The affiliation amongst the concepts of “Access to Justice”, “Rule of Law” and “Alternative Dispute Resolution System”

- Mohammed Rakib-ul-Hassan

Justice sign

Published On - December 21, 2014 [Vol. 1, Jul - Dec, 2014]

Before brooding over the hub of the topic, a brief denotation of ‘‘Access to Justice’’ (hereinafter referred as ATJ), ‘‘Rule of Law’’ (hereinafter referred as ROL) and ‘‘Alternative Dispute Resolution System’’ (hereinafter referred as ADR) would be worth explicating.

ATJ is one of the components of ROL therefore it is not difficult to understand the inextricable relationship between these two. ATJ generally infers someone having proper admittance to the court and a guaranteed legal representation.[1] However it has further been defined as the ability of people to seek and obtain a remedy through formal or informal institutions of justice for grievances in compliance with the human rights standards.[2]

On the other hand the principle of ROL denotes that all the people and institutions are subject to and accountable to the laws of the countrythat are fairly applied and enforced.

The most generic brainchild of ADR has been to resolve disputes without trial. It is an alternative to the court. Going to the courts in terms of mitigating disputes or to adjudicate matters, is often painstaking that the parties to a case may feel very disappointed and hopeless at times. Cost is another paramount factor along with issue of unnecessary delay as to why people nowadays lean more to ADR rather than to the courts.

The first initiation of using ADR to resolve disputes between the then kingdoms can be traced back to 1800 B.C. Mari Kingdom (in modern Syria) where mediation and arbitration were used in resolving disputes with other kingdoms.[3] That was the first time ever the hint of using ADR was conceptualised. Later the mechanisms of ADR came with different reasons and needs at different times both in formal and informal ways. However formal ADR in the name of court annexed ADR came to the hub of the discussions in United States back in 1970. United States is told to be the pioneer of ADR’s modernization and development. In a speech in 1976 Warner Burger CJ conversed about the then problems of the judicial system of the USA. He focused on few areas like delay, high costs, and unnecessary technicality. He stated the whole system as an inefficient one that caused delay and expenses diminishing the value of the judgment. In terms of exterminating such impediments the Chief Justice made few proposals to reform stressing more on the greater role of ADR namely formal ADR that is to say the court annexed arbitration.[4] The formal ADR since then has been developing fastening different slants to its shape.

ADR normally includes informal mechanisms (negotiation, mediation, reconciliation and arbitration). However the court annexed arbitration is formal though like other apparatuses of ADR it also cannot make any precedence. Gauging the definition of ATJ, it can be said that someone having an access to ADR in terms of adjudicating a matter that complies with the norms of international human rights falls within the definition of ATJ. Since ADR mostly involves informal mechanisms therefore it may not always follow the normative rules of the country and hence falling outside the ambit of ROL. Though for court annexed arbitration, guidelines have been enunciated in the Arbitration Act, 2001 (Bangladesh Perspective).

It is sometimes thought that having someone an admittance to the ADR is probably suffice in terms of fulfilling the conditions of ROL, however this is not the case since ATJ is one of the constituents ROL but not the sole one. Complying with the state law is an eminent characteristic of ROL. Thus in theory any vacillated mentality towards the compliance with the laws of the country in any circumstance does not fall within the ambit of ROL.

To serve justice has been one of the foremost motives of ADR but since it is an informal mechanism of dispute settlement therefore it is not bound to follow the state laws. Question arises there, is ADR not consistent with ROL? If the answer is no, then how can ADR ensure justice without the compliance with the state law which is the innate element of ROL? However if ATJ and ROL are to be seen from two different slants then it could be said that ATJ is a precondition to ROL and there should not be any scepticism in this regard.

Coming to the first question put above, it has been supposed at different times that informal ADR comply does not comply with the ROL and hence is unable to serve justice.[5] Along with other predicaments it has been argued that through informal ADR females are sometimes aggrieved in the process of questing justice since they are told to be less powerful and deprived sects of people may not get justice that they require.[6] However there are few sects of people who take ADR as an important vehicle in terms of modernising legal system.[7]

To answer the above importuned second question, the word justice has to be seen from a broader perspective where it does not only bother with the enacted and case laws of the country besides includes social ethos, needs, equality, rights of the individuals and so on. And that could be the only possible way to slot ADR in the domain of ROL. A famous saying of Roscoe Pound ‘‘While law may serve justice, justice can be broader than law’’ is worth remembering in this regard.[8] On a counterpart another controversy arises to the extent that do the laws of the country not entail social needs, ethos, beliefs and issues relating to individuals’ rights? However it is not wise to point at state laws outright, it needs an imperative inspection before any state law can be criticised.

Law can be sorted into two categories substantive law and procedural law. Substantive law deals with those areas of law which establishes the rights and obligations of individuals, what individuals may or may not do. Procedural law copes with matters regarding the successful enforcement of substantive law. Substantive laws can be of help for the mediator and arbitrator in terms of mitigating disputes between the parties in both the formal and informal ADR though it is not obligatory for them. It could on the other way round be said that if an act is deciphered as an offence according to it’s definition given by law, can in no way be termed as anything else but a misdemeanour that is where the stagnant nature of substantive laws lies. It is the procedural law that does not have any implementation at all in ADR. The reason here is, where substantive laws are not being applied directly, how would the laws relating to its implementation apply there. Parties to disputes have greater control over the procedural facets in ADR. However for formal ADR procedural guidelines have been enshrined in the statute. In Bangladesh, the procedural aspects of formal ADR have been set down in Arbitration Act, 2001.

In ADR the mediator or arbitrator plays vital role since no law is imposed on them as to how they would adjudicate the matter between the disputants. The nature of ADR is of adversarial system as a result of which the decision taken by any mediator or arbitrator depends on the evidences along with their scruples.  Rather than interpreting any state law, they use their brain wave in terms of a successful adjudication of a dispute which could at times be unique in nature. On the other side unlike the procedural hurdles of the court there is no such technical or ceremonial intricacy in ADR. It is rather seen that parties to ADR seem to be inclined to mitigate their problems in a friendly environment which is not attainable in the court.

The concept of ADR has been initiated to mitigate the pressure of the court. It is in no way rival to the orthodox legal system nor to the ROL.

 

[1] UNDP, “Access to Justice,” 2004
[2] United Nations Development Programme, Programming for Justice: Access for All: A Practitioner’s Guide to Human Rights-Based Approach to Access to Justice (Bangkok: UNDP, 2005). Hereafter: UNDP, Programming for Justice, 2005
[3] ‘‘A History of Alternative Dispute Resolution’’ -The Story of a Political, Cultural, and Social Movement, Jerome T. Barrett with Joseph P. Barrett, Published in Affiliation with The Association For Conflict Resolution
[4] Warren E Burger, Agenda for 2000 A.D.: A need for Systematic Anticipation, 70 F.R.D. 83, 92 (1976)
[5] Lon L. Fuller, The Morality of Law, 38-39 (1964)
[6] Trina Grillo, The Mediation Alternative: Process Dangerous for Women, 100 Yale L.J. 1545 (1991)
[7] Jean R. Sternlight, Is ADR consistent with the Rule of Law? De  Paul Law Review 569 (2006)
[8] Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 40 Am. L.   Rev. 732-733 (1906)

About The Writer

Article Author Image

Mohammed Rakib-ul-Hassan

Lecturer & Co-ordinator, Department of Law, World University of Bangladesh

LL.B (Hons) form University of London, UK,
LL.M (Commercial Law) form Huddersfield University, UK.
Part-Time Lecturer, Dhaka Center for Law & Economics (DCLE).

rakibhassan@law.wub.edu.bd

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