ADR (Alternative Dispute Resolution)

Introduction :

The purpose of the study is to analyze the effectiveness of ADR in resolving land dispute. In Bangladesh to settle the land dispute various laws promulgated in the colonial period. But by that laws land dispute do not permanently settled. For that reason the concept of ADR introduced in Bangladesh. It is a new approach which creates positive outcomes in resolving disputes. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary, others are mandatory.

Now-a-days, justice delivery system in Bangladesh is bursting at the seams and may collapse unless immediate remedial measures are adopted not only by the’ judiciary but also by the legislature and the executive. The reasons for the present situation are not far to seek. There is a qualitative and quantitative change in the nature of litigation

ADR may serve the interest of the state in many ways. First, ADR reduces burden on courts and adjudication process by resolving disputes at an earlier stage giving ultimately a healthy .sign to judicial system. Second, by reducing workload of judges it allows sufficient times in dispensation 0$ justice in other matters raising the standard and quality of justice. Third, by reducing backlog of pending cases it saves huge revenue. Fourth, ADR works as a contraceptive to the field of unnecessary jungle of litigation giving the legal system a healthy development. Likewise, ADR serves interest of stakeholders in different ways With regard to public perception ADR provides a balance in dispute resolution by reducing pending cases and as a result people can perceive the judiciary and legal system as a forum of justice in true sense.

Alternative dispute resolution mechanism has been thought of because courts are over-burdened. The said system emanates from dissatisfaction of many people with the way in which disputes are traditionally resolved resulting in criticism of the Courts. actually, its emergence is one of the most significant movements, both in terms of judicial- reforms as wellness; conflict management. It has become a global necessity. Its utility is now unquestionable.

Significance of the study :

The introduction of the practices of ADR in the legal system of Bangladesh has drawn a great demand of research works and analytic comment and verifications from the concerned academicians and also for the legal practitioners. It has a little historic momentum and belong a few records, literatures and articles of its commendable success story, especially in the annals of legal histories of Bangladesh.

In my research proposal I have try to initiated the effectiveness of ADR in solving land dispute. But I have not found any research on this specific issue. But I think it is a very important topic to make a broad study. And this study is carried out to meet academic purpose.

Research problem :

The role of ADR in solving land dispute is a new concept to the peoples. In BD legally there is no clear definition for ADR under any laws or legal precedent rendered by any courts, i.e. there is no legally binding definition, for ADR. Some times Judges and law years do not show their willingness, for ADR as well as the litigants. But I think, in solving land dispute ADR can play an effective role by the help of Judges, Law year and Litigants.

ADR cannot be the substitute for adjudication system in general; it has value and importance as complement to the adjudication system in a country. The need of ADR may be viewed from three different perspectives: (i) interest of the state; (ii) interest of the stakeholders (judges, lawyers, mediators and litigants); and (iii) public perception. When a country’s judicial system is flooded with unmanageable pending cases in the context of its limited number of judges, inadequate judge-population ratio, insufficient budget allocation for the judiciary and lack of infrastructure in the legal system, all three interests of the state would be affected seriously and the reliance on ADR becomes just a demand of the time. Given that most of the developed and developing countries have gained tremendous success in reducing pending cases by adopting ADR, Bangladesh should find and try ways and means to develop ADR modes in the same fashion.

“A man was killed and 3 others injured in a clash between two groups of villagers over a land dispute at Bhadarghat Bazar in Sirahgong (Daily star, 2009.08.29) Trees fall victim to land dispute: Around 600 trees cut down on two acres of disputed land at Sreepur upaziia of Magura district (Daily star 2009.11.22)

This above mentioned occurrence is common scenery of Bangladesh. If someone inspired them to ADR those occurrences could not be happened.

Objectives of the study:

The objectives of the study are :

– To analyze the current status of practicing ADR in solving land

dispute under civil court.

–         To analyze the real fact of ADR.

–         To analyze the effectiveness

Variables of the research

Independent                                                         Dependent

1. Accessibility of procedure                                Solving land dispute

          – Administrative facilities

          – Peoples satisfaction

          – Settlement of cases quickly

2. Integrity between judges and lawyers.

3. Co-operation of the lawyers

4. Handle cases speedily and effectively

          – rate of filed cases

          – rate of solved cases

          – rate of unsolved cases

          – Percentage of speediness’

          – Successfulness of the activity

5. Reduction case burden

          – Quality

          – Quantity.

6. Comparative advantages

          – Cost effect

          – Absence of confrontational attitude.

          – Less time consuming.

          – Ensures justice and social norms.

          – Resolves disputes rather than setting.

Research Question :

1. What are the causes of effectiveness of ADR?
2. What are the objectives of ADR?
3. How the procedure of ADR Access?
4. How lawyers interact with each other?
5. What is/are the quality and quantity of reduction case burden of court ?
6. What is the relation between judges and lawyers?
7. Is there any comparative advantages of ADR?

Research Hypothesis

The Hypothesis of the study are:

Hypothesis 1 :The more the handle cases seedily and effectively the less the land dispute.

Hypothesis 2 : The more the access of the procedure of ADR the less the land dispute.

Hypothesis 3 : The more the good relation between judges and lawyers the less the land dispute.

Hypothesis 4 : The more the comparative advantages the less the land dispute.

Research Method:

In this study, the method which I will use is a combination of quantitative and qualitative method. For getting data from the judges, lawyers and litigants, I will use both this approach through interview.

Data collection : There methods helped the researcher to understand and analyze the factors of this problem. I will use both primary secondary data collection method. As there is no enough information that I can get from book or article, for that I will mainly used the primary data collection method such as-

Questionnaire : The questionnaire world be consist of open and closed ended question. I will set questionnaire for the judges lawyers and litigants before going to the field study.

Interviews: I will take interviews from the district judge of Satkhira, ADR panel lawyers and the litigant peoples of my research area.

Observation : During the interview I will try to observe the present condition of my research area and the atmosphere of the courts.

Why case study?

For knowing facts, reality and hypothesis I will study some cases I think this case study will help me to learn more about the phenomenon and general condition.

Selection of Cases:

I choose the land dispute related cases, In Tala Thana of Satkhira.

Conceptual Frame work :

What is ADR?

The term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes or judicial process. In other words, when disputes between parties are resolved through means which  are  alternative to  formal litigation, “this is called alternative dispute resolution. ADR is a process which may  be   freestanding  (non-judicial)   or   court annexed (judicial), binding or non-binding, formal or informal, mandatory or voluntary in nature. It is to be emphasized that the teen ‘ADR’  is misleading  in  a sense that it is not  always alternative to formal litigation and very often it is a part of litigation particularly for those ADR processes which are court-connected. Professor Thomas J. Stipanowich states that the name ADR is an outmoded acronym that survives as a matter of convenience only[1]. A California Task Force observed, “not only is ‘alternative’ unhelpful- alternative to-what?- but “appropriate” better conveys the concept of “method best suited to resolving the dispute”[2]  Professor Jean R. Sternlight has preferred the phrase ADR as “Appropriate Dispute Resolution” rather than “Alternative Dispute Resolution”[3].

Provision for alternative dispute resolution (ADR) have been incorporated in the code of civil procedure 1908 by amending act tilled The civil procedure code (Amendment) Act 4 of 2003, Sections 89 A and 89 B provides for ‘Mediation’ and ‘Arbitration’ respectively as alternative means of settling disputes within existing civil court system, which bestow upon the Judges, the authority and motivation to call upon the litigants utilize them. / The mentioned sections provide that after filling of the written statement to the court, if all the detesting parties or their pleaders are in attendance in the court and are willing to settle their dispute through ADR, the court may adjourn the hearing and mediate in order to settle the dispute to a mediator from the panel prepared by the District Judge.

Act 8 of 2006, section 89 C Provides fir mediation in appeal. In mediation under this section the Appellate court as far as possible follow the provisions of mediation as content in section 89 A by necessary changes may mediate in an appeal or refer the appeal for mediation in order to settle the dispute or disputes in that appeal.

Different types of ADR in Bangladesh:

Sumaiya Khair[4] suggests that there are three streams of ADR in Bangladesh:

(i)        Extra-judicial or community based ADR (informal); (ii)      ADR in quasi-formal systems; and (iii)      ADR in formal legal system.

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

Informal ADR in Bangladesh

Informal ADR in Bangladesh includes traditional shaiish and NGO, modified shaiish. Quasi-formal ADR includes village court and Board’ of Conciliation. Both the Village Court and Board of Conciliation have] originated from the informal shaiish system and this is why they all i have been shown in the following single diagram.