Problems

Some of the disadvantages include:

• An arbitration agreement are sometimes contained in ancillary agreements or in small print in other agreements, and consumers and employees often does not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job.
• If the arbitration is mandatory and binding, the parties waive their rights to access the courts and to have a judge or jury decide the case.
• If the arbitrator or the arbitration forum depends on the corporation for repeat business, there may be an inherent incentive to rule against the consumer or employee
• There are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned.
• Although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays.
• In some legal systems, arbitration awards have fewer enforcement options than judgments; although in the United States arbitration awards are enforced in the same manner as court judgments and have the same effect.
• Arbitrators are generally unable to enforce interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees, without explaining to the members the adverse consequences of an unfavourable ruling.
• Discovery may be more limited in arbitration or entirely non-existent.
• The potential to generate billings by attorneys may be less than pursuing the dispute through trial.
• Unlike court judgments, arbitration awards themselves are not directly enforceable. A party seeking to enforce an arbitration award must resort to judicial remedies, called an action to "confirm" an award.

Prospects

In almost all the agreements nowadays, lawyers are routinely incorporating an arbitration clause for settlement of possible disputes. Because of the legal requirements in various laws, parties involved are at least required to attempt mediation to solve the dispute outside the Court room. The government in the recent past has also reiterated on many occasions its plan to make ADR mandatory in certain cases. All these factors taken together, it can be said that ADR has a good prospect in Bangladesh. Before that, however, we need to educate people for the system. Certain recommendations for the system to become more effective are as follows:

Establishing a state-run parallel authority for ADR

A nationwide network needs to be envisaged for providing solutions through ADR. An apex body viz. a Commission for Alternate Dispute Resolution needs to be constituted to lay down policies and principles for making ADR available to the common man to frame most effective and economical schemes for ADR. It should also disburse funds and grants to different ADR Authorities and NGOs for implementing ADR schemes and programmes for the common man.

ADR to be made mandatory in certain cases

To successfully bring ADR to the common man while still reducing the backlog of cases piled up in Courts, radical steps need to be taken. It is important that the legislature introduce certain provisions which discourage initiation of litigation in cases where out of court settlements can easily be worked out.

Imparting Legal Literacy

Perhaps the biggest roadblock that faces any country is illiteracy. Our government has continuously been trying to eradicate illiteracy and now the new task has become even harder, that is, to impart legal literacy to the literates and illiterates alike. Legal literacy empowers one to be an active and alert citizen, thereby making a population more vigilant about its rights and duties. ADR is a fairly new concept to many and concepts like these not only take time in percolating to the grass root levels, acceptance of such a concept is also a big problem. Therefore a robust programme imparting legal literacy to the masses in Bangladesh, especially in the field of ADR becomes a necessity. Not only will this allow bringing ADR to the common man, an aware citizen will contribute positively to the development of the nation too.

Integrating ADR in the legal education

The legal education of today’s Bangladesh needs to take the ADR mechanisms seriously. Today these mechanisms are taught only as part of specialty courses which primarily focus on the deployment of these processes pertaining to areas of corporate mergers and amalgamations.

The need of the hour is different – It is time when these dispute resolution mechanisms are taught as essential courses for a new breed of lawyers who will be adept in these forms of dispute resolutions and these lawyers will surely help the ordinary man in the long run.