Alternative Dispute Resolution (ADR) is an alternative route for reaching a speedier and less-expensive mode of settlement of disputes. It includes mediation, settlement of disputes, arbitration and other ways that are voluntary and not compulsory.
Most countries of the world have adopted ADR mechanism and achieved tremendous success in reducing backlog and increasing access to justice for the poor. The concept of ADR was first inserted in Section, 10(3) and 13(1) of the Family Court Ordinance of 1985, wherein there is provision for compromise or reconciliation even before pronouncement of judgment.
However, there was no implementation of these provisions until a special pilot project was taken on "Mediation as a measure of ADR" in June, 2000, under the supervision of the then chief justice of Bangladesh. Under that project, three assistant judge's courts of Dhaka were specified as exclusive Family Courts for the purpose of mediation.
At that time, a circular was issued from the High Court Division of the Supreme Court providing credit of two trials for one successful mediation in a family dispute and the credit of one trial for two unsuccessful mediations. This circular inspired the Family Court judges to give more efforts to mediation in Family Court cases, achieving success in disputes resolution through "mediation" in the family courts.
The great success in realisation of dower money and amicable, peaceful and quick settlement of disputes through mediation in the Family Courts inspired the government and the policy makers as well to widen the scope of ADR through other legislation.
Accordingly, ADR mechanism was introduced for the first time in general civil litigation in 2003 by the Code of Civil Procedure, (Amendment) Act, 2003 and by the Artha Rin Adalat Ain, 2003, with effect from July 1, 2003 and May 1, 2003, respectively. The Code of Civil Procedure (Amendment) Act, 2003 embodied two new sections (89A, 89B) designed for ADR mechanism in all civil suits and cases.
On the other hand, the mechanisms of ADR in the Artha Rin Adalat (Money Loan Court Act, 2003) are (a) settlement conference, which is to be presided over by the trial judge and to be held in camera and (b) arbitration, which is to be presided over by a neutral arbiter and to be held in camera.
The latest amendment in this regard is incorporation of ADR at appellate stage in non-family civil disputes. A new section, 89 C, was inserted in the Code of Civil Procedure by Act No. VIII of 2006. The use of ADR in Artha Rin cases is a success story. Besides, ADR is gradually progressing and becoming a popular forum for the litigants of civil cases.
Alternative dispute resolution in today's world is a widely accepted and appreciated method for reducing the number as well as cost of suits. Many developed and developing countries have gained tremendous success in reducing backlog by adopting ADR.
Disposal of suits/litigation through ADR is bound to enhance the quality of social justice and thereby contribute to the promotion of harmony and peace in society, both of which are pre-conditions for meaningful development in social, cultural economic and other spheres.
Actually, mediation, conciliation/reconciliation, arbitration and other forms of ADR are important vehicles for promoting social harmony. Our country should develop the system of ADR without any delay, and this should be of prime importance in view of the fact that ADR process can be of great help in strengthening the legal framework, which, in turn, can certainly bring about changes so that people can get justice speedier.
1.2. What is ADR
Alternative Dispute Resolution (ADR) is a collection of processes used for the purpose of resolving conflict or disputes informally and confidentially. ADR provides alternatives to traditional processes, such as grievances and complaints; however, it does not displace those traditional processes. The ADR Office is a resource available to all CDC and ATSDR employees. The ADR Office is a resource when you need advice about how to deal directly with a concern, you are uncertain about taking a problem through other established channels, are not sure who to talk with about a problem or concern, want an informal, no escalating approach, need a fresh, impartial perspective, want to discuss strategies or possible options for resolving a concern and if you want to maintain the greatest possible flexibility in how to approach a concern or simply need a sounding board.
According to GLOSSARY Law Dictionary- "The term 'ADR' describes, a number of methods used to resolve disputes out of court, including negotiation, concilia.ion, mediation and the many types of arbitration.^The common denominator of all ADR methods is that they are faster, less formalistic, cheaper and often less adversarial than a court trial."
According to the case referred to Hilmond Investments v CIBC 1996 135 DLR 4th 471 ONT Court of Appeal) 887574- 'ADR' is the method by which legal conflicts and disputes are resolved privately and other than through litigation in the public courts, usually through one of two forms: mediation or arbitration.
According to Barrister Maudud Ahmed (Former Minister for Law, Justice and Parliamentary Affairs) said that- "To me, the generic term Alternative Dispute Resolution (ADR) is a real, practical and traditional approach of outside court justice system, saves time and mone), uses simple common sense of the common people of the society with the guidance of 1he experts, respects community beliefs & values, acts to preserve peace and harmony among the parties, resolves disputes with assistance of neutral persons, involves with a range of processes like negotiation, mediation, arbitration, conciliation, ombudsman or even malpractice screening panel as appropriate; and creates an innovative dimension in legal profession for better effectiveness of the over-all justice delivery system',( An exclusive television interview with Channel I on 24th March 2006).
ALTERNATIVE DISPUTE RESOLUTION (ADR)
2.1 Origin of ADR
As a means of non adversarial system, alternative dispute resolution (ADR) is a buzz phrase and much talked about mechanism at almost every legal system varying from adversarial to inquisitorial one. ADR as a consensual form of dispute resolution is being practiced almost in all disputes from family to business except grievous criminal issues and also has proven to be effective mechanism for dispensation of justice. It refers the ways of settling disputes outside of the traditional court room setting and also within court as a format of court sponsored one with and without the intervention of the court. Over the ages, the disillusionment and frustration of people over the cost, inordinate delay in dispensation of justice through judicial dispute resolution (JDR) looms large as a great threat to erode the confidence of people in the justice system expanding the use and scope of ADR.
The means of JDR can be traced throughout history in various laws and religious codes over the past 5000 years, starting with the laws of Hammurabi, a Babylonian ruler from about 2500 BC while the ADR perhaps can be founded even long before the development of code and laws but with the existence of human being in the earth. The basis for JDR is to determine the rights and obligations of the parties and award the winners and also punish the losers reflecting a zero some theory of game while the basis of ADR is social consciousness and moral obligation with voluntary participation to settle the disputes to restore social harmony and peace.
The philosophical basis of ADR is perhaps drawn from Confucianism which in a phrase 'calling for ruling by virtue' during 551-478 BC, although the Chinese predisposition to seek dispute resolution through ADR as opposed to litigation is rooted in at least three sources viz. Confucian philosophy, the unavailability and inadequacy of the court system, and a social structure that emphasized small, stable units.
In ancient China, inspired by Confucianism, ADR became the primary method of settling disagreements. The philosophy of Confucius, was, in essence, one of harmony, of peace and of compromise and according to him the best way of resolving disagreement or dispute is by moral persuasion and compromise instead of by sovereign coercion. Chinese agreed that the foundations of the community are ethical rules which require that the state of a natural harmony in human affairs should not be disrupted. These are based on the strong belief that laws are the not the appropriate way to regulate daily life and hence should only play a secondary role reflecting ancient adages of China i.e. 'in death avoid hell and in life avoid the law courts' and also 'going to court means getting a goat selling a cow'.
2.2. 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.
2.3. 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.
2.4. 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.
2.5. Settlement Conference or Judicial Conference
Settlement Conference or Judicial Conference may be held at any time during the life of a civil case upon request of a party or recommendation of a trial judge. The judge who is assigned to adjudicate the dispute in question is not involved in this method of A.D.R. Another judge of co-equal jurisdiction is requested to involve him/herself in this method. The settlement judge acts as a mediator or facilitator at the Conference, promoting communication among the parties, holding one-on-one sessions with each side, offering an objective assessment of the case and suggesting settlement options. The settlement judge has not the power to enforce settlement and does not communicate any information about the case to the trial judge. If settlement is reached, the parties sign an agreement, thereby avoiding the cost of trial or other litigation. If no settlement is reached, the case proceeds to trial before the previously appointed trial judge.
The success of this process is attributable to two factors. First, the parties get the advantage of utilizing for free judicial experience in evaluating the settlement value of a civil claim and secondly, they have the opportunity to separate their private and confidential negotiations from public ad judicatory trials.
3.Introducing A.D.R. in Bangladesh
3.1. WHY A.D.R?
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 revisional 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.
Early Neutral Evaluation" for the same reasons described therein.
3.2. Different types of ADR in Bangladesh:
Sumaiya Khair suggests that there are three streams of ADR in Bangladesh:
- Extra- judicial or community based ADR (informal);
- ADR in Quasi-formal systems; and
- ADR in formal legal system.
All these ADR modes have been discussed in different chapters in this book with there merits and demerits. Formal ADR in different laws are shown in the diagram below:
3. No System of Precedent – It isn't easy to predict the outcome of a dispute decided through ADR as there is no system of precedent.
4. Enforceability – Most •forms of ADR are not legally binding, making any award difficult to enforce.
5. A Court action may still be required – If using ADR fails to resolve the parties' dispute, court action may Still be needed. This adds to the costs and delays compared to taking a dispute direct to the courts in the first place.
6. No guaranteed resolution- There is no guaranteed resolution. With the exception of arbitration, alternative dispute resolution processes do not always lead to a resolution. That means it is possible that you could invest the time and money in trying to resolve the dispute out-of-court and still end up having to go to court.
Though there are some disadvantages of ADR, it is the most easier and swiftest trial process in the judicial system of any country. So its popularity is increasing day by day.
7. Training and Commencement of First Pilot Courts
ISDLS and the Legal Study Group then took a joint decision to start two or three pilot family courts at Dhaka Judgeship from June 2000. A Project Implementation Committee was formed with Justice K.M. Hasan as Chairman. It was at his instance that the Chief Justice and the Minister of Law were persuaded to make an amendment to the performance measurement of Assistant Judges. They would be given two credits, i.e., credit of holding two trials for performing one successful mediation and one credit, i.e., credit of holding one trial for two unsuccessful mediations. I may mention here in passing that all Assistant Judges are ex-officio judges of Family Courts. The credit would be enjoyed by all of them, whether they would preside over a pilot court or not.
ISDLS then arranged an experienced Mediator of the Ninth Federal Circuit Court of the U.S.A, Mr. William C. Rack, to visit Dhaka and impart training on mediation, both theoretical and practical, to 30 Assistant Judges assembled from all over Bangladesh, some lawyers and NGOs. The American Center, Dhaka and the Ministry of Law provided all cooperation. During the training for 3 days some of the members of the Legal Study Group, including myself, watched from the beginning to the end, what the subject matter of the training was, how it was imparted, what impact it made and how effective the training program was. We selected three Assistant Judges to operate three pilot courts at Dhaka Judgeship. Accordingly 2 pilot courts started functioning from 1 June 2000 and the other from 1 January 2001 at Dhaka Judgeship. Cases had to be transferred to those courts exclusively for mediation, parties were to be notified and during these preparatory days, the pilot courts, without wasting time, conducted trials of cases till sufficient number of cases were ready for mediation with the consent of both parties. It need not be emphasized that nothing would have been possible without the active support of the Chief Justice, Minister of Law and the District Judge of Dhaka and without the outside help of ISDLS and the inside logistic assistance of the American Center.
8. Continuous Training and Expansion of Pilot Courts
After a gap of two or three months we three, myself, Mr. Justice Anwar-ul-Huq and Mr. A. K. Roy (then Deputy Secretary of the Ministry of Law and now Judge, Women and Children Repression Prevention Court, Sylhet) started touring the divisional headquarters, namely, Chittagong, Rajshahi, Khulna, Barisal and Sylhet imparting training both to Assistant Judges coming from each Division and to the local lawyers on mediation techniques for two or three days on each visit. We also spread out to district headquarters, namely, Comilla and Mymensingh, and imparted the same training to other batches of Assistant Judges and lawyers. Sometimes the training sessions were inaugurated by the Chief Justice of Bangladesh and sometimes by the Minister of Law. Mr. Justice K. M. Hasan made himself available on most of the occasions to apprise the audience of the progress of mediation in the family courts of Bangladesh. Mrs. Mary Ann Peters, Ambassador of the U.S.A to Bangladesh, made an invaluable speech at the opening of the training session at Comilla. After a year or so we started taking one of the Dhaka family pilot court judges to narrate their mediation experiences and achievements and to interact with the trainee participants. Everywhere the trainee participants volunteered immediate participation. Needless to say the Ministry of Law and the American Center were cooperative on each occasion and rendered all administrative and logistic assistance required.
After completion of a training session at a certain place, a Pilot Court was set up in that town or elsewhere within the jurisdiction of the judgeship where the training was held. The District Judges followed the matter through. Now there are 3 pilot courts at Dhaka, 2 at Chittagong and 1 each at Sylhet, Rajshahi, Khulna (not exclusive though), Bogra, Jessore, Rangpur, Kushtia, Comilla, Faridpur, Barisal and Mymensingh. Out of 65 districts, only 14 have pilot courts, but it is our information that not all districts need an exclusively mediation pilot court, because the number of family cases does not justify it. It is also our belief that many districts, where there is a genuine need for an exclusively mediation pilot court, can well be served initially by transferring to those districts some Assistant Judges who have already received training from us. It is however necessary to keep the training process ongoing so that all the districts of Bangladesh are covered by pilot courts. In due course, all districts will have at least one exclusively mediation court and they will no longer be called pilot courts.
9. Concluding Suggestions
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.
Before we extend the frontiers of A. D. R. to other types of litigation, I would suggest the following:
1. Amend the Code of Civil Procedure giving the trial court an enabling and discretionary power to refer a case or part of a case for only mediation or nonbinding arbitration at any stage of the suit. Although the proper stage to do so is after receiving the written statement, I would suggest 'at any stage of the suit' to cover backlogs. When the amendment comes into force, the judges will be trained to refer a case for mediation or non-binding arbitration after receiving the written statement in all suitable cases, but they will be further trained to refer pending cases for mediation or non-binding arbitration when both parties agree or according to the judge's own discretion, the stage of the suit not being very important. It is necessary to define mediation and non-binding arbitration correctly and precisely in the amendment to avoid unnecessary dispute about their nature and character.
2. Make the presiding judge, a judge of co-equal jurisdiction, lawyers of the local court or a court of adjacent jurisdiction of more than 10 years' standing, and Private Mediation Firms, adequately staffed by either experienced ex-judges of not less than 10 years' standing or retired judges and/or non-practicing lawyers of not less than 15 years' standing, recommended by the District Judge and approved by the Chief Justice of Bangladesh, as qualified for appointment as mediator or arbitrator. As a matter of practice the presiding judge may not assume that function, but the enabling provision should be there, because in many places a judge of co-equal jurisdiction or a lawyer of stated standing or a private legal firm might not be available. The District Judge will keep a constant eye on A.D.R., provide the Ministry of Law with regular up-ta-date information about disposal of cases by mediation by various pilot courts, amount realized each month by the pilot courts, pending mediations in the pilot courts, comparison in terms of disposal and realization of money with the rate of disposal and rate of realization of money prior to mediation, amount realized by execution of decree on a previous 5-year average prior to mediation etc. and oversee the progress of A.D.R. diligently and constantly.
3. Before introducing A.D.R. in any other field intensive training of concerned judges, lawyers and the court staff is a must. The training will be on a continuous basis and JATI should have an instructor on its pay roll to impart training on different methods of A.D.R. to different tiers of trainee-judges, including new entrants to the Judicial Service. A batch of trainers should be created to take up this arduous job in all the districts.
4. 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.
5. Mediation or non-binding arbitration, in my opinion, may not be a suitable form of A.D.R. in big commercial cases involving heavy amounts, Artha Rin Adalat cases, applications before the District Judges in house building loan cases, Bangladesh Shilpa Rin Shangstha and Bangladesh Shilpa Rin cases and insolvency cases under the Insolvency Act. I have suggested Early Neutral Evaluation or Settlement Conference as the proper result-yielding method of A.D.R. in such cases. I would advise an amendment to the special legislations covering these types of cases enabling trial judges to refer a case or part of a case at any stage of the suit for application of ENE or Settlement Conference, although the ideal time to start this process is after receiving the written statement. I am in favor of adding 'at any stage of the suit or application' to cover the backlogs. Also ENE and Settlement Conference should be suitably defined to avoid any conflicting interpretation of these concepts.
6. The Government is the major litigant in this country, either as a plaintiff or as a defendant. Under P.D. No. 142 of 1972, the Government is a necessary party in all title suits, suits for specific performance of contract and so on. In most cases the Government do not make any appearance, because the Government do not find, at any rate for the time being, any interest of the Government involved in the case. Yet when the parties in dispute compromise the matter, even without mediation, the option remains for the Government to challenge the compromise at a belated stage, claiming an interest in the subject matter of litigation. The Government is thus responsible in many cases to prolong the litigation. To make the A.D.R. successful, P.D. No. 142 of 1972 should be amended providing that where in a case covered by p.a. No.142 of 1972, the Government do not enter appearance or after entering appearance do not file any written statement, or after filing a written statement do not contest the case, any resolution of the dispute through A.D.R. or otherwise by the other parties to the dispute would be binding on the Government.
7. Labor Courts and Small Causes Court are the two areas where mediation should be introduced immediately on a priority basis, amending the two special legislations.
<p style="text-align:justify; The people of Bangladesh are hungry for justice. It is for us, the legal and judicial community, to respond to this public need in a well thought-out, disciplined and organized manner. Our success will depend upon the way we motivate and dedicate us.
Akhteruszanian, Md. "Concept and Laws on Alternative Dispute Resolution and Legal Aid (In Bangla)", 2007, Dhaka, Bangladesh.
Halim, Md. Abdul, "ADR in Bangladesh: Issue and Challenges", CCB Foundation, 2010, Dhaka, Bangladesh.
Khan, Dr. Ansur All, "An Introduction to Alternative Dispute Resolution", 2007, Dhaka, Bangladesh.
(2008 ): Legal Empowerment for the Poor and disadvantaged: Strategies, achievement and Challenges.