Inaccessibility to the Formal Justice System of Bangladesh and A Flexible Approach towards the Process of Mediation

Focus Keywords: Mediation in Bangladesh, Mediating legal disputes, Alternative Disputes Resolution (ADR)

Recent developments in Bangladesh reflect a change towards out-of-court NGO-based mediation. It is an improved variation of the traditional salish conducted by village elites to resolve various disputes that arise in their respective localities. Here, the whole process from the filing of the complaint to the documentation of the mediation decision is moderated and facilitated by NGO staff.

Bangladesh is a country where there are numerous cases pending before various courts. The backlogs and delays in our courts, have reached such a proportion that it effectively denies the rights of citizens to redress their grievances, especially of the poor people. It has become an instance of injustice, a violation of human rights. While praying for justice, the parties become part of a long protracted and torturous process, not knowing when it will end.[1] Another important factor that hinders people’s access to justice is the cost of the dispute resolution process. Cost is important because we live in a system in which money often matters more than merit.[2] People silently bearing the agonies and burns of injustice done to them in various spheres of life without any legal relief is something that is witnessed frequently.

Mediation and Problems in the Formal Justice System

Mediation is an alternative dispute resolution process which is growing rapidly in Bangladesh. It is chosen to address disputes by way of a voluntary procedure with the aid of a neutral facilitator who helps the parties in reaching a settlement that is satisfactory to all the concerned parties involved in the dispute. It is cost-effective and less time-consuming, unlike court litigations. There is no judge and hence, no one is there to impose any decision. It is the parties who decide the outcome. One of the most important rules in mediation is that the whole process is entirely confidential and no offer, concession or admission made by any party can be used up until a settlement is reached.

However, it is still not approached widely by the mass people and as such, they continue to suffer because of the court based complex litigation process. According to Article 27 of the Constitution of the People’s Republic of Bangladesh, “All citizens are equal before law and are entitled to equal protection of law”. Most of the Bangladeshi people cannot even afford to reach the doors of law and derive any benefits of their services.

Sometimes, the cost of litigation is further increased by the cost of bribes. For instance, in Bangladesh, most parties (63 percent) have no option but to bribe court officials to accelerate the disposal of their cases.[3] Sometimes, the costs are exacerbated due to delays. As the disposal of cases is delayed, total charges paid to the lawyers increase with consecutive court appearances. According to Transparency International Global Corruption Report 2007, there are only 77 Supreme Court Judges and 750 Subordinate Court Judges to dispense justice to a population of nearly 150 million people in Bangladesh.

Therefore, we can see that only 5.5 judges in the lower judiciary serve every million people.

The lesser accessibility to formal justice affects women in Bangladesh even more because women are at a decided disadvantage in their access and control of material resources, mainly because of their lower educational attainment and lesser involvement in income-generating activities.[4]

Considering all these limitations of the formal court system and the socioeconomic context of Bangladesh, mediation is considered a promising alternative for ensuring access to justice, especially for the poor and women. This informal method can minimize the financial burden and ensure timely justice, without creating excessive delays. If we emphasize more on women, then it can be seen that mediation allows women to access justice without violating their social values in Bangladesh since it allows women to discuss their personal family matters in the entirely confidential mediation sessions which they otherwise would opt not to discuss because of the conservative nature of our society.

Like India, the history of panchayat/salish plays a vital role in governing informal and traditional dispute resolution system in this region. It is not a recent phenomenon in Bangladeshi culture, rather a customary practice of the informal justice system that has a history of more than a thousand years. Thus, it is not unlikely that the evaluative nature of traditional dispute resolution system conducted in out-of-court settings might also have some influence on our current day to day practice of court-annexed mediation in Bangladesh.

The justification of practicing evaluative mediation in court-connected mediation can be observed in the words of K.M. Hasan. He said, “We found that for the present pure mediation in every case is not really suitable for our legal system. It took many years for the USA to reach the present stage through trial and error. Our experience is only a few months old. Slowly it dawned on us that instead of pure mediation if it is combined with a little bit of directive method, to which our judges, lawyers and litigants are familiar with, the judges would be more successful in their efforts.”[5]

Furthermore, K.M. Hasan noted, “Learn from the pilot courts and the lawyers involved in mediation and other methods what practical problems they encounter, adjust and re-adjust your programme accordingly so that what finally emerges is not a foreign model, but an indigenous Bangladeshi model suited to the legal culture, ethics and traditions of this country.”[6]

NGO-based Mediation in Bangladesh

Recent developments in Bangladesh reflect a change towards out-of-court NGO-based mediation. It is an improved variation of the traditional salish conducted by village elites to resolve various disputes that arise in their respective localities. Here, the whole process from the filing of the complaint to the documentation of the mediation decision is moderated and facilitated by NGO staff.

The Madaripur Legal Aid Association (referred to hereafter as MLAA) established in 1978 is considered to be the pioneer in the introduction of NGO-based out-of-court mediation in Bangladesh. To provide mediation services, MLAA formed a mediation committee with the Chairman and members of the Union Parishad (Council) and the committee also included other local elites. Since its establishment, MLAA is not only resolving local disputes through mediation, but it is also giving trainings to the local leaders and elites to change their attitudes towards the use of law whilst conducting salish at the local level.[7]

Bangladesh Legal Aid and Services Trust (referred to hereafter as BLAST) is another organization which is running legal awareness programs and public interest litigations to establish rights in various sectors including labour law, family law, state abuse of prisoners etc.

Ain-o-Salish Kendra (referred to hereafter as ASK) provides mediation services as well as works towards curbing violation of women’s rights through its ‘Gender and Social Justice Project’.

Nagorik Uddayog (referred to hereafter as NU) started out-of-court mediation in 2004. In the process of doing so, NU conducts salish with the initiatives of local government representatives that not only increases the abidance of salish but also makes women more active.

Generally, respondents approach nearby NGOs after getting a notice for settling the dispute. If a settlement is reached, the NGO mediators note down all the terms and conditions and read it aloud for the parties. Afterward, the signatures of all the parties, witnesses and mediators are taken.

The success rate in mediation varies among NGOs. MLAA and ASK are attaining much higher success rate in mediation in comparison to others. A look at family complaints resolved through MLAA mediation from July 2015 to June 2016 shows that out of 3503 disputes that were available for mediation, 3040 disputes were resolved through mediation after all rejected cases.[8]

Provisions Relating to Mediation in Existing Laws

Recently, the provision for mediation has been inserted in the Legal Aid (Amendment) Act, 2015 where before filing a case with the help of government legal aid, it is suggested to resolve the dispute via mediation. 75% of the cases applied for legal aid at the pre-trial stage are resolved through pre-legal aid mediation now.[9]

There is also Bangladesh International Arbitration Centre (referred to hereafter as BIAC). It has its own BIAC Mediation Rules, 2014 and Code of Conduct, 2014.  It has one suggested Med-Arb clause, which says — “Any dispute arising with this contract, shall first be referred to BIAC for settlement through mediation in accordance with BIAC Mediation Rules. If a settlement cannot be reached, then such dispute shall be referred to BIAC to be finally settled under the rules of arbitration of the Bangladesh International Arbitration Centre”. In addition, there is one separate BIAC Mediation Clause, which says any dispute arising with this contract shall be referred to BIAC for settlement through mediation in accordance with BIAC Mediation Rules before such dispute is submitted to court or arbitration.

Bangladesh International Mediation Society (referred to hereafter as BDIMS) also provides a mediation service to help resolve civil and commercial disputes of both domestic and international nature. Its Code of Conduct binds BDIMS-affiliated Mediators to confidentiality obligations. BDIMS is the first international mediation institute of Bangladesh.

The mediation mechanism has become a part and parcel of our formal legal ystem. Moreover, there are provisions relating to mediation of disputes in the statutory laws of Bangladesh now. The Code of Civil Procedure 1908 (referred to hereafter as CPC) was amended to give effect to mediation. Mediation is described in Section 89A of CPC under Explanation (1) as a “flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or dictating the terms of such compromise.”[10] Section 89C provides for scope of mediation in Appellate Court.

Chapter V of Artha Rin Adalat Ain, 2003 provides for settlement of any dispute through mediation. Section 22 of the Artha Rin Adalat Ain, 2003 talks about the settlement conference after the filing of the written statement.

There is also the Family Court Ordinance, 1985. After the filing of the written statement, the Family Court shall fix a date for a pre-trial hearing of the suit. On the date fixed for the pre-trial hearing, the Court shall try to compromise or go for reconciliation between the parties.

In the Village Court Act, 2006, it is stated that after the formation of the Village Court, the Court shall hear both the parties and decide the issues between them. Thereafter, the Court shall take the initiative for conciliation between the parties.

Moreover, Section 22 of Arbitration Act also provides for the scope of ‘mediation’. According to this Act, mediation procedure can be followed at any stage of arbitration upon the consensus of all parties. At the time of continuation of the dispute, if the parties resolve the matter amicably and request the tribunal regarding this, the Arbitration Tribunal shall record the consensus of the decision as ‘award’ of the Tribunal.

MLAA mediators[11] have suggested some necessary changes in the laws and other infrastructural changes that can make NGO-based mediation more effective. There is also a growing fear among lawyers regarding the adverse effect of mediation, suspecting that cases being resolved quickly would reduce the number of practicing lawyers and consequently the amount of fees to be collected from the clients.[12] Additionally, it can be seen that the resources allocated are not being utilized efficiently in the mediation process.

The strategies provided by the Reform Movement, 2000, such as — judges’ training on mediation, incentives for judges to practice mediation, motivation for lawyers, binding mediation through court decrees, etc. have amounted to a high rate of disposal of cases.[13] Although the process is not much successful in other civil courts, after the impressive success of mediation in family courts, mediation was gradually included in various other civil laws in Bangladesh such as Code of Civil Procedure (CPC) following an amendment in 2012.[14]

Conclusion

From the analysis made above, it can be concluded that mediation is still a developing concept as an alternate dispute resolution mechanism in Bangladesh. Despite its limitations, it can be said that it is playing a vital role in ensuring justice to the public. With the courts of Bangladesh being flooded with an overwhelming number of claims, it is perhaps about time that we appreciate this concept of alternative dispute resolution and take appropriate steps to facilitate mediation not merely by bringing amendments in the laws but also enforcing them properly in the future. It should not be denied that with the increasing number of NGO mediations, court-connected mediations and law provisions regarding mediation Bangladesh is surely going to have a bright future in resolving disputes through mediation.

Footnotes:

[1] Alam MS 2000, ‘A possible way out of backlog in our judiciary’, The Daily Star,16th April

[2] Rhode,D 2000-01 ‘Access to justice’, Fordham Law Review,Vol 69

[3] Hasan Mohamod.2002,’Mediation in the family courts:Bangladesh experience’

[4] Dr Jamila Chowdhury in her book ‘Mediation to enhance gender justice in Bangladesh’

[5] Hasan, KM, CJ 2001,’A report on mediation in the family courts: Bangladesh experience’.

[6] Kamal,M CJ 2002, ‘Introducing ADR in Bangladesh: Practical model’

[7] The Asia Foundation(2002),Access to justice. Best Practices under the democrat Partnership, Dhaka

[8] Unpublished data collected from MLAA registry 2015-2016 (June)

[9] Unpublished data collected from National Legal Aid Services Organization (NLASO)

[10] Dr Jamila A. Chowdhury in her book,‘Mediation to enhance gender justice in Bangladesh 2018’

[11] Mr.Fazlul Haq, Secretary and mediator, MLAA; Shahid Khan, Chief Co-ordinator MLAA at Madaripur 2016

[12] Opinion taken from an interview with a Senior Assistant Judge, Madaripur District 2016.

[13] Data collected from court registry at Madaripur District in Oct 2016

[14] Dr Jamila A. Chowdhury in her book, ‘Mediation to enhance gender justice in Bangladesh 2018’

Cite this article as: Tahsin Kamal Tonima, 'Inaccessibility to the Formal Justice System of Bangladesh and A Flexible Approach towards the Process of Mediation' (Bangladesh Law Digest, August 3, 2018) <http://bdlawdigest.org/adr-and-mediation-in-bangladesh.html>

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