Early Neutral Evaluation (ENE)
“Early neutral evaluation is a technique used in American litigation to provide early focus to complex commercial litigation, and based on that focus, to provide a basis for sensible case management or offer resolution of the entire case, in the very early stages.”
A senior lawyer with expertise and experience in the subject matter of litigation and in case management conducts ENE, when called upon to do so by a trial court. He/she is called the evaluator or neutral Prior to a session lawyers of both sides provide to the evaluator a written brief summarizing the facts, the legal arguments and authorities in support of each party’s case as well as the documents considered by each side necessary for the evaluator’s understanding of each party’s case. The first session is attended by the evaluator, the lawyers of each party, and the principal decision-makers of each party. Suppose a case is instituted for or against a Bank or Insurance Company. Some officers of the Bank or Insurance Company may have been impleaded as defendants but the decision-making lies with the Managing Director or the Board of Directors. In that case the Managing Director or the Board of Directors will be asked by the Evaluator to be present at the first meeting. To achieve maximum effectiveness, it is essential that the actual decision-makers on behalf of each party, i.e., the people who will be ultimately responsible for the payment of legal fees and who have final authority for settlement, be present at the session to observe at firsthand the arguments and the evaluation. Further, to be effective, the session should be held in the first three to six months of the pendency of a case.
At the session, the lawyer of each party makes a concise, but thorough, oral presentation of the parties’ position, including the evidentiary support and the citation of legal authorities for that position. The presentations are followed by questions by the evaluator directed not only towards the parties’ lawyers, but also the actual decision makers of the parties. At the conclusion of the first session a break is taken and the evaluator retires to prepare an outline of what he/she believes to be the central issues in this case, and what, based on the presentations, he/she believes the likely outcome on each will be. The evaluator also estimates the likely cost in legal fees to each side if the matter is fully litigated. That evaluation is then shared with the parties either at a joint session, or more frequently, in private sessions (called caucuses). The reason why the private caucuses are more often used is that it somewhat allows more candor, more frankness and more practical realization of each party’s factual and legal strengths and weaknesses that frequently leads to a mediation offer to the evaluator who then shuttles between “caucus” to “caucus” to help parties come to a settlement based on the evaluation session. ‘The entire exercise may take a few days.
If settlement is not possible or the parties do not desire it, the evaluation session becomes the basis for a case management planning effort. ENE almost invariably results in a much better understanding by both parties of what the central and decisive issues in the case are. They can rationally plan a case development process making it less time-consuming and less expensive. The evaluator assists the parties in drawing up a written case management plan.
The proceedings are confidential and not admissible in the litigation itself. The evaluator’s evaluation is not transmitted to the trial judge in any fashion. Nearly one-third of the cases filed in the federal courts of U.S.A. are resolved during the ENA stage.
ENE Procedure in Bangladesh
In Bangladesh, I do not recommend the ENE procedure in all kinds of litigations. Money loan recovery cases under the Artha Rin Adalat Ain, applications before District Judges in house building loan recovery matters, special loan recovery applications preferred before the District Judges by the Bangladesh Shilpa Rin Shangstha and Bangladesh Shilpa Bank and cases under the Insolvency Act that are all governed separately by separate and special procedural rules may have an amendment in their respective special legislations containing an option to take recourse to this particular method of A.D.R. The Code of Civil Procedure may be amended so as to include only mediation and non-binding arbitration for application to civil suits generally. ENE and the next method, namely Settlement Conference, will only confuse the general legal practitioners, judges and the average litigants and may generate widespread resistance to these hitherto unknown multiple choices, if all the methods of A.D.R. are included as options in the amendment of the Code of Civil Procedure. The type of cases and applications mentioned above are regulated by special legislations. Special procedures govern these cases and applications. Only a limited number of lawyers deal with these specialized litigations. It will not be difficult for these specialized lawyers to come to terms with ENE and Settlement Conference. Also, in my opinion, mediation or non-binding arbitration will not be an effective method of early and less expensive consensual disposal of such types of cases and applications where policy decisions are involved often on the part of the government, autonomous, semi-autonomous or government-controlled bodies that are often either plaintiffs/applicants or defendants/respondents in such cases and applications.
Settlement Conference or Judicial Conference
Settlement Conference or Judicial Conference may be held at any time during the life of a civil case upon request of a party or recommendation of a trial judge. The judge who is assigned to adjudicate the dispute in question is not involved in this method of A.D.R. Another judge of co-equal jurisdiction is requested to involve him/herself in this method. The settlement judge acts as a mediator or facilitator at the Conference, promoting communication among the parties, holding one-on-one sessions with each side, offering an objective assessment of the case and suggesting settlement options. The settlement judge has not the power to enforce settlement and does not communicate any information about the case to the trial judge. If settlement is reached, the parties sign an agreement, thereby avoiding the cost of trial or other litigation. If no settlement is reached, the case proceeds to trial before the previously appointed trial judge.
The success of this process is attributable to two factors. First, the parties get the advantage of utilizing for free judicial experience in evaluating the settlement value of a civil claim and secondly, they have the opportunity to separate their private and confidential negotiations from public ad judicatory trials.
I do not recommend Settlement Conference or Judicial Conference for general use in cases tried under the Code of Civil Procedure. The users of this method will confuse it with “mediation”. It may be incorporated by way of amendment as an option in the special legislations covering the type of cases and applications mentioned under the heading “Early Neutral Evaluation” for the same reasons described therein.
Mediation under the Family Courts Ordinance-1985
When I retired as the Chief Justice of Bangladesh on the I SI January 2000 I was contacted by the American Center at Dhaka to meet Mr. Steve Mayo, an attorney from San Francisco. He told me that he represented a San Francisco based voluntary organization of judges and attorneys called Institute for the Study and Development of Legal Systems, shortly ISDLS, which was then operating in a dozen countries outside U.S.A. to help implement the A.D.R. in harmony with the legal systems prevalent in each country. If Bangladesh is interested, ISDLS can help. As a first step, he suggested, we should form a small Legal Study Group (LSG). I took no time in jumping to the idea and formed an LSG. The LSG comprised of myself, Mr. Justice K.M. Hasan (then the senior most Judge of the High Court Division, later a Judge of the Appellate Division), Professor Dr. Shah Alam (then a member of the Law Commission, now the Chairman of the Faculty of Law, University of Chittagong), Mr. Anwar-ul-Huq (then Joint Secretary, Ministry of Law, Justice and Parliamentary Affairs, later elevated as a Judge, High Court Division) and Barrister Shafiq Ahmed (then President of the Supreme Court Bar Association), with myself as the Chairman. At the invitation of ISDLS we all four visited San Francisco in February, 2000 and obtained a firsthand insight into the working of A.D.R. methods and techniques in all types of courts in that city and also in San Jose. A strong team of judges and attorneys of San Francisco visited Bangladesh in April 2000. The Ministry of Law arranged an assortment of Assistant Judges from all over Bangladesh to meet them and to talk to them. The then Chief Justice and the then Law Minister extended all help and the meeting was held in their presence and in the presence of other senior Judges of the Supreme Court at the Judges’ Lounge of the Supreme Court. The American Center provided all the logistics. The ISDLS team explained in great details the mechanism and working of A.D.R. and convinced the participants that Bangladesh should give it a try without shaking up the civil justice delivery system and without amending any law or involving any extra expenditure to the public exchequer. It was found that of all the nearly 2000 statutes prevalent in Bangladesh, it was only the Family Courts Ordinance, 1985 which gave the trial court judge the jurisdiction and authority to “conciliate” between the parties both before and after trial. This statute was therefore considered to be the ideal starting point of A.D.R. in Bangladesh, because it would not involve any change in legislation or any extra public expenditure. Some of the Assistant Judges informed that they had mediated between the parties successfully in many cases following their own individual methods, but others pointed out that they did not feel encouraged to try conciliation between the parties under this statute, because they were entitled to one credit for holding one trial and did not get any credit at all for effecting a compromise decree. Their labour for 3 or 4 days was thereby wasted.
Training and Commencement of First Pilot Courts
ISDLS and the Legal Study Group then took a joint decision to start two or three pilot family courts at Dhaka Judgeship from June 2000. A Project Implementation Committee was formed with Justice K.M. Hasan as Chairman. It was at his instance that the Chief Justice and the Minister of Law were persuaded to make an amendment to the performance measurement of Assistant Judges. They would be given two credits, i.e., credit of holding two trials for performing one successful mediation and one credit, i.e., credit of holding one trial for two unsuccessful mediations. I may mention here in passing that all Assistant Judges are ex-officio judges of Family Courts. The credit would be enjoyed by all of them, whether they would preside over a pilot court or not.
ISDLS then arranged an experienced Mediator of the Ninth Federal Circuit Court of the U.S.A, Mr. William C. Rack, to visit Dhaka and impart training on mediation, both theoretical and practical, to 30 Assistant Judges assembled from all over Bangladesh, some lawyers and NGOs. The American Center, Dhaka and the Ministry of Law provided all cooperation. During the training for 3 days some of the members of the Legal Study Group, including myself, watched from the beginning to the end, what the subject matter of the training was, how it was imparted, what impact it made and how effective the training program was. We selected three Assistant Judges to operate three pilot courts at Dhaka Judgeship. Accordingly 2 pilot courts started functioning from 1 June 2000 and the other from 1 January 2001 at Dhaka Judgeship. Cases had to be transferred to those courts exclusively for mediation, parties were to be notified and during these preparatory days, the pilot courts, without wasting time, conducted trials of cases till sufficient number of cases were ready for mediation with the consent of both parties. It need not be emphasized that nothing would have been possible without the active support of the Chief Justice, Minister of Law and the District Judge of Dhaka and without the outside help of ISDLS and the inside logistic assistance of the American Center.
Continuous Training and Expansion of Pilot Courts
After a gap of two or three months we three, myself, Mr. Justice Anwar-ul-Huq and Mr. A. K. Roy (then Deputy Secretary of the Ministry of Law and now Judge, Women and Children Repression Prevention Court, Sylhet) started touring the divisional headquarters, namely, Chittagong, Rajshahi, Khulna, Barisal and Sylhet imparting training both to Assistant Judges coming from each Division and to the local lawyers on mediation techniques for two or three days on each visit. We also spread out to district headquarters, namely, Comilla and Mymensingh, and imparted the same training to other batches of Assistant Judges and lawyers. Sometimes the training sessions were inaugurated by the Chief Justice of Bangladesh and sometimes by the Minister of Law. Mr. Justice K. M. Hasan made himself available on most of the occasions to apprise the audience of the progress of mediation in the family courts of Bangladesh. Mrs. Mary Ann Peters, Ambassador of the U.S.A to Bangladesh, made an invaluable speech at the opening of the training session at Comilla. After a year or so we started taking one of the Dhaka family pilot court judges to narrate their mediation experiences and achievements and to interact with the trainee participants. Everywhere the trainee participants volunteered immediate participation. Needless to say the Ministry of Law and the American Center were cooperative on each occasion and rendered all administrative and logistic assistance required.
After completion of a training session at a certain place, a Pilot Court was set up in that town or elsewhere within the jurisdiction of the judgeship where the training was held. The District Judges followed the matter through. Now there are 3 pilot courts at Dhaka, 2 at Chittagong and 1 each at Sylhet, Rajshahi, Khulna (not exclusive though), Bogra, Jessore, Rangpur, Kushtia, Comilla, Faridpur, Barisal and Mymensingh. Out of 65 districts, only 14 have pilot courts, but it is our information that not all districts need an exclusively mediation pilot court, because the number of family cases does not justify it. It is also our belief that many districts, where there is a genuine need for an exclusively mediation pilot court, can well be served initially by transferring to those districts some Assistant Judges who have already received training from us. It is however necessary to keep the training process ongoing so that all the districts of Bangladesh are covered by pilot courts. In due course, all districts will have at least one exclusively mediation court and they will no longer be called pilot courts.
Lawyers’ Resistance – An Unfounded Apprehension
I have talked to a number of lawyers of all ages all over the country. Contrary to what anti-lawyers believe, lawyers do not like their piled-up cases to rot in their sheresta (chamber) for years and decades together. They admire and desire a quick resolution of disputes and they dispute the proposition that the quicker a case goes out of their sheresta the lesser is their income. On the contrary, the earlier a case goes out of their sheresta by way of final disposal, the more it is replenished by new cases. The more the litigant public comes to know that the legal and judicial system delivers justice speedily and with less expense, the more the public knowledge inspires confidence in the system itself and the more the potential litigant who would not have come near the court premises would flock to the courts for results of a similar nature.
A year after the first family pilot court was started at Dhaka Judgeship I attended a joint meeting of the pilot court judges, lawyers of all courts including pilot family courts, with Mr. Justice Anwar-ul-Huq, the District Judge, Dhaka and the representatives of the American Center. Those lawyers who had engagements in courts besides the family court told me that they had lost their income from the family courts because of early disposal by mediation, but their other earnings from other courts amply made up the loss. By then a group of lawyers had grown up, both male and female, who had built up exclusive practice in family courts, leaving their position as juniors in some senior lawyers’ chamber. They told me that hapless women, having received speedy and inexpensive justice through mediation, had brought in other clients for them, similarly situated, and this way they themselves, not being so senior in the profession, had been obliged to engage fresh entrants to the profession to help cope up with new work.
One Senior Assistant Judge who is a family pilot court judge at Dhaka told me that after he received training from Mr. William C. Rack and listened to my words of encouragement, he was unconvinced and pessimistic. He thought those were loud sermons from a high pulpit unsuitable for this country. After his selection as a pilot judge he was further depressed. He thought he was being wasted by placement on a job that had no future and no safe stepping-stone to the next hierarchy. He knew about the adamant nature and uncompromising attitude of the litigants of Bangladesh. Now he keeps on telling me whenever we meet that his apprehensions did not come true. He is so successful with mediation that there is a beeline in his court for mediation after mediation. He derives immense job satisfaction from out of his successful mediations. Whatever be his future career he will go down in the legal history of Bangladesh as one of the pioneer A.D.R. judges. Other pilot judges have told me of their many and varied experiences of innovative mediation exercises, combination of direct and facilitative mediation, novel way of realizing settlement money by installments if not paid on due date etc. Their experiences made me wonder if I knew all about mediation.
The key to success of A.D.R. in Bangladesh lies in the manner of its introduction. A.D.R. is no longer an unheard of concept of dispute resolution among judges, litigants and lawyers of Bangladesh. The Family Courts all over Bangladesh are actively engaged in A.D.R. The pilot family courts are only exclusively engaged in mediation, but other Assistant Judges, who received training in mediation, are also mediating apart from trying cases. The mediation output of all the Assistant Judges, taken together, is something to be proud of. The Ministry of Law only needs to collect maintain and update all relevant statistics in this regard.
Before we extend the frontiers of A. D. R. to other types of litigation, I would suggest the following:
1. Amend the Code of Civil Procedure giving the trial court an enabling and discretionary power to refer a case or part of a case for only mediation or nonbinding arbitration at any stage of the suit. Although the proper stage to do so is after receiving the written statement, I would suggest ‘at any stage of the suit’ to cover backlogs. When the amendment comes into force, the judges will be trained to refer a case for mediation or non-binding arbitration after receiving the written statement in all suitable cases, but they will be further trained to refer pending cases for mediation or non-binding arbitration when both parties agree or according to the judge’s own discretion, the stage of the suit not being very important. It is necessary to define mediation and non-binding arbitration correctly and precisely in the amendment to avoid unnecessary dispute about their nature and character.
2. Make the presiding judge, a judge of co-equal jurisdiction, lawyers of the local court or a court of adjacent jurisdiction of more than 10 years’ standing, and Private Mediation Firms, adequately staffed by either experienced ex-judges of not less than 10 years’ standing or retired judges and/or non-practicing lawyers of not less than 15 years’ standing, recommended by the District Judge and approved by the Chief Justice of Bangladesh, as qualified for appointment as mediator or arbitrator. As a matter of practice the presiding judge may not assume that function, but the enabling provision should be there, because in many places a judge of co-equal jurisdiction or a lawyer of stated standing or a private legal firm might not be available. The District Judge will keep a constant eye on A.D.R., provide the Ministry of Law with regular up-ta-date information about disposal of cases by mediation by various pilot courts, amount realized each month by the pilot courts, pending mediations in the pilot courts, comparison in terms of disposal and realization of money with the rate of disposal and rate of realization of money prior to mediation, amount realized by execution of decree on a previous 5-year average prior to mediation etc. and oversee the progress of A.D.R. diligently and constantly.
3. Before introducing A.D.R. in any other field intensive training of concerned judges, lawyers and the court staff is a must. The training will be on a continuous basis and JATI should have an instructor on its pay roll to impart training on different methods of A.D.R. to different tiers of trainee-judges, including new entrants to the Judicial Service. A batch of trainers should be created to take up this arduous job in all the districts.
4. A. D. R. will have a-smooth transition if it is introduced on a pilot court basis. The performances, results, reactions among pilot court judges, practicing lawyers and the litigants should be carefully monitored and recorded and suitable adjustments in the A. D. R. project should be made at each stage of extension after an exhaustive study of the experiences gained.
5. Mediation or non-binding arbitration, in my opinion, may not be a suitable form of A.D.R. in big commercial cases involving heavy amounts, Artha Rin Adalat cases, applications before the District Judges in house building loan cases, Bangladesh Shilpa Rin Shangstha and Bangladesh Shilpa Rin cases and insolvency cases under the Insolvency Act. I have suggested Early Neutral Evaluation or Settlement Conference as the proper result-yielding method of A.D.R. in such cases. I would advise an amendment to the special legislations covering these types of cases enabling trial judges to refer a case or part of a case at any stage of the suit for application of ENE or Settlement Conference, although the ideal time to start this process is after receiving the written statement. I am in favor of adding ‘at any stage of the suit or application’ to cover the backlogs. Also ENE and Settlement Conference should be suitably defined to avoid any conflicting interpretation of these concepts.
6. The Government is the major litigant in this country, either as a plaintiff or as a defendant. Under P.D. No. 142 of 1972, the Government is a necessary party in all title suits, suits for specific performance of contract and so on. In most cases the Government does not make any appearance, because the Government do not find, at any rate for the time being, any interest of the Government involved in the case. Yet when the parties in dispute compromise the matter, even without mediation, the option remains for the Government to challenge the compromise at a belated stage, claiming an interest in the subject matter of litigation. The Government is thus responsible in many cases to prolong the litigation. To make the A.D.R. successful, P.D. No. 142 of 1972 should be amended providing that where in a case covered by p.a. No.142 of 1972, the Government do not enter appearance or after entering appearance do not file any written statement, or after filing a written statement do not contest the case, any resolution of the dispute through A.D.R. or otherwise by the other parties to the dispute would be binding on the Government.
7.Labor Courts and Small Causes Court are the two areas where mediation should be introduced immediately on a priority basis, amending the two special legislations.
The people of Bangladesh are hungry for justice. It is for us, the legal and judicial community, to respond to this public need in a well thought-out, disciplined and organized manner. Our success will depend upon the way we motivate and dedicate us. In the words of Robert A Goodin.
A national roundtable underscored the need for reactivating village court system that can help bring justice to the doorstep of the rural people. The dissemination of a baseline survey report on village courts under a project titled ‘Activating Village Courts in Bangladesh’ implemented by Local Government Division. The judicial system is currently over burdened with pending cases delaying justice. Village court can ease this burden; at the same time provide justice to the rural people free of cost. To benefit from its services it is urgent to remove the shortcomings and at the same time it is necessary to promote a village court that will play a neutral role.
Government’s plan to reactivate village court in rural Bangladesh on large scale was however differed by local government expert. “The structure and jurisdiction of village court under the current law is quite weak to provide judgment on many serious issues. Besides providing judicial power to the elected representatives of Union Parishad (UP) might create scopes to misuse of power”
Instead, suggests that the currently dormant village court can play an important role in arbitration among disputing parties outside formal court, however, not more than that with the current structure. The village court system first established in 1976 in Bangladesh to provide justice at the grassroots level has failed to achieve the objectives. The village court is being revitalized in 500 union parishads in 17 districts with the assistance of UNDP under the project.
“The government plans to ease the burden on judicial system to some extent by bringing the justice service at the grassroots level through village court, which will also be free of cost”, Chairmen of different union parishads said there are possibilities of politicisation of the village court system. Besides the UP chairman does not have any policing power to execute the judgment, which is a major shortcoming that needs attention, they said. “Considering the current political practice in Bangladesh there is a scope that the village court will be politicised. The members of the court can also be tempted to misuse the power bestowed upon them”
However, thinks strict monitoring can overcome this shortcoming. On the other hand pointed out some other weaknesses of the current structure, one of which is the fund shortage or lacking of infrastructure. “Village court does not have a separate budget or designated office. UP runs its operation with money collected as holding tax. Village court pulls out its expenses from that fund meant for other development purposes” also pointed out shortage of manpower to run such justice system.