ADR Mechanism in Ordinary Civil Courts of Bangladesh

Focus Keyword: ADR in Civil Justice System in Bangladesh

Bangladesh judiciary is deadlocked in a vicious circle of delays and backlogs. According to a report of the Law Commission, till 31^st December of 2014 there are more than 2.6 million cases are pending in district courts. Present rate of disposal of cases and accumulation of backlogs is alarming for justice, rule of law and economic development of the country. In spite of best effort and full utilization of manpower, it is not easy to combat with such alarming backlog situation without taking recourse to Alternative Dispute Resolution (ADR). In such circumstances, ADR system has been introduced within the formal justice system to minimize inordinate delays and to reduce undue litigation costs. In Bangladesh we find practices of ADR in three different forums i.e. formal (e.g. Family Court), Quasi-formal (e.g. Village Court) and informal (e.g. village shalish). At present, a number of statutes in Bangladesh have implemented a judicial practice of ADR through mediation, conciliation and arbitration.

The most notable ADR within the formal justice system is the one introduced to ordinary civil courts in 2003 by the amendment of Code of Civil Procedure (CPC), 1908. Though previously ADR was in practice in some special civil courts, sections 89A and 89B was inserted by this amendment to incorporate the systems of mediation and arbitration of civil disputes that lie before the court. This amendment gives option to the court to mediate between parties or refer the dispute to the pleader or the parties themselves (where no pleaders have been engaged) or to the mediator from the panel to be prepared by the District Judges. In 2006, the CPC was further amended to insert section discussing the provision of conducting ADR (mediation) during appeal. Despite the effort, the scheme did not actually work well; there was an option for the court to decide whether the dispute should be referred for mediation. Thereby, there is an exigent need for further amendments which would make ADR mandatory.

In 2012 the CPC was again amended to replace the word ‘may’ with ‘shall’ in section 89A and 89C to make mediation mandatory in both pre-trial and appellate stage in every civil litigation and sections 89D and 89E were newly added. Section 89D provides special provision for mediation when the contesting parties to a suit or of an appeal applied for mediation thereof started before the amendment of 2012. Section 89E provides for application and commencement of the provisions of section 89A and 89C in the following words- ‘the provision of section 89A or 89C shall be applied to such area, and commenced on such date as the government may by notification in the official Gazette, fix’. But government has not yet issued any Gazette notification fixing the date and specifying the area for its application. As a result, ADR has not been started yet in the ordinary civil courts of Bangladesh after an era of introducing the provisions in the CPC.

Mediation under the CPC is a flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which a third party mediator shall facilitate a compromise to parties’ disputes. After the appointment of mediator by the parties or by the court, mediation work must be completed within 60+30 days from the date of appointment of mediator. The court shall pass decree/order according to the terms of compromise within 7 days from the date of getting report of the mediator. If mediation attempt undertaken by the court fails, the same Judge shall not hear the suit subsequently.

Introduction of compulsory mediation system in the ordinary civil courts is obviously a positive step not only to reduce huge number of pending cases but it has also a healthy impact on the society and social relations of the litigants. Now we are waiting for government’s initiative to start full-fledged ADR in the ordinary civil courts of Bangladesh. At last, the famous words of Abraham Lincon emphasizing deep significance of ADR may be recalled. He said- “Discourage litigation; persuade your neighbors to compromise, whenever you can; point out to them the nominal winner is often a real loser, in fees, expenses, and waste of time.”