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Assignment on Introducing ADR in BangladeshHome » Arts » Law » Assignment on Introducing ADR in Bangladesh
Assignment on Introducing ADR in Bangladesh
Assignment on Introducing ADR in Bangladesh
The Vagaries of Civil Litigation
A. D. R. means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the issues of a case are seldom framed following the Code of Civil Procedure, the case takes several years to reach a settlement date and on the date of positive hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none. In the meantime years roll by, presiding judge of a single case is transferred a number of times, witnesses of a single case may be heard by more than one presiding judge, arguments are listened to may be by another presiding judge and judgment may be delivered by a presiding judge who had had no connection with the case ever before. Our legal system has thus been rendered uncaring, non-accountable and formalistic. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades. When they win a case the result is much worse than winning it. When they lose a case they lose not only the subject matter of the dispute, but also a good part of their fortune. If interlocutory matters are dragged up to the appellate or revision courts, their woos know no bounds and their agonies are prolonged for an indefinite period. Appeals from trial court decrees may reach unto the Appellate Division by which time the parties are thoroughly drenched in misery. When a decree is thus obtained after protracted litigation, it does not end there. Execution proceedings then re-starts a fresh litigation between the parties or even their successors which may take years or decades to come to a conclusion and which may end up with no real or positive benefit to the decree-holder plaintiff. This is the experience of a common litigant in Bangladesh. Added to this inherent and in-built delay and expenses, corruption and often terrorism at almost each stage of litigation is eating into the vitals of the justice delivery system.
Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness. Many conscientious judges and lawyers have done what they could under the circumstances, but their sincerity has been drowned into the general morass of malfunctioning of the court system.
Experience of Developed Countries
All countries, following the common law system, have faced this problem of delay and excessive expenses in the disposal of civil cases at some point or the other in their respective legal history, as also the problem of apathy of judges and lawyers. Developed countries like the U.S.A., Australia and Canada have witnessed a few decades back huge backlog of cases, excessive legal costs and expenses and litigants’ misery, as we are witnessing now in our country.
Lawyers and judges of developed countries did not look upon the Government to solve what was essentially a problem of administration of justice that concerned lawyers and judges themselves. In many areas of these countries, some thirty plus years back, public-spirited judges and lawyers put their heads together and devised a common strategy to solve the problem of huge backlog of cases, delay in the disposal of cases and excessive expenses in litigation.
Their Perception of Adversarial System
What they found was that the adversarial system prevalent in common law countries were no longer adequate to address the growingly complicated technical legal problems of modem-day litigation. The adversarial system creates two mutually contending, exclusive, hostile, competitive, confrontational and uncompromising parties to litigation. This system does not generate a climate of consensus, compromise and co-operation. As litigation progresses it generates conflict after conflict. At the end of litigation one party emerges as the victor and the other party is put to the position of the vanquished. Adversarial litigation does not end in a harmony. It creates more bitterness between the parties that manifests itself in more litigation between them or even their successors. However, judges and lawyers of developed countries found that the alternative is not to do away altogether with the adversarial system. The adversarial system plays a positive role too. It settles through adversarial hearing complicated and disputed questions of fact and law. The law that superior courts lay down to be followed by subordinate courts and tribunals can never be arrived at without following the adversarial procedure. Any court cannot lay down any law by way of compromise, consent or consensus of parties to litigation.
Their Adoption of Consensual System as an Alternative not Substitute
Beyond the territory of complicated questions of fact and law there lies a vast area of litigation where the adversarial system must yield to a consensual type of dispute resolution, even though there are complicated technical legal problems in this vast area as well. The consensual type is essentially a type and a process of dispute resolution that requires judges, lawyers and the litigant public to change their century’s old mind-set and to adjust gradually to play a combined and co-operative role in the resolution of disputes. In an adversarial system a judge has a passive role to play. He/she will take the evidence as it comes, hear the parties and deliver his/her judgment without getting involved in the entire dispute resolution process. In a consensual system the judge, the lawyers, litigants and outside mediator or evaluator are all active parties to the resolution of dispute. It is informal, confidential, speedy and less expensive. It preserves the jurisdiction of the trial court to try the case on merit, if A.D.R. fails.
Their Solution, but what is New about It
These and other jurisprudential thinking led the judicial and legal thinkers of U.S.A., Australia and Canada to devise two prominent alternative methods of dispute resolution: (1) mediation and (2) non-binding arbitration.
Question may arise, is it anything new? Certainly, it is not entirely new, at least to us. In this sub-continent of ours, mediation by village elders and arbitration by impartial individuals or group of individuals have continued since time immemorial. A recent UNDP report on Bangladesh gives a finding that village elders settle 60 to 70 per cent of petty disputes between villagers who dare not approach the formal legal system for fear of delay and expenses.
Then, what is new about the concept of alternative dispute resolution? Shortly stated, the newness of A.D.R. is the purpose behind its adoption. The purpose of alternative dispute resolution is not to substitute consensual disposal for adversarial disposal or to abolish or discourage informal mediation or arbitration outside the courts, but to make alternative dispute resolution a part and parcel of the formal legal system, preserving the trial court’s statutory authority and jurisdiction to try the case should A.D.R. fail. Mediation or arbitration conducted by village elders and some NGOs are praiseworthy efforts, but these efforts, by themselves, have not solved the civil court’s own specific problems, namely, backlog of cases, delay and expenses in litigation. Our formal court system has not been directly and permanently benefited by these extra-judicial exercises. If out of court mediation continues and an exclusively adversarial system also continues in our legal and judicial system, then the formal court system will unlikely help reduce backlog, as also unlikely ever to be as speedy and as least expensive as we would like it to be. It will be prudent, therefore, to inject some doses of consensual resolution into an otherwise exclusively adversarial system. If we make alternative dispute resolution an integral part of our legal and judicial system, litigants and potential litigants will not feel insecure to live in a legal climate where justice can be had from the formal legal system only through a process of inordinate delays and overburdening expenses. They will live in a climate of assurance that an alternative method of obtaining justice can be obtained from the formal legal and judicial system itself speedily and with less expense. This, I believe, is a legitimate expectation of the people of Bangladesh from any Court “established by law” under Article 114 of the Constitution. What is available to the benefit of a litigant from a paralegal informal system should legitimately be expected from a court “established by law”.
This is the justification of alternative dispute resolution.
Different Forms of A.D.R. and their Application
1) Mediation
The most common type of A.D.R. is mediation. Although the word “conciliation” is also used in A.D.R. terminology, there is virtually no distinction between mediation and conciliation, because mediation includes conciliation. It is generally recognized that when parties come to a stage of litigation when the trial is imminent, alternative dispute resolution is too late a procedure to induce the parties to divert themselves to a different procedure, because by that time the parties had already spent a substantial amount of money, time and energy in the litigation. It is then too late to take an interest in a cost saving or timesaving procedure. Attitudes had also hardened mutually on both sides. It is desirable that after the defendant/s file their written statements, the presiding judge should read both the plaint and the written statements and call the parties and their lawyers, if any, to impress upon them the desirability of settling their disputes through mediation or non-binding arbitration. If the parties agree the case is adjourned for three months, within which they have to obtain either a settlement or a failure of it from either the mediator or the arbitrator. In the event of failure to settle, the court will proceed to try the case, according to a time-calendar for each case, and the adversarial system will resume.
Court-Directed Mediation Proceedings
Mediation is a completely voluntary and non-binding process of settlement of disputes between parties. It is an informal, flexible, confidential, non-adversarial and consensual procedure in which the Code of Civil Procedure or any law of evidence does not apply. The proceedings are immune from disclosure in any court of law. An impartial, disinterested and neutral person acts as a mediator. Mediation may be 1) Direct or 2) Facilitative. In Direct Mediation, the mediator applies all methods of squeezing into the heads of the parties his/her own idea of a settlement. In Facilitative Mediation the mediator facilitates settlement negotiations, improves communication between the parties, helps the parties to articulate their respective interests and stakes in the litigation and helps each party to understand the interests and stakes of their opponent in the litigation. He/she probes the relative strengths and weaknesses of each party’s legal position, identifies areas of agreement and helps to generate options amongst the parties themselves to arrive at a mutually acceptable resolution of their disputes. The lawyers of each party are entitled as of right to take part in the mediation proceedings, but the mediator in an informal and flexible proceeding of this kind, may like to sit alternately with the plaintiff/s or the defendant/s, with or without their lawyers. The parties may disclose many things to the mediator not articulated in the plaint or written statement/s, but the mediator must maintain the confidentiality of these disclosures and tell the other side so much of the disclosures as he/she has been expressly authorized to disclose. He/she must not lean on any side and both sides must have confidence and trust in his/her impartiality and neutrality unto the end, even if there is no settlement. If the decision makers of a dispute in respect of payment of legal fees to the parties or in respect of execution of the court’s decree are operating from behind using the plaintiff/s or the defendant/s as proxies, the mediator has the right to call and listen them too. At a trial the judge’s hands are more restrained. It may so happen that the mediator generates so much of a spirit of compromise between the parties that they even agree to withdraw other civil suits pending against each other in other civil courts or compromise compoundable criminal cases pending against each other in various criminal courts. The final settlement is thus not limited to the prayers in the plaint. In a formal trial, a judge cannot go beyond the prayers in the plaint if the suit is decreed. In court-sponsored mediation the terms of settlement may travel beyond the scope of pleadings. When signed by the parties, their lawyers and the mediator,. the presiding judge will pass a decree in terms of the settlement. If other civil and criminal cases are also compromised in the document of settlement, the parties will have to approach the other courts to pass a compromise decree or compound a compoundable criminal offence. If one party fails to do so, the other party may sue for specific performance of contract or may claim damages for breach of contract, because the written settlement operates as a binding contract between the parties. There is no appeal or revision against a settlement of this nature. Hence if all parties adhere to the terms of settlement several cases are finally disposed of and go out of the pending list. When a court directs mediation, it means facilitative mediation.
Benefits of Mediation
Please pause and ponder over the beneficial effects of _ successful mediation. There is no victor and no vanquished. No party is aggrieved by the outcome, because the settlement is voluntary and is reached after considering the pros and cons of several options generated by the mediator. Both sides are in a win-win situation. There is no bitterness left. There is often a restructuring of relationship. Parties who would not see each other’s face may re-establish a working relationship between them after conclusion of a successful mediation. Instead of discord, disharmony and bitter relationship at the end of an adversarial proceeding there is peace, accord and re-established relationship between the parties at the end of a consensual proceeding.
Mediators in Developed Countries
Judges do not conduct mediation or non-binding arbitration. They are meant for trial of a case. But they have the authority to refer any case, or part of a case for any of the A.D.R. mechanisms, preserving their jurisdiction to try the case if A.D.R. fails. When they do so refer, there is no appeal or revision against the order, because that kind of order is passed only when the parties agree with the judge that it should be so done. A.D.R. begins with an agreement, not with a discord. However, the legal climate that prevails in our country is surcharged with a highly adversarial bent of mind that has been fostered throughout centuries. It would be wise to leave the matter whether a case or part of a case should be referred to mediation or arbitration to the discretion of the trial judge, without leaving the matter entirely to the willing consent of both parties. The discretion will not be amenable to appeal or revision. When A.D.R. gains ground, as experience suggests, the consent of both parties would be forthcoming like an avalanche. The judge will hardly have any discretion in the matter.
I have said earlier that it is the combined efforts of lawyers and judges in developed countries for over three or four decades that A.D.R. has come to be accepted as a widely used handmaid of justice. It is the lawyers who convinced the litigant public that if all cases were to be disposed of by trial and trial only, then in all jurisdictions all over the world, backlogs would heap upon backlogs, choking the entire justice delivery system. Because of the pioneering role and involvement of lawyers from the very beginning, it is the lawyers who perform almost 90% of court-directed mediation, non-binding arbitration and early neutral evaluation (of which I shall speak later). Each court maintains a list of senior lawyers who earned their financial security, reputation and standing in the society by practicing in the Bar. They owe it to the Bar and the Bench to repay a part of their debt by giving a bit of their precious time, energy and intellect in the A.D.R. mechanism voluntarily and without payment of any charges or fees. Because a system of rotation is in place, each senior lawyer is required to mediate, arbitrate or make an early neutral evaluation once every three months or six months. A small office is set up at each Bar to maintain and update the list of senior lawyers as approved by the local court, to ascertain if in any court-sponsored mediation, non-binding arbitration or early neutral evaluation any senior lawyer has either been consulted or engaged by either the plaintiff/s or the defendant/s, to request and obtain their consent for their services if they have not been so consulted or engaged and to fix up the date, time and venue of arbitration, non-binding arbitration or early neutral evaluation. A small fee is charged from the plaintiff/s and the defendant/s equally (U.S.$75 each in San Francisco courts) to defray the costs of running this small office. Court-appointed professional mediators perform nearly 5% of this work for a fixed salary paid from the court’s budget. Private Mediation Firms, staffed by well-qualified ex-judges and ex-lawyers, approved by the local court, perform the rest for moderately high fees from both sides. Affluent parties with high stakes flock to the private firms.
Suggested Mediation in Bangladesh
Given the position that in Bangladesh no awareness or movement of senior lawyers of any significance has grown up yet, willing to take up the major load of A.D.R. upon them, it will not be wise, in my view, to start the program with sole dependence upon public-spirited lawyers. It will be prudent, at least at this stage, to keep in the statute a wide option of mediators and arbitrators to avoid the vagary of availability or non-availability of senior lawyers. Presiding judges of the disputes in question and other available judges of co-equal jurisdiction not in seisin of the disputes in question should be kept as options for the choice of mediator or arbitrator. Senior lawyers as per list maintained and constantly updated by the District Judge should be available for mediation and arbitration free of cost and charges. Private mediation firms, having experienced judges or retired judges and/or qualified non-practicing lawyers on their staff, recommended by the District Judge and approved by the Chief Justice of Bangladesh, may also be included for mediation or non-binding arbitration on payment of equal fees by the parties. Gradually, as the idea spreads and the A.D.R. procedure gains ground, judges may be eliminated from the list altogether. This may take some time, but nothing can be achieved without patience and perseverance. U.S.A., Australia and Canada have not achieved their present position without sustained efforts for three or four decades. 85 to 90 percent of cases filed are now disposed of by A.D.R. method and only 10 to 15 percent cases filed are disposed of by trial now in those countries. But Rome was not built in a day.
Training of Mediators and Arbitrators
1)A Matter of Continuous Importance
Mediation or arbitration does not come easily to anyone, whatever height he/she attains in legal knowledge and experience. Mediation especially involves the use of a facilitator trained in conflict resolution. The mediator must know the techniques of encouraging the parties to discuss their positions with greater candor and he/she must also know how to foster compromise. Mediation involves a thorough training for a few days. Training literature is available in the Internet and a few trainers in Bangladesh are available as well. The first implementation task will be to train up a large number of trainers in mediation, arbitration and early neutral evaluation. These trainers will then spread out throughout the nook and corner of the country to train up judges, lawyers and other interested persons in the art and science of mediation, arbitration and early neutral evaluation. Without such intensive training, it will be a folly to introduce A.D.R. wholesale in our lower courts. India tried to introduce A.D.R. in 1999 by an amendment to the Code of Civil Procedure, known as the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999). It ended in a fiasco. There was widespread resistance to it by lawyers that forced the Government of India to postpone its implementation. The lesson is that when you introduce any matter of legal reform or innovation, do not try to impose it from above. Do some intensive work at the grassroots level, build up a large following, try the reform on a trial and error basis by setting up pilot courts and then proceed with caution by examining its results. Learn from the pilot courts and the lawyers involved in mediation and other methods what practical problems they are encountering with, adjust and re-adjust your program accordingly, so that what finally emerges is not a foreign model, but an indigenous Bangladeshi model, suited to the legal culture, ethos and traditions of this country. The second implementation task will be to continue the training for all time to come for the new entrants to the Judicial Service through the Judicial Administration Training Institute (JATI). JATI will have to develop a curriculum especially for A.D.R. and also will have to keep and maintain one or more regular instructor on its pay roll to teach the mechanisms of A.D.R. to the trainee-judges. Outsiders interested to pursue a career of mediation and arbitration may also receive instructions and certificate from JATI, on payment of fees and charges, as and when JATI is ready enough to render this service.
2) Non-Binding Arbitration
In the A.D.R. vocabulary, arbitration is preceded by the word ‘non-binding’ because of two reasons. First, it is necessary to emphasize that it is not arbitration under the respective Arbitration Act of any country. Arbitration Act, 2001 of Bangladesh contains so much of a lengthy procedure and it is so much amenable to interference at various stages by the local court having jurisdiction over it and by both Divisions of the Supreme Court that the total purpose of A.D.R. will be frustrated if the Arbitration Act is made applicable to A.D.R. arbitration. The second reason is that in A.D.R. proceedings the jurisdiction of the trial court to try the case, if A.D.R. fails, is always preserved. A.D.R. is not a substituted method of dispute resolution following a separate statutory procedure, but an alternative, informal and confidential procedure to cut down delay and expenses. An arbitrator’s award under A.D.R. procedure is non-binding on both parties. The application of Arbitration Act will take away the trial court’s basic jurisdiction to try the case. This will then be a case of abandonment of judicial function in favor of an Arbitrator.
Non-binding arbitration is an adjudicative process in which an arbitrator or a panel of arbitrators issues a non-binding award on the merits of the disputes in question after an expeditious, time-bound and adversarial hearing. Lawyers of each party will face each other in these proceedings as in any other adversarial proceeding. The arbitrator has no role as a mediator. He/she has a passive role to play. He/she will hear the evidence and peruse the oral and documentary evidence, hear arguments of both sides and give his/her award according to his/her best judgment. Each party has the option to reject the award. If both parties accept the award both of them will sign the award or put their thumb impressions on it, as the case may be, and their respective lawyers, if any and the arbitrator/s will also sign the award before the trial court makes it a decree of the court. Parties have been given the option to reject the award because if the award has not been satisfactory to either or both of them, they have the right to fall back upon the trial court for a decision on merit. Like mediation this is also a confidential proceeding that is immune from disclosure in any court of law. Arbitrators are nominated in the same manner as mediators.
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ADR is Civil Justice System in BangladeshHome » Arts » Law » ADR is Civil Justice System in Bangladesh
ADR is Civil Justice System in Bangladesh
ADR is Civil Justice System in Bangladesh
ADR IS CIVIL JUSTICE SYSTEM IN BANGLADESH
Introduction:
Disputes are a fact of life. A. D. R. means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the issues of a case are seldom framed following the Code of Civil Procedure, the case takes several years to reach a settlement date and on the date of positive hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades.
Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness. Many conscientious judges and lawyers have done what they could under the circumstances, but their sincerity has been drowned into the general morass of malfunctioning of the court system.
What is Alternative Dispute Resolution (ADR?)
Alternative Dispute Resolution refers to the means of settling disputes without going through legal procedures. Through ADR settlement of disputes can be done in many formal and informal ways but here ADR emphasis is mainly on the settlement of disputes by local community initiatives. It is an age-old tradition of society through which disputes are resolved amicably and which concerned parties accept. Normally authority does not challenge it. It is not institutionalized, but both the community members and the disputants accept it. There are different ways to resolve disputes. Some are resolved formally, others informally, and some are resolved as time passes by.
Objectives of ADR
In the recent past the alternative dispute resolution system (ADR) has been developed in the USA and the rate of success of ADR is significantly high, as the parties have been able to come forward to sit together to talk together and finally resolving their disputes. The prime aim of alternative dispute resolution system in civil justice delivery system in Bangladesh is closing the hostility between the disputing parties and restoration of harmony. In this system a high degree of public participation and co-ordination is badly needed. A general sense of satisfaction develops which helps in enforcement of the decision, when people’s participation is ensured as to tending evidence, asking questions and making opinions. Thus the reconciliation can be eased, which is the fundamental objective of ADR system.
Different forms of ADR and their application in civil justice system:
Negotiation, mediation and arbitration are the most common features of ADR techniques in Bangladesh. Let us discuss the three important ways of dispute resolution.
Mediation” is voluntary process where a natural mediator attempts to help the disputing parties to reach an agreement that is acceptable to both sides and that will bring the dispute to an early conclusion without having to go to Court.[1]
Arbitration” means a process of adjudication of a dispute or controversy on fact or law or both outside the ordinary civil courts, by one or more persons to whom the parties who are at issue refer the matter for decision.[2]
“Negotiation” is a non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement of the dispute.[3]
“Med-Arb” is a procedure which combines, sequentially, conciliation/mediation and where the dispute is not settled through conciliation/mediation within a period of time agreed in advance by the parties, arbitration.[4]
Laws pertaining to ADR in Bangladesh:
a) Code of Civil Procedure,1908
For the first time in our legal system the provision with regard to ADR has been introduced by amending the Code of Civil Procedure. In chapter V of Artha Rin Adalat Ain, the provisions of ADR have also been incorporated. Surely, this concept is a denovo in our civil justice delivery system. Now ADR has come within the domain of civil procedure code.
By the recently enacted sections 89A/89B of CPC, the ADR system (mediation and arbitration) has been introduced, the two terms ‘mediation’ and ‘arbitration’. Section 89A lays down that except in a suit under the Artha Rin Adalat Ain, 1990 (Act. no 4 of 1990)
after filing of written statement, if all the contesting parties are in attendance in the court in person or by their respective pleaders, the court many by adjourning the hearing, mediate in order to settle the dispute or disputes in the suit or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or the party or parties, where no pleader or pleaders have been engaged, or to a mediator form the panel as may be prepared by the District Judge under subsection 10, for undertaking efforts for settlement through mediation. Similarly, the term ‘settlement conference’ has been used to denote mediation process in the part V of Artha Rin Adalat. The provisions have been made in this regard that the court can mediate the suit matter after filing the written statement by the defendant or defendants, by adjourning the subsequent procedures of the suit
The government by amending the Code of Civil Procedure expands the avenue for shalishi. By The Code of Civil Procedure (Amendment) Act, 2003 two new sections were incorporated (section 89A, 89B) in the code. It empowers the court to solve the matter through mediation or conciliation before the beginning of the trial except case under Artha Rin Adalat Ain. However there remain some limitations too, it will not exempt the disputant parties from the appearance before the court. This law is only relating to the pending cases,
The Civil Procedure Code (Amendment) Act, 2002 has been enacted to introduce Alternative Dispute Resolution (ADR) system for early and consensual disposal of civil suits. Section 89A and 89B have been inserted to allow parties to settle their disputes in suits, through mediation or arbitration. In the mediation procedure, the court may take initiative to settle the dispute in the suit by itself or by making reference to independent mediators. Under section 89B parties will be allowed to withdraw pending suits and have those settled through arbitration. The provisions have been made effective from 1st July 2003.
ADR system is gaining popularity. This procedure will help to reduce the huge backlogs of civil cases in courts. Public confidence in the judiciary will thereby increase. Access to justice will be expanded. The provisions will also help develop a new culture of consensual settlement of disputes doing away with the existing adversarial procedure. It will help protect and preserve cohesion and fraternity in society. Of the mediator here the advocate or any other person may be hired for mediation.
b) Artha Rin Adalat Ain, 2003
In our legal system, money lent by financial institutions/banks to individuals, private limited companies, public limited companies, corporations, partnership firms, societies, co-operatives, proprietorship firms etc. when due for default, is realised through money suits, suits for foreclosure, mortgage by instituting the same to competent civil courts. The civil courts were burdened with other businesses and such suits of banks consumed time for disposing of. The delay caused made the bank sector suffer for non-realisation of dues in time and the bankers gathered bitter experience in realising the same. To remove this difficulty, the government enacted a special piece of legislation named “The Artha Rin Adalat Ain, 1990” which had gone under some changes by way of amendments since its inception. The law brought changes to a great extent in the administration of justice delivery system for regulating those suits but it failed to fulfil the expectation of the legislators/bankers to recover the dues expeditiously from the defaulters. The thinkers on the subject gave second thoughts to frame a new law and ultimately the legislature passed “The Artha Rin Adalat Ain, 2003” (hereinafter Adalat) by repealing the earlier one.
The law came into force on 1st May 2003 except sections 46/47 which came into operation on 1st May 2004. Within a short span of time, the law has gone under an amendment by the Artha Rin Adalat (Amendment) Ain, 2004 which reflects weak draft of the law.
I have been working as a Judge of the Adalat for more than two years. I have taken no pain to apply the laws during my business hours but at the same time I have seen that some provisions of the laws are acting as barriers in discharging my responsibilities. I shall make an endeavour to focus on those and other allied subjects in this writing.
There is no such legal provision in the Environment Court Act, 2000 like the present one. Therefore section 4 (4) and section 4 (10) should be omitted, and the provisions if so omitted, there would be no practical difficulty to appoint the Joint District Judges to the Adalat like the Environmental Courts.
Section 19 has provided provisions for setting aside the ex parte decree but it does not make any provision for notifying the plaintiff bank like Order 9 Rule 13 of the Code of Civil Procedure 1908. As a result, the plaintiff remains ignorant about restoration of the suit. This anomaly should be removed by inserting appropriate provision. Section 20 of the law has given finality to the order, judgment and decree of the Adalat. In spite of that the defaulter(s)/borrower(s) is/are challenging the same in the writ jurisdiction of the High Court Division under Article 102 of the Constitution of the People’s Republic of Bangladesh and obtaining stay orders from the High Court Division.
In a recent discussion on “Money Loan Court Act 2003” organized by the Association of Bankers, Bangladesh (ABB), the Governor of Bangladesh Bank asked the banks to take special measures to recover bad loans as the defaulters filed 1,768 writ petitions in the High Court for such loans amounting to Tk 6445 core. He told that the banks cannot recover the loans due to stay orders from the court, and asked the monitoring cells of banks to take up these issues seriously and hire efficient lawyers to move the cases of loan default.The Daily Star dated June 2, 2006). It is observed from regular business of court that the banks have been refraining from taking any step against the stay orders in writ petitions. It is seen that the banks let them (the defaulters) do the same with consent. This attitude of the bank should be changed and effective steps should be taken to face the legal battle with the defaulters.
Apart from the aforementioned barriers, the law has been playing a very vital role in realising the loan from the defaulter(s). Its achievement in loan recovery has been so immense that the scenario of defaulting loan has improved significantly with number of pending Artha Rin Suits reducing with expectancy rate. The loan defaulting culture would further be reduced if the barriers can be removed as soon as possible.
c) Family Courts Ordinance, 1985:
Generally disputes relating to property, family matter i.e. distribution of property, dissolution of marriage, maintenance, guardianship could be dealt by shalish. The Family Courts Ordinance, 1985 speaks for the settlement of dispute through conciliation inside the Court before the formal proceeding of the trial started. The court may initiate a pre trial hearing to settle the disputes relating to dissolution of marriage, maintenance, and dower, restitution of conjugal rights as well as guardianship and custody of children. Besides, the Muslim Family Laws Ordinance 1961 empowers the Union Parishad to form an Arbitration Council for reconciliation between the parties wishing to dissolve their marital tie through Talaq and to deal with the polygamy.
“ADR in family court”
If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: for Allah hath full knowledge, and is acquainted with all things.[5]
Settlement of Dispute through Mediation in family court is started in Dhaka Jugde Court from 2000. Then, it was expanded in different cities and districts. Family Court Ordinance 1985 in its section 10 and 13 is said about the Mediation process. The procedure provides in family court is-
i) When the written statement is filed, the Family Court shall fix a date ordinarily of not more than thirty days for a pre-trial hearing of the suit.[6]
ii) On the date fixed for pre-trial hearing, the Court shall examine the plaint, the written statement and documents filed by the parties and shall also, if it so deems fit, hear the parties.[7]
iii) At the pre-trial hearing, the Court shall ascertain the points at issue between the parties and attempt to affect a compromise or reconciliation between the parties, if this be possible.[8]
iv) Then, where a dispute is settled by compromise or conciliation, the Court shall pass a decree or give decision in the suit in terms of the compromise or conciliation agreed to between the parties.[9]
v) If no compromise or reconciliation is possible, the Court shall frame the issues in the suit and fix a date ordinarily of not more that thirty days for recording evidence.[10]
vi) After the close of evidence of all parties, the Family Court shall make another effort to effect a compromise or reconciliation between the parties.[11]
vii) If such compromise or reconciliation is not possible, the Court shall
pronounce judgment and, on such judgment either at once or on some future day not beyond seven days of which due notice shall be given to the parties or their agents or advocates, a decree shall follow.[12]
Arbitration Act 2001.
Arbitration Law in Bangladesh
Bangladesh has enacted the Arbitration Act 2001 (the Act). It came into force on 10 April 2001, repealing the Arbitration (Protocol and Convention) Act 1937 and the Arbitration Act 1940, legacies of the British Raj in India. The new Act was again amended in 2004 in certain respects. Such legislative steps were urgent in the face of increasing foreign investment in Bangladesh in various sectors, especially in natural gas and power, and the ever-growing export trade with the rest of the world. The Act consolidates the law relating to both domestic and international commercial arbitration. It thus creates a single and unified legal regime for arbitration in Bangladesh. Although the new Act is principally based on the UNCITRAL Model Law, it is a patchwork quilt as some unique provisions are derived from the Indian Arbitration and Conciliation Act 1996 and some from the English Arbitration Act 1996.
In Bangladesh, the present law of arbitration is contained mainly in the Arbitration Act, 1940, there being separate Acts dealing with the enforcement of foreign awards. There are also stray provisions as to arbitration, scattered in special Acts. Three types of arbitration are contemplated by the Arbitration Act of 1940, namely (i) Arbitration in the course of a suit, (ii) Arbitration with the intervention of the court, and (iii) Arbitration otherwise than in the course of a suit and without the intervention of the court in practice, the last category attracts the maximum number of cases.
Under the Act of 1940, an arbitration agreement must be in writing, though it need not be registered.This also amounts to an “arbitration agreement” for the purposes of the Arbitration Act, 1940. Once an arbitration agreement is entered into for submitting future differences to arbitration, it is not, necessary to obtain the fresh consent of all the parties for a reference to arbitration at the time when the dispute actually arises.
Concluding Recommendation:
The key to success of A.D.R. in Bangladesh lies in the manner of its introduction. A.D.R. is no longer an unheard of concept of dispute resolution among judges, litigants and lawyers of Bangladesh. The Family Courts all over Bangladesh are actively engaged in A.D.R. The pilot family courts are only exclusively engaged in mediation, but other Assistant Judges, who received training in mediation, are also mediating apart from trying cases. The mediation output of all the Assistant Judges, taken together, is something to be proud of. The Ministry of Law only needs to collect maintain and update all relevant statistics in this regard. To make ADR more effective, extensive, and pro-active, coordination is needed among different agencies. Other initiatives are given below:
1) Creating awareness about ADR
2) Spreading the success story of ADR
3) Encouraging NGOs to become involved in ADR
4) Involving the Bar Associations in ADR
5) Providing training for mediators
6) Matching Government and NGO efforts.
7) A. D. R. will have a-smooth transition if it is introduced on a pilot court basis. The performances, results, reactions among pilot court judges, practicing lawyers and the litigants should be carefully monitored and recorded and suitable adjustments in the A. D. R. project should be made at each stage of extension after an exhaustive study of the experiences gained.
[1] Hazel Genn, Mediation in Action: Resolving
[2] SK Golam Mahbub, Alternative Dispute Resolution in Commercial Disputes: The UK and Bangladesh Perspective 2005, at p. 21.
[3] P. C Rao, Alternative to Litigation in India, 1997, p.26
[4] ibid
[5] found in http://www.guidedways.com/chapter_display.php…, last accessed on 18.04.2010
[6] Section 10 of the Family Court Ordinance 1985
[7] ibid
[8] ibid
[9] Section 14 (1 of the Family Court Ordinance 1985
[10] Section 14 (2) of the Family Court Ordinance 1985
[11] Section 13 (1) of the Family Court Ordinance 1985
[12] Section 13 (2) of the Family Court Ordinance 1985
Civil Justice System
Arbitration Agreement
In Bangladesh, the present law of arbitration is contained mainly in the Arbitration Act, 1940, there being separate Acts dealing with the enforcement of foreign awards. There are also stray provisions as to arbitration, scattered in special Acts. Three types of arbitration are contemplated by the Arbitration Act of 1940, namely (i) Arbitration in the course of a suit, (ii) Arbitration with the intervention of the court, and (iii) Arbitration otherwise than in the course of a suit and without the intervention of the court In practice, the last category attracts the maximum number of cases.
Under the Act of 1940, an arbitration agreement must be in writing, though it need not be registered. The agreement might make a reference about present or future differences. The arbitrator may be named in the agreement, or left to be designated later, either by consent of the parties or in some other manner specified in the agreement. Very often, the rules of prestigious commercial bodies lay down that a person who becomes a member of the association must accept the machinery of arbitration created or recognized by the rules of the association. This also amounts to an “arbitration agreement” for the purposes of the Arbitration Act, 1940.
Once an arbitration agreement is entered into for submitting future differences to arbitration, it is not, necessary to obtain the fresh consent of all the parties for a reference to arbitration at the time when the dispute actually arises.
Once an arbitration agreement is entered into for submitting future differences to arbitration, it is not, necessary to obtain the fresh consent of all the parties for a reference to arbitration at the time when the dispute actually arises.
Matters referable
Generally speaking, all justiciable matters of a civil nature can be referred to arbitration, but there are certain exceptions to the rule. For example, it is not permissible to refer a matrimonial dispute to arbitration, since the issues in such dispute are not only those of fact or law but also involve questions of public welfare.
Types of institutional arbitration
Arbitration has been used customarily for the settlement of disputes between members of trade associations and between different exchanges in the securities and commodities trade. Many contracts contain a standard arbitration clause, referring to the arbitration rules of the respective organization. Numerous arrangements between the parties in industry and commerce also provide for the arbitration of controversies arising out of contracts for the sale of manufactured goods, for terms of service of employment, for construction and engineering projects, for financial operations, for agency and distribution arrangements, and for many other undertakings.
Selection of arbitrators
The matter of selecting arbitrators is an important aspect of the arbitration process, as the arbitrators’ ability and fairness is the decisive element in any arbitration. The general practice is for both the parties to select an arbitrator at the time the arbitration agreement is concluded. Selection of arbitrators is also often made by agencies administering commercial arbitration, under pre-established rules of procedure. These organizations, including various trade associations, and Chambers of Commerce, maintain panels of expert arbitrators. The parties may either make their own selection or entrust the appointment of the arbitrators to the organization.
Procedure in arbitration
The arbitration process is governed by the rules to which the parties refer in the agreement. In the absence of specific legal rules, the procedure will be determined by the arbitrators. The arbitration proceeding must be so conducted as to afford the parties a fair hearing on the basis of equality. The arbitrator generally has the authority to request the parties and third persons to produce documents and books and to enforce such a request by issuing subpoenas through court. If a party fails to appear at a properly convened hearing, without showing a legitimate cause, the arbitrator in most instances will proceed in the absence of the party and then render an award after investigation of the matter in dispute. The technical rules of evidence do not apply to arbitrations. “See section 1, read with section 3, Indian Evidence Act, 1872” as in force in Bangladesh.
The Arbitration Act adopts the approach, that in the working of an arbitration agreement, the parties are free to lay down provisions regarding various matters of procedure. But in the absence of an agreement, the rules contained in the First Schedule to the Arbitration Act, 1940, apply.
An arbitrator can be removed for misconduct. In applying this provision courts generally follow the wide construction adopted in most commonwealth countries, so that, it is not merely misconduct involving moral turpitude that attracts this power, but also misconduct of a technical nature, for example, a breach of the rules of natural justice.
An arbitrator can be removed for misconduct. In applying this provision courts generally follow the wide construction adopted in most commonwealth countries, so that, it is not merely misconduct involving moral turpitude that attracts this power, but also misconduct of a technical nature, for example, a breach of the rules of natural justice.
Detailed provision exist for settling the problems that might arise where two or more arbitrators are contemplated by the arbitration agreement and a difference of opinion arises between them.
Law to be applied in transnational transactions
Law to be applied in transnational transactions
The statutory law of various countries and the rules of agencies administering commercial arbitration contain provisions on the form, certification, notification, and delivery of the award. The arbitrator must comply with these requirements.
Substantive Law
A much debated question in commercial arbitration concerns the substantive law to be applied by the arbitrators. Generally, the award must be based upon the law as determined by the parties in their agreements. This failing, the arbitrator must apply the law which he considers proper an accordance with the rules of conflict of laws. In both the cases, the arbitrator will have to take account of the terms of the contract and the usages of the specific trade.
The arbitrator and the court
Challenges to the process of arbitration are not uncommon. A party may claim, for example, that no valid arbitration agreement came into existence, because the person signing the agreement had no authority to do so or that a condition precedent to arbitration had not been fulfilled. More often, the validity of an arbitration is contested on the ground that the specific controversy is not covered by the agreement. In such cases, the question whether the arbitrator has authority to deal with the conflict is usually determined by a court.
Challenges before the courts against the award cannot be excluded by agreement of the parties, since the fairness of the arbitration process as a quasi judicial proceeding has to be maintained by the legal system.
Challenges before the court are, however, confined to specific grounds and specific matters. A review of the award by a court will not generally deal with the arbitrators decisions as to facts or with his application of the law. The jurisdiction of the court is thus restricted. The arbitration process must be the end and not the beginning of litigation.
Filing the award
An award of the arbitrator must be filed in the court and a decree obtained in terms thereof. The decree so obtained can be executed, like any other decree of the court. However, the court may, instead of confirming the award, remit it to the arbitrator, modify it or set it aside for the specified causes. Most of the orders passed by a court under the provisions of the Arbitration Act, 1940 in this regard are subject to appeal.
Competent Court
The court having jurisdiction under the Arbitration Act 1940 is the court in which a suit on the matter under dispute could be instituted.
Provisions have been enacted in the Act to deal with questions concerning the cost of arbitration and the procedure to be followed by the arbitrators regarding filing of the awards. In case of difference of opinion between an even number of arbitrators, the parties can provide for an umpire. Generally, most of the provisions applicable to arbitrators apply, with necessary modifications, to umpire also.
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ADR in Bangladesh
The Vagaries of Civil Litigation
A. D. R. means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the issues of a case are seldom framed following the Code of Civil Procedure, the case takes several years to reach a settlement date and on the date of positive hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none. In the meantime years roll by, presiding judge of a single case is transferred a number of times, witnesses of a single case may be heard by more than one presiding judge, arguments are listened to may be by another presiding judge and judgment may be delivered by a presiding judge who had had no connection with the case ever before. Our legal system has thus been rendered uncaring, non-accountable and formalistic. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades. When they win a case the result is much worse than winning it. When they lose a case they lose not only the subject matter of the dispute, but also a good part of their fortune. If interlocutory matters are dragged up to the appellate or revision courts, their woos know no bounds and their agonies are prolonged for an indefinite period. Appeals from trial court decrees may reach unto the Appellate Division by which time the parties are thoroughly drenched in misery. When a decree is thus obtained after protracted litigation, it does not end there. Execution proceedings then re-starts a fresh litigation between the parties or even their successors which may take years or decades to come to a conclusion and which may end up with no real or positive benefit to the decree-holder plaintiff. This is the experience of a common litigant in Bangladesh. Added to this inherent and in-built delay and expenses, corruption and often terrorism at almost each stage of litigation is eating into the vitals of the justice delivery system.
Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness. Many conscientious judges and lawyers have done what they could under the circumstances, but their sincerity has been drowned into the general morass of malfunctioning of the court system.
Experience of Developed Countries
All countries, following the common law system, have faced this problem of delay and excessive expenses in the disposal of civil cases at some point or the other in their respective legal history, as also the problem of apathy of judges and lawyers. Developed countries like the U.S.A., Australia and Canada have witnessed a few decades back huge backlog of cases, excessive legal costs and expenses and litigants’ misery, as we are witnessing now in our country.
Lawyers and judges of developed countries did not look upon the Government to solve what was essentially a problem of administration of justice that concerned lawyers and judges themselves. In many areas of these countries, some thirty plus years back, public-spirited judges and lawyers put their heads together and devised a common strategy to solve the problem of huge backlog of cases, delay in the disposal of cases and excessive expenses in litigation.
Their Perception of Adversarial System
What they found was that the adversarial system prevalent in common law countries were no longer adequate to address the growingly complicated technical legal problems of modem-day litigation. The adversarial system creates two mutually contending, exclusive, hostile, competitive, confrontational and uncompromising parties to litigation. This system does not generate a climate of consensus, compromise and co-operation. As litigation progresses it generates conflict after conflict. At the end of litigation one party emerges as the victor and the other party is put to the position of the vanquished. Adversarial litigation does not end in a harmony. It creates more bitterness between the parties that manifests itself in more litigation between them or even their successors. However, judges and lawyers of developed countries found that the alternative is not to do away altogether with the adversarial system. The adversarial system plays a positive role too. It settles through adversarial hearing complicated and disputed questions of fact and law. The law that superior courts lay down to be followed by subordinate courts and tribunals can never be arrived at without following the adversarial procedure. Any court cannot lay down any law by way of compromise, consent or consensus of parties to litigation.
Their Adoption of Consensual System as an Alternative not Substitute
Beyond the territory of complicated questions of fact and law there lies a vast area of litigation where the adversarial system must yield to a consensual type of dispute resolution, even though there are complicated technical legal problems in this vast area as well. The consensual type is essentially a type and a process of dispute resolution that requires judges, lawyers and the litigant public to change their century’s old mind-set and to adjust gradually to play a combined and co-operative role in the resolution of disputes. In an adversarial system a judge has a passive role to play. He/she will take the evidence as it comes, hear the parties and deliver his/her judgment without getting involved in the entire dispute resolution process. In a consensual system the judge, the lawyers, litigants and outside mediator or evaluator are all active parties to the resolution of dispute. It is informal, confidential, speedy and less expensive. It preserves the jurisdiction of the trial court to try the case on merit, if A.D.R. fails.
Their Solution, but what is New about It
These and other jurisprudential thinking led the judicial and legal thinkers of U.S.A., Australia and Canada to devise two prominent alternative methods of dispute resolution: (1) mediation and (2) non-binding arbitration.
Question may arise, is it anything new? Certainly, it is not entirely new, at least to us. In this sub-continent of ours, mediation by village elders and arbitration by impartial individuals or group of individuals have continued since time immemorial. A recent UNDP report on Bangladesh gives a finding that village elders settle 60 to 70 per cent of petty disputes between villagers who dare not approach the formal legal system for fear of delay and expenses.
Then, what is new about the concept of alternative dispute resolution? Shortly stated, the newness of A.D.R. is the purpose behind its adoption. The purpose of alternative dispute resolution is not to substitute consensual disposal for adversarial disposal or to abolish or discourage informal mediation or arbitration outside the courts, but to make alternative dispute resolution a part and parcel of the formal legal system, preserving the trial court’s statutory authority and jurisdiction to try the case should A.D.R. fail. Mediation or arbitration conducted by village elders and some NGOs are praiseworthy efforts, but these efforts, by themselves, have not solved the civil court’s own specific problems, namely, backlog of cases, delay and expenses in litigation. Our formal court system has not been directly and permanently benefited by these extra-judicial exercises. If out of court mediation continues and an exclusively adversarial system also continues in our legal and judicial system, then the formal court system will unlikely help reduce backlog, as also unlikely ever to be as speedy and as least expensive as we would like it to be. It will be prudent, therefore, to inject some doses of consensual resolution into an otherwise exclusively adversarial system. If we make alternative dispute resolution an integral part of our legal and judicial system, litigants and potential litigants will not feel insecure to live in a legal climate where justice can be had from the formal legal system only through a process of inordinate delays and overburdening expenses. They will live in a climate of assurance that an alternative method of obtaining justice can be obtained from the formal legal and judicial system itself speedily and with less expense. This, I believe, is a legitimate expectation of the people of Bangladesh from any Court “established by law” under Article 114 of the Constitution. What is available to the benefit of a litigant from a paralegal informal system should legitimately be expected from a court “established by law”.
This is the justification of alternative dispute resolution.
Different Forms of A.D.R. and their Application
1) Mediation
The most common type of A.D.R. is mediation. Although the word “conciliation” is also used in A.D.R. terminology, there is virtually no distinction between mediation and conciliation, because mediation includes conciliation. It is generally recognized that when parties come to a stage of litigation when the trial is imminent, alternative dispute resolution is too late a procedure to induce the parties to divert themselves to a different procedure, because by that time the parties had already spent a substantial amount of money, time and energy in the litigation. It is then too late to take an interest in a cost saving or timesaving procedure. Attitudes had also hardened mutually on both sides. It is desirable that after the defendant/s file their written statements, the presiding judge should read both the plaint and the written statements and call the parties and their lawyers, if any, to impress upon them the desirability of settling their disputes through mediation or non-binding arbitration. If the parties agree the case is adjourned for three months, within which they have to obtain either a settlement or a failure of it from either the mediator or the arbitrator. In the event of failure to settle, the court will proceed to try the case, according to a time-calendar for each case, and the adversarial system will resume.
Court-Directed Mediation Proceedings
Mediation is a completely voluntary and non-binding process of settlement of disputes between parties. It is an informal, flexible, confidential, non-adversarial and consensual procedure in which the Code of Civil Procedure or any law of evidence does not apply. The proceedings are immune from disclosure in any court of law. An impartial, disinterested and neutral person acts as a mediator. Mediation may be 1) Direct or 2) Facilitative. In Direct Mediation, the mediator applies all methods of squeezing into the heads of the parties his/her own idea of a settlement. In Facilitative Mediation the mediator facilitates settlement negotiations, improves communication between the parties, helps the parties to articulate their respective interests and stakes in the litigation and helps each party to understand the interests and stakes of their opponent in the litigation. He/she probes the relative strengths and weaknesses of each party’s legal position, identifies areas of agreement and helps to generate options amongst the parties themselves to arrive at a mutually acceptable resolution of their disputes. The lawyers of each party are entitled as of right to take part in the mediation proceedings, but the mediator in an informal and flexible proceeding of this kind, may like to sit alternately with the plaintiff/s or the defendant/s, with or without their lawyers. The parties may disclose many things to the mediator not articulated in the plaint or written statement/s, but the mediator must maintain the confidentiality of these disclosures and tell the other side so much of the disclosures as he/she has been expressly authorized to disclose. He/she must not lean on any side and both sides must have confidence and trust in his/her impartiality and neutrality unto the end, even if there is no settlement. If the decision makers of a dispute in respect of payment of legal fees to the parties or in respect of execution of the court’s decree are operating from behind using the plaintiff/s or the defendant/s as proxies, the mediator has the right to call and listen them too. At a trial the judge’s hands are more restrained. It may so happen that the mediator generates so much of a spirit of compromise between the parties that they even agree to withdraw other civil suits pending against each other in other civil courts or compromise compoundable criminal cases pending against each other in various criminal courts. The final settlement is thus not limited to the prayers in the plaint. In a formal trial, a judge cannot go beyond the prayers in the plaint if the suit is decreed. In court-sponsored mediation the terms of settlement may travel beyond the scope of pleadings. When signed by the parties, their lawyers and the mediator,. the presiding judge will pass a decree in terms of the settlement. If other civil and criminal cases are also compromised in the document of settlement, the parties will have to approach the other courts to pass a compromise decree or compound a compoundable criminal offence. If one party fails to do so, the other party may sue for specific performance of contract or may claim damages for breach of contract, because the written settlement operates as a binding contract between the parties. There is no appeal or revision against a settlement of this nature. Hence if all parties adhere to the terms of settlement several cases are finally disposed of and go out of the pending list. When a court directs mediation, it means facilitative mediation.
Benefits of Mediation
Please pause and ponder over the beneficial effects of _ successful mediation. There is no victor and no vanquished. No party is aggrieved by the outcome, because the settlement is voluntary and is reached after considering the pros and cons of several options generated by the mediator. Both sides are in a win-win situation. There is no bitterness left. There is often a restructuring of relationship. Parties who would not see each other’s face may re-establish a working relationship between them after conclusion of a successful mediation. Instead of discord, disharmony and bitter relationship at the end of an adversarial proceeding there is peace, accord and re-established relationship between the parties at the end of a consensual proceeding.
Mediators in Developed Countries
Judges do not conduct mediation or non-binding arbitration. They are meant for trial of a case. But they have the authority to refer any case, or part of a case for any of the A.D.R. mechanisms, preserving their jurisdiction to try the case if A.D.R. fails. When they do so refer, there is no appeal or revision against the order, because that kind of order is passed only when the parties agree with the judge that it should be so done. A.D.R. begins with an agreement, not with a discord. However, the legal climate that prevails in our country is surcharged with a highly adversarial bent of mind that has been fostered throughout centuries. It would be wise to leave the matter whether a case or part of a case should be referred to mediation or arbitration to the discretion of the trial judge, without leaving the matter entirely to the willing consent of both parties. The discretion will not be amenable to appeal or revision. When A.D.R. gains ground, as experience suggests, the consent of both parties would be forthcoming like an avalanche. The judge will hardly have any discretion in the matter.
I have said earlier that it is the combined efforts of lawyers and judges in developed countries for over three or four decades that A.D.R. has come to be accepted as a widely used handmaid of justice. It is the lawyers who convinced the litigant public that if all cases were to be disposed of by trial and trial only, then in all jurisdictions all over the world, backlogs would heap upon backlogs, choking the entire justice delivery system. Because of the pioneering role and involvement of lawyers from the very beginning, it is the lawyers who perform almost 90% of court-directed mediation, non-binding arbitration and early neutral evaluation (of which I shall speak later). Each court maintains a list of senior lawyers who earned their financial security, reputation and standing in the society by practicing in the Bar. They owe it to the Bar and the Bench to repay a part of their debt by giving a bit of their precious time, energy and intellect in the A.D.R. mechanism voluntarily and without payment of any charges or fees. Because a system of rotation is in place, each senior lawyer is required to mediate, arbitrate or make an early neutral evaluation once every three months or six months. A small office is set up at each Bar to maintain and update the list of senior lawyers as approved by the local court, to ascertain if in any court-sponsored mediation, non-binding arbitration or early neutral evaluation any senior lawyer has either been consulted or engaged by either the plaintiff/s or the defendant/s, to request and obtain their consent for their services if they have not been so consulted or engaged and to fix up the date, time and venue of arbitration, non-binding arbitration or early neutral evaluation. A small fee is charged from the plaintiff/s and the defendant/s equally (U.S.$75 each in San Francisco courts) to defray the costs of running this small office. Court-appointed professional mediators perform nearly 5% of this work for a fixed salary paid from the court’s budget. Private Mediation Firms, staffed by well-qualified ex-judges and ex-lawyers, approved by the local court, perform the rest for moderately high fees from both sides. Affluent parties with high stakes flock to the private firms.
Suggested Mediation in Bangladesh
Given the position that in Bangladesh no awareness or movement of senior lawyers of any significance has grown up yet, willing to take up the major load of A.D.R. upon them, it will not be wise, in my view, to start the program with sole dependence upon public-spirited lawyers. It will be prudent, at least at this stage, to keep in the statute a wide option of mediators and arbitrators to avoid the vagary of availability or non-availability of senior lawyers. Presiding judges of the disputes in question and other available judges of co-equal jurisdiction not in seisin of the disputes in question should be kept as options for the choice of mediator or arbitrator. Senior lawyers as per list maintained and constantly updated by the District Judge should be available for mediation and arbitration free of cost and charges. Private mediation firms, having experienced judges or retired judges and/or qualified non-practicing lawyers on their staff, recommended by the District Judge and approved by the Chief Justice of Bangladesh, may also be included for mediation or non-binding arbitration on payment of equal fees by the parties. Gradually, as the idea spreads and the A.D.R. procedure gains ground, judges may be eliminated from the list altogether. This may take some time, but nothing can be achieved without patience and perseverance. U.S.A., Australia and Canada have not achieved their present position without sustained efforts for three or four decades. 85 to 90 percent of cases filed are now disposed of by A.D.R. method and only 10 to 15 percent cases filed are disposed of by trial now in those countries. But Rome was not built in a day.
Training of Mediators and Arbitrators
1)A Matter of Continuous Importance
Mediation or arbitration does not come easily to anyone, whatever height he/she attains in legal knowledge and experience. Mediation especially involves the use of a facilitator trained in conflict resolution. The mediator must know the techniques of encouraging the parties to discuss their positions with greater candor and he/she must also know how to foster compromise. Mediation involves a thorough training for a few days. Training literature is available in the Internet and a few trainers in Bangladesh are available as well. The first implementation task will be to train up a large number of trainers in mediation, arbitration and early neutral evaluation. These trainers will then spread out throughout the nook and corner of the country to train up judges, lawyers and other interested persons in the art and science of mediation, arbitration and early neutral evaluation. Without such intensive training, it will be a folly to introduce A.D.R. wholesale in our lower courts. India tried to introduce A.D.R. in 1999 by an amendment to the Code of Civil Procedure, known as the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999). It ended in a fiasco. There was widespread resistance to it by lawyers that forced the Government of India to postpone its implementation. The lesson is that when you introduce any matter of legal reform or innovation, do not try to impose it from above. Do some intensive work at the grassroots level, build up a large following, try the reform on a trial and error basis by setting up pilot courts and then proceed with caution by examining its results. Learn from the pilot courts and the lawyers involved in mediation and other methods what practical problems they are encountering with, adjust and re-adjust your program accordingly, so that what finally emerges is not a foreign model, but an indigenous Bangladeshi model, suited to the legal culture, ethos and traditions of this country. The second implementation task will be to continue the training for all time to come for the new entrants to the Judicial Service through the Judicial Administration Training Institute (JATI). JATI will have to develop a curriculum especially for A.D.R. and also will have to keep and maintain one or more regular instructor on its pay roll to teach the mechanisms of A.D.R. to the trainee-judges. Outsiders interested to pursue a career of mediation and arbitration may also receive instructions and certificate from JATI, on payment of fees and charges, as and when JATI is ready enough to render this service.
2) Non-Binding Arbitration
In the A.D.R. vocabulary, arbitration is preceded by the word ‘non-binding’ because of two reasons. First, it is necessary to emphasize that it is not arbitration under the respective Arbitration Act of any country. Arbitration Act, 2001 of Bangladesh contains so much of a lengthy procedure and it is so much amenable to interference at various stages by the local court having jurisdiction over it and by both Divisions of the Supreme Court that the total purpose of A.D.R. will be frustrated if the Arbitration Act is made applicable to A.D.R. arbitration. The second reason is that in A.D.R. proceedings the jurisdiction of the trial court to try the case, if A.D.R. fails, is always preserved. A.D.R. is not a substituted method of dispute resolution following a separate statutory procedure, but an alternative, informal and confidential procedure to cut down delay and expenses. An arbitrator’s award under A.D.R. procedure is non-binding on both parties. The application of Arbitration Act will take away the trial court’s basic jurisdiction to try the case. This will then be a case of abandonment of judicial function in favor of an Arbitrator.
Non-binding arbitration is an adjudicative process in which an arbitrator or a panel of arbitrators issues a non-binding award on the merits of the disputes in question after an expeditious, time-bound and adversarial hearing. Lawyers of each party will face each other in these proceedings as in any other adversarial proceeding. The arbitrator has no role as a mediator. He/she has a passive role to play. He/she will hear the evidence and peruse the oral and documentary evidence, hear arguments of both sides and give his/her award according to his/her best judgment. Each party has the option to reject the award. If both parties accept the award both of them will sign the award or put their thumb impressions on it, as the case may be, and their respective lawyers, if any and the arbitrator/s will also sign the award before the trial court makes it a decree of the court. Parties have been given the option to reject the award because if the award has not been satisfactory to either or both of them, they have the right to fall back upon the trial court for a decision on merit. Like mediation this is also a confidential proceeding that is immune from disclosure in any court of law. Arbitrators are nominated in the same manner as mediators.
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A. D. R. means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the issues of a case are seldom framed following the Code of Civil Procedure, the case takes several years to reach a settlement date and on the date of positive hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none. In the meantime years roll by, presiding judge of a single case is transferred a number of times, witnesses of a single case may be heard by more than one presiding judge, arguments are listened to may be by another presiding judge and judgment may be delivered by a presiding judge who had had no connection with the case ever before. Our legal system has thus been rendered uncaring, non-accountable and formalistic. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades. When they win a case the result is much worse than winning it. When they lose a case they lose not only the subject matter of the dispute, but also a good part of their fortune. If interlocutory matters are dragged up to the appellate or revision courts, their woos know no bounds and their agonies are prolonged for an indefinite period. Appeals from trial court decrees may reach unto the Appellate Division by which time the parties are thoroughly drenched in misery. When a decree is thus obtained after protracted litigation, it does not end there. Execution proceedings then re-starts a fresh litigation between the parties or even their successors which may take years or decades to come to a conclusion and which may end up with no real or positive benefit to the decree-holder plaintiff. This is the experience of a common litigant in Bangladesh. Added to this inherent and in-built delay and expenses, corruption and often terrorism at almost each stage of litigation is eating into the vitals of the justice delivery system.
Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness. Many conscientious judges and lawyers have done what they could under the circumstances, but their sincerity has been drowned into the general morass of malfunctioning of the court system.
Experience of Developed Countries
All countries, following the common law system, have faced this problem of delay and excessive expenses in the disposal of civil cases at some point or the other in their respective legal history, as also the problem of apathy of judges and lawyers. Developed countries like the U.S.A., Australia and Canada have witnessed a few decades back huge backlog of cases, excessive legal costs and expenses and litigants’ misery, as we are witnessing now in our country.
Lawyers and judges of developed countries did not look upon the Government to solve what was essentially a problem of administration of justice that concerned lawyers and judges themselves. In many areas of these countries, some thirty plus years back, public-spirited judges and lawyers put their heads together and devised a common strategy to solve the problem of huge backlog of cases, delay in the disposal of cases and excessive expenses in litigation.
Their Perception of Adversarial System
What they found was that the adversarial system prevalent in common law countries were no longer adequate to address the growingly complicated technical legal problems of modem-day litigation. The adversarial system creates two mutually contending, exclusive, hostile, competitive, confrontational and uncompromising parties to litigation. This system does not generate a climate of consensus, compromise and co-operation. As litigation progresses it generates conflict after conflict. At the end of litigation one party emerges as the victor and the other party is put to the position of the vanquished. Adversarial litigation does not end in a harmony. It creates more bitterness between the parties that manifests itself in more litigation between them or even their successors. However, judges and lawyers of developed countries found that the alternative is not to do away altogether with the adversarial system. The adversarial system plays a positive role too. It settles through adversarial hearing complicated and disputed questions of fact and law. The law that superior courts lay down to be followed by subordinate courts and tribunals can never be arrived at without following the adversarial procedure. Any court cannot lay down any law by way of compromise, consent or consensus of parties to litigation.
Their Adoption of Consensual System as an Alternative not Substitute
Beyond the territory of complicated questions of fact and law there lies a vast area of litigation where the adversarial system must yield to a consensual type of dispute resolution, even though there are complicated technical legal problems in this vast area as well. The consensual type is essentially a type and a process of dispute resolution that requires judges, lawyers and the litigant public to change their century’s old mind-set and to adjust gradually to play a combined and co-operative role in the resolution of disputes. In an adversarial system a judge has a passive role to play. He/she will take the evidence as it comes, hear the parties and deliver his/her judgment without getting involved in the entire dispute resolution process. In a consensual system the judge, the lawyers, litigants and outside mediator or evaluator are all active parties to the resolution of dispute. It is informal, confidential, speedy and less expensive. It preserves the jurisdiction of the trial court to try the case on merit, if A.D.R. fails.
Their Solution, but what is New about It
These and other jurisprudential thinking led the judicial and legal thinkers of U.S.A., Australia and Canada to devise two prominent alternative methods of dispute resolution: (1) mediation and (2) non-binding arbitration.
Question may arise, is it anything new? Certainly, it is not entirely new, at least to us. In this sub-continent of ours, mediation by village elders and arbitration by impartial individuals or group of individuals have continued since time immemorial. A recent UNDP report on Bangladesh gives a finding that village elders settle 60 to 70 per cent of petty disputes between villagers who dare not approach the formal legal system for fear of delay and expenses.
Then, what is new about the concept of alternative dispute resolution? Shortly stated, the newness of A.D.R. is the purpose behind its adoption. The purpose of alternative dispute resolution is not to substitute consensual disposal for adversarial disposal or to abolish or discourage informal mediation or arbitration outside the courts, but to make alternative dispute resolution a part and parcel of the formal legal system, preserving the trial court’s statutory authority and jurisdiction to try the case should A.D.R. fail. Mediation or arbitration conducted by village elders and some NGOs are praiseworthy efforts, but these efforts, by themselves, have not solved the civil court’s own specific problems, namely, backlog of cases, delay and expenses in litigation. Our formal court system has not been directly and permanently benefited by these extra-judicial exercises. If out of court mediation continues and an exclusively adversarial system also continues in our legal and judicial system, then the formal court system will unlikely help reduce backlog, as also unlikely ever to be as speedy and as least expensive as we would like it to be. It will be prudent, therefore, to inject some doses of consensual resolution into an otherwise exclusively adversarial system. If we make alternative dispute resolution an integral part of our legal and judicial system, litigants and potential litigants will not feel insecure to live in a legal climate where justice can be had from the formal legal system only through a process of inordinate delays and overburdening expenses. They will live in a climate of assurance that an alternative method of obtaining justice can be obtained from the formal legal and judicial system itself speedily and with less expense. This, I believe, is a legitimate expectation of the people of Bangladesh from any Court “established by law” under Article 114 of the Constitution. What is available to the benefit of a litigant from a paralegal informal system should legitimately be expected from a court “established by law”.
This is the justification of alternative dispute resolution.
Different Forms of A.D.R. and their Application
1) Mediation
The most common type of A.D.R. is mediation. Although the word “conciliation” is also used in A.D.R. terminology, there is virtually no distinction between mediation and conciliation, because mediation includes conciliation. It is generally recognized that when parties come to a stage of litigation when the trial is imminent, alternative dispute resolution is too late a procedure to induce the parties to divert themselves to a different procedure, because by that time the parties had already spent a substantial amount of money, time and energy in the litigation. It is then too late to take an interest in a cost saving or timesaving procedure. Attitudes had also hardened mutually on both sides. It is desirable that after the defendant/s file their written statements, the presiding judge should read both the plaint and the written statements and call the parties and their lawyers, if any, to impress upon them the desirability of settling their disputes through mediation or non-binding arbitration. If the parties agree the case is adjourned for three months, within which they have to obtain either a settlement or a failure of it from either the mediator or the arbitrator. In the event of failure to settle, the court will proceed to try the case, according to a time-calendar for each case, and the adversarial system will resume.
Court-Directed Mediation Proceedings
Mediation is a completely voluntary and non-binding process of settlement of disputes between parties. It is an informal, flexible, confidential, non-adversarial and consensual procedure in which the Code of Civil Procedure or any law of evidence does not apply. The proceedings are immune from disclosure in any court of law. An impartial, disinterested and neutral person acts as a mediator. Mediation may be 1) Direct or 2) Facilitative. In Direct Mediation, the mediator applies all methods of squeezing into the heads of the parties his/her own idea of a settlement. In Facilitative Mediation the mediator facilitates settlement negotiations, improves communication between the parties, helps the parties to articulate their respective interests and stakes in the litigation and helps each party to understand the interests and stakes of their opponent in the litigation. He/she probes the relative strengths and weaknesses of each party’s legal position, identifies areas of agreement and helps to generate options amongst the parties themselves to arrive at a mutually acceptable resolution of their disputes. The lawyers of each party are entitled as of right to take part in the mediation proceedings, but the mediator in an informal and flexible proceeding of this kind, may like to sit alternately with the plaintiff/s or the defendant/s, with or without their lawyers. The parties may disclose many things to the mediator not articulated in the plaint or written statement/s, but the mediator must maintain the confidentiality of these disclosures and tell the other side so much of the disclosures as he/she has been expressly authorized to disclose. He/she must not lean on any side and both sides must have confidence and trust in his/her impartiality and neutrality unto the end, even if there is no settlement. If the decision makers of a dispute in respect of payment of legal fees to the parties or in respect of execution of the court’s decree are operating from behind using the plaintiff/s or the defendant/s as proxies, the mediator has the right to call and listen them too. At a trial the judge’s hands are more restrained. It may so happen that the mediator generates so much of a spirit of compromise between the parties that they even agree to withdraw other civil suits pending against each other in other civil courts or compromise compoundable criminal cases pending against each other in various criminal courts. The final settlement is thus not limited to the prayers in the plaint. In a formal trial, a judge cannot go beyond the prayers in the plaint if the suit is decreed. In court-sponsored mediation the terms of settlement may travel beyond the scope of pleadings. When signed by the parties, their lawyers and the mediator,. the presiding judge will pass a decree in terms of the settlement. If other civil and criminal cases are also compromised in the document of settlement, the parties will have to approach the other courts to pass a compromise decree or compound a compoundable criminal offence. If one party fails to do so, the other party may sue for specific performance of contract or may claim damages for breach of contract, because the written settlement operates as a binding contract between the parties. There is no appeal or revision against a settlement of this nature. Hence if all parties adhere to the terms of settlement several cases are finally disposed of and go out of the pending list. When a court directs mediation, it means facilitative mediation.
Benefits of Mediation
Please pause and ponder over the beneficial effects of _ successful mediation. There is no victor and no vanquished. No party is aggrieved by the outcome, because the settlement is voluntary and is reached after considering the pros and cons of several options generated by the mediator. Both sides are in a win-win situation. There is no bitterness left. There is often a restructuring of relationship. Parties who would not see each other’s face may re-establish a working relationship between them after conclusion of a successful mediation. Instead of discord, disharmony and bitter relationship at the end of an adversarial proceeding there is peace, accord and re-established relationship between the parties at the end of a consensual proceeding.
Mediators in Developed Countries
Judges do not conduct mediation or non-binding arbitration. They are meant for trial of a case. But they have the authority to refer any case, or part of a case for any of the A.D.R. mechanisms, preserving their jurisdiction to try the case if A.D.R. fails. When they do so refer, there is no appeal or revision against the order, because that kind of order is passed only when the parties agree with the judge that it should be so done. A.D.R. begins with an agreement, not with a discord. However, the legal climate that prevails in our country is surcharged with a highly adversarial bent of mind that has been fostered throughout centuries. It would be wise to leave the matter whether a case or part of a case should be referred to mediation or arbitration to the discretion of the trial judge, without leaving the matter entirely to the willing consent of both parties. The discretion will not be amenable to appeal or revision. When A.D.R. gains ground, as experience suggests, the consent of both parties would be forthcoming like an avalanche. The judge will hardly have any discretion in the matter.
I have said earlier that it is the combined efforts of lawyers and judges in developed countries for over three or four decades that A.D.R. has come to be accepted as a widely used handmaid of justice. It is the lawyers who convinced the litigant public that if all cases were to be disposed of by trial and trial only, then in all jurisdictions all over the world, backlogs would heap upon backlogs, choking the entire justice delivery system. Because of the pioneering role and involvement of lawyers from the very beginning, it is the lawyers who perform almost 90% of court-directed mediation, non-binding arbitration and early neutral evaluation (of which I shall speak later). Each court maintains a list of senior lawyers who earned their financial security, reputation and standing in the society by practicing in the Bar. They owe it to the Bar and the Bench to repay a part of their debt by giving a bit of their precious time, energy and intellect in the A.D.R. mechanism voluntarily and without payment of any charges or fees. Because a system of rotation is in place, each senior lawyer is required to mediate, arbitrate or make an early neutral evaluation once every three months or six months. A small office is set up at each Bar to maintain and update the list of senior lawyers as approved by the local court, to ascertain if in any court-sponsored mediation, non-binding arbitration or early neutral evaluation any senior lawyer has either been consulted or engaged by either the plaintiff/s or the defendant/s, to request and obtain their consent for their services if they have not been so consulted or engaged and to fix up the date, time and venue of arbitration, non-binding arbitration or early neutral evaluation. A small fee is charged from the plaintiff/s and the defendant/s equally (U.S.$75 each in San Francisco courts) to defray the costs of running this small office. Court-appointed professional mediators perform nearly 5% of this work for a fixed salary paid from the court’s budget. Private Mediation Firms, staffed by well-qualified ex-judges and ex-lawyers, approved by the local court, perform the rest for moderately high fees from both sides. Affluent parties with high stakes flock to the private firms.
Suggested Mediation in Bangladesh
Given the position that in Bangladesh no awareness or movement of senior lawyers of any significance has grown up yet, willing to take up the major load of A.D.R. upon them, it will not be wise, in my view, to start the program with sole dependence upon public-spirited lawyers. It will be prudent, at least at this stage, to keep in the statute a wide option of mediators and arbitrators to avoid the vagary of availability or non-availability of senior lawyers. Presiding judges of the disputes in question and other available judges of co-equal jurisdiction not in seisin of the disputes in question should be kept as options for the choice of mediator or arbitrator. Senior lawyers as per list maintained and constantly updated by the District Judge should be available for mediation and arbitration free of cost and charges. Private mediation firms, having experienced judges or retired judges and/or qualified non-practicing lawyers on their staff, recommended by the District Judge and approved by the Chief Justice of Bangladesh, may also be included for mediation or non-binding arbitration on payment of equal fees by the parties. Gradually, as the idea spreads and the A.D.R. procedure gains ground, judges may be eliminated from the list altogether. This may take some time, but nothing can be achieved without patience and perseverance. U.S.A., Australia and Canada have not achieved their present position without sustained efforts for three or four decades. 85 to 90 percent of cases filed are now disposed of by A.D.R. method and only 10 to 15 percent cases filed are disposed of by trial now in those countries. But Rome was not built in a day.
Training of Mediators and Arbitrators
1)A Matter of Continuous Importance
Mediation or arbitration does not come easily to anyone, whatever height he/she attains in legal knowledge and experience. Mediation especially involves the use of a facilitator trained in conflict resolution. The mediator must know the techniques of encouraging the parties to discuss their positions with greater candor and he/she must also know how to foster compromise. Mediation involves a thorough training for a few days. Training literature is available in the Internet and a few trainers in Bangladesh are available as well. The first implementation task will be to train up a large number of trainers in mediation, arbitration and early neutral evaluation. These trainers will then spread out throughout the nook and corner of the country to train up judges, lawyers and other interested persons in the art and science of mediation, arbitration and early neutral evaluation. Without such intensive training, it will be a folly to introduce A.D.R. wholesale in our lower courts. India tried to introduce A.D.R. in 1999 by an amendment to the Code of Civil Procedure, known as the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999). It ended in a fiasco. There was widespread resistance to it by lawyers that forced the Government of India to postpone its implementation. The lesson is that when you introduce any matter of legal reform or innovation, do not try to impose it from above. Do some intensive work at the grassroots level, build up a large following, try the reform on a trial and error basis by setting up pilot courts and then proceed with caution by examining its results. Learn from the pilot courts and the lawyers involved in mediation and other methods what practical problems they are encountering with, adjust and re-adjust your program accordingly, so that what finally emerges is not a foreign model, but an indigenous Bangladeshi model, suited to the legal culture, ethos and traditions of this country. The second implementation task will be to continue the training for all time to come for the new entrants to the Judicial Service through the Judicial Administration Training Institute (JATI). JATI will have to develop a curriculum especially for A.D.R. and also will have to keep and maintain one or more regular instructor on its pay roll to teach the mechanisms of A.D.R. to the trainee-judges. Outsiders interested to pursue a career of mediation and arbitration may also receive instructions and certificate from JATI, on payment of fees and charges, as and when JATI is ready enough to render this service.
2) Non-Binding Arbitration
In the A.D.R. vocabulary, arbitration is preceded by the word ‘non-binding’ because of two reasons. First, it is necessary to emphasize that it is not arbitration under the respective Arbitration Act of any country. Arbitration Act, 2001 of Bangladesh contains so much of a lengthy procedure and it is so much amenable to interference at various stages by the local court having jurisdiction over it and by both Divisions of the Supreme Court that the total purpose of A.D.R. will be frustrated if the Arbitration Act is made applicable to A.D.R. arbitration. The second reason is that in A.D.R. proceedings the jurisdiction of the trial court to try the case, if A.D.R. fails, is always preserved. A.D.R. is not a substituted method of dispute resolution following a separate statutory procedure, but an alternative, informal and confidential procedure to cut down delay and expenses. An arbitrator’s award under A.D.R. procedure is non-binding on both parties. The application of Arbitration Act will take away the trial court’s basic jurisdiction to try the case. This will then be a case of abandonment of judicial function in favor of an Arbitrator.
Non-binding arbitration is an adjudicative process in which an arbitrator or a panel of arbitrators issues a non-binding award on the merits of the disputes in question after an expeditious, time-bound and adversarial hearing. Lawyers of each party will face each other in these proceedings as in any other adversarial proceeding. The arbitrator has no role as a mediator. He/she has a passive role to play. He/she will hear the evidence and peruse the oral and documentary evidence, hear arguments of both sides and give his/her award according to his/her best judgment. Each party has the option to reject the award. If both parties accept the award both of them will sign the award or put their thumb impressions on it, as the case may be, and their respective lawyers, if any and the arbitrator/s will also sign the award before the trial court makes it a decree of the court. Parties have been given the option to reject the award because if the award has not been satisfactory to either or both of them, they have the right to fall back upon the trial court for a decision on merit. Like mediation this is also a confidential proceeding that is immune from disclosure in any court of law. Arbitrators are nominated in the same manner as mediators.
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