Alternative Dispute Resolution commonly known as ADR denotes a variety of process for settling disputes without litigation, with the consent of the parties to the dispute through negotiation. In the case of Hilmond Investment vs CIBC, the Court of Appeal defined ADR as a procedure by which legal conflict and disputes are resolved privately and other than through litigation in public courts, usually through one of two forms: mediation or arbitration. Mechanism of ADR has been used widely in national as well as international arena. In many economically advanced countries, such as the USA, as Professor Thomas J. has suggested, a great majority of legal disputes are settled outside the court. In Bangladesh, the emphasis on ADR has revolved on the settlement of the disputes by community initiative. As ADR is gradually progressing and becoming a widespread form of litigants in many cases, it may be interesting to note some drawbacks of ADR and their possible consequences.
Since ADR is nothing but a process of settling disputes through a negotiation between relevant parties, the power imbalance between the parties can be a downside of ADR. In the process of ADR, there is no third party decision-maker and in order to unravel the disputed matter, the parties must negotiate with each other efficiently on their own behalf. Thus, the fairness of the outcome can be affected by the clout and ability of the parties. One party may dominate the process and the outcome of such process would naturally reflect largely or only that party's interest and needs. Thus, a weaker party may feel obliged to concede to overt or covert pressure exerted on and a skewed outcome is possible. The infamous culture of pressurising the marginalised in our local Salish culture may prove this point.
Hilary Astor, a legal academic at the University of Sydney, has argued that mediation derives its legitimacy from two core concepts, neutrality and consensuality. Consensuality involves the parties' ability both to choose the mediation process to reach a settlement to which both (or all) consent, and thus consensuality can only exist if both parties are making genuine and unrestricted sets based on effective participation in mediation.
Often ADR processes are steered through secretive method not simply because the parties may prefer that, but since confidentiality is very important if parties are to feel free to make provisional offers and concessions to each other. Henceforth, many commentators consider such level of privacy as a potential problem in relation to the use of ADR. ADR process conducted in a secretive way is quite different from the open public hearing in courts. This may in some cases pose a risk to the rule of law. This is because secrecy is bereft of the breath of fresh air that exists in a court and thus, not open to public scrutiny.
In ADR process, parties resolve the disputed matter by their own skill of negotiation. Therefore, if parties can agree on resolutions to their disputes without necessarily following strict legal principles in private processes such that justice cannot essentially be seen to be done. Furthermore, where litigation is designed on an endeavour to follow publicly enunciated statutes and rules, ADR at times resolves disputes without strict adherence to such rules.
Nonetheless, in some cases, the concept of ADR is not suitable. On this contention, the European Court of Human Right (ECHR) has found that in certain cases judicial remedy is required. For example, in cases involving an allegation of torture, ill-treatment and the right to life, the remedy cannot be limited to compensation rather includes a full, thorough and effective investigation capable of identifying and punishing those responsible. In the Ramirez Sanchez vs France Case, (the case was on solitary confinement), it was found that a judicial remedy was required because of the serious repercussions which solitary confinement had on the condition of detention. Thus, while ADR may be a good way of reducing burdens on courts and offers a less expensive mode of settlement of disputes, some caveats should apply about its too liberal and unscrupulous use.
The writer is a final year LL.B. student at School of Law, BRAC University. [email protected]
