Development of Alternative Dispute Resolution in Bangladesh

Introduction

In June 2000, formalized ADR was introduced in Bangladesh by means of court- annexed judicial settlement pilot projects, in an effort to decrease delays, expenses, and the frustrations of litigants laboring through the traditional trial process.

The pilot program began in a collaborative effort with ISDLS in a series of Bangladeshi legal studies of Californian ADR systems. Three Pilot Family Courts were established in the Dhaka Judgeship, which exclusively used judicial settlement to resolve family cases including: divorce, restitution of conjugal rights, dower, maintenance and custody of children. An amendment to the Code of Civil Procedure was not necessary due to an existing 1985 Family Courts Ordinance, which authorized the trial judge to attempt reconciliation between parties prior to and during trial. The pilot courts were staffed by 30 Assistant Judges selected from all over Bangladesh, lawyers and non-lawyers, who were given training by a United States mediation expert (organized by ISDLS). During this assignment, the Assistant Judges were relieved of all other formal trial duties.[1]

All three pilot programs were fully functioning by January 2001. Once judges had begun successfully settling cases, the program was expanded slowly to additional courts throughout the country. By the end of the first year of the program, the judicial settlement procedure in family disputes had effectively been introduced in 16 pilot family courts in 14 districts of Bangladesh.

Due to the high settlement rates these courts were achieving, the Law Minister convened a conference in 2002 in order to spread awareness of the achievements of these programs. The conference brought together all District Judges, Presidents and Secretaries of all District Bar Associations, previous Chief Justices, the current Chief Justice, Judges of both divisions of the Supreme Court, and prominent lawyers from throughout the country.

In 2003, the Civil Code of Procedure was amended to introduce mediation and arbitration as a viable means of dispute resolution in non-family disputes. In addition to this amendment, the Money Loan Recovery Act stipulated the use of Judicial Settlement Conferences for money loan recovery cases. A training program led by former Chief Justice Mustafa Kamal took place at the Judicial Administration Training Institute (JATI) in Dhaka for the forty judges that have exclusive jurisdiction over money loan recovery cases. Mediations began in non-family disputes in July 2003.[2]

Definition of ADR

Alternative dispute resolution (ADR) (also known as external dispute resolution in some countries, such as Australia) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties’ cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called “compulsory” mediation; attendance that is, not settlement at mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favor of the use of mediation to settle disputes.

“Alternative dispute resolution” (ADR) is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional third party who helps them resolve their dispute in a way that is less formal and often more consensual than is done in the courts. While the most common forms of ADR are mediation and arbitration, there are many other forms: judicial settlement conferences, fact-finding, ombudsmen, special masters, etc. Though often voluntary, ADR is sometimes mandated by the courts, which require that disputants try mediation before they take their case to court.[3]

History of ADR

Although mediation goes back hundreds of years, alternative dispute resolution has grown rapidly in the United States since the political and civil conflicts of the 1960. The introduction of new laws protecting individual rights, as well as less tolerance for discrimination and injustice, led more people to file lawsuits in order to settle conflicts. For example, the Civil Rights Act of 1964 outlawed discrimination in employment or public accommodations on the basis of race, sex, or national origin. Laws such as this gave people new grounds for seeking compensation for ill treatment. At the same time, the women’s movement and the environmental movements were growing as well, leading to another host of court cases. The result of all these changes was a significant increase in the number of lawsuits being filed in U.S. courts. Eventually the system became overloaded with cases, resulting in long delays and sometimes procedural errors. Processes like mediation and arbitration soon became popular ways to deal with a variety of conflicts, because they helped relieve pressure on the overburdened court system.[4]

Dispute resolution outside of courts is not new; societies world-over have long used non-judicial, indigenous methods to resolve conflicts. What is new is the extensive promotion and proliferation of ADR models, wider use of court-connected ADR, and the increasing use of ADR as a tool to realize goals broader than the settlement of specific disputes. The ADR movement in the United States was launched in the 1970, beginning as a social movement to resolve community-wide civil rights disputes through mediation, and as a legal movement to address increased delay and expense in litigation arising from an overcrowded court system. Ever since, the legal ADR movement in the United States has grown rapidly, and has evolved fruni experimentation to in3titutionalization with the support of the American Bar Association, academics, courts, the U.S. Congress and state governments.

For example, in response to the 1990 Civil Justice Reform Act requiring all U.S. federal district courts to develop a plan to reduce cost and delay in civil litigation, most district courts have authorized or established some form of ADR. Innovations in ADR models, expansion of government-mandated, court-based ADR in state and federal systems and increased interest in ADR by disputants has made the United States the richest source of experience in court connected ADR .

 History of Development of ADR

This sub-continent:

 (1)       In India the origin of ADR could be traced to the origin of political institutions on the one hand and trade and commerce on the other hand. It is observed from the historical document, that ADR in the name of dispute resolution institutions prevalent during the ancient period. It was reported that resolution of disputes between members of a particular clan or acceptor or between members of a particular locality, by kolas assembly of the members of a clan, sirens guild of a particular occupation and pug as (neighborhood assemblies). In rural India panchayat (assembly of elders and respected inhabitants of a village) decided almost all disputed between the inhabitants of the village, which disputes between the members of a clan continued to be decided by the elders of the clan.[5]

       One of the main characteristic of the traditional institutions is that they were recognized system of administration of justice and not merely “alternatives” to the formal justice system establish had by the sovereign the feudal lords kais, the adalat system introduced by of the then ruling group and the existing court system. The two systems continued to operate parallels to each other.

       It is pertinent to say that the procedure and the nature of preceding these institutions were very much similar to the ADR. This was also applicable to this country as because it was the part of the India.

       (2)The formal system of administration of justice introduced during the British rule replaced the old system of dispensing justice through feudal set-up. But the traditional institutions continue to play their role of dispute resolution though not known by their old name. As because we still have disputes between members of a clan.

       (3) After math, arbitration and conciliation as the methods of ADR, received statutory recognition in the code of civil procedure code, 1908 (section 89, arbitration and order XXXII A rule 3, conciliation).

       (4) Having passed the Arbitration Act, 1940, arbitration provision was repeated from the CPC But it is pertinent to say that the application of the provisions this Act was not satisfied ant the courts would not follow these provisions mandatory.

       (5) During the Pakistan period, arbitration as one of the important method of ADR, received statutory recognition in the Muslim family ordinance, 1961. Under this ordinance, to arbitration, as a method of ADR is mandatory to resolve the dispute as to dissolution of marriage. Union perished would have to follow arbitration process to resolve this dispute.

       (6) Having followed the above mentioned ordinance the family court ordinance was promulgated in 1985 and as a result some family courts have been established in different places of Bangladesh.[6]

The Indian suit ( Food of Corporation of India v. Toginder Pal Mohinder Pal) The Indian Supreme court observed that, “ADR is seen as a part of a package system designed to meet the needs of consumers of justice”[7]

The Indian supreme court another says that, “we should make the law of arbitration simple, less technical and more responsible to the actual realities of the situation but must be responsive to the canons of justice and fair play and make the arbitrator adhere to such process and norms which will create confidence, not only by doing justice between the parties, but by creating sense that justice appears to have been done”

 ADR World Wide

As noted in first chapter of this book ADR may largely be of two categories informal and indigenous mode of ADR and mil or court-annexed ADR. The history of informal and indigenous ADR is as old as the society itself. This is because dispute resolution outside of courts is not new; society’s world over long used non-judicial, indigenous methods to resolve conflicts. However, with regard to formal ADR process the history has started since the decades of seventies in the USA. From the view point of court-annexed ADR and its modernization the history of development of ADR in the USA is pioneering.[8]

 ADR Movement in the USA

ADR originated in the USA in a drive to find alternatives to the traditional legal system, felt to be adversarial, costly, unpredictable, rigid, over-professionalised, damaging to relationships, and limited to narrow rights-based remedies as opposed to creative problem solving. The American origins of the concept are not surprising, given certain features of litigation in that system, such as: trials of civil actions by a jury, lawyers’ contingency fees, lack of application in full of the rule “the loser pays the costs”.

Beginning in the late nineteenth century, creative efforts to develop the use of arbitration and mediation emerged in response to the disruptive conflicts between labor and management. In 1898, Congress followed initiatives that began a few years earlier in Massachusetts and New York and authorized mediation for collective bargaining disputes. In the ensuing years, special mediation agencies, such as the Board of Mediation and Conciliation for railway labor, (1913) (renamed the National Mediation Board in 1943), and the Federal Mediation and Conciliation Service (1947) were formed and funded to carry out the mediation of collective bargaining disputes. Additional state labor mediation services followed. The 1913 New lands Act and later legislation reflected the belief that stable industrial peace could be achieved through the settlement of collective bargaining disputes; settlement in turn could be advanced through conciliation, mediation, and voluntary arbitration.

At about the same time, and for different reasons, varied forms of mediation for non-labor matters were introduced in the courts. When a group of lawyers and jurists spoke on the topic to an American Bar Association meeting in 1923, they were able to assess court-related conciliation programs in Cleveland, Minneapolis, North Dakota, New York City, and Milwaukee.[9]

The Association for International Arbitration

The Association for International Arbitration (AIA) is a non-profit organization, founded in Paris in 2001 by Johan Billiet. The Association for International Arbitration has an increasing number of members among arbitrators and mediators of international backgrounds.

The Association was established with the aim of facilitating arbitration, mediation and general forms of dispute resolution internationally. Today, the AIA has developed into an organization dealing in the private international law field to meet the needs of the fast-growing evolution of dispute resolution within the international community. AIA provides information, training and educational activities to expand the promotion of arbitration and ADR globally by means of securing partnerships with various organizations and parties to get involved in the life of the association. The association constantly works to develop partnerships in the international realm and to provide the international community of arbitrators and ADR professionals with continuous exposure to the latest international developments, activities and opportunities in the field. AIA continually encourages the participation and contribution of its members in the pursuit of the association’s goals.[10]

Chapter 2

BASICS OF ADR

 Purposes of ADR

The ADR Practitioner Guide spells out how ADR can serve different objectives. It explains that ADR system may be designed to meet a wide verity of deferent goals. Some of these goals are directly related to improving the administration of justice and rule of Law. Some however are related to other development objectives, such as economics restructuring, or the management of tensions and conflict in communities. Efficient dispute resolution procedure may be critical to economic development objective where court delays or corruptions inhibit foreign investment and economic restructuring.[11]

Purpose of ADR in the context of Rule of Law

Within the context of rule of Law initiative, ADR programs can be:

  1. Support and complement court reform;
  2. By-pass ineffective and discredited court system and procedure;
  3. Increase popular satisfaction with dispute resolution;
    1. Increase access to justice for disadvantage groups;
    2. Reduce delay in the resolution of dispute;
      1. Reduce the cost of resolving dispute;

To this effect the decision of Indian Supreme Court quoted by Justice Mhamudul Amin would be unswerving, “Every citizen of this country has a right to receive speedy, inexpensive and unpolluted justice. He is waiting with expectation. Let us response positively. The menace of mounting arrears of court cases cannot be eradicated without the full and unstinted cooperation of the members of the Bar and presiding Judges. Human hope has its limits and waiting endlessly is not possible in the current life style. We the member of judicial fraternity, have therefore to meet the challenge. It can be done by bring passionately driven to serve the cause of justice.”[12]

 Classification of ADR

ADR usually encompasses some common modes of mechanisms negotiation; conciliation, mediation and arbitration. However, the variety of ADR models found in different countries may be described in the following ways:[13]

A Freestanding or court-annexed ADR

ADR may be either is freestanding or court annexed. In other words ADR may be tied to law suit or freestanding.

  1. i.      Court Annexed ADR

When the process of ADR is connected to the law suit or court case it is called court annexed ADR. After filing the court case a judge or court employee will examine the dispute and suggest or order, As a matter of course, the parties to attempt to resolve their differences through alternative dispute resolution in the forms of mediation, conciliation negotiation etc.

  1. ii.    Freestanding ADR

Freestanding ADR has no relationship with court cases. When disputants sit for amicable settlement by conciliation on their own, or approach a middle man or neutral third person to negotiate or mediate their dispute, this is freestanding ADR. Instances of freestanding ADR are (1) commercial arbitration (2) local or community based ADR.[14]

  1. B.  Binding or Non-binding ADR

It is important to distinguish between binding and non-binding forms of ADR. Negotiation, mediation and conciliation are non-binding and depend on the willingness of parties to reach a voluntary agreement. Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that disputant must follow even if they disagree with the result, much like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject. Again, there is another aspect of mandatory and voluntary character of ADR and this is with regard to how disputes enter ADR process. In other words, resorting to ADR system may either be mandatory or voluntary. If the parties are compelled to use ADR (by the Court or statute, for example) them the use is binding or mandatory.[15]

  1. C.  Formal and informal ADR

Compared to formal legal process i.e. the court cases, ADR process is less formal. It is often emphasized that ADR is informal process to dispute resolution compared to formal legal system. ADR process is formal in the sense that rules of procedure are flexible, without formal pleadings, extensive written documentation, or rules of evidence etc. Now these formal ADR modes are divided into two groups; Formal ADR groups and informal ADR groups.

When a particular ADR is court annexed, it tends to be more formal in the sense that its records and proceedings may be required to be presented before the court. On the other hand when a particular mode of ADR is freestanding, it tends to be informal in the sense that the parties and the mediator do not need to keep any record of their proceeding.[16]

D. Basic and Hybrid ADR process

The Varity of ADR models found in developed and developing countries may also be classified in two fundamental ways: Basic ADR processes, which include Negotiation, conciliation, mediation, and arbitration and HYBRID ADR processes, in which specific elements of the basic processes have been combined to create a wide variety of ADR methods. For examples, the mini-trial mixes an adjudication-like presentation of arguments and proofs with negotiation.’[17]

Modes of Alternative Dispute Resolution

Different modes of alternative processes are practicing in our country and worldwide.

 Negotiation

Negotiation is the most common form of dispute resolution. Negotiation is face to face discussion between the parties with a view to reaching an amicable settlement. It is the process by which the parties voluntarily seek a mutually acceptable agreement to resolve their common dispute. Compared with process involving third parties, generally negotiation allows the disputant themselves to control the process and the solution. In other word, negotiation system creates a structure to encourage and facilitate direct settlement between parties to a dispute, without the intervention of a third party. The disputing parties may be represented by attorneys in negotiation.

Negotiation is different from mediation in that there is no neutral third party or individual to assist the parties to negotiate. However sometime a third party involves a negotiation and when third parties is involved, he usually breaks the ice and bring the parties to the negotiation table and that withdraws from the negotiation process. This feature also makes it different from mediation and arbitration.[18]

Conciliation

Conciliation is a type of mediation whereby the disputing parties use a neutral third party (a conciliator) who meets with the parties separately in an attempt to resolve their differences. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties’ needs, takes feelings into account and reframes representations. In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator, instead a conciliator meets with the parties separately “caucusing”. Such form of conciliation (mediation) that relies on exclusively on caucusing is called “shuttle diplomacy”. Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award.Mediation and conciliation systems are very similar in that they interject a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Mediators and conciliators may simply facilitate communication, or may help direct and structure a settlement, but they do not have the authority to decide or rule on a settlement. Arbitration systems authorize a third party to decide how a dispute should be resolved.[19]

 Mediation

It is difficult to present a single board and comprehensive defecation of mediation process because of the extensive verity of different way in which the Mediation process can take place. Mediation is a voluntary and informal process in which the disputing parties select a neutral third party to assist them in reaching a mutually acceptable settlement. Unlike a judge or arbitrator, the mediator has no power to impose a solution on the disputant; instead, the mediator assists them in shaping solution to meet their interests.[20]

According to Section 89A of the Code of Civil Procedure, 1908. Except in a suit under Artha Rin Adalat Ain, 1990(Act of 4 of 1990), after filing of written statement , if all the contesting parties are in attendance in the court in person or by their respective pleaders, the court may, by adjourning the hearing mediate in order to settle the dispute or disputes in the suit, or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or to the party or disputes in the suit to the engaged pleaders of the parties, or to the party or parties, where no pleaders have been engaged, or to a mediator from the panel as me be prepared by the district judge under sub-section (10), for under taking efforts for settlement through mediation.’[21]

Arbitration

Arbitration is an adjudicatory dispute resolution process in which one or more arbitrators issues a judgment on the merits (which may be binding or non-binding) after an expedited, adversarial hearing, in which each party has the opportunity to present proofs and arguments. In other words, arbitration is a private process by which the parties to a dispute submit their differences to the judgment of an impartial person or group appointed by mutual consent or statutory provision.

Arbitration is procedurally less formal than court adjudication; procedural rules and substantive law may be set by the parties. Arbitration is different from mediation because the neutral arbitrator has the authority to make a decision about the dispute. The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. Compared to traditional trials, arbitration can usually be completed more quickly and is less formal. For example, often the parties do not have to follow state or federal rules of evidence and, in some cases; the arbitrator is hot required to apply the governing law. After the hearing, the arbitrator issues an award. Some awards simply announce the decision and others give reasons. The arbitration process may be either binding or non-binding. When arbitration is binding, the decision is final, can be enforced by a court, and can only be appealed on very narrow grounds. When arbitration is non-binding, the arbitrator’s award is advisory and can be final only if accepted by the parties.[22]

ADR in CPC

Taking into account of the success and achievement of the mediation in the Pilot Family Court project initiated in 2000-2001, the government the day was committed to bring necessary changes into the Code of Civil Procedure so that alternative dispute resolution mechanism may be introduced into the field of general civil litigation. The Code of Civil Procedure (Amendment) Act, 2003 (Act No. IV of 2003) was enacted on the 271h February, 2003 and given effect to from the 1st July, 2003. This Act substituted Part V of the Code with a new chapter titled “Alternative Dispute Resolution” with three new sections. The part is reproduced below:

 Special Proceeding of ADR

  1. 89A.   Mediation- Except in a suit under Artha Rin Adalat Ain, 1990(Act of 4 of 1990), after filing of written statement, if all the contesting parties are in attendance in the court in person or by their respective pleaders, the court may, by adjourning the hearing mediate in order to settle the dispute or disputes in the suit, or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or to the party or disputes in the suit to the engaged pleaders of the parties, or to the party or parties, where no pleaders have been engaged, or to a mediator from the panel as me be prepared by the district judge under sub-section (10), for under taking efforts for settlement through mediation.
  1. 89B.    Arbitration- (1) If the parties to a suit, at any stage of the proceeding, apply to the Court for withdrawal of the suit on ground that they will refer the dispute or disputes in the suit to arbitration for settlement, the Court shall allow the application and permit the suit to be withdrawn; and the dispute or disputes, thereafter, shall be settled in accordance with Salish Ain, 2001 (Act No. 1 of 2001) so far as may be applicable.’[23]

Mediation

Mediation is a process that employs a neutral/impartial person or persons to facilitate negotiation between the parties to a dispute in an effort to reach a mutually accepted resolution. Mediation is a process close in its premises to negotiation: “mediation is an assisted and facilitated negotiation carried out by a third party” (Goldberg at al., 1992). The mediators, who are hired, appointed, or volunteer to help in managing the process, should have no direct interest in the conflict and its outcome, and no power to render a decision. They have control over the process, but not over its outcome. Power is vested in the parties, who have control over the outcome: they are the architects of the solution.

The mediator’s role is multiple:

  • to help the parties think in new and innovative ways,
  • to avoid the pitfalls of adopting rigid positions instead of looking after their interests,
  • to smooth discussions when there is animosity between the parties that renders the discussions futile, and in general to steer the process away from negative outcomes and possible breakdown towards joint gains.

Mediation has become a very important and viable alternative to adjudication and arbitration in the legal system (labor disputes, family, business, and commercial disputes). In some countries and states we find laws of mandatory mediation, as a way to encourage the parties to the dispute to use the mediation process as a preferred way to resolve disputes.

Unlike the process of facilitation, where the third party merely hosts the parties and encourages them to continue negotiating in a neutral, welcoming environment, the mediator plays a more active role. The mediator not only facilitates but also designs the process, and assists and helps the parties to get to the root of their conflict, to understand their interests, and reach a resolution agreed by all concerned.

A mediator should study the substance of the dispute, and try to identify the issues in conflict, using tools such as re-framing, active listening, open-ended questions, and his/her analytical skills. Mediation is a voluntary process (except where there is a law of mandatory mediation in place). The parties agree to the process, the content is presented through the mediation, and the parties control the resolution of the dispute. Because the participation of the parties and the mediator is voluntary, the parties and/or the mediator have the freedom to leave the process at any time. The mediator may decide to stop the process for ethical or other reasons, and the parties may decide that they are not satisfied with the process. The agreement, which is reached between the parties, is voluntary; the parties own it and are responsible for implementing it. The agreement is validated and ratified by the courts.[24]

Positive Results of Mediation

The positive aspects of mediation are:

  • It helps to identify the true issues of the dispute.
  • It resolves some or all of the issues.
  • Agreement can be reached on all or part of the issues of the dispute.
  • The needs and interests of the parties are met (in part or in full).
  •  The parties reach an understanding of the true cause of the dispute.
  • The parties reach an understanding of each other’s needs and interests.
  • It provides the possibility of preserving the relationship.
  • An improved relationship may result.

The Role of Mediator

The mediator should consider the following to be part of her/his task:

  • Help to coordinate the meetings.
  • Introduce the parties.
  • Explain the process to the parties.
  • Set the agenda and rules.
  • Create a cease-fire between the parties.
  • Open communication channels.
  • Gain the confidence and trust of the parties.
  • Gather information and identify obstacles.
  • Allow the parties to express feelings and vent emotions.
  • Help the parties to identify and understand their interests and priorities.
  • Help the parties with brainstorming creative options and solutions.
  • Help in defining acceptable objective criteria.
  • Help the parties understand the limitations of their demands through what is known as “a reality test.”
  • Help in evaluating alternatives.
  • Allow the process to move forward according to the needs and pace of the parties.
  • Help in crafting the agreement.
  • Help in validating the agreement by the courts (if there is a court that has jurisdiction).

Stages of Mediation

Mediation commonly includes the following aspects or stages:[25]

  • A controversy, dispute or difference of positions between people, or a need for decision making or problem-solving;
  • decision-making remaining in the parties rather than being made by the neutral;
  •  The willingness of the parties to negotiate a positive solution to their problem and to accept a discussion about respective interests and objectives;
  • The intent to achieve a positive result through the facilitative help of an independent and neutral third person. The typical mediation has no formal compulsory elements, although some common elements are usually found:
  • Each party having a chance to tell his or her story;
  • Identification of issues, usually by the mediator;
  • The clarification and detailed specification of the respective interests and objectives,
  • The conversion of respective subjective evaluations into more objective values,
  • Identification of options;
  • Discussion and analysis of the possible effects of various solutions;
  • The adjustment and the refining of the accessory aspects,
  • Memorializing the agreements into a written draft Due to the particular character of this activity, each mediator uses a method of his or her own (a mediator’s methods are not ordinarily governed by law), that might eventually be very different from the above scheme. Also, many matters do not legally require a particular form for the final agreement, while others expressly require a precisely determined form.[26]

 Controversial Issues of Mediation

The field continues to struggle with many controversial issues, including:

  • The evaluative mediator versus the transformative mediator.
  • The issue of “private caucus”: should we have private caucus, or use only joint meetings with the parties?
  • Is there a need for a mediator with special expertise in specific subject matters (banking, land, water, building industry, computers, and so on)?
  • Should criminal cases and domestic violence be mediated? What mediation is all about and how it should be handled are topics of contention and disagreements in the mediation community.

Dwight Golann (1996) addresses the issue of the purpose of mediation, and proposes that the primary function of the mediator is to resolve disputes, not to empower and transform the parties. Golann is not against empowerment and transformation of the disputants, but feels that the parties who are in court, or are about to go that route, concern themselves with the need of settling the dispute, not with transformation. Professor L. Riskin (1996) looked at mediation from two systems on a continuum and created a grid, which illustrates the wide variety of problems, goals, techniques, and strategies that a mediator can employ in order to resolve a dispute.[27]

Chapter 3

ADVANTAGES AND DISADVANTAGES

 Advantages of ADR

Parties often seek to resolve their disputes through arbitration because of a number of perceived potential advantages over judicial proceedings which are given below:

  • When the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed (as one cannot “choose the judge” in litigation)
  • Arbitration is often faster than litigation in court arbitration can be cheaper and more flexible for businesses
  • Arbitral proceedings and an arbitral award are generally non-public, and can be made confidential
  • In arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied
  • Because of the provisions of the New York Convention 1958, arbitration awards are generally easier to enforce in other nations than court judgments
  • In most legal systems there are very limited avenues for appeal of an arbitral award, which is sometimes an advantage because it limits the duration of the dispute and any associated liability[28]

Disadvantages of ADR

Some of the disadvantages of ADR are given below:

  • Arbitration may become highly complex
  • Arbitration may be subject to pressures from powerful law firms representing the stronger and wealthier party
  • Arbitration agreements are sometimes contained in ancillary agreements, or in small print in other agreements, and consumers and employees often do 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
  • In some arbitration agreements, the parties are required to pay for the arbitrators, which adds an additional layer of legal cost that can be prohibitive, especially in small consumer disputes
  • in some arbitration agreements and systems, the recovery of attorneys’ fees is unavailable, making it difficult or impossible for consumers or employees to get legal representation however most arbitration codes and agreements provide for the same relief that could be granted in court
  • 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, arbitrary 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 unfavorable ruling[29]
  • Rule of applicable law is not necessarily binding on the arbitrators, although they cannot disregard the law
  • Discovery may be more limited in arbitration or entirely nonexistent
  • 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
  • Although grounds for attacking an arbitration award in court are limited, efforts to confirm the award can be fiercely fought thus necessitating huge legal expenses that negate the perceived economic incentive to arbitrate the dispute in the first place.[30]

 Effectiveness

Recent studies in the processes of negotiation have indicated the effectiveness of a technique that deserves mention here. A conciliator assists each of the parties to independently develop a list of all of their objectives (the outcomes which they desire to obtain from the conciliation). The conciliator then has each of the parties separately prioritize their own list from most to least important. He/She then goes back and forth between the parties and encourages them to “give” on the objectives one at a time, starting with the least important and working toward the most important for each party in turn. The parties rarely place the same priorities on all objectives, and usually have some objectives that are not listed by the other party.[31]

 Role of ADR for Removing Harassment

It has often been said in the class room lectures, seminars and other discussions that lawyers are social engineers. Engineers build buildings, roads and bridges, machinery, vehicles, airplanes and ships and, therefore, immensely contribute to the advancement of human civilisation. They have made our life easier by many inventions. What are the reasons that lawyers are seen at par with the engineers? Why are they called social engineers? Lawyers are not even social scientists, philanthropists, thinkers or mentors that the entire community should owe them for their societal development. In fact, lawyers represent their client in the court of law and plead in favour of them. In lieu, they take fees and enjoy honour and respect from the clients.

Some lawyers who have foreign degrees and/or professional trainings, like Barristers, Queen’s Councillors (in short QCs) and Doctorates (PhDs) charge higher fees from their clients. The profession itself is not a charity and had never been generous to poor, vagabond and insolvent. It is because of the fact that lawyers are not salaried by the government or any other bodies and they have possibly no other source of income within the profession. Clients are the sole source of income for a lawyer; no brief, no work and thus no work, no money. They have to maintain their family with the earnings from the profession. Like all other professions, it is a means of livelihood for them. So it is beyond one’s expectation that a lawyer would help a client with no fees.

Again lawyers’ fees is not the first and last cost involved in a suit; there are court fees, lawyer’s assistant fees, other incidental costs like expenses for collection of documents and materials, buying stamps and other papers etc. So the least expectation that a reasonable man can form is that a lawyer would take the incidental costs of the suit and no or only nominal fees from a poor client. Is this the cause that labels it as a noble profession like medical practice? The answer that swiftly comes in my mind is “no”.[32]

There are few notable differences between the two professions: We expect doctors or medical practitioners to be poor-friendly and not to be money seekers for every service they deliver to them. It is because, apart from few private and individual medical practitioners, almost all of them work for government or non-government hospitals, they are salaried and they have other source of income within the profession too. Moreover, their profession is closely connected with life and death, sufferings and happiness, illness and healthiness, pain and pleasure of human body and soul. The pleasure of saving a human life is much more than the pleasure of earning extra amount from a poor patient. But practically speaking, lawyers neither have the extent of enjoying such immense contentment nor enough scope to work for free. To me, lawyering is social engineering and a noble profession because, lawyers work for justice and peace, lawyers make equal the strong and the weak. Lawyers are the social engineers because they are entrusted with the duty to help the court in revealing the truth, upholding the justice and ensuring the equality. It is a noble profession because it does not leave a person merely because he is accused of theft, it stands beside him until he is finally proved in a free, fair and neutral court established by the law.

                 Society is not a body without feeling, it is an institution of human souls. It develops through many strains and stresses, it breaks and forms, it has ups and downs. Lawyers are the silent engineers in forming the contour of the society, in bringing positive change in it. They work for restoring the faith of the common people in justice and equality, democracy, rule of law and human rights. As an officer of the court, every lawyer must keep in mind the quintessence of upholding truth and revelation of real fact. The ethics and responsibility of the profession is to guide the court in right track, protect the client with the shield of law and vindicate for truth and justice only. That is why, lawyers not only represent the victims, the innocents and the vulnerable, they also stretch their hand to the criminals, the corrupts and other peace-breakers. By defending a habitual murderer or a notorious criminal in the court, a lawyer serves the society in two ways: Firstly, establishing everyone’s right to self defence and secondly, ensuring right to fair treatment from the court and law enforcing agency. The realisation of these two rights ensures the basic human rights, such as right to food, clothing, medicine, pleasure, leisure, freedom from cruel and inhumane punishment, maltreatment etc. for him who is entitled to enjoy those rights irrespective of his conviction or acquittal.[33]

We experienced that people lynched the muggers and hijackers in the street out of desperation. They were frustrated with the existing condition of the administration of justice system. The huge backlog of cases, procrastination in delivering justice, dishonesty of the police administration, influence of the political parties and leaders, existing bad images of the lawyers propelled them to take law in their hand and thereby to cause another extra-judicial killing. Wasn’t it an indication of less confidence in our administration of justice system?

Though few eminent lawyers are reported to dub such popularity as unhealthy, they did very little to stop the invisible conspiracy of tarnishing the image of the lawyers, judges and as a whole undermine the efficacy of our judiciary. The ‘conspiracy’ was not only from outside of the profession, it came from within too. The narrow partisanship, prioritising party interest to professional interest and integrity, exercising unfair means for availing favourable result in the court and not seeing the profession as a noble one but completely a business tool etc. are few of the practices of many of the lawyers that are destabilising the image of the profession.

There are other good numbers of reasons also that encumber the development of good relation between lawyers and clients, lawyers and lawyers, lawyers and judges. In Great Britain from where we inherited our legal system, lawyers don’t bargain with the clients for their fees, don’t personally attack their opponent friends, don’t humiliate the persons in dock. The one and only weapon to win a case is to master one’s skill and knowledge in legal technique. Therefore in Britain the profession is a symbol of politeness, generosity, courtesy as well as excellence of legal knowledge. Bangladesh stands far behind Great Britain and therefore no such comparison can usher us a possible solution to rid the existing drawbacks of our legal practice.[34]

However, this write-up is not an endeavour to spotlight the slips of the legal practice in Bangladesh; it is just a small effort to ask the lawyers for few definite acts to ensure access to justice of the poor, the marginalised and the have-nots. It is not the duty of the government or judiciary alone to work for ensuring access to justice for everybody, the task is very much due to the lawyers too. We must want infrastructural changes and pro-people reformation from the government, judicial activism from the Bench, but the ultimate result that we are looking for rests in the hand of the Bar. Because lawyers are directly associated with the poor litigants. They could assure them, sit beside them and make them known about the court proceedings. It is for sure that few lawyers, chambers and human rights organisations headed and administered by the lawyers are already engaged in the activities that realise the right to access to justice. Nevertheless this general call intends to echo that once again in their minds.[35]

Even after 35 years of our independence, there are thousands of poor and marginalised people, particularly women, children and elders who do not know their constitutional and statutory rights, who do not enjoy right to appear before a court, right to legal representation. There are thousands of under trial prisoners who are languishing in the jail without any legal help from the government and non-governmental side. There are religious, linguistic and racial minorities, economically downtrodden, who do not enjoy minimum protection of law. The concept of “equality before law”, “equal protection of law”, “equal opportunity of law” and “due process of law” appear very futile to further the cause of their social, cultural and economical as well as political safety and advancement. They hardly consider themselves safe, defended and protected by the laws of the land. In fact, they have not been enjoying the constitutional safeguards which are as sacred as the entity of the state itself. Under this setting, lawyers have the scope to come up for enhancing their access to justice leading to their empowerment and poverty reduction by doing the following:[36]

Social and Human Rights Advocacy: Lawyers can do social and human rights advocacy by ensuring the participation of the poor and the marginalised in making decisions that affect their life. They can advocate for pro-people changes in enactments, strict observation of the provisions of the enactments by the government officials and law enforcing agencies. They can make forum for asserting the rights of the poor and sketch out the possible measures for their realisation. An example of it can be given as follows: the workers of Ready Made Garment (RMG) sector have the right to safe working environment by both domestic and international laws. But the garments workers and the owners are not aware of it; factory inspectors are also not giving it priority. Lawyers can definitely address the issue with high importance as such it relates with the safety of the workers and their family.[37]

LegalAwarenessBuilding: The majority of our population is illiterate and ignorant about their right. They are even not aware about their civic duties. One of the popular maxims goes as: “ignorance of law is no excuse”. It means nobody can defend himself that he or she does not know about the law. Lawyers can choose a particular field, e.g. family law or fundamental rights guaranteed by the constitution, and therefore can make them aware about their rights, relief in case of their violation, steps to be taken for their enforcement etc. Legal awareness building can be an effective tool for unshackling the country from legal illiteracy.

                 Providing Legal Aid and Services: We have a Legal Aid Act passed in 2000 and it was amended with few changes in 2005. It provides for legal aid to the poor and the distressed who cannot afford lawyers’ fees and other incidental costs. The said Act establishes a Legal Aid Institution governed by a National Legal Aid Board and provides for District Legal Aid Committee, Upazilla Committee and Union Committee. Six years have passed but the Legal Aid Institution is yet to be institutionalised. Research has shown that a large number of lawyers are not aware about the Act and activities of the National and District Legal Aid Committees. Lawyers must equip themselves with this rapidly growing branch of jurisprudence. They can render legal help and support to the poor litigant without or with nominal cost. If not possible, at least they should channel them to the government legal aid fund or refer them to other human rights organisations which has offices in regions and/or districts and also close networking and coalition with local NGOs and other legal organisations.[38]

Chapter 4

ADR UNDER STATOTURY LAW

The different ways have been applying alternatively in our country to reduce pressure from the Court which is inserted in different statute laws. Most of them are described in below:

ADR under the Labour Court, 2006

The first legislation where the concept of ADR in the form of negotiation and conciliation has been effectively introduced and recognized by law is in the field of labour law, namely, Industrial Relations Ordinance, 1969 which is now replaced by the Labour Code, 2006. This Code being both social and legal legislation envisages two different approaches to dispute resolution:

(i)                 pure legalistic approach to individual employment dispute; and

(ii)          socio-legalistic approach to industrial dispute.[39]

 ADR under Muslim Family Law ordinance, 1961

Both the Muslim Family Laws Ordinance, 1961 and the Family Courts Ordinance, 1985 provide for avenues for reconciliation or alternative dispute resolution. The Muslim Family Laws Ordinance, 1961 provides mechanism for reconciliation through the Arbitration Council and this type of reconciliation is not a part of judicial ADR; it is administrative in nature which will be discussed later on in this chapter.

On the other hand, the Family Courts Ordinance, 1985 provides for mechanism for reconciliation through judges as a necessary part of judicial proceeding (court-annexed ADR).[40]

ADR under the Muslim Family Laws Ordinance, 1961. Under this law provision for reconciliation or alternative dispute resolution through arbitration council has been provided for in three circumstances:

(i)                 In case of polygamy under section 6;

(ii)               In case of giving talaq and making it effective under section 7; and

(iii)             In case of failure of the husband to provide maintenance of his wife under section 9.

Arbitration Council: Section 2(a) of the Muslim Family Laws Ordinance, 1961 defines that arbitration council means a body consisting of the Chairmanl and a representative of each of the parties to a matter dealt with this ordinance.[41]

 Judicial ADR in Family Court, 1985

As opposed to non-judicial mediation through Arbitration Council introduced by Muslim Family Law Ordinance, 1961, the Family Courts Ordinance, 1985 has built-in conciliation mechanism in the form of judicial or court-annexed mediation. Two types of mediation mechanism are envisaged in the Ordinance at the instance of sitting judge of the family court:

(i)                    Pre-trial Reconciliation proceeding under section 10; and

(ii)                  Post-trial Reconciliation proceeding under section 13.[42]

There has also been provision in section 11 of the Ordinance with regard to holding any part of the proceeding in camera, if needed. The purpose of these provisions is to provide a mechanism enabling disputant parties to resolve the outstanding issues informally, discreetly and with a sense of accommodation in which the Family Courts will play the role of a well-wisher and friends rather than an adjudicator However the last two decades’ experience since the enactment of this legislation suggests that the desired specialization in disposing of family matters and the practice of mediation or conciliation during family court proceedings are waiting and the atmosphere or tradition of it is virtually non­existent2. One commentator found that this compromise procedure of the Family Court is only extending the life of the suit and is an extra burden to the Family Courts where a large number of case are awaiting disposal.[43]

ADR under the Code of Civil Procedure, 1908

Taking into account of the success and achievement of the mediation in the Pilot Family Court project initiated in 2000-2001, the government the day was committed to bring necessary changes into the Code of Civil Procedure so that alternative dispute resolution mechanism may be introduced into the field of general civil litigation. The Code of Civil Procedure (Amendment) Act, 2003 (Act No. IV of 2003) was enacted on the 27`h February, 2003 and given effect to from the 1st July, 2003. This Act substituted Part V of the Code with a new chapter titled “Alternative Dispute Resolution” with three new sections he part is reproduced below:[44]

Special proceedings of ADR

89A. Mediation. Except in a suit under Artha Rin Adalat Ain, 1990(Act of 4 of 1990), after filing of written statement , if all the contesting parties are in attendance in the court in person or by their respective pleaders, the court may, by adjourning the hearing mediate in order to settle the dispute or disputes in the suit, or  refer the dispute or disputes in the suit to the engaged pleaders of the parties, or to the party or disputes in the suit to the engaged pleaders of the parties, or to the party or parties, where no pleaders have been engaged, or to a mediator from the panel as me be prepared by the district judge under sub-section (10), for under taking efforts for settlement through mediation.

89B. Arbitration. If the parties to a suit, at any stage of the proceeding, apply to the Court for withdrawal of the suit on ground that they will refer the dispute or disputes in the suit to arbitration for settlement, the Court shall allow the application and permit the suit to be withdrawn; and the dispute or disputes, thereafter, shall be settled in accordance with Salish Ain, 2001.”[45]

Section 89(A), The court of Civil Procedure about Mediation are says that, `Mediation’ shall means flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilities compromise of dispute in the suit between the parties without directing or dictating the term of such compromise.[46]

The village court act, 2006

Given the appalling conditions of pending cases in both the lower and higher judiciary and at the same time enormous pressure and workload in the formal justice system in Bangladesh revamping the informal or quasi-formal justice dispensation system at both rural and urban area has been one of the recent mottos of the government of Bangladesh. With that end in view the Ministry of Local Government Division (LGD), UNDP and the European Commission jointly have undertaken a programmed in 2009 titled ‘Activating Village Courts in Bangladesh’ to providing support to the justice system through this project in 500 selected Union Parish ads (UP) of the country. It also intends to develop capacity of the village court members, elected representatives and support staff. Motivation programmed will be carried out in order to sensitize all concerned, on the role and functions of village courts and their benefits on the overall justice system.[47]

However the last two decades’ experience since the enactment of this legislation suggests that the desired specialization in disposing of family matters and the practice of mediation or conciliation during family court proceedings are waiting and the atmosphere or tradition of it is virtually non­existent2. One commentator found that this compromise procedure of the Family Court is only extending the life of the suit and is an extra burden to the Family Courts where a large number of case are awaiting disposal.

 Section-22. Arbitration

(i)     Provided no order has been given for settling the dispute through Settlement Conference according to Section 21, after submission of written Statement by the defendant, keeping pending all subsequent proceeding subject to the provisions of Section 24, the Court may refer the case to the engaged lawyers or may send the dispute to the parties for settlement if no lawyers have been engaged.

Provided that, if the parties submit petition to the Court and agree that they are interested to settle the case through arbitration, it shall be compulsory for the Court to send the case for settling through arbitrating efforts.

(ii)        The case as referred according to sub-section (i), the lawyers engaged for conducting the case, on mutual consolation with the parties to the suit, may engage a lawyer on mutual consultation who is engaged by neither of the parties or may engage any retired Judge or a retired office of a bank or f financial institution or any other competent person as arbitrator in the interest of settling the dispute.

Provided that, person employed in any beneficial post of the Republic is barred to be appointed as arbitrator under this Section.

(iii)    The court shall not specify any procedure for settlement or fix any remuneration for the lawyers and when disposing any suit thorough arbitration, the lawyers, the parties and the arbitrator shall finalize the system of settlement and the fee of the arbitrator and the lawyers on the basis of mutual discussion.

(iv)      The date on which, the Court shall give order, such order for settling the matter through arbitration, the arbitration process shall have to be completed within 60 days passing order for settling the issue through arbitration process until the Court extend time for further 30 days on persuasion by the parties or its own initiatives showing cause there of:

Provided that under sub-section (i) the parties shall communicated Court in writing within 10 days of arbitration order whether they have been agreed to take step for settling the dispute through arbitration who has been engaged for settling dispute:

Provided further that, if the parties fail to communicate vie Court within 10 days of passing the order as per provision of sub-section- (i) said order shall be canceled and the hearing and subsequent process of the suit shall immediately be started in such manner as if no order was given for settling the matter through arbitration under the provision of sub-section (i).

(v)      The arbitrator shall submit a report to the Court on his arbitration activities without leaking out the secrecy of the parties.

(vi)      If the disputing issues of the suit have been settled through arbitration, the terms and conditions of the agreement so settled, shall have to be incorporated in the aforesaid report and the parties and the lawyers shall sign or put left of thump impression as may be applicable over the agreement as executors and the lawyers as witness.[48]

 Arthorin Adalat Ain, 2003 (Money Loan Court Act)

In Arthorin Adalat Ain disputes concerned with loan money is settled through two processes, one is Settlement conference and another is Arbitration. These alternative mechanisms are conducted by concern court, so these are also called judicial ADR as to the Joint Dist. Judge Md. Akhtaruzzaman. The Judge of Artho Rin Adalat presides over the Settlement Conference and conducted functions. If no settlement by Settlement Conference the court may refer the case for arbitration.

The Chief fustice Mostofa Kamal on the Artho Rin Adalat about ADR says that, “The realization is 10 times higher than the realization by execution cases over the last 10 years”[49]

Chapter 5

DEVELOPMENT OF ADR IN BANGLADESH

Introduction of ADR in Bangladesh

The third chapter of this book deals with the history of ADR process in different legislations in Bangladesh. Apart from introducing ADR mechanism in some special legislation, ADR mechanism has been introduced for the first time in 2003 by way of the Code of Civil Procedure (Amendment). Act, 2003 (Act No. IV of 2003 which was enacted on the 27th February 2003 and given effect to room the I” July 2003. This act created three new sections designed for ADR mechanism in all civil suits. This is where the attention of most of thief judges, layers, researchers academic people and the Government would be drawn because of the fat the working out with these provisions will have bearing impact on the reduction of highest number of pending civil case through the country. Every effort should be given both by the Supreme Court and the Government so that the new systems can justice to poor and easy and speedy justice delivery. More than half of total number of civil litigation in Bangladesh deals with land dispute. Serious thoughts must be given in this area, even by introducing a pilot project of ADR so that these suits may be resolved through ADR if we want to reduce the number of pending case and reap the benefit of ADR.”[50]

Challenges of ADR in Bangladesh

Six years have passed since ADR was introduced in the CPC back in 2003. However, no official statistics on the achievement of ADR is available either at the Ministry of Law or in the Supreme Court. Without substantive repots and statistics from the respective courts it is very difficult to predict how successful the new system of ADR has been and what needs to be from the statistics of pending cases that in last five years situation has not improved at all rather it has deteriorated as the number of pending cases keeps mounting.

Although ADR provisions have been incorporated in the CPC and some other special laws, some specific challenges for further developments need to be addressed immediately, first, overseeing the functioning of the system of ADR and its further development second, removing the shortcomings of the criminal cases in the form of plea bargain must be introduced with statuary intervention. Most of the countries including India have introduced provision for mediation and conciliation at a pre litigation stage and we should start the system as soon as possible this should be of proem importance in view of the fact that ADR process can be of great help to strengthen the legal framework, which in turn can certainly bring about changes so that people can get justice quicker.

The above aspects of challenges may be farther be discussed under the following heads: [51]

(a)      Cooperation of the Lawyers;

(b)      Correction of legal shortcoming;

(c)      Overseeing and developing ADR jurisprudence;

(d)     Introduction of plea bargaining;

(e)      Observance of Law day;

(f)       Activating Mobile Court, Village Court etc.

(a) Cooperation of the Lawyers

Lawyer community may be against the introduction of ADR because they feel it will eat into their share of the pie. One of the main causes of delay in disposal of cases lies in dilatory tactics played by lawyers by way of seeking repeated time petitions. In November 2004 at a workshop for district judges in Chennai on access to justice, each participant was asked to respond to two questions:

  1. Please recount an instance where the judge had been able to ensure effective access to justice. and
  2. Please identity principal barriers to justice.

For most judges the positive reply was in successfully encouraging parties to resolve a long-pending dispute through a mediated settlement outside the Court Among the principal barrier to justice they identified lawyers and surprisingly the laws themselves.

In view of others societies our legal profession must come up from the traditional bonds of fees and money. Public interest has to be its motto and service in the cause of justice its creed. Mahatma Gandhi was a barrister who practiced without compromising truth. Abraham Lincoln said, “Discourage litigation; persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and time.[52]

(b)       Correction of legal shortcoming

In chapter seven of this book some important defects and shortcomings along with some recommendations have been discussed with regard to ADR provisions incorporated by the Code of Civil Procedure (Amendment) Act, 2003. It seems that before incorporating the provisions of ADR in the CPC back in 2003, proper attention was not given to the existing provisions in laws in neighboring countries. The success of ADR is being blocked by these shortcomings and the Government should consider correcting these shortcomings as soon as possible.[53]

(c)       Overseeing and developing ADR jurisprudence

Like any other legal institution ADR should be nourished and developed in a positive manner. The success of ADR jurisprudence will depend on some factors like:

  1. Overseeing and evaluation of working of ADR mechanisms and taking initiatives to improve it further;
  2. Build up mediation infrastructure with professionalism and quality among mediators;
  3. Raising awareness about ADR among litigants and public. With regard to these both the Supreme Court and the Government should work together.[54]

(d)    Introduction of plea bargaining

The workload and appalling condition of pending cases is more vulnerable in criminal side compared to civil side of justice system. As of December, 2006 a total of 7,69,582 criminal cases are pending before lower courts (2,05,211 in Sessions Courts and 5,64,371 in Magistrates courts) against a limited number of 583 judges and magistrates (64 Sessions Judges 98 Additional Sessions Judges, 583 Magistrates of which all are not trial magistrates). To get rid of this problem it is urgently needed to introduce plea bargaining provisions in the CrPC.[55]

(e)  Observance of Law day

Like India and other developed countries a Law Day should be observed throughout the judiciary to strengthen the heritage of liberty, justice and equality under the law, in all courts and do self-introspection, highlight their achievement in ADR and other judicial reform activities and find solution for the shortcomings.[56]

 (f)    Activating Mobile Court, Village Court etc

For petty offences and cases Village Courts and Conciliation Board must be strengthened. Mobile Courts headed by judicial magistrates should also be set up which would not only educate the rural folk about their rights and responsibilities but will also provide swift justice and create a feeling of law and judiciary being very close to them.[57]

 History of the of ADR in Bangladesh:

The History of ADR in Bangladesh may be traced from two different viewpoints; Firstly History of informal and quasi-informal ADR; and Secondly, the history of court-connected ADR under statutory arrangements.

  1. a.         History of informal ADR

Dispute resolution outside of court i.e. informal dispute resolution system is as old as the society itself. Like any other society Bangladesh also has informal justice system and this is traditional Salish, a dispute resolution system in the village areas. Salish is a non-state justice system and a reform version of Salish is being administered as village court under statutory arrangements. There are strong views that neither Salish nor village courts which are based on traditional time honored dispute resolution process among village people should be thought of an alternative dispute resolution mechanism in Bangladesh. The concept of dispute resolution as developed in relation to scientific set of needs within various western legal systems. While many features of ADR are similar to those that characterize the village court and Salish, the do not by any means constitute an alternative for the vast majority of the rural population.ADR is very recent origin which exists in the society for time immemorial. What is apparent at present the initiatives of donor agencies is that although Salish itself is not an ADR, it is being used in a modified form as an ADR to formal justice dispensation in Bangladesh.[58]

  1. b.        History of formal ADR

The history of ADR in Bangladesh may again be traced from two points of view; First, incorporation of ADR in some legislation, and Secondly, incorporation of ADR in general adjudicatory law. Incorporation of provisions of ADR in special laws started back in 1969 with the industrial relations ordinance and then in arbitration act 1940, then in Muslim family laws ordinance 1969, then in family courts ordinance 1985. On the other hand, the history of ADR in general civil suits under the Code of civil procedure started just recently with the enactment of The Code of civil procedure amendment Act 2003.[59]

The Chief Justice K.M. Hasan described that, “The success of mediation in the Family Court is not the end. We look forward to the day when introduction of ADR mechanism in other Court, likes commercial Court will be achieved.[60]

Current ADR Movement in Bangladesh

The present law minister stated recently that new amendment of CPC is scheduled for introduction of mandatory ADR provision. He also stated that present provision being optional in nature it may not yield better result in resolving civil disputes. The fact is that the Government has not published any paper on this- What shortcomings are there in the present law? What is the outcome of seven years experience on ADR? What specific amendments will be brought into now and why? The stakeholders are in the dark.Seven years have passed since ADR was introduced in CPC back in 2003. However, no official statistics on the achievement of ADR is available either at the Ministry of Law or in the Supreme Court. Without substantive reports and statistics it is very difficult to predict how successful the new system of ADR has been and what needs to be done further to develop the system. One thing is very clear from the statistics of pending cases that in last seven years situation has not improved at all; rather it has deteriorated as the number of pending cases keeps mounting in a leap frog style. The newly adopted system of ADR has not been kept under review since its inception in 2003. The author visited the Ministry of Law and also the Law Commission with regard to this but both the organizations stated that they do not have any statistics on ADR performance in lower courts.[61]

Secondly, some working experience on ADR proceedings in different civil court suggests that there are some important shortcomings in the provisions in section 89A of the CPC which need to be remedied.

First, sub-section 89(1) states that after filing of written statement if all the contesting parties are in attendance in court in person or by their pleaders, the court may by adjourning hearing, mediate. What will happen if both the parties or their pleaders do not attend courts together? Reality is that neither parties nor their lawyers attend the court together; if the lawyer of the plaintiff attends, lawyer of the defendant does not attend and the courts have no other option but to give date one after another. This problem is complemented by another problem. Suppose lawyers of the both the sides appear and the court makes an order for appearing before a mediator for settlement or asks themselves to mediate and report the court, the parties or party does not attend mediation. What is the consequence? This makes the life of the suit lengthier only. The court has not been given any power to impose any penalty or measure as this is the stage even before first hearing. Thus the present provision adds up only delays in prolongation of suits. In this regard, provisions in Order X should be linked with section 89A to the effect that both the parties or their pleaders must appear before the court at first hearing which would be also considered for mediation hearing and if any of the parties fail to attend, the court may dismiss the suit or proceed exparte as the case may be. These provisions have also been incorporated in the Indian CPC. Without such mandatory measures it is unlikely that lawyers would follow provisions of mediation.

Second, very often lawyers of both the parties attend mediation meetings. The mediator suggests a compromise but one party does not want to compromise. In such a case the mediator has to give a report of disagreement. There is no measure to be taken against the party which unreasonably withdraws from compromise. In such a situation the court should be armed with power to impose fine to the unreasonable defaulting party and this can be done by making a link with rule 6 of Order XIV of the Code of Civil Procedure. Most developed and developing countries have adopted penal measures in this regard. In the UK a party which does not take its duty to consider ADR seriously is likely to be penalized when the court looks to the question of costs (CPR, r. 44.3(4)). Accordingly a winning party may find its recovery of costs reduced by reason of a failure to cooperate in relation to ADR (CPR, r. 3(6)(g).

Third, to make the provisions of ADR successful the cooperation of lawyers is a must and for this some incentives from the judiciary/state is also necessary. Lawyers willingly do not want to mediate because mediating soon after filing and submitting written statement means that their income will be limited to only two to three dates. To encourage lawyers to be proactive in mediation as well as to develop a culture and environment of ADR in the country, some mechanism needs to be introduced: (i) provision should be made regarding mediator-of-the year (one who has mediated the highest number of suits in a district in the preceding year); (ii) provisions should be made regarding advocate-of-the year (advocate engaged by either of the parties to the suit who has assisted the mediator in arriving at the settlement of highest number of the suit/case in the district); (iii) provisions should be made to provide monthly honorium to the Advocate-of-the year and Mediator-of-the year from the Government fund at the rate of Tk. 2000 per month for a period of next 12 months.

Fourth, sub-section 89A (11) of CPC provides that on settlement of a suit by mediation the court shall issue a certificate directing refund of court fees within 60 days. Although this provision has been made to encourage mediation by the parties, in fact this has been proved meaningless. No allocation is made in the budget of the Government for this purpose and the accounts offices of the Government refuses to refund. Thus to create a congenial atmosphere of ADR the Government should consider allocating budget for this purpose so that court fees may be returned effectively and without any hassle on mediation. At the same time, necessary provision for return of court fees must be inserted in the Court Fees Act, 1870 as has been done in India also.[62]

Fifth, 99% judgments in both lower courts and Supreme Courts come up with usual order- “there will be no order as to cost”. If no cost order is imposed it is unlikely that filing of false cases will be stopped. The worldwide recognized rule is that the losing party will bear the cost of winning party and that cost must commensurate with the cost of litigation, lawyers fees, court fees and other expenses on date basis. If this cost order jurisprudence can be streamlined and developed in Bangladesh, a big number of false cases could be thrown out automatically.

The movement of ADR seems to be on full swing in Bangladesh including under fiscal laws but the mechanism seems to have been introduced without effective nuts and bolts. If the present Law Ministry like his predecessor makes mandatory provision of ADR without proper study and keeping safeguards as in neighbouring countries, it is highly likely that the attempts will be fruitless. It is hoped that the Ministry will consider the views of all stake holders, experiences of India and then bring necessary amendments.[63]

Chapter 6

CONCLUSION

Bangladesh’s court system is unresponsive to the needs of the poor, and its traditional village dispute resolution institutions are biased against the interests of women. Based on a 1995 national customer needs survey, USAID-Bangladesh defined local participation and increased access to justice (especially for women) as a strategic objective, and improved ADR as an intermediate result (IR).

The case profiles a community mediation program developed to meet USAID’s ADR IR. The program is managed by the Maduripur Legal Aid Association (MLAA), a Bangladeshi NGO. The MLAA community mediation program uses a multi-tier structure of village mediation committees supported by MLAA field workers to deliver ADR services. Local mediators are selected, trained and supervised by MLAA field workers in consultation with local officials, religious, and social leaders. The local committees meet twice a month to mediate village disputes, free of charge. Most disputes involve property or marital problems. Agreements are voluntary and are not enforceable in court. The MLAA program currently mediates roughly 5000 disputes annually and resolves roughly two-thirds of them. Satisfaction with the program is high. Most users prefer the program both to the traditional village dispute resolution system and to the courts.[64]

In order to ensure access to justice of the poor, following must be done regarding the profession itself:

(i) The professional etiquette and responsibility of the lawyers must be upheld,

(ii) The overall qualities of the honourable members of the Bar must be developed.

Bangladesh Bar Council has taken many initiatives to train the lawyers. However, these have not been well responded and found ignored by many of them. It is praiseworthy that the conducting of Bar Vocational Course (BVC) is essentially included as a precondition of availing licence for legal practice.[65]

Similarly Bar Council can also play key role in providing legal aid, legal awareness building and conducting social and human rights advocacy:

(i) It can encourage Public Interest Litigation (PIL) on local issues from members of the local Bars.

(ii) It can require an advocate to provide free legal aid service in at least five cases in a year and conduct such number of awareness building meetings, advocacy as it thinks fit.

(iii) It can enhance its monitoring and evaluation programme and can coordinate and supervise those activities with the help of local or concerned Bar Association.

Like all other professionals, lawyers should also be accountable and their accountability should not be ensured by themselves. Lawyers are not only certified for representing the rich, the strong and the privileged in the court of law; their certification also require them to think about the poor and the marginalised. We must bear that lawyering for poor is lawyering for justice.[66]

ADR can quicken the speedy disposal of cases, many studies of developing country ADR systems offer evidence that the systems have been effective in processing cases quickly, at last relative to traditional Court systems. The Mediation boards in Sri Lanka resolve 61% of cases within 30 days and 94% within 90 days, compared with months or years required by the Court system. Court backlog Sri Lanka was reduced by nearly 50% during the Six years in which the Mediation Boa rds have operated there, although a direct empirical link has not been established. One judge in the Ukraine predicted that 90% of civil Court cases could be successfully mediated, eliminating the backlog on the civil Court dockets.

Finally, we can conclude that if we introduce ADR in our country we can lessen the case between of our Court and people we have more aware to justice administration system. Then the confidence of the people our law and justice would increase.

REFERENCES

BOOKS

  1. Md. Abdul Halim, ADR in Bangladesh : Issues and Challenges, 2nd ed. (CCB Foundation : Dhaka, 2011).
  2. Md. Akhtaruzzaman, Concept and laws on Alternative Dispute Resolution and Legal Aid, 4th ed. (Dhaka; Razia Khatun, 2011).
  3. Prof. Dr. Answar Ali Khan, An introduction to Alternative Dispute Resolution (ADR), 2nd ed. (Hira Publication, 2010).
  1. Kamal, Mustafa Justice ADR IN BANGLADESH. Dhaka.
  2. Ministry of Law and Justice, Government of the People’s Republic of Bangladesh. Code of Civil Procedure, 1908. Dhaka.
  3. Ministry of Law and Justice, Government of the People’s Republic of Bangladesh. Code of Criminal Procedure, 1898. Dhaka.

Web-Reference

  1. [htt://en.wikipedia.org/wiki/Alternative_dispute_resolution]
  2. [http://en.wikipedia.org/w/index.php?title=Special:Search&search=history+of+Alternative+dispute+resolution&redirs=1&profile=default]
  3. [http://www.google.com/usaid.gov/our_work/democracy_and_governance]
  4. [http://courts.state.de.us/Courts/Superior%20Court/ADR/ADR/adr_history.html]
  1. [http://www.adrgroup.co.uk/types.html]
  2. [http://www1.worldbank.org/publicsector/legal/adr.html]
  3.  [http://www.thedailystar.net/law/2012/08/02/index.html]

[1] [htt://e.wikipedia.org/wiki/Alternative_dispute_resoluton]

[2] Ibid.

[3] Ibid.

[4] [http://en.wikipedia.org/w/index.php?title=Special:Search&search=history+of+Alternative+ dispute+resolution&redirs= I &profile=default]

5Ibid.

[6]     Prof. Dr. Answar Ali Khan, An introduction to Alternative Dispute Resolution (ADR), 2nd ed. (Dhaka: Hira Publication, 2011), pp. 9-10.

[7]       Md. Akhtaruzzaman, Concept and laws on Alternative Dispute Resolution and Legal Aid, 4th  ed. (Dhaka; Razia Khatun, 2011), p. 31.

[8]       [http://courts.state.de.us/Courts/Superior%20Court/ADR/ADR/adr_history.htm]

[9]       [http://en.wikipedia.org/wiki/Alternative_dispute_resolution]

[10]     [http://en.wikipedia.org/wiki/Alternative_dispute_resolution]

[11]     Md. Abdul Halim, ADR in Bangladesh: Issues and Challenge, 2nd ed. (CC13 Foundation: Dhaka, 2011), p. 63.

[12]     Ibid., pp. 63-64.

[13]     Md. Abdul Halim, ADR in Bangladesh.- Issues and Challenges, 2nd ed. (CCB Foundation: Dhaka, 2011), p. 32.

[14]     Ibid., p. 32.

[15]     Ibid., p. 34.

[16]     Ibid., p, 34.

[17]     Ibid., p. 37.

[18]     Md. Abdul Halim, ADR in Bangladesh: Issues and Challenges, 2nd ed. (CCB Foundation: Dhaka, 2011), p. 38.

[19]     Ibid., p. 41.

[20]     Ibid., p. 39.

[21]     Ibid., p. 105.

[22]     Ibid., p. 42.

[23]     Ibid., p. 95.

[24] Ibid., p.95.

[25]     [http://www1.worldbank.org/publicsector/legal/adr.html

[26] Ibid.

[27] Ibid.

[28] [http://courts.stage.de.us/courts/Superior%20court/ADR/ADR/adr_history.html]

[29] Ibid.

[30] Ibid.

[31] Md. Akhtaruzzaman, Concept and laws on Alternative Dispute Resolution and Legal Aid, 4th ed. (Dhaka; Razia Khatun, 2011).p. 90.

[32] Ibid.,P.110.

[33] [http://www.adrgroup.co.uk/types.html]

[34] Ibid.

[35] Ibid.

[36] [http://www1.worldbank.org/publicsector/legal/adr.html]

[37] Ibid.

[38] Ibid.

[39]     Md. Abdul Halim, ADR in Bangladesh.- Issues and Challenges, 2nd ed. (CCB Foundation: Dhaka, 2011), p. 119.

[40]     Md. Abdul Halim, ADR in Bangladesh: Issues and Challenges, 2 nd ed. (CCB Foundation: Dhaka, 2011), p. 125.

[41]     Ibid.

[42]     Md. Abdul Halim, ADR in Bangladesh: Issues and Challenges, 2nd ed. (CCB Foundation: Dhaka, 2011), p. 137.

[43]     Ibid., p. 137.

[44]     Md. Abdul Halim, ADR in Bangladesh: Issues and Challenges, 2nd ed. (CCB Foundation: Dhaka, 2011), p. 95.

[45]     Ibid., p. 105.

[46]     Ibid., p. 95.

[47]     Md. Akhtaruzzaman. Concept and laws on Alternative Dispute Resolution and Legal Aid, 4th ed. (Dhaka; Razia Khatun, 2011), p. 108.

[48]    Ibid.,p.168.

[49]    Ibid., p. 168.

[50] Md. Abdul Halim, ADR in Bangladesh : Issues and Challenges, 2nd ed. (CCB Foundation : Dhaka, 2011), p. 88.

[51] Ibid.,pp. 89-90.

[52] Ibid.,p.90.

[53] Ibid.

[54] Ibid.,p.59.

[55] Ibid.

[56] Ibid.,p.94.

[57] Ibid.

[58] Ibid.,p.59.

[59] Ibid.

60. Md. Akhtaruzzaman, Concept and laws on Alternative Dispute Resolution and Legal Aid, 4th ed. (Dhaka; Razia Khatun, 2011).

[61] [http://www.thedailystar.net/law/2012/08/02/index.html]

[62] Ibid.

[63] Ibid.

[64] [http://www.thedailystar.net/law/2012/08/02/index.html]

[65] [http://www.google.com/usaid.gov/our_work/democracy_and_governance]

[66] Md. Akhtaruzzaman, Concept and laws on Alternative Dispute Resolution and Legal Aid, 4th ed. (Dhaka; Razia Khatun, 2011)

Dispute Resolution

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