p.a. No.142 of 1972, the Government do not enter appearance or after entering appearance do not file any written statement, or after filing a written statement do not contest the case, any resolution of the dispute through A.D.R. or otherwise by the other parties to the dispute would be binding on the Government.
  7. Labor Courts and Small Causes Court are the two areas where mediation should be introduced immediately on a priority basis, amending the two special legislations.

The people of Bangladesh are hungry for justice. It is for us, the legal and judicial community, to respond to this public need in a well thought-out, disciplined and organized manner. Our success will depend upon the way we motivate and dedicate us.

[1] Md. Abdul Halim, , ADR in Bangladesh: Issue and Challenges”, (CCB Foundation, Dhaka, Bangladesh. 2010)

[2] http://www.ijtr.nic.in/webjournal/13.htm

[3]Dr. Ansur All Khan, An Introduction to Alternative Dispute Resolution, (Dhaka, Bangladesh., 2007)

[4] Sumaiya  Khair, Legal Empowerment for the Poor and disadvantaged: Strategies, achievement and Challenges(2008 )

[5] Md. Abdul Halim, , ADR in Bangladesh: Issue and Challenges”, (CCB Foundation, Dhaka, Bangladesh. 2010)

[6] Md Akhteruszanian,, Concept and Laws on Alternative Dispute Resolution and Legal Aid (In Bangla)”, (Dhaka, Bangladesh. 2007)

[7] Dr. Ansur All Khan, An Introduction to Alternative Dispute Resolution, (Dhaka, Bangladesh, 2007)

[8] Sumaiya  Khair, Legal Empowerment for the Poor and disadvantaged: Strategies, achievement and Challenges(2008 )

[9] Sumaiya  Khair, Legal Empowerment for the Poor and disadvantaged: Strategies, achievement and Challenges(2008 )

[10] Md. Abdul Halim, , ADR in Bangladesh: Issue and Challenges”, (CCB Foundation, Dhaka, Bangladesh. 2010)

[11] Md. Abdul Halim, , ADR in Bangladesh: Issue and Challenges”, (CCB Foundation, Dhaka, Bangladesh. 2010)

[12] Sumaiya  Khair, Legal Empowerment for the Poor and disadvantaged: Strategies, achievement and Challenges(2008 )

[13] http://www.lawsociety.org.uk/for-the-public/accredited-specialists/civil-commercial-mediation/

[14] http://www.sustainable.org/creating-community/conflict-resolution-a-mediation

[15] Dr. Ansur All Khan, An Introduction to Alternative Dispute Resolution, (Dhaka, Bangladesh, 2007)

[16] Md Akhteruszanian,, Concept and Laws on Alternative Dispute Resolution and Legal Aid (In Bangla)”, (Dhaka, Bangladesh. 2007)

[17] Md. Abdul Halim, , ADR in Bangladesh: Issue and Challenges”, (CCB Foundation, Dhaka, Bangladesh. 2010)

[18] http://www.vakilno1.com/saarclaw/bangladesh/arbitrationlaw/arbitration-law-in-bangladesh.html

[19] Sumaiya  Khair, Legal Empowerment for the Poor and disadvantaged: Strategies, achievement and Challenges(2008 )

[20] http://www.uiowa.edu/~cyberlaw/elp00/Evan/mediation/origin.html

[21] http://delhimediationcentre.gov.in/history.htm

[22] Taken from www.MediationADR.net

[23] http://www.mediationmatterssd.com/mediationmatters/history.htmlMediation

[24] Md. Abdul Halim, , ADR in Bangladesh: Issue and Challenges”, (CCB Foundation, Dhaka, Bangladesh. 2010)

[25] Md. Abdul Halim, , ADR in Bangladesh: Issue and Challenges”, (CCB Foundation, Dhaka, Bangladesh. 2010)

[26] Md Akhteruszanian,, Concept and Laws on Alternative Dispute Resolution and Legal Aid (In Bangla)”, (Dhaka, Bangladesh. 2007)

[27] Md Akhteruszanian,, Concept and Laws on Alternative Dispute Resolution and Legal Aid (In Bangla)”, (Dhaka, Bangladesh. 2007)

[28] Tapoohi v Lewenberg (Australia)2008

[29] https://en.wikipedia.org/wiki/Mediation

[30] http://www.uiowa.edu/~cyberlaw/elp00/Evan/mediation/origin.html

[31] Erin Johnston March 29th, 2009 

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