scholarly journals Ancient Dispute Resolution through Informal Processes: ADR

2020 ◽  
Vol 2 (2) ◽  
pp. 73-77
Author(s):  
Dr. Abida Hassan ◽  
◽  
Dr. Dil Muhammad Malik ◽  
Keyword(s):  
Dispute Resolution ◽  
Justice System ◽  
Formal System ◽  
Historical Study ◽  
Legal Systems ◽  
Informal Justice ◽  
Research Article ◽  
Ancient Times ◽  
Settlement Of Disputes ◽  
Day By Day

The research article discusses the historical study for settlement of disputes under the umbrella of legal systems (formal and informal) prevailing in different civilizations and in various times. This research is briefly discussing the historical aspects of various legal systems in ancient times. This research highlights that human civilizations promoted both methods, but the most popular method was informal dispute resolution (ADR) in all over the world which still is needed and being popular day by day. From study, it has been founded that informal dispute resolution (ADR) has been the choice of people and they preferred to opt this process rather to go for litigation. The research has shown the benefits and importance of settlement of disputes through informal justice system. The study high lights that the system has been working very successfully in ancient times, therefore, this pre-tested process i.e., informal dispute resolution is more sustainable in any form than the formal system because it reflects amicable practices.

scholarly journals Effectiveness of Arbitration as an Alternative Dispute Resolution in Bangladesh

2021 ◽  
Vol 2 (1) ◽  
pp. 15-40
Author(s):  
Md. Nazmul Haq ◽  
Jannatul Ferdous ◽  
Rajib Chandra Das
Keyword(s):  
Dispute Resolution ◽  
Rural Areas ◽  
Alternative Dispute Resolution ◽  
Justice System ◽  
Formal System ◽  
Political Influence ◽  
Poor People ◽  
Informal Justice ◽  
Justice Systems ◽  
The Village

The structured legal system of Bangladesh is costly and takes a long time to complete. As a result, poor citizens in rural areas can seldom seek justice through the formal judicial process. The costs of hiring a lawyer, the time and money expended in court, and the amount of talent, schooling, and experience needed to litigate all act as roadblocks to justice. As a result, poor people prefer or have no choice but to use conventional justice systems such as Shalish. However, Shalish is a very informal type of local judicial practice that heavily influences rural society’s power structure. With time, people with special interests and musclemen dominate the informal justice system at the village level. Alternative dispute resolution (ADR) had arisen in the Indian subcontinent to improve the village justice system's condition. For the past 35 years, the state-led rural justice system, such as Shalish and village court, has played an essential role in resolving petty rural litigation, but at a sluggish and informal pace. In the evolving landscape of rustic political influence, this age-old court is having difficulty dispensing justice to the countryside citizens. The study looked at the existing rural informal justice systems in Bangladesh, especially the Union Parishad-led ADR, and argued that, if adequately enabled and revamped, this justice system could be a desirable alternative to the formal system of justice for people living in rural areas. The study aimed to recognize the obstacles that the Union Parishad faces in dispensing justice, both directly and indirectly (UP).

scholarly journals Dispute Resolution Practices in USA, Australia and UK/EU

2019 ◽  
Vol IV (I) ◽  
Author(s):  
Abida Hassan ◽  
Dil Muhammad Malik
Keyword(s):  
European Union ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Justice System ◽  
Informal Justice ◽  
Resolution System ◽  
European Union Countries ◽  
Settlement Of Disputes ◽  
Formal Justice ◽  
Dispute Resolution System

The research aims to highlight and discuss the different modes of settlement of disputes in today�s populated and overcrowded societies. The research has shown that due to expensive, time consuming and rigid process of formal justice system (court litigation) USA, Australia, UK and even European Union countries have preferred informal justice system (Alternative Dispute Resolution) for disputants to opt for their solutions. The informal dispute resolution system (Alternative Dispute Resolution) prevailing in modern countries like USA, Australia and UK is full of benefits and most probably the main reason for their progress and development also, and the study has shown that the system is working successfully in these countries, therefore, it can be applied anywhere even in the developing countries as well because this system is more sustainable in any form than the formal justice system (court litigation).

scholarly journals Mediation

Amicus Curiae ◽  
2021 ◽  
Vol 2 (2) ◽  
pp. 151-168
Author(s):  
Lesley A Allport
Keyword(s):  
Social Norms ◽  
Dispute Resolution ◽  
Justice System ◽  
Self Regulation ◽  
Community Setting ◽  
Informal Justice ◽  
Perceptions Of Fairness ◽  
First Choice ◽  
Educative Process ◽  
Formal Justice

This article examines the place of mediation both internally and externally to the civil justice system. The growth of alternative dispute resolution (ADR) and the culture of settlement within formal justice has somewhat absorbed mediation as a process by which to resolve disputes at the door of the court. Yet, it can be argued that its origins lie within the community setting where social norms have a distinct role to play and where collective as well as individual interests have a significant impact. This paper considers the application of mediation in a much wider sense than simply as a tool for settlement. It explores the concept of mediation as an educative process that supports the generation and advocation of social norms. Mediation can be understood as a form of self-regulation which relies on perceptions of fairness, justice and trust. In so doing, it can be argued that it provides a means of informal justice amounting to dispute prevention as far as its relationship to the justice system is concerned. Viewed in this way, mediation provides a genuine first choice as a means to address and resolve conflict rather than an alternative method by which to settle disputes. Keywords: mediation; dispute resolution; dispute prevention; community norms; formal justice; informal justice; process pluralism; alternative; first choice.

scholarly journals In Chancery: The Genesis of Micro Caseflow Management

Amicus Curiae ◽  
2020 ◽  
Vol 1 (2) ◽  
pp. 165-200
Author(s):  
Michael Reynolds
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Justice System ◽  
Court System ◽  
Civil Justice ◽  
England And Wales ◽  
Informal Justice ◽  
Judicial Practice ◽  
Civil Justice System ◽  
The Relationship

This article explores an early example of subordinate judicial practice in England and Wales in which we may see some issues that later appear in the relationship between informal justice initiatives (especially alternative dispute resolution) and the civil justice system. Broadly speaking, the paper looks first at the symptoms of systemic failure in the pre-1873 system which led to the creation of the Official Referee’s office. It then considers the relevant recommendations of the Judicature Commissioners and the reasoning behind such recommendation, looking at both the macro- and the micro-levels, before exploring the referees’ diverse jurisdiction which provided a creative foundation for the evolution of interlocutory innovation. The article argues that structural realignment of the court system by the Judicature Commissioners was not sufficient in itself to eradicate all its encumbrances, but it indirectly empowered the referees to eventually bring about revolutionary procedural changes.

scholarly journals PERADILAN ADAT DAN KEADILAN RESTORATIF

2013 ◽  
Vol 2 (2) ◽  
pp. 161
Author(s):  
Ahmad Ubbe
Keyword(s):  
Restorative Justice ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Justice System ◽  
Customary Law ◽  
Access To Justice ◽  
Legal Systems ◽  
Law System ◽  
Community Awareness ◽  
Law And Justice

Pemikiran mengenai akses kepada keadilan sejatinya tidak merujuk kepada keadilan yang merujuk pada pemidanaan melainkan merujuk pada kebersaman. Dengan demikian sengketa diselesaikan melalui kesepakatan semua pihak yang terkait sehingga dapat mewujudkan perdamaian, persaudaraan dan upaya mengembalikan masyarakat kepada ketertiban dan ketenteraman sesuai dengan perasaan dan kesadaran hukum yang hidup di masyarakat yang bersangkutan. Indonesia memiliki khasanah kebudayaan berupa sistem sosial dan hukum tentang peradilan, hakim dan keadilan. Tulisan ini mengangkat permasalahan mengenai bagaimana bentuk mediasi penal dan perlindungan korban dalam restorative justice sistem; bagaimana gambaran hukum adat dan peradilannya di Indonesia; bagaimana mekanisme penyelesaian sengketa alternatif dan keadilan restoratif dalam hukum adat; serta bagaimana penanganan Pelanggaran Adat dan mediasi penal dalam hukum adat. Dengan menggunakan metode yuridis normatif dapat disimpulkan bahwa peradilan adat menjadi penting dalam kehidupan hukum nasional. Oleh karena itu dibutuhkan trasformasi nilai hukum adat yang hidup di masyarakat tentang hukum, peradilan, hakim dan keadilan, menjadi bagian perangkat sistem hukum nasional. Upaya ini penting dilakukan guna mengahiri dikotomi antar pranata dan pemikiran ”hukum negara” dan lembaga dan pranata ”hukum rakyat”. Pendekatan keadilan restoratif dalam penerapan dan penegakan hukum, merupakan jembatan teoritis dan filosofis, untuk menjadikan nilai-nilai hukum yang hidup di masyarakat, sebagai dasar legitimasi pengembangan dan berfungsinya hukum, peradilan dan hakim adat, dalam distribusi keadilan.<p>The idea of access to justice should duly refer to the concept of harmony and not on punishment. Thereby the disputes were settled through agreement of all parties concerned in realizing peace, brotherhood and efforts to restore order and peace in accordance to the community awareness of law. Indonesia has various cultural repertoire of social and legal systems of courts, judges and justice. This paper raises the issue of how to form penal mediation and protection of victims in restorative justice system; overview on how customary law and justice in Indonesia; how alternative dispute resolution and restorative justice in customary law; as well as how to handle violations of Indigenous and penal mediation in customary law. By using normative methods can be concluded that the customary justice become important in the national law system. Therefore, it is necessary to transform the customary law values that live in the community, like the law, justice, judge, and equity, as a part of the national law system. This effort is important in order to end the dichotomy between the institutions and ideas of "state law" and "folk law". Implementation of restorative justice method is important to be the theoretical and philosophical bridge, to make the legal values that live in the community, as a basis for the development and the proper functioning of the legitimacy of customs law, justice and judges, in fairness distribution.</p>

scholarly journals Viewpoint of the Supreme Court of Nepal on the Arbitration Process in the Light of Party Autonomy

2020 ◽  
Vol 35 (2) ◽  
pp. 47-58
Author(s):  
Sanad Devkota
Keyword(s):  
Dispute Resolution ◽  
Human Interaction ◽  
Human Society ◽  
Party Autonomy ◽  
Arbitration Process ◽  
Litigation Process ◽  
Short Period ◽  
The Supreme Court ◽  
Settlement Of Disputes ◽  
Day By Day

Arbitration is a contract-based form of binding dispute resolution. In other words, a party’s right to refer a dispute to arbitration depends on the existence of an agreement between them and the other parties to the dispute that the dispute may be referred to arbitration. Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments. The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. Conflicts have existed in all cultures, religions and societies since time immemorial, as long as human have walked the earth. Human society is a repertoire where differences arise and persist as salient features, but this is also a platform where varieties of disputes find management in the form of resolution to energize the society. As conflicts are an integral part of human interaction, one must learn to deal with them tactfully, conventionally, disputes – commercial or otherwise were resolved by litigation but due to delays, costs, publicity and technicality associated with litigation, alternative dispute resolution (ADR) processes evolved. Various means of ADR or out of court settlement of disputes such as negotiation, conciliation and arbitration have come into practice. In the modern era, the business activities are increasing day by day. Along with the business activities, its complexities, differences, and disputes are also increasing day by day. The traditional method of settling disputes is the litigation process in the court of law. From the perspective of concerned parties, settlement of these disputes as quick as possible is desired. But because of the lengthily procedure and case load settlement through court is not possible. For this reason, parties were looking for the alternative process where both the parties can trust impartial person who will solve their disputes within short period of time.

scholarly journals Coexistence between the Formal and Informal Justice Systems in Ethiopia: Challenges and Prospects

2012 ◽  
Vol 5 (3) ◽  
pp. 269-293
Author(s):  
Tsehai Wada Wourji
Keyword(s):  
Formal System ◽  
Nation Building ◽  
Legal Systems ◽  
Informal System ◽  
Informal Justice ◽  
The Future ◽  
Justice Systems ◽  
The Many

Abstract Though Ethiopia has never been colonized, the voluntary importation of European laws and the exercise in nation building has resulted in a situation whereby the formal and informal legal systems have to coexist in harmony or disharmony. Both systems are extant, though the future appears to be favourable for the prevalence of the formal system. This article argues that the informal system is showing signs of irrelevance and may be prevailed by the formal. It also counsels that the formal system should be helped to cleanse itself from the many shortcomings that are challenging its relevance and legitimacy.

scholarly journals Access to justice: An evaluation of the informal justice systems

2021 ◽  
Vol 5 (1) ◽  
pp. 228-244
Author(s):  
Jawad Ahmad ◽  
Georg Von Wangenheim
Keyword(s):  
Justice System ◽  
Relevant Literature ◽  
Formal System ◽  
The State ◽  
Access To Justice ◽  
Positive Role ◽  
Informal System ◽  
Informal Justice ◽  
Justice Systems

The judicial system of any state can be divided as formal and informal, where the formal is under the state (official) and informal may or may not be under the domain of the state (informal justice system). Since both systems provide access to justice, however, the informal system is viewed as a threat to formal justice system. In this context we need to better understand the role played by informal justices system. We have focused on three fundamental issues, first to evaluate the role of the alternate and informal justice system to improve access to justice. Second, we listed weaknesses in informal justice systems that gives us an insight into our third goal of suggesting a framework for engaging informal justice system and improved on its shortcomings which can be helpful in supporting or reducing the burden on the formal system. Because of the absence of relevant literature, we resorted to empirical reports and case studies on other developing countries’ to present our arguments. We showed that informal system is playing a positive role in the society and there is a need to reform the system especially for its negative traits, e.g., human rights.

Child Participation: Overcoming Disparity between New Zealand’s Family Court and Out-of-court Dispute Resolution Processes

2017 ◽  
Vol 25 (3-4) ◽  
pp. 658-671 ◽  
Author(s):  
Nicola Taylor
Keyword(s):  
New Zealand ◽  
Dispute Resolution ◽  
Justice System ◽  
Research Evidence ◽  
Family Court ◽  
New Family ◽  
The Family ◽  
Major Reform ◽  
Children’S Views ◽  
Resolution Processes

This article considers children’s right to participate in the context of private law disputes concerning their post-separation, day-to-day care and contact arrangements. In New Zealand the approach to ascertaining children’s views has been both long-standing and systematic for contested proceedings within the Family Court (via children’s legal representatives and judicial meetings with children). However, major reform of the family justice system in 2014 shifted the emphasis to new out-of-court processes for resolving post-separation parenting arrangements. The reforms were disappointingly silent on the issue of children’s participation in the new Family Dispute Resolution services, particularly mediation. A disparity has thus arisen between opportunities for children’s engagement in New Zealand’s in-court and out-of-court dispute resolution processes. Research evidence and international developments in Australia and England and Wales are reviewed for the guidance they can offer in remedying this in New Zealand and elsewhere.

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