Mediation as an alternative dispute resolution (ADR) process is growing rapidly in Bangladesh. It is cost-effective and less time-consuming than court litigations. The confidentiality of mediation and the fact that the affected parties decide the outcome without relying on a judge to impose a decision, make it an attractive option.
However, it is still not utilized widely by the masses and as such they continue to suffer under the complex, court-based litigation process.
Problems in the Formal Justice System
Bangladesh’s legal system is burdened by large backlogs which effectively deny citizens the right of redress. Parties become part of a protracted and torturous process, with no end in sight. The delay and inefficiency most prominently affect the poor, who are also hampered by the expense of the dispute resolution process. Money often matters more than merit, making cost concerns crucial. Most of the Bangladeshi people cannot even afford to reach the doors of the courts and derive any benefits of their services.
The cost of litigation is further increased by the cost of bribes. In Bangladesh, most parties (63 percent) have no option but to bribe court officials to accelerate the disposal of their cases. When the resolution of these cases is delayed, total charges paid to the lawyers increase with consecutive court appearances. The delays themselves are caused partly by a lack of judges. According to The Daily Star, as of 2017 1,268 judges in the lower courts had a backlog of 2.7 million cases, six Appellate Division judges over 13,000 cases, and 86 High Court judges were backlogged with 431,000 cases.
The inaccessibility of formal justice affects women in Bangladesh even more because women are at a decided disadvantage in terms of their access to and control of material resources, mainly because of their lower level education and limited involvement in income-generating activities.
Advantages of Mediation
Considering all these limitations of the formal court system and the socioeconomic context of Bangladesh, mediation is a promising alternative for ensuring access to justice, especially for the poor and women. This informal method can minimize the financial burden and ensure timely justice, without creating excessive delays. Mediation allows women to access justice without violating the social customs in Bangladesh, since it allows women to discuss their personal family matters in entirely confidential mediation sessions which they may otherwise choose not to discuss.
Mediation is a customary practice of the informal justice system that has a history of more than a thousand years in the form of the panchayat/salish. The traditional dispute resolution system conducted in out-of-court settings might also have some influence on the current day-to-day practice of court-annexed mediation in Bangladesh. Mixing mediation with direction from the formal legal system might be more suitable to Bangladesh’s needs than pure mediation, a system that has developed in countries such as the US after long periods of trial and error. Using the best practices gleaned from pilot courts and lawyers, working in mediation and other ADR techniques will help create a Bangladeshi model that is indigenous and suitable.
Out-of-court NGO-based mediation is an improved variation of the traditional salish conducted by village leaders to resolve local disputes. The whole process is moderated and facilitated by NGO staff. The Madaripur Legal Aid Association (MLAA), established in 1978, is considered to be a pioneer in the NGO-based out-of-court mediation in Bangladesh. Other NGOs active in the sector are Bangladesh Legal Aid and Services Trust (BLAST), Ain-o-Salish Kendra (ASK), Nagorik Uddayog (NU). There is an emphasis on working within the familiar salish framework, training village elders and elites in law, women’s rights and access to mediation.
Provisions Relating to Mediation in Existing Laws
A provision for mediation has been inserted into the Legal Aid (Amendment) Act, 2015 where before filing a case with the help of government legal aid, it is suggested to resolve the dispute via mediation.
Bangladesh International Arbitration Centre (BIAC) has its own BIAC Mediation Rules, 2014 and Code of Conduct, 2014. It suggests that BIAC-compliant mediation be pursued before a dispute is referred directly to the BIAC for resolution. Additionally, any dispute shall be referred to BIAC for settlement through mediation in accordance with BIAC Mediation Rules before such dispute is submitted to court or arbitration.
Bangladesh International Mediation Society (BDIMS) also provides a mediation service to help resolve civil and commercial disputes of both a domestic and an international nature. Its Code of Conduct binds BDIMS-affiliated mediators to confidentiality obligations.
Moreover, there are provisions relating to mediation of disputes in the statutory laws of Bangladesh now. The Code of Civil Procedure 1908 (CPC) was amended to provide for a scope of mediation in the Appellate Court.
There is also the Family Court Ordinance, 1985. After the filing of the written statement, the Family Court shall fix a date for a pre-trial hearing of the suit. On the date fixed for the pre-trial hearing, the Court shall aim for reconciliation between the parties.
In the Village Court Act, 2006, village courts are tasked with reconciling disputing parties.
Moreover, Section 22 of Arbitration Act also provides for the scope of ‘mediation’. According to this Act, mediation procedure can be followed at any stage of arbitration with the consent of all parties. At the time of continuation of the dispute, if the parties resolve the matter amicably and notify the tribunal, the Arbitration Tribunal shall record the consensus of the decision as an ‘award’ of the Tribunal.
MLAA mediators have suggested some necessary changes in the laws and other infrastructural changes that can make NGO-based mediation more effective. There is also a growing fear among lawyers regarding the adverse effect of mediation, suspecting that cases being resolved quickly would reduce the number of practicing lawyers and consequently the amount of fees to be collected from the clients. Additionally, there are concerns that the resources allocated are not being utilized efficiently in the mediation process.
Strategies such as training and incentivizing judges and lawyers to practice mediation, binding mediation outcomes through court decrees, etc. have amounted to a high rate of disposal of cases. After the impressive success of mediation in family courts, mediation was gradually included in various other civil laws in Bangladesh such as Code of Civil Procedure (CPC) following an amendment in 2012.
From the analysis made above, it can be concluded that mediation is still a developing concept as an alternate dispute resolution mechanism in Bangladesh. Despite its limitations, it can be said that it is playing a vital role in ensuring access to justice for the public. With the courts of Bangladesh being flooded with an overwhelming number of claims, the increasing number of NGO mediations, court-connected mediations and law provisions regarding mediation lead the way towards a bright future for ADR in Bangladesh.
This is an abridged version of an article originally published in the Bangladesh Law Digest.