Alternate Dispute Resolution Law at Bangladesh

Alternate Dispute Resolution (ADR) in Bangladesh refers to methods used to resolve disputes outside the traditional judicial system, providing an alternative to litigation. These methods are faster, more cost-effective, and less adversarial than going to court. ADR is particularly relevant in a country like Bangladesh, where the judicial system may sometimes face delays due to backlog and overcrowded court dockets.

In Bangladesh, ADR is governed by a combination of laws, including specific statutes and general principles. Some of the most common forms of ADR include mediation, arbitration, and conciliation.

1. Arbitration:

Arbitration is a formal dispute resolution process where a neutral third party, the arbitrator, makes a binding decision after considering the arguments and evidence presented by both sides.

In Bangladesh, the Arbitration Act, 2001 governs arbitration. The Act is largely based on the UNCITRAL Model Law on International Commercial Arbitration. It provides procedures for resolving disputes related to commercial transactions, construction contracts, and other business matters.

Key Features of the Arbitration Act, 2001:

Arbitration agreement: The Act allows the parties to agree to settle disputes through arbitration before a dispute arises.

Arbitrator's authority: The arbitrator is empowered to make decisions that are binding on the parties.

Enforceability: Arbitration awards are enforceable in courts, and in international disputes, the New York Convention, 1958 also applies, making arbitration decisions recognized globally.

Limitations: There are some limitations to arbitration, including issues concerning public policy and the non-arbitrability of certain disputes (such as criminal cases).

2. Mediation:

Mediation is a less formal process than arbitration where a neutral third party (the mediator) facilitates communication between the disputing parties and helps them reach a mutually acceptable agreement.

Mediation has been promoted in Bangladesh as part of the government's efforts to reduce the burden on courts. The Mediation Act of 2013 and guidelines issued by the Supreme Court have made mediation a more structured process in civil matters. This process is often used in family law cases, civil disputes, and certain commercial disputes.

Key Features of Mediation:

Non-binding: Mediation outcomes are typically non-binding unless the parties agree to formalize the settlement.

Confidentiality: Mediation proceedings are confidential, which encourages open dialogue between the parties.

Voluntary: Participation in mediation is voluntary, and either party can exit the process at any time.

3. Conciliation:

Conciliation is similar to mediation, but the conciliator plays a more active role in proposing settlement terms. It is used particularly in labor and employment disputes. Conciliation is governed by various industry-specific regulations, but a common framework for labor disputes can be found under the Industrial Relations Ordinance, 1969.

Key Features of Conciliation:

Active role of the conciliator: The conciliator may suggest potential solutions for the dispute.

Binding Agreement: If the parties accept the terms suggested, the agreement becomes legally binding.

4. Court-Annexed Mediation:

The Supreme Court of Bangladesh has also initiated the Court-Annexed Mediation Program. This program was started to address the delays in the court system and encourage parties to resolve their disputes before a case goes through the full judicial process. The program has been implemented in various courts in Bangladesh.

5. ADR in Family and Small Claims:

In family disputes, including divorce and child custody matters, ADR mechanisms such as mediation have been recognized to provide more amicable and confidential solutions. Similarly, for smaller claims, the use of ADR can significantly reduce the burden on courts.

6. Legislation to Support ADR:

Apart from the Arbitration Act, other legal reforms and initiatives support ADR in Bangladesh:

The Code of Civil Procedure (CPC): The CPC allows for the reference of certain cases to mediation and settlement procedures.

The Family Courts Ordinance, 1985: Encourages the use of conciliation and mediation to resolve family disputes.

Advantages of ADR in Bangladesh:

Cost-effective: ADR is generally less expensive than going through the formal court system.

Speed: ADR processes are faster, especially when compared to the slow pace of court cases.

Confidentiality: ADR allows for a confidential process, which is crucial for protecting privacy.

Flexibility: ADR processes can be tailored to the needs of the parties involved.

Challenges:

Awareness and Education: Many people are still unaware of ADR mechanisms or may not trust their effectiveness.

Lack of trained mediators and arbitrators: There is a need for more qualified professionals to handle ADR processes.

Enforcement: Although ADR agreements are legally binding, enforcement can sometimes be an issue, especially in less formal ADR processes.

Conclusion:

Alternate Dispute Resolution (ADR) is a growing area in Bangladesh's legal landscape. With the support of relevant laws such as the Arbitration Act, 2001, and the Mediation Act of 2013, the country has made significant strides toward integrating ADR into the dispute resolution process. As ADR continues to be promoted and practiced, it can help alleviate pressure on the court system and provide more accessible, affordable, and efficient means of resolving disputes. However, improving awareness, training, and infrastructure is necessary to fully realize the potential of ADR in Bangladesh.

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