Law History
Origin of ADR
Emdadul Haque
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.
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 Confuci-anism, 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'.
Conflicts have been recorded from the very early days of humankind finding in the Bible and similar religious and historical documents and were resolved by various processes, including negotiation, mediation, conciliation, arbitration, and adjudication. The first negotiation in The Bible was between the snake and Eve, over the apple in the Garden of Eden. The Buddhist tradition is one that recognises conflict as a common part of the human predicament and has developed both spiritual and practical guidelines to assist in resolving issues. This begins with the understanding that before one can work at resolving a conflict; one should identify and examine the source of the problem. Often the source of the problem is obscured, preventing clarity about the real issue in question. Buddhism teaches that at the core of suffering is ignorance. This is often the root of conflict. It follows that in order to address a dispute one must have an understanding of the various causes that underlie the difficulty. In the Muslim tradition we find the story of Prophet Muhammad (sm) who negotiated with the Almighty over the number of times that the followers will pray. Muhammad (sm) managed to reduce the number from the initial fifty times a day down to five, using as his main argument the necessity to leave enough time for people to do things other than pray. There are numerous examples of the historic resolution of 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. It is said in the inquisitorial civil law system pre-litigation and pre trial settlement as the format of ADR were dominating in continental Europe earlier than in common law countries.
The same indigenous method of dispute resolution existing even thousands of years before in the Asia is now at malnourished stage in India, Pakistan and Bangladesh, due to scarcity of balanced diets over the ages, although India is couple of steps ahead in term of its utilization. Whether it is our inferiority complex that we prefer to swallow the concepts and philosophies of the west and the Europe and overlook the same or better ones loitering here and there in the Asia and elsewhere in the Indian subcontinent. As it seems, now a days in the seminars and discussions, ADR has turned into a catch phrase or buzzing word and seems to be a cutting age mechanism but ironically the similar means of dispute resolution prevailing long ago in China and in the Indian subcontinent since the 6th century BC or even before. Indian scriptures called 'tantras' mentioned mediation techniques 5000 years ago. Presence of Panchayat and historical basis for resolution of disputes by the heads of respective clan, guild or neighborhood is found in the work of Dr. P. Sen who claims the existence of dispute resolution at the village level during the period of Dharmashastra.
Brihashpati mentions that during the period of kingship an assembly of people (two or five) elected from the villagers, guilds and corporations named Samaya was constituted to advice on any disputes that came before them. The disputants were also bound to accept the advice given by Samaya. The central administration usually did not interfere with the decision of the village administration. Similar to Panchayat, Shalish is a social mechanism for informal settlement of petty disputes both civil and criminal, by local notables, such as matbars (leaders) or shalishkars (adjudicators) have been in place in rural Bangladesh from the days of antiquity.
However, the modern format of court sponsored ADR was also founded in China started even before the foundation of the Peoples Republic of China. The communist party developed the people's mediation system in its liberated area and it was highly encouraged to be used to resolve civil disputes. Ma Xiwu, a trial judge in people's court in Shanxi province employed mediation system in the court system. He successfully resolved numerous civil cases by means of mediation. In 1944 an article in “The Liberation Daily” a popular newspaper sponsored by the communist party, highly praised Ma's use of mediation in resolving civil dispute and promoted the “Ma Xiwu Trial Model” as a successful example of court mediation.
After the foundation of the Peoples Republic of China in 1949, mediation was further institutionalized in Chinese courts paving the way for booming success. Over the years of practice, ADR has now become the mainstream in Chinese society in the format of court-annexed or bar-sponsored means to the conventional 'tea house dispute resolution and settlement tea' in resolving all civil and commercial disputes and to some extent minor criminal disputes as well. Professor Regina Abrami of Harvard Law School in one of hers writings lauded the Chinese 'tea house dispute resolution and settlement tea' terming the Chinese are of leery of courts and legal systems. Talking about history of ADR in the 1750s, as Pennsylvania's Indian Commissioner, Benjamin Franklin said the Indians gave him an education in persuasion, compromise and the consensus building. US president John F. Kennedy while discussion 'crisis management' says, “when written in Chinese the word crisis is composed of two characters. One represents danger and the other represents opportunity reflecting spirit of ADR.
Even now we see world's most influential President Barack Obama is citing the Philosophy of Mahatma Gandhi and Nelson Mandela while we are quote by quote citing western principles and philosophy of which we are not indebted to and rather in true sense disrespecting our own tradition and value. If we focus in the western and European development of the concept of ADR then we notice that the Chinese booming success in ADR leads these countries to adopt the mechanism in the 1960 and the movement started in 1970s which they term modern growth of court annexed ADR. No denying the fact that these countries have successfully utilized the ADR mechanism but its breeding ground is Asia.
The writer is Faculty, Department of Law & Justice, Southeast University, Dhaka.
