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ADR in the Context of Civil Litigation in Bangladesh: Evaluating Legal and Practical Dimensions

Introduction

Mediation is a process in which the involved parties come together with an impartial and neutral third party, chosen by mutual agreement, who helps them negotiate and resolve their disagreements. As explained in Section 89A of the Code of Civil Procedure, 1908, mediation refers to a flexible, informal, non-binding, confidential, non-adversarial, and voluntary process for resolving disputes. In this process, the mediator helps the parties reach a compromise without imposing or dictating the terms of the settlement. This article will address the legal challenges related to ADR under various civil laws of Bangladesh and offer recommendations to help overcome these obstacles. It is important to note that prior to 2012, the Code of Civil Procedure, 1908 (CPC) did not require mandatory mediation for dispute settlement. Mediation was an optional process under the Code of Civil Procedure (Amendment) Act, 2003. However, since 2012, mediation has become mandatory in all civil suits and appeals. The primary aims of this change were to decrease the backlog of civil cases, alleviate the burden on lower courts, and ensure that everyone has access to justice in a more amicable way. Despite these intentions, the amendment’s outcomes have not yet fully achieved the goals of Alternative Dispute Resolution (ADR).

The Code of Civil Procedure, 1908

Section 89A of this legislation outlines the process for conducting civil suits through mediation outside the court system. It stipulates that after a written statement is filed, the court shall refer the suit to mediation. However, it does not specify which types of civil suits are suitable for mediation. According to this section, the parties involved in the suit can choose a mediator who is not engaged in the current suit, such as another pleader, a retired judge, or a mediator from a panel prepared by the District Judge, or any other person they deem suitable. The term “any other person whom they may seem to be suitable” is particularly vague, potentially causing confusion between the parties. If the parties cannot agree on a mediator, the court will appoint one. While the section mandates mediation for civil suits, it does not provide detailed guidelines on how the mediation should be conducted, leaving this to the discretion of the parties and the mediator. The section also permits the court or a legal aid officer to conduct the mediation. It requires the mediator to maintain confidentiality regarding the proceedings. However, it does not address the accountability of the mediator, raising questions about what happens if mediation fails due to the mediator’s fault, if the mediator is biased, or if the mediator unduly influences the parties’ decision-making. Furthermore, according to this section, no appeal or revision is allowed against any order or decree passed by the Court following a settlement between the parties. The section does not prevent the withdrawal, adjustment, or compromise of the suit. Although it mandates mediation, it lacks precise, transparent, and well-structured guidelines for conducting the mediation process.

Money Loan Court Act, 2003

Sections 22 to 25 pertain to the mediation process under the MLCA, 2003. The mediation process outlined in Section 22 of the MLCA, 2003, is quite similar to the mediation proceedings specified in the CPC, 1908. For any case involving a financial institution with claims exceeding five crore taka, the report prepared for alternative settlement through mediation under this Act must be approved by the Managing Director or Chief Executive, or equivalent authority, of the respective financial institution (Section 25). This requirement could potentially create a legal obstacle for conducting mediation proceedings to resolve financial disputes under this Act. According to Section 44A(1) of this Act, at any stage during the appeal or revision proceedings, the parties involved may notify the Court of a settlement reached through mediation concerning the subject matter of the appeal or revision case.

The Family Court Act, 2023

The Family Court Ordinance of 1985 was repealed by this new Act. However, the new legislation has not introduced significant changes, leaving the pre-existing issues and challenges unaddressed. According to Section 5 of the Act, the family court retains jurisdiction over matters such as divorce, restitution of conjugal rights, dower, maintenance, and guardianship and custody. Section 11(3) of the Act permits the court to identify the issues in dispute during the pre-trial hearing and attempt to facilitate a compromise or settlement between the parties if feasible. Additionally, after hearing the testimonies of all parties involved, the family court is required to make another effort to achieve a compromise or settlement. Notably, the Act does not include provisions for Alternative Dispute Resolution (ADR) during the appellate stage.

The Village Court Act, 2006

The Village Court aims to resolve civil and criminal disputes at the local level, operating independently from the formal judicial system. It is authorized to handle cases involving land conflicts where the value is below TK 75,000. Moreover, it can mandate the repayment of debts or the return of property to its rightful owner if it has been encroached upon.

The Labour Code, 2006

Section 210 of the 2006 Labor Code outlines the procedures for settling industrial disputes through negotiation, conciliation, and arbitration. If negotiation and conciliation fail, the parties can refer the issue to an arbitrator. The arbitrator’s decision is final, and no appeal is permitted against this award. However, Section 210(17) introduces a loophole that allows for the potential misuse of the arbitrator’s decision. While Section 210(16) prohibits appeals against the arbitrator’s resolution, Section 210(17) specifies that the resolution is valid for only two years. This means that parties can delay the enforcement of the arbitrator’s decision for two years and then pursue formal court proceedings for the same dispute, resulting in unnecessary and irrational consumption of the court’s valuable time.

Observations and Recommendations

The subsequent observations and recommendations derive from the above analysis and aim to enhance the Alternative Dispute Resolution mechanisms in Bangladesh.

A) Section 89A of the Code of Civil Procedure, 1908, should be amended to provide clear and standardized guidelines for mediation. This includes specifying the types of civil suits suitable for mediation, defining criteria for mediator selection to avoid ambiguity, and outlining the mediation process to ensure transparency and consistency. Additionally, the section should address the accountability of mediators to prevent bias or undue influence and to ensure a fair mediation process.

B) As mentioned in the discussion on the Money Loan Court Act, 2003, the restriction imposed by Section 25 of the Act needs to be removed.

C) The scope of the Village Court Act, 2006, should be broadened to cover more civil and criminal cases. Specifically, the monetary jurisdiction concerning land issues should be increased. To achieve this, the Act needs to be amended accordingly.

D) In the context of the Family Court Act, 2023, incorporating ADR provisions during the appellate stage is crucial. This can involve mandatory mediation attempts before hearing appeals and providing specialized ADR training for family court judges and mediators. Such measures can help resolve family disputes more amicably and efficiently.

E) As discussed earlier in the Labour Code of 2006, it is recommended to amend Section 210(16) to allow the aggrieved party to appeal the arbitrator’s decision directly to the relevant court. Without this amendment, the aggrieved party would be subjected to a two-year period of hardship.

F) To ensure fair access to justice for all citizens, it is proposed to establish individual legislation for ADR with clear criteria. Furthermore, every lower court in Bangladesh should be equipped with its own ADR tribunal.

References

1. Effective Implementation of ADR in the Civil Justice System of Bangladesh: A Critical Analysis, Bangladesh Journal of Law, Volume 20, Issue No. 2, December 2022, DOI: https://doi.org/10.58710/bjlV20N2Y2022A05, published by the Bangladesh Institute of Law and International Affairs (BILIA).

2. The Code of Civil Procedure, 1908.

3. Money Loan Court Act, 2003.

4. The Family Court Act, 2023.

5. The Village Court Act, 2006.

6. The Labour Code, 2006

                        author

Md. Ala Uddin

Md. Ala Uddin is a Lecturer of Law at Cox's Bazar International University, where he imparts knowledge on Alternative Dispute Resolution and Legal Ethics. In addition, he also served as Acting Chairperson of the Law Department. He earned both his LLB (Honours) (2016) and LLM (2017) from the International Islamic… MORE >

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