The Vagaries of Civil Litigation
A. D. R. means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the issues of a case are seldom framed following the Code of Civil Procedure, the case takes several years to reach a settlement date and on the date of positive hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none. In the meantime years roll by, presiding judge of a single case is transferred a number of times, witnesses of a single case may be heard by more than one presiding judge, arguments are listened to may be by another presiding judge and judgment may be delivered by a presiding judge who had had no connection with the case ever before. Our legal system has thus been rendered uncaring, non-accountable and formalistic. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades. When they win a case the result is much worse than winning it. When they lose a case they lose not only the subject matter of the dispute, but also a good part of their fortune. If interlocutory matters are dragged up to the appellate or revision courts, their woos know no bounds and their agonies are prolonged for an indefinite period. Appeals from trial court decrees may reach unto the Appellate Division by which time the parties are thoroughly drenched in misery. When a decree is thus obtained after protracted litigation, it does not end there. Execution proceedings then re-starts a fresh litigation between the parties or even their successors which may take years or decades to come to a conclusion and which may end up with no real or positive benefit to the decree-holder plaintiff. This is the experience of a common litigant in Bangladesh. Added to this inherent and in-built delay and expenses, corruption and often terrorism at almost each stage of litigation is eating into the vitals of the justice delivery system.
Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness. Many conscientious judges and lawyers have done what they could under the circumstances, but their sincerity has been drowned into the general morass of malfunctioning of the court system.
Experience of Developed Countries
All countries, following the common law system, have faced this problem of delay and excessive expenses in the disposal of civil cases at some point or the other in their respective legal history, as also the problem of apathy of judges and lawyers. Developed countries like the U.S.A., Australia and Canada have witnessed a few decades back huge backlog of cases, excessive legal costs and expenses and litigants’ misery, as we are witnessing now in our country.
Lawyers and judges of developed countries did not look upon the Government to solve what was essentially a problem of administration of justice that concerned lawyers and judges themselves. In many areas of these countries, some thirty plus years back, public-spirited judges and lawyers put their heads together and devised a common strategy to solve the problem of huge backlog of cases, delay in the disposal of cases and excessive expenses in litigation.
Their Perception of Adversarial System
What they found was that the adversarial system prevalent in common law countries were no longer adequate to address the growingly complicated technical legal problems of modem-day litigation. The adversarial system creates two mutually contending, exclusive, hostile, competitive, confrontational and uncompromising parties to litigation. This system does not generate a climate of consensus, compromise and co-operation. As litigation progresses it generates conflict after conflict. At the end of litigation one party emerges as the victor and the other party is put to the position of the vanquished. Adversarial litigation does not end in a harmony. It creates more bitterness between the parties that manifests itself in more litigation between them or even their successors. However, judges and lawyers of developed countries found that the alternative is not to do away altogether with the adversarial system. The adversarial system plays a positive role too. It settles through adversarial hearing complicated and disputed questions of fact and law. The law that superior courts lay down to be followed by subordinate courts and tribunals can never be arrived at without following the adversarial procedure. Any court cannot lay down any law by way of compromise, consent or consensus of parties to litigation.
Their Adoption of Consensual System as an Alternative not Substitute
Beyond the territory of complicated questions of fact and law there lies a vast area of litigation where the adversarial system must yield to a consensual type of dispute resolution, even though there are complicated technical legal problems in this vast area as well. The consensual type is essentially a type and a process of dispute resolution that requires judges, lawyers and the litigant public to change their century’s old mind-set and to adjust gradually to play a combined and co-operative role in the resolution of disputes. In an adversarial system a judge has a passive role to play. He/she will take the evidence as it comes, hear the parties and deliver his/her judgment without getting involved in the entire dispute resolution process. In a consensual system the judge, the lawyers, litigants and outside mediator or evaluator are all active parties to the resolution of dispute. It is informal, confidential, speedy and less expensive. It preserves the jurisdiction of the trial court to try the case on merit, if A.D.R. fails.
Their Solution, but what is New about It
These and other jurisprudential thinking led the judicial and legal thinkers of U.S.A., Australia and Canada to devise two prominent alternative methods of dispute resolution: (1) mediation and (2) non-binding arbitration.
Question may arise, is it anything new? Certainly, it is not entirely new, at least to us. In this sub-continent of ours, mediation by village elders and arbitration by impartial individuals or group of individuals have continued since time immemorial. A recent UNDP report on Bangladesh gives a finding that village elders settle 60 to 70 per cent of petty disputes between villagers who dare not approach the formal legal system for fear of delay and expenses.
Then, what is new about the concept of alternative dispute resolution? Shortly stated, the newness of A.D.R. is the purpose behind its adoption. The purpose of alternative dispute resolution is not to substitute consensual disposal for adversarial disposal or to abolish or discourage informal mediation or arbitration outside the courts, but to make alternative dispute resolution a part and parcel of the formal legal system, preserving the trial court’s statutory authority and jurisdiction to try the case should A.D.R. fail. Mediation or arbitration conducted by village elders and some NGOs are praiseworthy efforts, but these efforts, by themselves, have not solved the civil court’s own specific problems, namely, backlog of cases, delay and expenses in litigation. Our formal court system has not been directly and permanently benefited by these extra-judicial exercises. If out of court mediation continues and an exclusively adversarial system also continues in our legal and judicial system, then the formal court system will unlikely help reduce backlog, as also unlikely ever to be as speedy and as least expensive as we would like it to be. It will be prudent, therefore, to inject some doses of consensual resolution into an otherwise exclusively adversarial system. If we make alternative dispute resolution an integral part of our legal and judicial system, litigants and potential litigants will not feel insecure to live in a legal climate where justice can be had from the formal legal system only through a process of inordinate delays and overburdening expenses. They will live in a climate of assurance that an alternative method of obtaining justice can be obtained from the formal legal and judicial system itself speedily and with less expense. This, I believe, is a legitimate expectation of the people of Bangladesh from any Court “established by law” under Article 114 of the Constitution. What is available to the benefit of a litigant from a paralegal informal system should legitimately be expected from a court “established by law”.
This is the justification of alternative dispute resolution.
Different Forms of A.D.R. and their Application
The most common type of A.D.R. is mediation. Although the word “conciliation” is also used in A.D.R. terminology, there is virtually no distinction between mediation and conciliation, because mediation includes conciliation. It is generally recognized that when parties come to a stage of litigation when the trial is imminent, alternative dispute resolution is too late a procedure to induce the parties to divert themselves to a different procedure, because by that time the parties had already spent a substantial amount of money, time and energy in the litigation. It is then too late to take an interest in a cost saving or timesaving procedure. Attitudes had also hardened mutually on both sides. It is desirable that after the defendant/s file their written statements, the presiding judge should read both the plaint and the written statements and call the parties and their lawyers, if any, to impress upon them the desirability of settling their disputes through mediation or non-binding arbitration. If the parties agree the case is adjourned for three months, within which they have to obtain either a settlement or a failure of it from either the mediator or the arbitrator. In the event of failure to settle, the court will proceed to try the case, according to a time-calendar for each case, and the adversarial system will resume.
Court-Directed Mediation Proceedings
Mediation is a completely voluntary and non-binding process of settlement of disputes between parties. It is an informal, flexible, confidential, non-adversarial and consensual procedure in which the Code of Civil Procedure or any law of evidence does not apply. The proceedings are immune from disclosure in any court of law. An impartial, disinterested and neutral person acts as a mediator. Mediation may be 1) Direct or 2) Facilitative. In Direct Mediation, the mediator applies all methods of squeezing into the heads of the parties his/her own idea of a settlement. In Facilitative Mediation the mediator facilitates settlement negotiations, improves communication between the parties, helps the parties to articulate their respective interests and stakes in the litigation and helps each party to understand the interests and stakes of their opponent in the litigation. He/she probes the relative strengths and weaknesses of each party’s legal position, identifies areas of agreement and helps to generate options amongst the parties themselves to arrive at a mutually acceptable resolution of their disputes. The lawyers of each party are entitled as of right to take part in the mediation proceedings, but the mediator in an informal and flexible proceeding of this kind, may like to sit alternately with the plaintiff/s or the defendant/s, with or without their lawyers. The parties may disclose many things to the mediator not articulated in the plaint or written statement/s, but the mediator must maintain the confidentiality of these disclosures and tell the other side so much of the disclosures as he/she has been expressly authorized to disclose. He/she must not lean on any side and both sides must have confidence and trust in his/her impartiality and neutrality unto the end, even if there is no settlement. If the decision makers of a dispute in respect of payment of legal fees to the parties or in respect of execution of the court’s decree are operating from behind using the plaintiff/s or the defendant/s as proxies, the mediator has the right to call and listen them too. At a trial the judge’s hands are more restrained. It may so happen that the mediator generates so much of a spirit of compromise between the parties that they even agree to withdraw other civil suits pending against each other in other civil courts or compromise compoundable criminal cases pending against each other in various criminal courts. The final settlement is thus not limited to the prayers in the plaint. In a formal trial, a judge cannot go beyond the prayers in the plaint if the suit is decreed. In court-sponsored mediation the terms of settlement may travel beyond the scope of pleadings. When signed by the parties, their lawyers and the mediator,. the presiding judge will pass a decree in terms of the settlement. If other civil and criminal cases are also compromised in the document of settlement, the parties will have to approach the other courts to pass a compromise decree or compound a compoundable criminal offence. If one party fails to do so, the other party may sue for specific performance of contract or may claim damages for breach of contract, because the written settlement operates as a binding contract between the parties. There is no appeal or revision against a settlement of this nature. Hence if all parties adhere to the terms of settlement several cases are finally disposed of and go out of the pending list. When a court directs mediation, it means facilitative mediation.
Benefits of Mediation
Please pause and ponder over the beneficial effects of _ successful mediation. There is no victor and no vanquished. No party is aggrieved by the outcome, because the settlement is voluntary and is reached after considering the pros and cons of several options generated by the mediator. Both sides are in a win-win situation. There is no bitterness left. There is often a restructuring of relationship. Parties who would not see each other’s face may re-establish a working relationship between them after conclusion of a successful mediation. Instead of discord, disharmony and bitter relationship at the end of an adversarial proceeding there is peace, accord and re-established relationship between the parties at the end of a consensual proceeding.
Mediators in Developed Countries
Judges do not conduct mediation or non-binding arbitration. They are meant for trial of a case. But they have the authority to refer any case, or part of a case for any of the A.D.R. mechanisms, preserving their jurisdiction to try the case if A.D.R. fails. When they do so refer, there is no appeal or revision against the order, because that kind of order is passed only when the parties agree with the judge that it should be so done. A.D.R. begins with an agreement, not with a discord. However, the legal climate that prevails in our country is surcharged with a highly adversarial bent of mind that has been fostered throughout centuries. It would be wise to leave the matter whether a case or part of a case should be referred to mediation or arbitration to the discretion of the trial judge, without leaving the matter entirely to the willing consent of both parties. The discretion will not be amenable to appeal or revision. When A.D.R. gains ground, as experience suggests, the consent of both parties would be forthcoming like an avalanche. The judge will hardly have any discretion in the matter.
I have said earlier that it is the combined efforts of lawyers and judges in developed countries for over three or four decades that A.D.R. has come to be accepted as a widely used handmaid of justice. It is the lawyers who convinced the litigant public that if all cases were to be disposed of by trial and trial only, then in all jurisdictions all over the world, backlogs would heap upon backlogs, choking the entire justice delivery system. Because of the pioneering role and involvement of lawyers from the very beginning, it is the lawyers who perform almost 90% of court-directed mediation, non-binding arbitration and early neutral evaluation (of which I shall speak later). Each court maintains a list of senior lawyers who earned their financial security, reputation and standing in the society by practicing in the Bar. They owe it to the Bar and the Bench to repay a part of their debt by giving a bit of their precious time, energy and intellect in the A.D.R. mechanism voluntarily and without payment of any charges or fees. Because a system of rotation is in place, each senior lawyer is required to mediate, arbitrate or make an early neutral evaluation once every three months or six months. A small office is set up at each Bar to maintain and update the list of senior lawyers as approved by the local court, to ascertain if in any court-sponsored mediation, non-binding arbitration or early neutral evaluation any senior lawyer has either been consulted or engaged by either the plaintiff/s or the defendant/s, to request and obtain their consent for their services if they have not been so consulted or engaged and to fix up the date, time and venue of arbitration, non-binding arbitration or early neutral evaluation. A small fee is charged from the plaintiff/s and the defendant/s equally (U.S.$75 each in San Francisco courts) to defray the costs of running this small office. Court-appointed professional mediators perform nearly 5% of this work for a fixed salary paid from the court’s budget. Private Mediation Firms, staffed by well-qualified ex-judges and ex-lawyers, approved by the local court, perform the rest for moderately high fees from both sides. Affluent parties with high stakes flock to the private firms.
Suggested Mediation in Bangladesh
Given the position that in Bangladesh no awareness or movement of senior lawyers of any significance has grown up yet, willing to take up the major load of A.D.R. upon them, it will not be wise, in my view, to start the program with sole dependence upon public-spirited lawyers. It will be prudent, at least at this stage, to keep in the statute a wide option of mediators and arbitrators to avoid the vagary of availability or non-availability of senior lawyers. Presiding judges of the disputes in question and other available judges of co-equal jurisdiction not in seisin of the disputes in question should be kept as options for the choice of mediator or arbitrator. Senior lawyers as per list maintained and constantly updated by the District Judge should be available for mediation and arbitration free of cost and charges. Private mediation firms, having experienced judges or retired judges and/or qualified non-practicing lawyers on their staff, recommended by the District Judge and approved by the Chief Justice of Bangladesh, may also be included for mediation or non-binding arbitration on payment of equal fees by the parties. Gradually, as the idea spreads and the A.D.R. procedure gains ground, judges may be eliminated from the list altogether. This may take some time, but nothing can be achieved without patience and perseverance. U.S.A., Australia and Canada have not achieved their present position without sustained efforts for three or four decades. 85 to 90 percent of cases filed are now disposed of by A.D.R. method and only 10 to 15 percent cases filed are disposed of by trial now in those countries. But Rome was not built in a day.
Training of Mediators and Arbitrators
1)A Matter of Continuous Importance
Mediation or arbitration does not come easily to anyone, whatever height he/she attains in legal knowledge and experience. Mediation especially involves the use of a facilitator trained in conflict resolution. The mediator must know the techniques of encouraging the parties to discuss their positions with greater candor and he/she must also know how to foster compromise. Mediation involves a thorough training for a few days. Training literature is available in the Internet and a few trainers in Bangladesh are available as well. The first implementation task will be to train up a large number of trainers in mediation, arbitration and early neutral evaluation. These trainers will then spread out throughout the nook and corner of the country to train up judges, lawyers and other interested persons in the art and science of mediation, arbitration and early neutral evaluation. Without such intensive training, it will be a folly to introduce A.D.R. wholesale in our lower courts. India tried to introduce A.D.R. in 1999 by an amendment to the Code of Civil Procedure, known as the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999). It ended in a fiasco. There was widespread resistance to it by lawyers that forced the Government of India to postpone its implementation. The lesson is that when you introduce any matter of legal reform or innovation, do not try to impose it from above. Do some intensive work at the grassroots level, build up a large following, try the reform on a trial and error basis by setting up pilot courts and then proceed with caution by examining its results. Learn from the pilot courts and the lawyers involved in mediation and other methods what practical problems they are encountering with, adjust and re-adjust your program accordingly, so that what finally emerges is not a foreign model, but an indigenous Bangladeshi model, suited to the legal culture, ethos and traditions of this country. The second implementation task will be to continue the training for all time to come for the new entrants to the Judicial Service through the Judicial Administration Training Institute (JATI). JATI will have to develop a curriculum especially for A.D.R. and also will have to keep and maintain one or more regular instructor on its pay roll to teach the mechanisms of A.D.R. to the trainee-judges. Outsiders interested to pursue a career of mediation and arbitration may also receive instructions and certificate from JATI, on payment of fees and charges, as and when JATI is ready enough to render this service.
2) Non-Binding Arbitration
In the A.D.R. vocabulary, arbitration is preceded by the word ‘non-binding’ because of two reasons. First, it is necessary to emphasize that it is not arbitration under the respective Arbitration Act of any country. Arbitration Act, 2001 of Bangladesh contains so much of a lengthy procedure and it is so much amenable to interference at various stages by the local court having jurisdiction over it and by both Divisions of the Supreme Court that the total purpose of A.D.R. will be frustrated if the Arbitration Act is made applicable to A.D.R. arbitration. The second reason is that in A.D.R. proceedings the jurisdiction of the trial court to try the case, if A.D.R. fails, is always preserved. A.D.R. is not a substituted method of dispute resolution following a separate statutory procedure, but an alternative, informal and confidential procedure to cut down delay and expenses. An arbitrator’s award under A.D.R. procedure is non-binding on both parties. The application of Arbitration Act will take away the trial court’s basic jurisdiction to try the case. This will then be a case of abandonment of judicial function in favor of an Arbitrator.
Non-binding arbitration is an adjudicative process in which an arbitrator or a panel of arbitrators issues a non-binding award on the merits of the disputes in question after an expeditious, time-bound and adversarial hearing. Lawyers of each party will face each other in these proceedings as in any other adversarial proceeding. The arbitrator has no role as a mediator. He/she has a passive role to play. He/she will hear the evidence and peruse the oral and documentary evidence, hear arguments of both sides and give his/her award according to his/her best judgment. Each party has the option to reject the award. If both parties accept the award both of them will sign the award or put their thumb impressions on it, as the case may be, and their respective lawyers, if any and the arbitrator/s will also sign the award before the trial court makes it a decree of the court. Parties have been given the option to reject the award because if the award has not been satisfactory to either or both of them, they have the right to fall back upon the trial court for a decision on merit. Like mediation this is also a confidential proceeding that is immune from disclosure in any court of law. Arbitrators are nominated in the same manner as mediators.