Development of Alternative Dispute Resolution in BangladeshIntroduction

In June 2000, formalized ADR was introduced in Bangladesh bymeans of court- annexed judicial settlement pilot projects, in aneffort to decrease delays, expenses, and the frustrations oflitigants laboring through the traditional trial process.

The pilot program began in a collaborative effort with ISDLS in aseries of Bangladeshi legal studies of Californian ADR systems.Three Pilot Family Courts were established in the DhakaJudgeship, which exclusively used judicial settlement to resolvefamily cases including: divorce, restitution of conjugal rights,dower, maintenance and custody of children. An amendment to theCode of Civil Procedure was not necessary due to an existing 1985Family Courts Ordinance, which authorized the trial judge toattempt reconciliation between parties prior to and during trial.The pilot courts were staffed by 30 Assistant Judges selectedfrom all over Bangladesh, lawyers and non-lawyers, who were giventraining by a United States mediation expert (organized byISDLS). During this assignment, the Assistant Judges wererelieved 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 programwas expanded slowly to additional courts throughout the country.By the end of the first year of the program, the judicialsettlement procedure in family disputes had effectively beenintroduced in 16 pilot family courts in 14 districts ofBangladesh.

Due to the high settlement rates these courts were achieving, theLaw Minister convened a conference in 2002 in order to spreadawareness of the achievements of these programs. The conferencebrought together all District Judges, Presidents and Secretariesof all District Bar Associations, previous Chief Justices, the

current Chief Justice, Judges of both divisions of the SupremeCourt, and prominent lawyers from throughout the country.

In 2003, the Civil Code of Procedure was amended to introducemediation and arbitration as a viable means of dispute resolutionin non-family disputes. In addition to this amendment, the MoneyLoan Recovery Act stipulated the use of Judicial SettlementConferences for money loan recovery cases. A training program ledby former Chief Justice Mustafa Kamal took place at the JudicialAdministration Training Institute (JATI) in Dhaka for the fortyjudges that have exclusive jurisdiction over money loan recoverycases. Mediations began in non-family disputes in July 2003.[2]

Definition of ADR

Alternative dispute resolution (ADR) (also known as externaldispute resolution in some countries, such as Australia) includesdispute resolution processes and techniques that act as a meansfor disagreeing parties to come to an agreement short oflitigation. Despite historic resistance to ADR by many popularparties and their advocates, ADR has gained widespread acceptanceamong both the general public and the legal profession in recentyears. In fact, some courts now require some parties to resort toADR of some type, usually mediation, before permitting theparties’ cases to be tried (indeed the European MediationDirective (2008) expressly contemplates so-called “compulsory”mediation; attendance that is, not settlement at mediation). Therising popularity of ADR can be explained by the increasingcaseload of traditional courts, the perception that ADR imposesfewer costs than litigation, a preference for confidentiality,and the desire of some parties to have greater control over theselection of the individual or individuals who will decide theirdispute. Some of the senior judiciary in certain jurisdictions(of which England and Wales is one) are strongly in favor of theuse of mediation to settle disputes.

“Alternative dispute resolution” (ADR) is a term generally usedto refer to informal dispute resolution processes in which theparties meet with a professional third party who helps themresolve their dispute in a way that is less formal and often more

consensual than is done in the courts. While the most commonforms of ADR are mediation and arbitration, there are many otherforms: judicial settlement conferences, fact-finding, ombudsmen,special masters, etc. Though often voluntary, ADR is sometimesmandated by the courts, which require that disputants trymediation before they take their case to court.[3]

History of ADR

Although mediation goes back hundreds of years, alternativedispute resolution has grown rapidly in the United States sincethe political and civil conflicts of the 1960. The introductionof new laws protecting individual rights, as well as lesstolerance for discrimination and injustice, led more people tofile lawsuits in order to settle conflicts. For example, theCivil Rights Act of 1964 outlawed discrimination in employment orpublic accommodations on the basis of race, sex, or nationalorigin. Laws such as this gave people new grounds for seekingcompensation for ill treatment. At the same time, the women’smovement and the environmental movements were growing as well,leading to another host of court cases. The result of all thesechanges was a significant increase in the number of lawsuitsbeing filed in U.S. courts. Eventually the system becameoverloaded with cases, resulting in long delays and sometimesprocedural errors. Processes like mediation and arbitration soonbecame popular ways to deal with a variety of conflicts, becausethey 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 resolveconflicts. What is new is the extensive promotion andproliferation of ADR models, wider use of court-connected ADR,and the increasing use of ADR as a tool to realize goals broaderthan the settlement of specific disputes. The ADR movement in theUnited States was launched in the 1970, beginning as a socialmovement to resolve community-wide civil rights disputes throughmediation, and as a legal movement to address increased delay andexpense in litigation arising from an overcrowded court system.Ever since, the legal ADR movement in the United States has grownrapidly, and has evolved fruni experimentation to

in3titutionalization with the support of the American BarAssociation, academics, courts, the U.S. Congress and stategovernments.

For example, in response to the 1990 Civil Justice Reform Actrequiring all U.S. federal district courts to develop a plan toreduce cost and delay in civil litigation, most district courtshave authorized or established some form of ADR. Innovations inADR models, expansion of government-mandated, court-based ADR instate and federal systems and increased interest in ADR bydisputants has made the United States the richest source ofexperience in court connected ADR .

 History of Development of ADR

This sub-continent:

 (1)       In India the origin of ADR could be traced to theorigin of political institutions on the one hand and trade andcommerce on the other hand. It is observed from the historicaldocument, that ADR in the name of dispute resolution institutionsprevalent during the ancient period. It was reported thatresolution of disputes between members of a particular clan oracceptor or between members of a particular locality, by kolasassembly of the members of a clan, sirens guild of a particularoccupation and pug as (neighborhood assemblies). In rural Indiapanchayat (assembly of elders and respected inhabitants of avillage) decided almost all disputed between the inhabitants ofthe village, which disputes between the members of a clancontinued to be decided by the elders of the clan.[5]

       One of the main characteristic of the traditionalinstitutions is that they were recognized system ofadministration of justice and not merely “alternatives” to theformal justice system establish had by the sovereign the feudallords kais, the adalat system introduced by of the then rulinggroup and the existing court system. The two systems continued tooperate parallels to each other.

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

       (2)The formal system of administration of justiceintroduced during the British rule replaced the old system ofdispensing justice through feudal set-up. But the traditionalinstitutions continue to play their role of dispute resolutionthough not known by their old name. As because we still havedisputes between members of a clan.

       (3) After math, arbitration and conciliation as themethods of ADR, received statutory recognition in the code ofcivil procedure code, 1908 (section 89, arbitration and orderXXXII A rule 3, conciliation).

       (4) Having passed the Arbitration Act, 1940, arbitrationprovision was repeated from the CPC But it is pertinent to saythat the application of the provisions this Act was not satisfiedant the courts would not follow these provisions mandatory.

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

       (6) Having followed the above mentioned ordinance thefamily court ordinance was promulgated in 1985 and as a resultsome family courts have been established in different places ofBangladesh.[6]

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

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

 ADR World Wide

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

 ADR Movement in the USA

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

Beginning in the late nineteenth century, creative efforts todevelop the use of arbitration and mediation emerged in responseto the disruptive conflicts between labor and management. In1898, Congress followed initiatives that began a few yearsearlier in Massachusetts and New York and authorized mediationfor collective bargaining disputes. In the ensuing years, specialmediation agencies, such as the Board of Mediation and

Conciliation for railway labor, (1913) (renamed the NationalMediation Board in 1943), and the Federal Mediation andConciliation Service (1947) were formed and funded to carry outthe mediation of collective bargaining disputes. Additional statelabor mediation services followed. The 1913 New lands Act andlater legislation reflected the belief that stable industrialpeace could be achieved through the settlement of collectivebargaining disputes; settlement in turn could be advanced throughconciliation, mediation, and voluntary arbitration.

At about the same time, and for different reasons, varied formsof mediation for non-labor matters were introduced in the courts.When a group of lawyers and jurists spoke on the topic to anAmerican Bar Association meeting in 1923, they were able toassess 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 increasingnumber of members among arbitrators and mediators ofinternational backgrounds.

The Association was established with the aim of facilitatingarbitration, mediation and general forms of dispute resolutioninternationally. Today, the AIA has developed into anorganization dealing in the private international law field tomeet the needs of the fast-growing evolution of disputeresolution within the international community. AIA providesinformation, training and educational activities to expand thepromotion of arbitration and ADR globally by means of securingpartnerships with various organizations and parties to getinvolved in the life of the association. The associationconstantly works to develop partnerships in the internationalrealm and to provide the international community of arbitratorsand ADR professionals with continuous exposure to the latestinternational developments, activities and opportunities in thefield. AIA continually encourages the participation and

contribution of its members in the pursuit of the association’sgoals.[10]

Chapter 2

BASICS OF ADR

 Purposes of ADR

The ADR Practitioner Guide spells out how ADR can serve differentobjectives. It explains that ADR system may be designed to meet awide verity of deferent goals. Some of these goals are directlyrelated to improving the administration of justice and rule ofLaw. Some however are related to other development objectives,such as economics restructuring, or the management of tensionsand conflict in communities. Efficient dispute resolutionprocedure may be critical to economic development objective wherecourt delays or corruptions inhibit foreign investment andeconomic restructuring.[11]

Purpose of ADR in the context of Rule of Law

Within the context of rule of Law initiative, ADR programs canbe:

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 byJustice Mhamudul Amin would be unswerving, “Every citizen of thiscountry has a right to receive speedy, inexpensive and unpollutedjustice. He is waiting with expectation. Let us responsepositively. The menace of mounting arrears of court cases cannotbe eradicated without the full and unstinted cooperation of themembers of the Bar and presiding Judges. Human hope has its

limits and waiting endlessly is not possible in the current lifestyle. We the member of judicial fraternity, have therefore tomeet the challenge. It can be done by bring passionately drivento serve the cause of justice.”[12]

 Classification of ADR

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

A Freestanding or court-annexed ADR

ADR may be either is freestanding or court annexed. In otherwords 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 courtcase it is called court annexed ADR. After filing the court casea judge or court employee will examine the dispute and suggest ororder, As a matter of course, the parties to attempt to resolvetheir differences through alternative dispute resolution in theforms of mediation, conciliation negotiation etc.

1. ii.    Freestanding ADR

Freestanding ADR has no relationship with court cases. Whendisputants sit for amicable settlement by conciliation on theirown, or approach a middle man or neutral third person tonegotiate 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-bindingforms of ADR. Negotiation, mediation and conciliation are non-binding and depend on the willingness of parties to reach avoluntary agreement. Arbitration programs may be either binding

or non-binding. Binding arbitration produces a third partydecision that disputant must follow even if they disagree withthe result, much like a judicial decision. Non-bindingarbitration produces a third party decision that the parties mayreject. Again, there is another aspect of mandatory and voluntarycharacter of ADR and this is with regard to how disputes enterADR process. In other words, resorting to ADR system may eitherbe mandatory or voluntary. If the parties are compelled to useADR (by the Court or statute, for example) them the use isbinding or mandatory.[15]

1. C.  Formal and informal ADR

Compared to formal legal process i.e. the court cases, ADRprocess is less formal. It is often emphasized that ADR isinformal process to dispute resolution compared to formal legalsystem. ADR process is formal in the sense that rules ofprocedure are flexible, without formal pleadings, extensivewritten documentation, or rules of evidence etc. Now these formalADR modes are divided into two groups; Formal ADR groups andinformal ADR groups.

When a particular ADR is court annexed, it tends to be moreformal in the sense that its records and proceedings may berequired to be presented before the court. On the other hand whena particular mode of ADR is freestanding, it tends to be informalin the sense that the parties and the mediator do not need tokeep any record of their proceeding.[16]

D. Basic and Hybrid ADR process

The Varity of ADR models found in developed and developingcountries may also be classified in two fundamental ways: BasicADR processes, which include Negotiation, conciliation,mediation, and arbitration and HYBRID ADR processes, in whichspecific elements of the basic processes have been combined tocreate a wide variety of ADR methods. For examples, the mini-trial mixes an adjudication-like presentation of arguments andproofs with negotiation.'[17]

Modes of Alternative Dispute Resolution

Different modes of alternative processes are practicing in ourcountry and worldwide.

 Negotiation

Negotiation is the most common form of dispute resolution.Negotiation is face to face discussion between the parties with aview to reaching an amicable settlement. It is the process bywhich the parties voluntarily seek a mutually acceptableagreement to resolve their common dispute. Compared with processinvolving third parties, generally negotiation allows thedisputant themselves to control the process and the solution. Inother word, negotiation system creates a structure to encourageand facilitate direct settlement between parties to a dispute,without the intervention of a third party. The disputing partiesmay be represented by attorneys in negotiation.

Negotiation is different from mediation in that there is noneutral third party or individual to assist the parties tonegotiate. However sometime a third party involves a negotiationand when third parties is involved, he usually breaks the ice andbring the parties to the negotiation table and that withdrawsfrom the negotiation process. This feature also makes itdifferent from mediation and arbitration.[18]

Conciliation

Conciliation is a type of mediation whereby the disputing partiesuse a neutral third party (a conciliator) who meets with theparties separately in an attempt to resolve their differences.Conciliation differs from mediation in that the main goal is toconciliate, most of the time by seeking concessions. Inmediation, the mediator tries to guide the discussion in a waythat optimizes parties’ needs, takes feelings into account andreframes representations. In conciliation the parties seldom, ifever, actually face each other across the table in the presenceof the conciliator, instead a conciliator meets with the partiesseparately “caucusing”. Such form of conciliation (mediation)

that relies on exclusively on caucusing is called “shuttlediplomacy”. Conciliation differs from arbitration in that theconciliation process, in and of itself, has no legal standing,and the conciliator usually has no authority to seek evidence orcall witnesses, usually writes no decision, and makes noaward.Mediation and conciliation systems are very similar in thatthey interject a third party between the disputants, either tomediate 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 nothave the authority to decide or rule on a settlement. Arbitrationsystems authorize a third party to decide how a dispute should beresolved.[19]

 Mediation

It is difficult to present a single board and comprehensivedefecation of mediation process because of the extensive verityof different way in which the Mediation process can take place.Mediation is a voluntary and informal process in which thedisputing parties select a neutral third party to assist them inreaching a mutually acceptable settlement. Unlike a judge orarbitrator, the mediator has no power to impose a solution on thedisputant; instead, the mediator assists them in shaping solutionto 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 of1990), after filing of written statement , if all the contestingparties are in attendance in the court in person or by theirrespective pleaders, the court may, by adjourning the hearingmediate in order to settle the dispute or disputes in the suit,or refer the dispute or disputes in the suit to the engagedpleaders of the parties, or to the party or disputes in the suitto the engaged pleaders of the parties, or to the party orparties, where no pleaders have been engaged, or to a mediatorfrom the panel as me be prepared by the district judge under sub-section (10), for under taking efforts for settlement throughmediation.'[21]

Arbitration

Arbitration is an adjudicatory dispute resolution process inwhich 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 topresent proofs and arguments. In other words, arbitration is aprivate process by which the parties to a dispute submit theirdifferences to the judgment of an impartial person or groupappointed 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 neutralarbitrator has the authority to make a decision about thedispute. The arbitration process is similar to a trial in thatthe parties make opening statements and present evidence to thearbitrator. Compared to traditional trials, arbitration canusually be completed more quickly and is less formal. Forexample, often the parties do not have to follow state or federalrules of evidence and, in some cases; the arbitrator is hotrequired to apply the governing law. After the hearing, thearbitrator issues an award. Some awards simply announce thedecision and others give reasons. The arbitration process may beeither binding or non-binding. When arbitration is binding, thedecision is final, can be enforced by a court, and can only beappealed on very narrow grounds. When arbitration is non-binding,the arbitrator’s award is advisory and can be final only ifaccepted by the parties.[22]

ADR in CPC

Taking into account of the success and achievement of themediation in the Pilot Family Court project initiated in 2000-2001, the government the day was committed to bring necessarychanges into the Code of Civil Procedure so that alternativedispute resolution mechanism may be introduced into the field ofgeneral 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. Thepart is reproduced below:

 Special Proceeding of ADR

1. 89A.   Mediation- Except in a suit under Artha Rin AdalatAin, 1990(Act of 4 of 1990), after filing of writtenstatement, if all the contesting parties are in attendancein the court in person or by their respective pleaders, thecourt may, by adjourning the hearing mediate in order tosettle the dispute or disputes in the suit, or refer thedispute or disputes in the suit to the engaged pleaders ofthe parties, or to the party or disputes in the suit to theengaged pleaders of the parties, or to the party or parties,where no pleaders have been engaged, or to a mediator fromthe panel as me be prepared by the district judge under sub-section (10), for under taking efforts for settlementthrough mediation.

1. 89B.    Arbitration- (1) If the parties to a suit, at anystage of the proceeding, apply to the Court for withdrawalof the suit on ground that they will refer the dispute ordisputes in the suit to arbitration for settlement, theCourt shall allow the application and permit the suit to bewithdrawn; and the dispute or disputes, thereafter, shall besettled in accordance with Salish Ain, 2001 (Act No. 1 of2001) so far as may be applicable.'[23]

Mediation

Mediation is a process that employs a neutral/impartial person orpersons to facilitate negotiation between the parties to adispute 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 outby a third party” (Goldberg at al., 1992). The mediators, who arehired, 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 theparties, who have control over the outcome: they are thearchitects 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 oflooking after their interests,

to smooth discussions when there is animosity between theparties that renders the discussions futile, and in generalto steer the process away from negative outcomes andpossible breakdown towards joint gains.

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

Unlike the process of facilitation, where the third party merelyhosts the parties and encourages them to continue negotiating ina neutral, welcoming environment, the mediator plays a moreactive role. The mediator not only facilitates but also designsthe process, and assists and helps the parties to get to the rootof their conflict, to understand their interests, and reach aresolution agreed by all concerned.

A mediator should study the substance of the dispute, and try toidentify the issues in conflict, using tools such as re-framing,active listening, open-ended questions, and his/her analyticalskills. Mediation is a voluntary process (except where there is alaw of mandatory mediation in place). The parties agree to theprocess, the content is presented through the mediation, and theparties control the resolution of the dispute. Because theparticipation of the parties and the mediator is voluntary, theparties and/or the mediator have the freedom to leave the process

at any time. The mediator may decide to stop the process forethical or other reasons, and the parties may decide that theyare not satisfied with the process. The agreement, which isreached between the parties, is voluntary; the parties own it andare responsible for implementing it. The agreement is validatedand 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 thedispute.

The needs and interests of the parties are met (in part orin full).

  The parties reach an understanding of the true cause of thedispute.

The parties reach an understanding of each other’s needs andinterests.

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/histask:

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 interestsand priorities.

Help the parties with brainstorming creative options andsolutions.

Help in defining acceptable objective criteria.

Help the parties understand the limitations of their demandsthrough what is known as “a reality test.”

Help in evaluating alternatives.

Allow the process to move forward according to the needs andpace of the parties.

Help in crafting the agreement.

Help in validating the agreement by the courts (if there isa court that has jurisdiction).

Stages of Mediation

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

A controversy, dispute or difference of positions betweenpeople, or a need for decision making or problem-solving;

decision-making remaining in the parties rather than beingmade by the neutral;

  The willingness of the parties to negotiate a positivesolution to their problem and to accept a discussion aboutrespective interests and objectives;

The intent to achieve a positive result through thefacilitative help of an independent and neutral thirdperson. The typical mediation has no formal compulsoryelements, 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 amethod of his or her own (a mediator’s methods are notordinarily governed by law), that might eventually be verydifferent from the above scheme. Also, many matters do notlegally 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 privatecaucus, or use only joint meetings with the parties?

Is there a need for a mediator with special expertise inspecific subject matters (banking, land, water, buildingindustry, computers, and so on)?

Should criminal cases and domestic violence be mediated?What mediation is all about and how it should be handled aretopics of contention and disagreements in the mediationcommunity.

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

Chapter 3

ADVANTAGES AND DISADVANTAGES

 Advantages of ADR

Parties often seek to resolve their disputes through arbitrationbecause of a number of perceived potential advantages overjudicial proceedings which are given below:

When the subject matter of the dispute is highly technical,arbitrators with an appropriate degree of expertise can beappointed (as one cannot “choose the judge” in litigation)

Arbitration is often faster than litigation in courtarbitration can be cheaper and more flexible for businesses

Arbitral proceedings and an arbitral award are generallynon-public, and can be made confidential

In arbitral proceedings the language of arbitration may bechosen, whereas in judicial proceedings the officiallanguage of the country of the competent court will beautomatically applied

Because of the provisions of the New York Convention 1958,arbitration awards are generally easier to enforce in othernations than court judgments

In most legal systems there are very limited avenues forappeal of an arbitral award, which is sometimes an advantagebecause it limits the duration of the dispute and anyassociated 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, andconsumers and employees often do not know in advance thatthey have agreed to mandatory binding pre-disputearbitration by purchasing a product or taking a job

If the arbitration is mandatory and binding, the partieswaive their rights to access the courts and to have a judgeor jury decide the case

In some arbitration agreements, the parties are required topay for the arbitrators, which adds an additional layer oflegal cost that can be prohibitive, especially in smallconsumer disputes

in some arbitration agreements and systems, the recovery ofattorneys’ fees is unavailable, making it difficult orimpossible for consumers or employees to get legalrepresentation however most arbitration codes and agreementsprovide for the same relief that could be granted in court

If the arbitrator or the arbitration forum depends on thecorporation for repeat business, there may be an inherentincentive to rule against the consumer or employee there arevery limited avenues for appeal, which means that anerroneous decision cannot be easily overturned

Although usually thought to be speedier, when there aremultiple arbitrators on the panel, juggling their schedulesfor hearing dates in long cases can lead to delays

In some legal systems, arbitrary awards have fewerenforcement options than judgments; although in the UnitedStates arbitration awards are enforced in the same manner ascourt judgments and have the same effect

Arbitrators are generally unable to enforce interlocutorymeasures against a party, making it easier for a party totake steps to avoid enforcement of member or a small groupof members in arbitration due to increasing legal fees,without explaining to the members the adverse consequencesof an unfavorable ruling[29]

Rule of applicable law is not necessarily binding on thearbitrators, although they cannot disregard the law

Discovery may be more limited in arbitration or entirelynonexistent

The potential to generate billings by attorneys may be lessthan pursuing the dispute through trial

Unlike court judgments, arbitration awards themselves arenot directly enforceable. A party seeking to enforce anarbitration award must resort to judicial remedies, calledan action to “confirm” an award

Although grounds for attacking an arbitration award in courtare limited, efforts to confirm the award can be fiercelyfought thus necessitating huge legal expenses that negatethe perceived economic incentive to arbitrate the dispute inthe first place.[30]

 Effectiveness

Recent studies in the processes of negotiation have indicated theeffectiveness of a technique that deserves mention here. Aconciliator assists each of the parties to independently developa list of all of their objectives (the outcomes which they desireto obtain from the conciliation). The conciliator then has eachof the parties separately prioritize their own list from most toleast important. He/She then goes back and forth between theparties and encourages them to “give” on the objectives one at atime, starting with the least important and working toward themost important for each party in turn. The parties rarely place

the same priorities on all objectives, and usually have someobjectives 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 andother discussions that lawyers are social engineers. Engineersbuild buildings, roads and bridges, machinery, vehicles,airplanes and ships and, therefore, immensely contribute to theadvancement of human civilisation. They have made our life easierby many inventions. What are the reasons that lawyers are seen atpar with the engineers? Why are they called social engineers?Lawyers are not even social scientists, philanthropists, thinkersor mentors that the entire community should owe them for theirsocietal development. In fact, lawyers represent their client inthe court of law and plead in favour of them. In lieu, they takefees and enjoy honour and respect from the clients.

Some lawyers who have foreign degrees and/or professionaltrainings, like Barristers, Queen’s Councillors (in short QCs)and Doctorates (PhDs) charge higher fees from their clients. Theprofession itself is not a charity and had never been generous topoor, vagabond and insolvent. It is because of the fact thatlawyers are not salaried by the government or any other bodiesand they have possibly no other source of income within theprofession. Clients are the sole source of income for a lawyer;no brief, no work and thus no work, no money. They have tomaintain their family with the earnings from the profession. Likeall other professions, it is a means of livelihood for them. Soit is beyond one’s expectation that a lawyer would help a clientwith no fees.

Again lawyers’ fees is not the first and last cost involved in asuit; there are court fees, lawyer’s assistant fees, otherincidental costs like expenses for collection of documents andmaterials, buying stamps and other papers etc. So the leastexpectation that a reasonable man can form is that a lawyer wouldtake the incidental costs of the suit and no or only nominal feesfrom a poor client. Is this the cause that labels it as a noble

profession like medical practice? The answer that swiftly comesin my mind is “no”.[32]

There are few notable differences between the two professions: Weexpect doctors or medical practitioners to be poor-friendly andnot to be money seekers for every service they deliver to them.It is because, apart from few private and individual medicalpractitioners, almost all of them work for government or non-government hospitals, they are salaried and they have othersource of income within the profession too. Moreover, theirprofession is closely connected with life and death, sufferingsand happiness, illness and healthiness, pain and pleasure ofhuman body and soul. The pleasure of saving a human life is muchmore than the pleasure of earning extra amount from a poorpatient. But practically speaking, lawyers neither have theextent of enjoying such immense contentment nor enough scope towork for free. To me, lawyering is social engineering and a nobleprofession because, lawyers work for justice and peace, lawyersmake equal the strong and the weak. Lawyers are the socialengineers because they are entrusted with the duty to help thecourt in revealing the truth, upholding the justice and ensuringthe equality. It is a noble profession because it does not leavea person merely because he is accused of theft, it stands besidehim until he is finally proved in a free, fair and neutral courtestablished by the law.

                 Society is not a body without feeling, it is aninstitution of human souls. It develops through many strains andstresses, it breaks and forms, it has ups and downs. Lawyers arethe silent engineers in forming the contour of the society, inbringing positive change in it. They work for restoring the faithof the common people in justice and equality, democracy, rule oflaw and human rights. As an officer of the court, every lawyermust keep in mind the quintessence of upholding truth andrevelation of real fact. The ethics and responsibility of theprofession is to guide the court in right track, protect theclient with the shield of law and vindicate for truth and justiceonly. That is why, lawyers not only represent the victims, theinnocents and the vulnerable, they also stretch their hand to the

criminals, the corrupts and other peace-breakers. By defending ahabitual murderer or a notorious criminal in the court, a lawyerserves the society in two ways: Firstly, establishing everyone’sright to self defence and secondly, ensuring right to fairtreatment from the court and law enforcing agency. Therealisation 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. forhim who is entitled to enjoy those rights irrespective of hisconviction or acquittal.[33]

We experienced that people lynched the muggers and hijackers inthe street out of desperation. They were frustrated with theexisting condition of the administration of justice system. Thehuge backlog of cases, procrastination in delivering justice,dishonesty of the police administration, influence of thepolitical parties and leaders, existing bad images of the lawyerspropelled them to take law in their hand and thereby to causeanother extra-judicial killing. Wasn’t it an indication of lessconfidence in our administration of justice system?

Though few eminent lawyers are reported to dub such popularity asunhealthy, they did very little to stop the invisible conspiracyof tarnishing the image of the lawyers, judges and as a wholeundermine the efficacy of our judiciary. The ‘conspiracy’ was notonly from outside of the profession, it came from within too. Thenarrow partisanship, prioritising party interest to professionalinterest and integrity, exercising unfair means for availingfavourable result in the court and not seeing the profession as anoble one but completely a business tool etc. are few of thepractices of many of the lawyers that are destabilising the imageof the profession.

There are other good numbers of reasons also that encumber thedevelopment of good relation between lawyers and clients, lawyersand lawyers, lawyers and judges. In Great Britain from where weinherited our legal system, lawyers don’t bargain with theclients for their fees, don’t personally attack their opponentfriends, don’t humiliate the persons in dock. The one and onlyweapon to win a case is to master one’s skill and knowledge in

legal technique. Therefore in Britain the profession is a symbolof politeness, generosity, courtesy as well as excellence oflegal knowledge. Bangladesh stands far behind Great Britain andtherefore no such comparison can usher us a possible solution torid the existing drawbacks of our legal practice.[34]

However, this write-up is not an endeavour to spotlight the slipsof the legal practice in Bangladesh; it is just a small effort toask the lawyers for few definite acts to ensure access to justiceof the poor, the marginalised and the have-nots. It is not theduty of the government or judiciary alone to work for ensuringaccess to justice for everybody, the task is very much due to thelawyers too. We must want infrastructural changes and pro-peoplereformation from the government, judicial activism from theBench, but the ultimate result that we are looking for rests inthe hand of the Bar. Because lawyers are directly associated withthe poor litigants. They could assure them, sit beside them andmake them known about the court proceedings. It is for sure thatfew lawyers, chambers and human rights organisations headed andadministered by the lawyers are already engaged in the activitiesthat realise the right to access to justice. Nevertheless thisgeneral call intends to echo that once again in their minds.[35]

Even after 35 years of our independence, there are thousands ofpoor and marginalised people, particularly women, children andelders who do not know their constitutional and statutory rights,who do not enjoy right to appear before a court, right to legalrepresentation. There are thousands of under trial prisoners whoare languishing in the jail without any legal help from thegovernment and non-governmental side. There are religious,linguistic and racial minorities, economically downtrodden, whodo not enjoy minimum protection of law. The concept of “equalitybefore law”, “equal protection of law”, “equal opportunity oflaw” and “due process of law” appear very futile to further thecause of their social, cultural and economical as well aspolitical safety and advancement. They hardly consider themselvessafe, defended and protected by the laws of the land. In fact,they have not been enjoying the constitutional safeguards whichare as sacred as the entity of the state itself. Under this

setting, lawyers have the scope to come up for enhancing theiraccess to justice leading to their empowerment and povertyreduction by doing the following:[36]

Social and Human Rights Advocacy: Lawyers can do social and humanrights advocacy by ensuring the participation of the poor and themarginalised in making decisions that affect their life. They canadvocate for pro-people changes in enactments, strict observationof the provisions of the enactments by the government officialsand law enforcing agencies. They can make forum for asserting therights of the poor and sketch out the possible measures for theirrealisation. An example of it can be given as follows: theworkers of Ready Made Garment (RMG) sector have the right to safeworking environment by both domestic and international laws. Butthe garments workers and the owners are not aware of it; factoryinspectors are also not giving it priority. Lawyers candefinitely address the issue with high importance as such itrelates with the safety of the workers and their family.[37]

LegalAwarenessBuilding: The majority of our population isilliterate and ignorant about their right. They are even notaware about their civic duties. One of the popular maxims goesas: “ignorance of law is no excuse”. It means nobody can defendhimself that he or she does not know about the law. Lawyers canchoose a particular field, e.g. family law or fundamental rightsguaranteed by the constitution, and therefore can make them awareabout their rights, relief in case of their violation, steps tobe taken for their enforcement etc. Legal awareness building canbe an effective tool for unshackling the country from legalilliteracy.

                 Providing Legal Aid and Services: We have aLegal Aid Act passed in 2000 and it was amended with few changesin 2005. It provides for legal aid to the poor and the distressedwho cannot afford lawyers’ fees and other incidental costs. Thesaid Act establishes a Legal Aid Institution governed by aNational Legal Aid Board and provides for District Legal AidCommittee, Upazilla Committee and Union Committee. Six years havepassed but the Legal Aid Institution is yet to beinstitutionalised. Research has shown that a large number of

lawyers are not aware about the Act and activities of theNational and District Legal Aid Committees. Lawyers must equipthemselves with this rapidly growing branch of jurisprudence.They can render legal help and support to the poor litigantwithout or with nominal cost. If not possible, at least theyshould channel them to the government legal aid fund or referthem to other human rights organisations which has offices inregions and/or districts and also close networking and coalitionwith local NGOs and other legal organisations.[38]

Chapter 4

ADR UNDER STATOTURY LAW

The different ways have been applying alternatively in ourcountry to reduce pressure from the Court which is inserted indifferent 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 ofnegotiation and conciliation has been effectively introduced andrecognized by law is in the field of labour law, namely,Industrial Relations Ordinance, 1969 which is now replaced by theLabour Code, 2006. This Code being both social and legallegislation envisages two different approaches to disputeresolution:

(i)                 pure legalistic approach to individualemployment 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 CourtsOrdinance, 1985 provide for avenues for reconciliation oralternative dispute resolution. The Muslim Family Laws Ordinance,1961 provides mechanism for reconciliation through the

Arbitration Council and this type of reconciliation is not a partof judicial ADR; it is administrative in nature which will bediscussed later on in this chapter.

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

ADR under the Muslim Family Laws Ordinance, 1961. Under this lawprovision for reconciliation or alternative dispute resolutionthrough arbitration council has been provided for in threecircumstances:

(i)                 In case of polygamy under section 6;

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

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

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

 Judicial ADR in Family Court, 1985

As opposed to non-judicial mediation through Arbitration Councilintroduced by Muslim Family Law Ordinance, 1961, the FamilyCourts Ordinance, 1985 has built-in conciliation mechanism in theform of judicial or court-annexed mediation. Two types ofmediation mechanism are envisaged in the Ordinance at theinstance of sitting judge of the family court:

(i)                    Pre-trial Reconciliation proceeding undersection 10; and

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

There has also been provision in section 11 of the Ordinance withregard to holding any part of the proceeding in camera, ifneeded. The purpose of these provisions is to provide a mechanismenabling disputant parties to resolve the outstanding issuesinformally, discreetly and with a sense of accommodation in whichthe Family Courts will play the role of a well-wisher and friendsrather than an adjudicator However the last two decades’experience since the enactment of this legislation suggests thatthe desired specialization in disposing of family matters and thepractice of mediation or conciliation during family courtproceedings are waiting and the atmosphere or tradition of it isvirtually nonexistent2. One commentator found that thiscompromise procedure of the Family Court is only extending thelife of the suit and is an extra burden to the Family Courtswhere 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 themediation in the Pilot Family Court project initiated in 2000-2001, the government the day was committed to bring necessarychanges into the Code of Civil Procedure so that alternativedispute resolution mechanism may be introduced into the field ofgeneral 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 Actsubstituted Part V of the Code with a new chapter titled“Alternative Dispute Resolution” with three new sections he partis 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 , ifall the contesting parties are in attendance in the court inperson or by their respective pleaders, the court may, byadjourning the hearing mediate in order to settle the dispute ordisputes in the suit, or  refer the dispute or disputes in thesuit to the engaged pleaders of the parties, or to the party ordisputes in the suit to the engaged pleaders of the parties, or

to the party or parties, where no pleaders have been engaged, orto a mediator from the panel as me be prepared by the districtjudge under sub-section (10), for under taking efforts forsettlement through mediation.

89B. Arbitration. If the parties to a suit, at any stage of theproceeding, apply to the Court for withdrawal of the suit onground that they will refer the dispute or disputes in the suitto arbitration for settlement, the Court shall allow theapplication and permit the suit to be withdrawn; and the disputeor disputes, thereafter, shall be settled in accordance withSalish Ain, 2001.”[45]

Section 89(A), The court of Civil Procedure about Mediation aresays that, `Mediation’ shall means flexible, informal, non-binding, confidential, non-adversarial and consensual disputeresolution process in which the mediator shall facilitiescompromise of dispute in the suit between the parties withoutdirecting or dictating the term of such compromise.[46]

The village court act, 2006

Given the appalling conditions of pending cases in both the lowerand higher judiciary and at the same time enormous pressure andworkload in the formal justice system in Bangladesh revamping theinformal or quasi-formal justice dispensation system at bothrural and urban area has been one of the recent mottos of thegovernment of Bangladesh. With that end in view the Ministry ofLocal Government Division (LGD), UNDP and the European Commissionjointly have undertaken a programmed in 2009 titled ‘ActivatingVillage Courts in Bangladesh’ to providing support to the justicesystem through this project in 500 selected Union Parish ads (UP)of the country. It also intends to develop capacity of thevillage court members, elected representatives and support staff.Motivation programmed will be carried out in order to sensitizeall concerned, on the role and functions of village courts andtheir benefits on the overall justice system.[47]

However the last two decades’ experience since the enactment ofthis legislation suggests that the desired specialization in

disposing of family matters and the practice of mediation orconciliation during family court proceedings are waiting and theatmosphere or tradition of it is virtually nonexistent2. Onecommentator found that this compromise procedure of the FamilyCourt is only extending the life of the suit and is an extraburden to the Family Courts where a large number of case areawaiting disposal.

 Section-22. Arbitration

(i)     Provided no order has been given for settling the disputethrough Settlement Conference according to Section 21, aftersubmission of written Statement by the defendant, keeping pendingall subsequent proceeding subject to the provisions of Section24, the Court may refer the case to the engaged lawyers or maysend the dispute to the parties for settlement if no lawyers havebeen engaged.

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

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

Provided that, person employed in any beneficial post of theRepublic is barred to be appointed as arbitrator under thisSection.

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

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

Provided that under sub-section (i) the parties shallcommunicated Court in writing within 10 days of arbitration orderwhether they have been agreed to take step for settling thedispute through arbitration who has been engaged for settlingdispute:

Provided further that, if the parties fail to communicate vieCourt within 10 days of passing the order as per provision ofsub-section- (i) said order shall be canceled and the hearing andsubsequent process of the suit shall immediately be started insuch manner as if no order was given for settling the matterthrough arbitration under the provision of sub-section (i).

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

(vi)      If the disputing issues of the suit have been settledthrough arbitration, the terms and conditions of the agreement sosettled, shall have to be incorporated in the aforesaid reportand the parties and the lawyers shall sign or put left of thumpimpression as may be applicable over the agreement as executorsand the lawyers as witness.[48]

 Arthorin Adalat Ain, 2003 (Money Loan Court Act)

In Arthorin Adalat Ain disputes concerned with loan money issettled through two processes, one is Settlement conference andanother is Arbitration. These alternative mechanisms areconducted by concern court, so these are also called judicial ADRas to the Joint Dist. Judge Md. Akhtaruzzaman. The Judge of ArthoRin Adalat presides over the Settlement Conference and conducted

functions. If no settlement by Settlement Conference the courtmay refer the case for arbitration.

The Chief fustice Mostofa Kamal on the Artho Rin Adalat about ADRsays that, “The realization is 10 times higher than therealization 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 ADRprocess in different legislations in Bangladesh. Apart fromintroducing ADR mechanism in some special legislation, ADRmechanism has been introduced for the first time in 2003 by wayof the Code of Civil Procedure (Amendment). Act, 2003 (Act No. IVof 2003 which was enacted on the 27th February 2003 and giveneffect to room the I” July 2003. This act created three newsections designed for ADR mechanism in all civil suits. This iswhere the attention of most of thief judges, layers, researchersacademic people and the Government would be drawn because of thefat the working out with these provisions will have bearingimpact on the reduction of highest number of pending civil casethrough the country. Every effort should be given both by theSupreme Court and the Government so that the new systems canjustice to poor and easy and speedy justice delivery. More thanhalf of total number of civil litigation in Bangladesh deals withland dispute. Serious thoughts must be given in this area, evenby introducing a pilot project of ADR so that these suits may beresolved through ADR if we want to reduce the number of pendingcase and reap the benefit of ADR.”[50]

Challenges of ADR in Bangladesh

Six years have passed since ADR was introduced in the CPC back in2003. However, no official statistics on the achievement of ADRis available either at the Ministry of Law or in the SupremeCourt. Without substantive repots and statistics from the

respective courts it is very difficult to predict how successfulthe new system of ADR has been and what needs to be from thestatistics of pending cases that in last five years situation hasnot improved at all rather it has deteriorated as the number ofpending cases keeps mounting.

Although ADR provisions have been incorporated in the CPC andsome other special laws, some specific challenges for furtherdevelopments need to be addressed immediately, first, overseeingthe functioning of the system of ADR and its further developmentsecond, removing the shortcomings of the criminal cases in theform of plea bargain must be introduced with statuaryintervention. Most of the countries including India haveintroduced provision for mediation and conciliation at a prelitigation stage and we should start the system as soon aspossible this should be of proem importance in view of the factthat ADR process can be of great help to strengthen the legalframework, which in turn can certainly bring about changes sothat people can get justice quicker.

The above aspects of challenges may be farther be discussed underthe 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 becausethey feel it will eat into their share of the pie. One of themain causes of delay in disposal of cases lies in dilatorytactics played by lawyers by way of seeking repeated time

petitions. In November 2004 at a workshop for district judges inChennai on access to justice, each participant was asked torespond to two questions:

1. Please recount an instance where the judge had been able toensure effective access to justice. and

2. Please identity principal barriers to justice.

For most judges the positive reply was in successfullyencouraging parties to resolve a long-pending dispute through amediated settlement outside the Court Among the principal barrierto justice they identified lawyers and surprisingly the lawsthemselves.

In view of others societies our legal profession must come upfrom the traditional bonds of fees and money. Public interest hasto be its motto and service in the cause of justice its creed.Mahatma Gandhi was a barrister who practiced without compromisingtruth. Abraham Lincoln said, “Discourage litigation; persuadeyour neighbors to compromise whenever you can. Point out to themhow the nominal winner is often a real loser in fees, expensesand time.[52]

(b)       Correction of legal shortcoming

In chapter seven of this book some important defects andshortcomings along with some recommendations have been discussedwith regard to ADR provisions incorporated by the Code of CivilProcedure (Amendment) Act, 2003. It seems that beforeincorporating the provisions of ADR in the CPC back in 2003,proper attention was not given to the existing provisions in lawsin neighboring countries. The success of ADR is being blocked bythese shortcomings and the Government should consider correctingthese shortcomings as soon as possible.[53]

(c)       Overseeing and developing ADR jurisprudence

Like any other legal institution ADR should be nourished anddeveloped in a positive manner. The success of ADR jurisprudencewill depend on some factors like:

1. Overseeing and evaluation of working of ADR mechanisms andtaking initiatives to improve it further;

2. Build up mediation infrastructure with professionalism andquality among mediators;

3. Raising awareness about ADR among litigants and public. Withregard to these both the Supreme Court and the Governmentshould work together.[54]

(d)    Introduction of plea bargaining

The workload and appalling condition of pending cases is morevulnerable in criminal side compared to civil side of justicesystem. As of December, 2006 a total of 7,69,582 criminal casesare pending before lower courts (2,05,211 in Sessions Courts and5,64,371 in Magistrates courts) against a limited number of 583judges and magistrates (64 Sessions Judges 98 Additional SessionsJudges, 583 Magistrates of which all are not trial magistrates).To get rid of this problem it is urgently needed to introduceplea bargaining provisions in the CrPC.[55]

(e)  Observance of Law day

Like India and other developed countries a Law Day should beobserved throughout the judiciary to strengthen the heritage ofliberty, justice and equality under the law, in all courts and doself-introspection, highlight their achievement in ADR and otherjudicial reform activities and find solution for theshortcomings.[56]

 (f)    Activating Mobile Court, Village Court etc

For petty offences and cases Village Courts and ConciliationBoard must be strengthened. Mobile Courts headed by judicialmagistrates should also be set up which would not only educatethe rural folk about their rights and responsibilities but willalso provide swift justice and create a feeling of law andjudiciary being very close to them.[57]

 History of the of ADR in Bangladesh:

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

1. a.         History of informal ADR

Dispute resolution outside of court i.e. informal disputeresolution system is as old as the society itself. Like any othersociety Bangladesh also has informal justice system and this istraditional Salish, a dispute resolution system in the villageareas. Salish is a non-state justice system and a reform versionof Salish is being administered as village court under statutoryarrangements. There are strong views that neither Salish norvillage courts which are based on traditional time honoreddispute resolution process among village people should be thoughtof an alternative dispute resolution mechanism in Bangladesh. Theconcept of dispute resolution as developed in relation toscientific set of needs within various western legal systems.While many features of ADR are similar to those that characterizethe village court and Salish, the do not by any means constitutean alternative for the vast majority of the rural population.ADRis very recent origin which exists in the society for timeimmemorial. What is apparent at present the initiatives of donoragencies is that although Salish itself is not an ADR, it isbeing used in a modified form as an ADR to formal justicedispensation in Bangladesh.[58]

1. b.        History of formal ADR

The history of ADR in Bangladesh may again be traced from twopoints 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 backin 1969 with the industrial relations ordinance and then inarbitration act 1940, then in Muslim family laws ordinance 1969,then in family courts ordinance 1985. On the other hand, thehistory of ADR in general civil suits under the Code of civilprocedure started just recently with the enactment of The Code ofcivil procedure amendment Act 2003.[59]

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

Current ADR Movement in Bangladesh

The present law minister stated recently that new amendment ofCPC is scheduled for introduction of mandatory ADR provision. Healso stated that present provision being optional in nature itmay not yield better result in resolving civil disputes. The factis that the Government has not published any paper on this- Whatshortcomings are there in the present law? What is the outcome ofseven years experience on ADR? What specific amendments will bebrought into now and why? The stakeholders are in the dark.Sevenyears have passed since ADR was introduced in CPC back in 2003.However, no official statistics on the achievement of ADR isavailable either at the Ministry of Law or in the Supreme Court.Without substantive reports and statistics it is very difficultto predict how successful the new system of ADR has been and whatneeds to be done further to develop the system. One thing is veryclear from the statistics of pending cases that in last sevenyears situation has not improved at all; rather it hasdeteriorated as the number of pending cases keeps mounting in aleap frog style. The newly adopted system of ADR has not beenkept under review since its inception in 2003. The author visitedthe Ministry of Law and also the Law Commission with regard tothis but both the organizations stated that they do not have anystatistics on ADR performance in lower courts.[61]

Secondly, some working experience on ADR proceedings in differentcivil court suggests that there are some important shortcomingsin the provisions in section 89A of the CPC which need to beremedied.

First, sub-section 89(1) states that after filing of writtenstatement if all the contesting parties are in attendance incourt in person or by their pleaders, the court may by adjourninghearing, mediate. What will happen if both the parties or theirpleaders do not attend courts together? Reality is that neither

parties nor their lawyers attend the court together; if thelawyer of the plaintiff attends, lawyer of the defendant does notattend and the courts have no other option but to give date oneafter another. This problem is complemented by another problem.Suppose lawyers of the both the sides appear and the court makesan order for appearing before a mediator for settlement or asksthemselves to mediate and report the court, the parties or partydoes not attend mediation. What is the consequence? This makesthe life of the suit lengthier only. The court has not been givenany power to impose any penalty or measure as this is the stageeven before first hearing. Thus the present provision adds uponly delays in prolongation of suits. In this regard, provisionsin Order X should be linked with section 89A to the effect thatboth the parties or their pleaders must appear before the courtat first hearing which would be also considered for mediationhearing and if any of the parties fail to attend, the court maydismiss the suit or proceed exparte as the case may be. Theseprovisions have also been incorporated in the Indian CPC. Withoutsuch mandatory measures it is unlikely that lawyers would followprovisions of mediation.

Second, very often lawyers of both the parties attend mediationmeetings. The mediator suggests a compromise but one party doesnot want to compromise. In such a case the mediator has to give areport of disagreement. There is no measure to be taken againstthe party which unreasonably withdraws from compromise. In such asituation the court should be armed with power to impose fine tothe unreasonable defaulting party and this can be done by makinga link with rule 6 of Order XIV of the Code of Civil Procedure.Most developed and developing countries have adopted penalmeasures in this regard. In the UK a party which does not takeits duty to consider ADR seriously is likely to be penalized whenthe court looks to the question of costs (CPR, r. 44.3(4)).Accordingly a winning party may find its recovery of costsreduced 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 cooperationof lawyers is a must and for this some incentives from the

judiciary/state is also necessary. Lawyers willingly do not wantto mediate because mediating soon after filing and submittingwritten statement means that their income will be limited to onlytwo to three dates. To encourage lawyers to be proactive inmediation as well as to develop a culture and environment of ADRin the country, some mechanism needs to be introduced: (i)provision should be made regarding mediator-of-the year (one whohas mediated the highest number of suits in a district in thepreceding year); (ii) provisions should be made regardingadvocate-of-the year (advocate engaged by either of the partiesto the suit who has assisted the mediator in arriving at thesettlement of highest number of the suit/case in the district);(iii) provisions should be made to provide monthly honorium tothe Advocate-of-the year and Mediator-of-the year from theGovernment fund at the rate of Tk. 2000 per month for a period ofnext 12 months.

Fourth, sub-section 89A (11) of CPC provides that on settlementof a suit by mediation the court shall issue a certificatedirecting refund of court fees within 60 days. Although thisprovision has been made to encourage mediation by the parties, infact this has been proved meaningless. No allocation is made inthe budget of the Government for this purpose and the accountsoffices of the Government refuses to refund. Thus to create acongenial atmosphere of ADR the Government should considerallocating budget for this purpose so that court fees may bereturned effectively and without any hassle on mediation. At thesame time, necessary provision for return of court fees must beinserted in the Court Fees Act, 1870 as has been done in Indiaalso.[62]

Fifth, 99% judgments in both lower courts and Supreme Courts comeup with usual order- “there will be no order as to cost”. If nocost order is imposed it is unlikely that filing of false caseswill be stopped. The worldwide recognized rule is that the losingparty will bear the cost of winning party and that cost mustcommensurate with the cost of litigation, lawyers fees, courtfees and other expenses on date basis. If this cost order

jurisprudence can be streamlined and developed in Bangladesh, abig number of false cases could be thrown out automatically.

The movement of ADR seems to be on full swing in Bangladeshincluding under fiscal laws but the mechanism seems to have beenintroduced without effective nuts and bolts. If the present LawMinistry like his predecessor makes mandatory provision of ADRwithout proper study and keeping safeguards as in neighbouringcountries, it is highly likely that the attempts will befruitless. It is hoped that the Ministry will consider the viewsof all stake holders, experiences of India and then bringnecessary amendments.[63]

Chapter 6

CONCLUSION

Bangladesh’s court system is unresponsive to the needs of thepoor, and its traditional village dispute resolution institutionsare biased against the interests of women. Based on a 1995national customer needs survey, USAID-Bangladesh defined localparticipation and increased access to justice (especially forwomen) as a strategic objective, and improved ADR as anintermediate result (IR).

The case profiles a community mediation program developed to meetUSAID’s ADR IR. The program is managed by the Maduripur Legal AidAssociation (MLAA), a Bangladeshi NGO. The MLAA communitymediation program uses a multi-tier structure of villagemediation committees supported by MLAA field workers to deliverADR services. Local mediators are selected, trained andsupervised by MLAA field workers in consultation with localofficials, religious, and social leaders. The local committeesmeet twice a month to mediate village disputes, free of charge.Most disputes involve property or marital problems. Agreementsare voluntary and are not enforceable in court. The MLAA programcurrently mediates roughly 5000 disputes annually and resolvesroughly two-thirds of them. Satisfaction with the program ishigh. Most users prefer the program both to the traditionalvillage dispute resolution system and to the courts.[64]

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

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

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

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

Similarly Bar Council can also play key role in providing legalaid, legal awareness building and conducting social and humanrights advocacy:

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

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

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

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

ADR can quicken the speedy disposal of cases, many studies ofdeveloping country ADR systems offer evidence that the systems

have been effective in processing cases quickly, at last relativeto traditional Court systems. The Mediation boards in Sri Lankaresolve 61% of cases within 30 days and 94% within 90 days,compared with months or years required by the Court system. Courtbacklog Sri Lanka was reduced by nearly 50% during the Six yearsin which the Mediation Boa rds have operated there, although adirect empirical link has not been established. One judge in theUkraine predicted that 90% of civil Court cases could besuccessfully mediated, eliminating the backlog on the civil Courtdockets.

Finally, we can conclude that if we introduce ADR in our countrywe can lessen the case between of our Court and people we havemore aware to justice administration system. Then the confidenceof 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 DisputeResolution and Legal Aid, 4th ed. (Dhaka; Razia Khatun,2011).

3. Prof. Dr. Answar Ali Khan, An introduction to AlternativeDispute Resolution (ADR), 2nd ed. (Hira Publication, 2010).

4. Kamal, Mustafa Justice ADR IN BANGLADESH. Dhaka.5. Ministry of Law and Justice, Government of the People’s

Republic of Bangladesh. Code of Civil Procedure, 1908. Dhaka.6. Ministry of Law and Justice, Government of the People’s

Republic of Bangladesh. Code of Criminal Procedure, 1898.Dhaka.