SUBJECT
| Research Monograph ON ADR IN FAMILY COURT Course Code: LAW 4400 Credit hours-03 |
SUBMITTED FOR
Mr.Syed Sarfaraj Hamid Shovon
Assistant Professor,
Faculty of Law,
Northern University, Bangladesh.
.
SUBMITTED BY
MD.TANZIR HOSSEN
LL.B. (Hon’s)
ID.NO. LL.B. 050200386
1Oh Semester
Summer-2008.
Letter of Transmittal
26 June 2008
Barrister M. Ashrafuzzaman.
Professor Dept. of Law,
Supervisor of this research.
Northern University Bangladesh
Subject: Submission of an research.
Dear Sir,
It is great pleasure to place before you my recent study is “A Study On Working And Socio-Economic Condition Of Ship Breaking Workers (A Case Study On Chittagong)”. This study has been performed as partial requirement of LL.B program.
This report attempts to describe my observations, learning and experience gained during the study conducted with the help of journals, web sites, articles, report and survey. I tried my level best to work sincerely to cover all the aspects regarding the matter, though I faced some limitation in preparing the report, I really enjoyed it.
I shall be highly obliged if you kindly accept our report and hope that you would be kind enough to accept any mistakes that might have taken place beyond our view and will.
Finally I shall be glad to answer any kind of query relating to this report, if necessary.
Thanking you best.
Sincerely Yours,
MD. ENAMUL HAQUE SHAMIM
LL.B. (Hon’s)
ID. NO: LL.B. 050200370
1Oh Semester; Summer-2008.
Declaration
I, Md. Enamul Haque Shamim, hereby, declare that the work, present in this Research is the outcome of the investigation, performed by me under the supervision of Dr. A. W. M. Abdul Huq, Dean, Department of Law, Northern University, Bangladesh. I also declare that- this thesis or no part thereof has been or is being submitted elsewhere for the award of any degree or Diploma.
Countersigned Signature
…..…………….. ……………….
Mr. Mr. Ziaur Rahman, Md. Enamul Haque Shamim
(Supervisor) (Candidate)
Acknowledgement
I express my sincerest gratitude to honorable course teacher Mr.Syed Sarfaraj Hamid Shovon, Assistant Professor, Faculty of Law, Northern University, Bangladesh. He indented his helping hand by providing guidance, offering valuable suggestions, encouragement in writing this report. I acknowledge my profound indebtedness and gratitude to him.
I am grateful to my friends for their assistance and encouragement in writing this research paper. Special thanks to honorable teacher Professor.DR.A.W.M. ABDUL HUQ, Dean, Faculty of Law, Northern University, Bangladesh and Mr.Reeaduddin, Lecture, Faculty of Law, Northern University, Bangladesh for their assistance.
At last I am grateful to Almighty Allah, who has been kind to complete this research paper. Thanks to all.
Date: 25th August.2008
Executive summary
Alternative Dispute Resolution (ADR) has attracted a great deal of attention as a method of reducing both the financial and emotional costs of litigation. It appears that simply moving cases from the courts, and away from the adversarial process, allows some cases to be resolved quicker and to the greater satisfaction of the parties.
Dispute arises when interest of more than one-person clashes with each other. Disputes are a reality of life. In order to resolve this worldwide problem, different countries have introduced various methods in their legal system in the form of Alternative Dispute Resolution (ADR), which is not meant to be a replacement for adjudication but a complementary mechanism to reduce the workload or pressure on the courts.[1] It does not also mean that the use of ADR is in some way ‘second-best’ to going to court. Mr. Justice Mustafa Kamal described the ADR thus: “The newness of ADR 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.[2]
Professor J. G. Merrill’s defines ‘dispute’ as a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another.[3] A fair and right process for resolving disputes is crucial in any civilized society for the purpose of securing and defending rights of its citizens. Courts bring disputes to an end and ensure that people can enforce their rights.[4] But in most parts of the world, the ever mounting expense of litigation, congested court schedules, delay in disposal of cases have battered the confidence of people in the judicial system and have put question on the efficacy of the system. [5]
Shadow of the research paper
This research paper has eleven chapters and it considers various perspectives of Alternative Dispute Resolution and Alternative Dispute Resolution in family matters.
In the first chapter, I discussed Statement of research problem, Scope and objective of the study, Methodology of the study and the Limitation of the study.
In second chapter, I discussed what Is ADR, Why it comes, how it comes and why it introduced in Muslim Laws
In the third chapter, I discussed concept of ADR, Object of the ADR, advantages of ADR, disadvantages of ADR, achievements of ADR and ADR agreements.
In the fourth chapter, I discussed why A.D.R in The Vagaries of Civil Litigation, History & development of ADR and history & development of ADR in BANGLADESH.
In the fifth chapter, I discussed relation Between ADR and the court system, adversarial System, Alternative Dispute Resolution (ADR), processes and beyond the basic types of alternative dispute resolutions there are other different forms of ADRCase evaluation.
In the six chapter, I discussed about different Forms of ADR, disputes, mediation, med-Arb, arbitration, neutral evaluation, settlement conferencess, distinction among mediation and arbitration, early neutral evaluation (ENE),expert determination, case evaluation and neutral selection.
In the seven chapter, I discussed about ADR IN Family Matters, Object of the ADR in Family Court, Family Matters, Alternative Dispute Resolution, Alternative Dispute Resolution (ADR) Family Conferencing, What is ADR Family Conferencing, Who will be at the ADR Conference, The Benefits of ADR in Family court, What Matters can be Conference, Importance of ADR in family court, divorce conciliation and Women and Divorce.
In the eight chapter, I discussed about The Muslim Family Laws Ordinance, 1961,The Family Courts Ordinance, 1985,THE MUSLIM FAMILY LAWS RULES, 1961 and Mediation Under The Family Courts Ordinance-1985(By former Chief Justice Mustafa Kamal ).
In the nine chapters, I discussed about Bangladeshi law relating ADR and some reports on ADR.
In the ten chapter, I discussed about Findings and Recommendations for Bangladesh ADR system, The reasons for delay the suit in our civil justice, Some suggestion for good court management, Some problem of ADR in our country, The reasons for delays in our civil justice system are both systemic and subjective, They may be identified as follows, Suggested Mediation in Bangladesh and Suggestion for ADR to make more effective.
At last of all in the last chapter I discussed about Concluding Suggestions, Conclusion and Bibliography.
TERMS OF ABBREVIATION
ADR (Alternative Dispute Resolution
BDR (Better Dispute Resolution)
BVC (Bar Vocational Course)
CPC (The code of civil procedure)
EDR (Enhanced Dispute Resolution)
ISDLS (Study and Development of Legal Systems)
JADR (Judicially Assisted Dispute Resolution)
IDR (Innovative Dispute Resolution)
ODR (Online Dispute Resolution)
Chapter – 1
1.1 INTRODUCTION
Alternative dispute resolution or ADR is an umbrella term used to describe a variety of methods for resolving disputes outside of traditional methods such as litigation. Sometimes the "A" in ADR is defined as "appropriate" rather than "alternative" as a way of indicating that ADR relates to finding the most fitting way to resolve disputes. Sometimes there is no "A" used and simply the phrase "dispute resolution" is used, as a way to indicate that all approaches to dispute resolution are potentially considered[6]. Whichever way the acronym is spelled out – alternative, appropriate, or just dispute resolution – the concept of ADR is based on expanding the tools available for resolving disputes.[7]
Beyond a simple grouping of approaches, ADR also is conceived of as an idea, a philosophy. For many proponents of ADR, using different approaches to conflict resolution has a meaning or a larger goal. For example, there are those who see the use of ADR as part of the effort to bring peace to the world or heal a damaged community. Many prize the potential for results of ADR processes that go beyond what a court can order. There are others who see it as a way to improve the equality of parties in dispute. Yet others value the potential economies of ADR processes for courts, parties and society. Certainly not all participants in ADR or even those who develop ADR programs would consciously avow such lofty concepts, but there is generally some under girding, though often unarticulated, set of beliefs, for any ADR effort[8].
Alternative dispute resolution encompasses a range of means to resolve conflicts short of formal litigation. The modern ADR movement originated in the United States in the 1970s, spurred by a desire to avoid the cost, delay, and adversarial nature of litigation. For these and other reasons, court reformers are seeking to foster its use in developing nations. The interest in ADR in some countries also stems from a desire to revive and reform traditional mediation mechanisms[9].
1.2 Statement of research problem
Alternative dispute resolution encompasses a range of means to resolve conflicts short of formal litigation. Community-based ADR is often designed to be independent of a formal court system that may be biased, expensive, distant, or otherwise inaccessible to a population. New initiatives sometimes build on traditional models of popular justice that relied on elders, religious leaders, or other community figures to help resolve.
1.3 Scope and objective of the study
The object of the study to compare the ADR system of Bangladesh. In this sector Bangladesh are new but the government of Bangladesh try to make an impact of ADR in our judicial system. By studying about ADR try to find out the lack in this sector and try to solve this problem and also find out the away by which system it may be solved.
1.4 Methodology of the study
This study mainly relied on secondary data published in research studies. Social responses are also been used for identifying problems and solutions for this study.
1.5 Limitation of the study
This study was greatly held back as there is massive lacking of information on this issue. Information was inadequate. Especially the government agencies like lower court; statistics has a lack of tendency to update information regularly and still using the conventional or manual system for information storing and supply. These are a great malfunctioning and contradiction among supplied data from govt. agencies. On the other hand they are not interested for sharing their information related that is necessary for this research work.
Chapter-2
2.1 What Is ADR?
Alternative Dispute Resolution (ADR) has attracted a great deal of attention as a method of reducing both the financial and emotional costs of litigation. It appears that simply moving cases from the courts, and away from the adversarial process, allows some cases to be resolved quicker and to the greater satisfaction of the parties.
Dispute arises when interest of more than one-person clashes with each other[10]. Disputes are a reality of life. In order to resolve this worldwide problem, different countries have introduced various methods in their legal system in the form of Alternative Dispute Resolution (ADR), which is not meant to be a replacement for adjudication but a complementary mechanism to reduce the workload or pressure on the courts. Sit does not also mean that the use of ADR is in some way ‘second-best’ to going to court.[11] Mr. Justice Mustafa Kamal described the ADR thus: “The newness of ADR 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.[12]
The generic term Alternative Dispute Resolution (ADR) is a real, practical and traditional approach of outside court justice system, saves time and money, uses simple common sense of the common people of the society with the guidance of the 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.[13]
Some may view “ADR as part of their profession while others may conclude that ADR, particularly mediation, as a new profession, some may want ADR to be BDR (Better Dispute Resolution), Enhanced Dispute Resolution (EDR), Judicially Assisted Dispute Resolution (JADR) or IDR (Innovative Dispute Resolution), or, for convenience, appropriate dispute resolution”, as suggested by A J Pirie in his publication.[14]
Mr. Justice Mustafa Kamal, Former Chief Justice of Bangladesh described ADR in a workshop,[15] as: ‘The newness of ADR is the purpose behind its adoption. The purpose of alternative dispute resolution is not a 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 ADR fail’.[16]
ADR is nothing new. This informal quasi judiciary system is as old as civilization. Different forms of ADR have been in existence for thousands of years. The first Arbitration (a form of ADR) Act was passed in 1698 under William III. This was an Act for ‘rendering the award of arbitrators more effectual in all cases for the final determination of controversies referred to them by merchants and traders, or others’. In 1854, Common Law Procedure Act expressly empowered courts to remit an award for reconsideration by the arbitrators. It also empowered courts to stay (stop) an action in court if the parties had agreed to take the dispute to arbitration.[17]
ADR today falls into two broad categories: court-annexed options and community-based dispute resolution mechanisms. Court-annexed ADR includes mediation/conciliation—the classic method where a neutral third party assists disputants in reaching a mutually acceptable solution—as well as variations of early neutral evaluation, a summary jury trial, a mini-trial, and other techniques. Supporters argue that such methods decrease the cost and time of litigation, improving access to justice and reducing court backlog, while at the same time preserving important social relationships for disputants.[18]
Outside the sub-continent legal cultures in Singapore, Hong Kong, Australia, England and many other countries have already introduced different Alternative Dispute Resolutions methods to settle disputes outside the court. By updating their systems they have made their judicial systems more efficient, more service oriented, to provide speedy relief to the parties. Like in our country there was a time when the civil justice system in those countries confronted serious crisis for lack of discipline. The examples of these countries make us aware that Bangladesh is not alone in addressing the problem. Other countries including, some in the sub-continent, like Pakistan, with comparable problems have been successful in implementing reforms in similar manner.[19]
2.2 Why it comes:
All countries, following the common law system, have faced this problem of delay and excessive expenses in the disposal of a 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 USA, Australia and Canada have witnessed a few decades back huge backlog of cases, excessive legal costs and expenses and litigations’ misery, as we are witness 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 area of these countries, some thirty plus years back, public-inspired 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 expanses in litigation.[20]
2.3 How it comes:
The adoption of the ADR system is a system of alternative but 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 essential a type and a process of dispute resolution that requires judges, lawyers and the litigant public to change their centuries 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 judges, the lawyers, litigants and the outside mediator or evaluator are all active parties to the resolution of disputes. It is informal, confidential, speedy and less expensive. It preserves the jurisdiction of the trail Court to try the case on merit, it ADR fails.[21]
2.4 Why it introduced in Muslim Laws:
According to section-5 of the Family Courts Ordinance, 1985 we know that the Jurisdiction of the Muslim Family Courts. Muslim Family Laws deals with the family matter of like—
Divorce
Talaq
Maintenance
Restitution of Conjugal Rights
Dower
Guardianship and
Child Custody etc[22].
Chapter-3
3.1 CONCEPT OF ADR?
Alternative Dispute Resolution (ADR) means solving the dispute outside the court. Alternative Dispute Resolution (ADR) has attracted a great deal of attention as a method of reducing both the financial and emotional costs of litigation. It appears that simply moving cases from the courts, and away from the adversarial process, allows some cases to be resolved quicker and to the greater satisfaction of the parties. D.M. Walker defines arbitration [as the] 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.[23]
Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that fall outside of the government judicial process. Despite historic resistance to ADR by both parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.[24]
Alternative Dispute Resolution (ADR) means solving the dispute outside the court. Alternative Dispute Resolution (ADR) has attracted a great deal of attention as a method of reducing both the financial and emotional costs of litigation. It appears that simply moving cases from the courts, and away from the adversarial process, allows some cases to be resolved quicker and to the greater satisfaction of the parties. D.M. Walker defines arbitration [as the] 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.[25]
Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that fall outside of the government judicial process. Despite historic resistance to ADR by both parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute]
ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.[26]
"Alternative" dispute resolution is usually considered to be alternative to litigation. It also can be used as a colloquialism for allowing a dispute to drop or as an alternative to violence.
ADR – can increasingly be conducted online or by using technology. This branch of dispute resolution is known as online dispute resolution (ODR). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and domain name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR[27].
3.2 Object of the ADR
Object of ADR to solved the dispute outside the court and reduce huge number of the case from the court system. The causes of backlog and delay in our country are systemic and profound. The legal system’s failure to impose the necessary discipline at different stages of trial of cases allows dilatory practice to protract the case life. As a result, the current backlog and delay problem in our country has reached such a proportion that it effectively denies the rights of citizens to redress their grievance.
Alternative Dispute Resolution (ADR) has attracted a great deal of attention as a method of reducing both the financial and emotional costs of litigation. It appears that simply moving cases from the courts, and away from the adversarial process, allows some cases to be resolved quicker and to the greater satisfaction of the parties.
3.3 Advantages of ADR
For many reasons, advocates of ADR believe that I am superior to lawsuits and litigation. First ADR is generally faster and les expensive. It is based on more direct participation by he disputants, rather than being run by lawyers, judges, and the state. In most ADR processes, the disputants outline the process they will use and define the substance of the agreements. This type of involvement is believed to increase people’s satisfaction with the outcomes, as well as their compliance with the agreements reached.
Often quicker than going to trial: a dispute may be resolved in a matter or days or weeks instead of months or years.
Often less expensive: saving the litigants court costs, attorney's fees and expert fees.
Permits more participation and empowerment, allowing the parties the opportunity to tell their side of the story and have more control over the outcome.
Allows for flexibility in choice of ADR processes and resolution of the dispute.
Fosters cooperation by allowing the parties to work together with the neutral to resolve the dispute and mutually agree to a remedy.
Often less stressful: than litigation. Most people have reported a high degree of satisfaction with ADR. Because of these advantages, many parties choose ADR to resolve disputes instead of filing a lawsuit. Even after a lawsuit has been filed, the court can refer the dispute to a neutral before the lawsuit becomes costly. ADR has been used to resolve disputes even after trial, when the result is appealed.[28]
3.4 Disadvantages of ADR
ADR does have my potential advantages, but there are also some possible drawbacks ad criticisms of pursuing alternatives to court-based adjudication. Some critics have concerns about the legitimacy of ADR outcomes, charging that ADR provides “second-class justice’ It is argued that people who cannot afford to go to court are those most likely to use ADR procedures. As a result, these people are less likely to truly ‘WIN’ a case because of the cooperative nature of ADR.
ADR may not be suitable for every dispute.
If the ADR process is binding, the parties normally give up most court protections, including a decision by a judge or jury under formal rules of evidence and procedure, and review for legal error by an appellate court.
ADR may not be effective if it takes place before the parties have sufficient information to resolve the dispute. [29]
The neutral may charge a fee for his or her services. If the dispute is not resolved through ADR, the parties may then have to face the usual and traditional costs, such as attorney's fees and expert fees.
Lawsuits must be brought within specified periods of time, known as Statutes of Limitations. Parties must be careful not to let a Statute of Limitation run while a dispute is in an ADR process.
The civil court started mediation in non-family dispute since the 1 July 2003.a survey shows that after the introduction of the provision of mediation in the civil justice system as of 31 July 2004, 3432 non-family litigation have been disposed of by using this mechanism. In money loan cases the loan court has disposed of 13157 cases from 1 May 2003 to 31 July 2004. During this period the money loan court have realize Tk 996 crores and 5 Lakhs from the defendants and handed over the same to the plaintiffs who are mainly banks and finance institution. It is found that this realization is 10 times higher than the realization by execution cases over the last 10 years[30]. Mr. Justice Mustafa Kamal conclude that “the wind is blowing in the right direction .ADR is catching up the peoples imagination”[31].
3.6 ADR Agreements
Agreements reached through ADR are normally written and can become binding contracts that can be enforced by the court if the parties agree. Parties may choose to seek the advice of an attorney as to your legal rights and other matters relating to the dispute before finalizing any agreement.
ADR Process Selection & Information:
There are several other types of ADR. Some of these include conciliation, settlement conference, fact finding, mini-trial, Victim Offender conferencing, and summary jury trial. Sometimes parties will try a combination of ADR types. The important thing is to find the type of ADR that is most likely resolves the dispute. Contact the ADR department staff for assistance for additional information and referral to services appropriate for each specific case.
Chapter-4
4.1 WHY A.D.R in the Vagaries of Civil Litigation
ADR 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.[32]
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 was 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[33].
4.2 History & Development of ADR
Alternative dispute resolution has grown rapidly in the United States since the political and civil conflicts of the 1960s.The introduction of new laws protecting individual rights, as well as less tolerance for decimation and injustice, led more people of file lawsuits in order to settle conflict .For example, the Civil Rights Act of 1964 outlawed “discrimination in employment or public accommodations on the basis of race, sex, or national origin”
Laws such as this gave people new grounds for seeking compensation for ill treatment. At the same time, the women’s movement and the environment movements were going as well, leading to another host of court cases. The result of all these changes was a significant increase in the number of lawsuits being filed in U.S court. Alternative Dispute Resolution (ADR) is an increasingly popular option that allows people to resolve disputes outside of court in a cooperative manner. ADR can be faster, cheaper and less stressful than going to court. Most importantly, the use of ADR can provide greater satisfaction with the way disputes are resolved.
ADR has been gradually evolving within the Fresno Superior Court for the past several years. In 1999 the Court recognized a need for greater public access to dispute resolution for cases and established an ADR Department. This department assists parties by providing information regarding ADR processes and services.
4.3 History & Development of ADR IN BANGLADESH
The judicial system of Bangladesh is jammed by a huge backlog of suits and cases. The backlog of cases causes wearying delays in the adjudicative process, which is, as described by Professor M Shah Alam, “eating Bangladesh Judiciary”.[34] While delay in the judicial process causes backlog, mounting backlog puts a tremendous load on present cases. The present rate of disposal of cases is shocking for justice. It is detrimental to the rule of law and is damaging the economic growth of the country. This situation goes on with no plain solution in view.[35]
At present the people of Bangladesh think that they cannot get their grievances redressed by the court during their lifetime only because of superfluous delays, which take place during the court proceedings. Where it should take one to two years for the disposal of a civil suit, a case is dragged out for 10 to 15 years, or even more. By the time judgment is pronounced the need for the judgment in most cases is no more required. It is said that delay in disposal of cases in Bangladesh has reached a point where it has become a part of injustice, a violator of human rights.[36]
Professor M Shah Alam thinks that in a society of class differentiation the prolonged process, which is adversarial and belligerent in nature, places the financially stronger party at an advantageous position. If the judicial system functions substantively and in accordance with the procedural laws, the increasing scope for delays can transform it into a system which may become procedurally hostile towards marginalized sections of its people, defeating the goals of social justice.[37]
Mr. Justice sayed JR Mudassir Husain observes that, “in our present legal system, increasing expenses of litigation, delay in disposal of cases and huge backlogs have virtually shaken the confidence of the people in the judiciary. In this backdrop, we cannot but ponder about the device like ADR which is potentially useful for reducing the backlogs and delay in some cases of our courts”. He also mentions that ‘alternative dispute resolution (ADR), being much cheaper and speedier than the existing legal system, can greatly mitigate the sufferings of poor litigants’[38]
In Bangladesh, commercial cases involving Taka 10,000 crore (about £910 m) are pending in different courts countrywide. According to Barrister Moudud Ahmed, Minister for Law, Justice and Parliamentary Affairs of Bangladesh, speaking at a seminar organized by the Federation of Bangladesh Chambers of Commerce and Industry, these cases are pending for years together due to various problems like complicated legal system, delay in disposing of such cases. He announced the government’s plan to introduce Alternative Dispute Resolution mechanism to resolve all money suits to reduce the time of resolving such cases – from 10/12 years to 6/9 months to the greater benefit of parties concerned as well as to the national economy.[39]
ADR in Bangladesh not very new we have some laws about ADR before introducing ADR by retired Chief Justice Mustafa Kamal In June 2000, formalized ADR was introduced in Bangladesh by means of court annexed judicial settlement pilot projects, in an effort to decrease delays, expenses, and the frustrations of litigants laboring through the traditional trial process. The pilot program began in a collaborative effort with ISDLS in a series of Bangladeshi legal studies of Californian ADR systems. Three Pilot Family Courts were established in the Dhaka Judgeship, which exclusively used judicial settlement to resolve family cases including: divorce, restitution of conjugal rights, dower, maintenance and custody of children. An amendment to the Code of Civil Procedure was not necessary due to an existing 1985 Family Courts Ordinance, which authorized the trial judge to attempt reconciliation between parties prior to and during trial. The pilot courts were staffed by 30 Assistant Judges selected from all over Bangladesh, lawyers and non-lawyers, who were given training by a United States mediation expert (organized by ISDLS). During this assignment, the Assistant Judges were relieved of all other formal trial duties.[40]
All three pilot programs were fully functioning by January 2001. Once judges had begun successfully settling cases, the program was expanded slowly to additional courts throughout the country. By the end of the first year of the program, the judicial settlement procedure in family disputes had effectively been introduced in 16 pilot family courts in 14 districts of Bangladesh. Due to the high settlement rates these courts were achieving, the Law Minister convened a conference in 2002 in order to spread awareness of the achievements 106 Paper presented on the conference organized by (ISDLS) Institute for the Study and Development of Legal Systems (2005). Report on the Turkish Civil Justice Conference: ADR Learning Program.107 as Bangladesh uses a system of judicial credits for the career advancement of judges (based on number of cases settled by trial), a similar credit system was enacted for cases settled through mediation.
Chapter-5
5.1 Relation between ADR and the court system
At present it has been the policy of the government of most of the country that the dispute should be resolved at a proportionate level, and that the courts should be the dispute resolution method of last resort. Although ADR is independent from the court system. If the parties refuse an offer to mediate without the good reason then even if they win their case, the judge can refuse to award them some or a;; of their legal costs.[41]
In UK, the court of appeal in the conjoined appeal of Halsey v Milton Keynes NHS Trust and Steel V Joy And Halliday confirmed this notice [42] the court said “all member of the legal profession should nowa routenly consider with their clients whether their dispute are suitable for ADR.One commentator comments that “this is close warning that not to-do so could be negligent and a breach of professional duty.”[43] Dunnet is the first reported case of a successful party losing costs because they declined to mediate[44].
5.2 Adversarial System
Adjudication is an adversarial process where a judge (or jury) adjudicates in a court according to the legal statutes in favour of one party after hearing both sides, with advocates presenting evidence on behalf of the parties.’[45] Decision of the court is legally binding on the disputing parties. This is the only choice where one party needs to create a legal precedent or obtain an injunction, or where one party is refusing to negotiate or acknowledge the problem.[46]
It is said that because courts are overburdened they cannot deliver justice properly. Growing user disappointment with conventional legal services also triggers the development of alternatives to courtroom litigation. In a study carried out in Canada, almost 60% of the client survey group said that they were either partly or very dissatisfied with the progress and outcome of their cases through the civil litigation system. Of their lawyers, 5% said that they thought that clients ‘never’ received value for money in litigation.[47] The Woolf Report for England and Wales also recognized that the cost of civil justice in a court administered system has risen sharply and that lengthy delays are now the norm in civil litigation.[48]
It is also said that the adversarial system established in common law countries has been found insufficient to address the increasingly complex, technical legal problems of present day litigation. The adversarial system often creates two mutually opposing, exclusively hostile, competitive, antagonistic and uncompromising parties to litigation. As litigation progresses it creates conflict after conflict. At the end of litigation one party emerges as the winner and the other party is put in the position of the defeated. Adversarial litigation does not end in harmony and can lead to more litigation between them or even their successors.’[49]
However, the benefits of the adversarial system cannot be denied altogether. It is representative of stability and social solidity. Through adversarial hearings, complicated and disputed questions of fact and law are settled. It is also argued that an adjudicative system helps to uphold not only the legitimacy of the common law system on a day-to-day basis but also the continued, often awestruck participation of the public.’ In Richmond Newspapers, Inc. v Virgina, the Supreme I Court of the USA explained that “the open processes of justice serve an important prophylactic purpose, providing an out for community concern, hostility and emotion”. The trial itself is considered as a ‘ritual of quasi-religious’ character which provides a public assertion of principle and ‘right’.[50]
Mr. Justice Mustafa Kamal mentions that most of the countries following the common law system have faced the trouble of delay and excessive expenses in the disposal of civil cases in their respective legal history. Developed countries like the USA, Australia and Canada have witnessed a few decades back, a huge backlog of cases, excessive legal costs and expenses and litigants’ desolation.’[51] Those countries, by introducing various ADR methods to settle disputes outside the court, have made their judicial systems more service oriented to provide speedy relief to the disputants.
5.3 Alternative Dispute Resolution (ADR)
ADR encompasses a variety of means to resolve conflicts other than formal court adjudication. These processes also include a broad range of court-oriented initiatives, which are intended to facilitate a more effective administration of justice and help to overcome delays, which may occur through the usual court procedure. ADR processes may be used separately from court action even though litigation may or may not have been commenced. These processes can also be used to resolve disputes where those involved are not interested to resort to the courts procedure[52].
ADR processes include arbitration, early neutral evaluation, expert determination, mediation, and conciliation. Other more formal mechanisms for resolving disputes are private sector ombudsman schemes, utility regulators, and trade association arbitration schemes in certain trade sectors. All these various processes have very different characteristics. But the ultimate goals of the processes are to relieve court backlog, undue cost and delay and to provide more effective, efficient and satisfying dispute resolution, thereby improving the quality of justice and citizen perception of it. Another advantage of ADR processes is that if a collection of ways of resolving disputes becomes available to the disputants, not all parties will opt for the same processes or prefer the same dispute resolves.[53]
5.4 Processes:
The most common forms of ADR are Mediation, Arbitration, and Case Evaluation. In most ADR processes, a trained and impartial person decides or helps the parties reach resolution of their dispute together. The persons are neutrals who are normally chosen by the disputing parties or by the court. Neutrals can often assist parties in resolving disputes without having to go to court or trial. Below is a description of commonly used processes.
5.5 Beyond the basic types of alternative dispute resolutions there are other different forms of ADR: –
Case evaluation:
A non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator. – Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement. – Family group conference: a meeting between members of a family and members of their extended related group. At this meeting the family becomes involved in making a plan to stop the abuse or other ill-treatment between its members. -Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes. – Ombuds: third party selected by an institution – for example a university, hospital – to investigate complaints by employees, clients or constituents. The ombuds works within the institution to investigate the
Chapter-6
6.1 Different Forms of ADR
Adjudication, arbitration, mediation, negotiation are all mechanisms for resolving and settling disputes or as described by Carnevale & Pruitt “dealing with opposing preferences”.[54] Marian Liebmann explains that in general, dispute settlement processes range from the least intervention (negotiation) to the most intervention (litigation). At either end are two other forms of dealing with conflict: avoidance as the very least interventionist, and aggression as the most interventionist. The paragraphs that follow discuss the two main processes. ADR is generally classified into at least four subtypes: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation. See conciliation for further details.) The salient features of each type are as follows:
In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution[55].
In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.
In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach agreement with support of the attorneys (who are trained in the process) and mutually-agreed experts. No one imposes a resolution on the parties[56].
In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review complaints independently and impartially[57].
1 Avoidance
2 Negotiation
3 Mediation
4 Arbitration
5 Litigation
6 Aggression
7 Dispute resolution methods[58]
It has already been mentioned that there are a number of different voluntary ADR processes. Some processes are better suited to the needs of some cases or litigants than others.
6.2 Disputes
ADR techniques have been used successfully in a variety of disputes involving individuals, small and large businesses, government, and the general public. Various types of ADR processes are available depending on the nature of the dispute. Many types of conflict often lend themselves to an alternative and informal method of dispute resolution. Some examples of disputes often settled by ADR include but are not limited to:
Business disputes- contracts, partnerships.
Property / Land use disputes- property transfers, boundaries, easements.
Family disputes- divorce, property, custody, visitation, support issues.
Consumer / Collection disputes- repairs, services, warranties, debts.
Employment disputes- employment contracts, terminations.
Landlord/tenant disputes- evictions, rent, repairs, security deposits.
Neighborhood disputes / Relational disputes or other civil or personal conflicts, Personal
Injury.
Insurance disputes- accidents, coverage, liability.[59]
 |
In mediation, an impartial person called a "mediator" helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties[60].
It is defined as a process of settling conflict in which a third party oversees the negotiation between two parties but does not impose an agreement. Mediation is one of the most commonly used ADR techniques. But when mediation is successful and an agreement is reached, it is written down and forms a legally binding contract, unless the parties state otherwise. Professor Hazel Gann describes mediation, as a voluntary process where a neutral 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.[61] In mediation, the mediator (a neutral) assists the parties in reaching a mutually acceptable resolution of their dispute. Unlike lawsuits or some other types of ADR, the mediator does not decide how the dispute is to be resolved. The parties do. It is a cooperative process in which the parties work together toward a resolution that tries to meet everyone's interests, instead of working against each other.
Mediation often leads to better communication between the parties and lasting resolutions. It is particularly effective when parties have a continuing relationship, such as neighbors or businesses. It also is very effective where personal feelings are getting in the way of a resolution. Mediation normally gives the parties a chance to express their concerns in a voluntary, confidential process while working towards a resolution. The mediation process is commonly used for most civil case types and can provide the greatest level of flexibility for parties.[62]
Mediator brings those in dispute together and through a process of joint and private meetings, helps them work out their own negotiated solution. The central quality of mediation is ‘its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one~ another.’ Mediation is able to promote and speed up settlement. Mediation
In mediation, the mediator (a neutral) assists the parties in reaching a mutually acceptable resolution of their dispute. Unlike lawsuits or some other types of ADR, the mediator does not decide how the dispute is to be resolved. The parties do. It is a cooperative process in which the parties work together toward a resolution that tries to meet everyone's interests, instead of working against each other. Mediation often leads to better communication between the parties and lasting resolutions. It is particularly effective when parties have a continuing relationship, such as neighbors or businesses. It also is very effective where personal feelings are getting in the way of a resolution. Mediation normally gives the parties a chance to express their concerns in a voluntary, confidential process while working towards a resolution. The mediation process is commonly used for most civil case types and can provide the greatest level of flexibility for parties.
6.3.1 Cases for Which Mediation May Be Appropriate
Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and nondestructive manner.[63]
6.3.2 Cases for Which Mediation May Not Be Appropriate
Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, it may not be a good choice if the parties have a history of abuse or victimization.
6.3.3 MEDIATION IN THE FAMILY COURTS:
Law is more than norms; it is reflection of the aspiration through which a nation passes. With the changing needs of society its legal system, changes. If it does not it slowly becomes a dead and useless system. The legal system we have inherited had been formulated in the context of aspirations available then. Therefore, our legal system is not only logic but also the experience, situations and circumstances, many of which do not exist any more, as a result it has become antiquated and overburdened by its in built inability to recognize new problems. In other words our legal system does not know how to deal with modern day problems like backlog of cases. Whereas the vigorous legal systems of the world have by creative experiments found solutions to their problems.
Mediation in the family courts is recommended on a careful assessment of the current problems, their causes and potential solution. This is the culmination of nearly a year long intensive study in collaboration with American experts from the Institute for the Study and Development of Legal Systems (ISDLS). Through authoritarian lectures, demonstrations, observations, commentaries, conferences, seminars at every phase, Bangladesh Legal Study Group decided to recommend the introduction of mediation in Family Courts and start a pilot project. The idea was that through the pilot project judges, lawyers and the litigants would come to appreciate the value of mediation and decant the age old ideas inhibiting the Bangladesh civil justice system. that Bangladesh is not alone in addressing the problem. Other countries including, some in the sub-continent, like Pakistan, with comparable problems have been successful in implementing reforms in similar manner.
6.3.4 Quality of a Mediator
An ideal mediator will have the ability to get on with the parties, understand their position, even if he or she does not agree with them, and the ability to motivate parties from fixed views gently and without causing them irritation. The mediator must be seen to be a good listener. The mediator should have the ability to inspire confidence in the parties.[64] A mediator should not represent someone who had previously been a party in mediation. In Fob’ Software International, Inc. v. Su 40 a US Federal Court disqualified an attorney from representing a party against another party who had been a co-participant in a previous mediation involving a similar issue.[65]
6.3.5 Procedure of Mediation
If the dispute is referred to the respective pleaders, they shall with the consent of their clients, appoint another lawyer not engaged by the parties, or a retired judge, or a panel mediator or any other person whom they think to be suitable to act as a mediator.[66]
The Court shall not dictate or determine the fees of the pleaders and the mediator, and procedure to be followed by the mediator and the parties; and it shall be for the pleaders, their respective clients and the mediator to mutually agree on and determine the fees and the procedure to be followed for the purpose of settlement through mediation.[67] When the Court shall mediate, it shall determine the procedure to be followed, and shall not charge any fee for mediation.[68]
If the mediation fails to produce any compromise the Court shall proceed with the hearing of the suit from the stage where the suit stood before the decision of mediation or reference was taken. If the mediation initiative led by the Court itself fails and the court continues to be presided by the same judge, in that case, the suit shall be heard by another court of competent jurisdiction.[69]
In the UK, the Law Society’s Code of Conduct for Mediators defines the role as one of a ‘neutral facilitator of negotiations’.[70] But Michael Palmer & Simon Roberts think that such a claim is rarely advanced without qualification by mediators themselves, and in some contexts appears as a construct set up by researchers intent on knocking it down.[71] In the United States, the Standards of Conduct (1994) approved by the American Arbitration Association, the Society of Professionals in Dispute Resolution and the American Bar Association Section on Dispute Resolution require the mediator to ‘conduct mediation in an impartial manner’.
6.4 Med-Arb
This is a combination of mediation and arbitration where the parties agree to mediation but if that fails to achieve a settlement to refer the dispute to arbitration. The same person may act as mediator and arbitrator in this type of arrangement. Med-Arb has not been greatly used in the UK.[72]
6.5 Arbitration
In arbitration, a neutral person called an "arbitrator" hears arguments and evidence from each side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence are often relaxed. Arbitration may be either "binding" or "nonbinding." Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator's decision as final. Generally, there is no right to appeal an arbitrator's decision. Nonbinding arbitration means that the parties are free to request a trial if they do not accept the arbitrator's decision. In arbitration, the arbitrator (a neutral) reviews evidence, hears arguments, and makes a decision (award) to resolve the dispute. This is very different from mediation whereby the mediator helps the parties reach their own resolution. Arbitration normally is more informal, quicker, and less expensive than a lawsuit. In a matter of hours, an arbitrator often can hear a case that otherwise may take a week in court to try. This is because the evidence can be submitted by documents rather than by testimony. [73]
6.5.1 Binding arbitration:
Usually conducted by a private arbitrator, this process takes place outside of the court. "Binding" means that the arbitrator's decision (award) is final and there will not be a trial or an opportunity to appeal the decision.
6.5.2 Non-binding arbitration:
May be ordered through the court (Judicial Arbitration) or conducted privately. In this process, the arbitrator's decision is “not binding.” This means that if a party is not satisfied with the decision of the arbitrator, they can file a request for trial with the court within a specified time. However, depending on the process if that party does not receive a more favorable result at trial, they may have to pay a penalty.
The law lexicon by N.M. Mulchandani, defines Arbitration as The hearing and determining of a dispute between parties by persons chosen or agreed to by them. Professor D.M. Walker defines arbitration [as the] 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.[74]
In the United Steelworkers v Warrior & Gulf Nav Go, Mr. Justice Douglas defined arbitration as ‘a means of solving the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties’. In this process an expert arbitrator, chosen by the disputing parties, hears both sides of the dispute and provides a decision that is quicker, less formal and less expensive than a court hearing.The decision of the arbitrator known as an award and it becomes a binding order of the court if neither party seeks a rehearing by a judge.[75]
In Pioneer Shipping Ltd and Another v. BTP Tioxide Ltd (The Nema) 1980, Lord Diplock emphasized that it had been Parliament’s intention to promote finality of awards and so judicial interference with awards was tenable only if it was shown that the arbitrator had misdirected himself in law or had reached a decision which no reasonable arbitrator could have reached.3° In the United States, court-annexed nonbinding arbitration is widely used.[76]
6.5.3 Who may perform as Arbitrator?
The success of arbitration depends on the goodwill and common sense of the participants and the skills and wisdom of the arbitrator. An arbitrator may be a lawyer, or may be an expert in the field of the dispute. In some instances, there may be a panel of arbitrators. The arbitrator will make a decision according to the law the appropriateness of the choice of arbitrator exclusively depends on the nature of the dispute. Appropriate experts best deal with disputes of a factual nature whereas disputes of a legal nature are best dealt with by lawyers. An arbitrator must be reliable. Any factor, which has a tendency to favoritism an arbitrator in favor of one of the parties, would be a ground for the arbitrator’s disqualification.[77]
6.5.4 Cases for Which Arbitration May Be Appropriate
Arbitration is best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-maker who has training or experience in the subject matter of the dispute.[78]
6.5.6 Cases for Which Arbitration May Not Be Appropriate
If parties want to retain control over how their dispute is resolved, arbitration, particularly binding arbitration, is not appropriate. In binding arbitration, the parties generally cannot appeal the arbitrator's award, even if it is not supported by the evidence or the law. Even in nonbinding arbitration, if a party requests a trial and does not receive a more favorable result at trial than in arbitration, there may be penalties.
6.6 Neutral Evaluation
In neutral evaluation, each party gets a chance to present the case to a neutral person called an "evaluator." The evaluator then gives an opinion on the strengths and weaknesses of each party's evidence and arguments and about how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute. Although the evaluator's opinion is not binding, the parties typically use it as a basis for trying to negotiate a resolution of the dispute.[79]
6.6.1 Cases for Which Neutral Evaluation May Be Appropriate
Neutral evaluation may be most appropriate in cases in which there are technical issues that require special expertise to resolve or the only significant issue in the case is the amount of damages.
6.6.2 Cases for Which Neutral Evaluation May Not Be Appropriate
Neutral evaluation may not be appropriate when there are significant personal or emotional barriers to resolving the dispute.[80]
6.7 Settlement Conferences
Settlement conferences may be either mandatory or voluntary. In both types of settlement conferences, the parties and their attorneys meet with a judge or a neutral person called a "settlement officer" to discuss possible settlement of their dispute. The judge or settlement officer does not make a decision in the case but assists the parties in evaluating the strengths and weaknesses of the case and in negotiating a settlement. Settlement conferences are appropriate in any case where settlement is an option. Mandatory settlement conferences are often held close to the date a case is set for trial.
6.8 Distinction among Mediation and Arbitration
Mediation is a flexible process which is often more suitable for issues which need a fair degree of positive intervention. It is not generally regarded as an appropriate medium for the resolution of straightforward distributive conflicts.[81]’ Mediation works better than arbitration when issues are particularly complex and interdependent. Unlike arbitrators, mediators do not impose solutions – they offer a solution by making recommendations, which the parties are expected to treat seriously and to act upon. Recommendations made by a mediator are likely to form the basis for further negotiations. In arbitration parties are given a binding decision.
6.9 Early Neutral Evaluation (ENE)
The evaluator, after taking the basic evidence, offers the assessment in the hope that this will lead to a settlement between the parties without further litigation. In this process a neutral professional who has legal or other expertise hears a summary of each party’s case and gives a non-binding assessment of the merits of the respective case at an early stage The assessment can be used as a basis for settlement or for further negotiation.[82]
It is supposed that one of the greatest obstacles to settlement by using the devices of early neutral evaluation is the stressed, impassioned corporate executives who will not listen to sensible professional advice in cases where a negotiated outcome is in the best interests. Early neutral evaluation works better in cases where there is a dispute over a point of law, or where one party appears to have an unrealistic view of their probability of success at trial.
6.10 Conciliation
Conciliation is a process of facilitating an amicable settlement between the parties. Unlike the Arbitration there is no determination of a dispute. There need not be a prior agreement and it cannot be forced on a party not intending for conciliation. Conciliation is a process where the third party, the conciliator, takes a more interventionist role in bringing the two parties together and in suggesting possible solutions to help achieve an agreed settlement.[83] It is intended to be a swift, practical and economic alternative to legal proceedings. It is regarded as an effective resolution method in complicated disputes involving more than two parties. The term ‘conciliation’ is gradually falling into disuse and the process is regarded as a form of mediation.
6.11 Expert Determination
In this process an independent third party is appointed to decide the dispute. The appointee is an expert in the subject matter and his [or her] decision is binding on the parties.
6.12 Case Evaluation
In case evaluation, the evaluator (a neutral) gives an opinion on the strengths and weaknesses of each party's evidence and arguments. Each party gets a chance to present their case and hear the other side. This may lead to a settlement, or at the least, help the parties prepare to resolve the dispute later. Case evaluation, like mediation, can come early in the dispute and save time and money. The case evaluation process is most effective when parties have an unrealistic view of the dispute, need outside assistance in determining case value, and or have technical or scientific questions to be worked out. This process is sometimes used in combination with mediation or arbitration.
6.13 Neutral Selection:
The selection of a neutral is an important decision. Please note that currently there is no legal requirement that the neutral be licensed or hold any particular certificate. However, some programs and the Court have established qualification requirements for neutrals.
*A list of trained neutrals is available to assist parties on a fee-for-service basis. These individuals have met the requirements to participate on the Court’s panel and provide private dispute resolution services.Panelists are not Court employees; therefore service, style and expertise will vary by individual provider.
Cases involving self-represented litigants or those unable to afford a private mediator, the court has three organizations that provide free or low cost mediation services through Dispute Resolution Program Act (DRPA) funding[84].
7.1 ADR IN Family Matters
For hundreds of years clients, judges, and lawyers have complained about the cost, inefficiency, acrimony, and risk of litigation. Everyone involved with civil litigation realizes its harmful side effects, but until recently no one has done much about it. The time for change is upon us.
Historically, lawyers were trained exclusively in the adversarial method. The adversarial system of jurisprudence is based on the concept that justice will emerge best if competing parties, represented by lawyers, present their admittedly biased version of a case to a judge or jury. The evidence is then subjected to the vital process of cross-examination in which each side has the opportunity to expose the flaws in an opponent's position. In fact, the system works quite well in some cases, particularly when cost and relationships between opponents is not a major concern. In many cases, however, the cost of litigation is prohibitive, the fighting and acrimony inherent in the process destroys relationships that otherwise could be preserved, and the complexity of litigation has caused overloaded court caseloads and major delays. [85]
Sophisticated parties, particularly corporations that may experience a great deal of litigation, now realize the huge costs involved in the adversarial process. To reduce time, money, and exposure to a litigious atmosphere, people are looking for alternatives to the traditional approach. The purpose of this chapter is to help business decision makers understand the current status of alternatives to litigation. In the modern civil litigation environment, the knowledgeable decision maker can and must insist on using options that have the potential to reduce some of the present problems of litigation. The chapter addresses how to choose the type of alternative dispute resolution that will be most effective in a particular matter and will discuss the characteristics of an effective mediator, arbitrator, or other neutral party. There will be many exceptions to the general statements of this chapter, however, and readers should always make dispute resolution decisions only with the advice and counsel of their lawyers, whose enthusiastic participation is essential to the success of any alternative to traditional litigation.[86]
7.2 Object of the ADR in Family Court
Object of ADR to solved the dispute outside the court and reduce huge number of the case from the court system. The causes of backlog and delay in our country are systemic and profound. The legal system’s failure to impose the necessary discipline at different stages of trial of cases allows dilatory practice to protract the case life. As a result, the current backlog and delay problem in our country has reached such a proportion that it effectively denies the rights of citizens to redress their grievance.
7.3 Family Matters:
All matters relating to family laws are given due focus stressing on the humane aspects. Problems relating to marriage, divorce, dower, maintenance, custody of child, inheritance etc. are solved through negotiation, arbitration, conciliation proceedings, and in the last resort, by applying to the family court. There are a considerable number of cases dealing with expatriate Bangladeshi families. The Firm has expertise and experience on matters relating to Bangladeshi minorities residing overseas[87].
7.4 Alternate Dispute Resolution:
ADR is in its budding state in Bangladesh. In recent years, the firm very successfully broadened its capacity to deal with negotiations, mediation and arbitration. Our experience in conducting arbitration cases under the local laws is combined with our understanding of the mores and cultures of multinational companies[88].
7.5 Alternative Dispute Resolution (ADR) Family Conferencing
What is ADR Family Conferencing?
The Alternative Dispute Resolution (ADR) Family Conferencing Program at Legal Aid is a process that gives you and your former partner the opportunity to work together to find a solution to your dispute with the assistance of an experienced chairperson. The chairperson will be a professional person with extensive family law and/or family mediation experience. An (ADR) Family Conference helps people to settle their family law dispute by Identifying issues and developing options, getting people to consider options and alternatives, getting people to reach an agreement without going to the Family Court.
For the conference to succeed you will need to be willing to:
Discuss and explore issues,
Negotiate and compromise,
Focus on the family problem rather than the other person, and
Listen to your former partner's point of view.
It is important to have a clear idea of what would be reasonable and practical solutions to your dispute before going in to the conference. It is very rare that there are only one or two ways to sort out family issues. A solicitor will help you decide what the issues in dispute are and will also help you decide what might be reasonable, within the law, to sort out those issues.[89]
7.6 Who will be at the ADR Conference?
The only people present at the family conference will be:
You and your former partner,
The Chairperson,
Usually the solicitors that have been arranged for you by Legal Aid WA,
The Independent Children's lawyer if one has been appointed for your children by the Family Court.
Everything that you say at the Conference is confidential. It cannot be repeated in court but there are some exceptions. Your solicitor will explain these to you.[90]
7.7 The Benefits of ADR Family Conferencing are:
It’s less stressful/more informal,
it's voluntary,
it's confidential,
it avoids you having to go to court,
it is less expensive than the legal costs of going to court,
it allows you to stay in control about decisions affecting your family's life,
Consent orders are prepared at the end of the conference if you reach agreement. These orders can then be filed (registered) at the Family Court.[91]
7.8What Matters can be Conference?
Issues about Parenting Orders in relation to spend time or lives with, parental responsibility and communication arrangements for children and disputes about property can be conference.
In some cases a history of domestic violence might mean that a conference cannot take place. In other cases safety plans can be put in place so that a conference can happen.
In all cases you will receive legal advice. In most cases you will have a solicitor with you at the conference.[92]
All potential cases for conferencing will be screened for domestic violence. In SOME instances a history of domestic violence MAY mean that particular cases are not suitable for the ADR family conferencing program. Legal Aid Western Australia assesses each case individually to decide which matters are suitable[93].
7.9 Importance of ADR in family court
The Muslim family laws ordinance 1961, and the Muslim family laws rules 1961 this two is most sensitive law for the Muslim people. To solve the dispute arising out of this law is batter to solve outside the court. Because there are many personal and internal matter are involve in this family dispute. ADR give batter solution then court in this family matter.
They were also told that as Family Court judges they shall have to perform mediation as and when a case is assigned to them. The cases involving family matters are first filed in the court of the Assistant judges with territorial jurisdiction. After issuance of summons, the District Judge transfers the cases to mediation court under Section 24 of the Code of Civil Procedure. Section 24 provides that the District judge on the application of the parties or of his own motion may transfer any suit for trial or disposal to any court subordinate to it and competent to try and dispose of the same.
7.10 DIVORCE CONCILIATION:
Without the intervening of the Court and Built in Conciliation in Family Court Proceedings:
Divorce is the most detestable thing in Islam, nevertheless these do happen and Chairmen of Union Parishad often receive notice of divorce. The provisions of sections 7 and 8 of the Muslim Family Laws Ordinance, 1961 enable the Chairmen to make conciliation between the disputant parties without the intervention of the court. The Family Courts Ordinance, 1985 also provides for conciliation between the disputants in the midst of the court proceedings but these statutory provisions have not been so far properly understood and practiced. The intention of these statutory provisions is to maintain harmony with the spirit of Quranic sanctions relating to divorce. This article focuses on conciliation facilities and the process of its proper utilization through the creation of right-awareness among the disputants, the Chairmen of Union Parishad and Family Court Judges.
Conciliation or mediation (the terms are interchangeable) is a process of joint decision making by the disputants themselves with the help of a third party. In conciliation or mediation, there is no surrender by the disputing parties to the third party intervener of the power to make any decision (unilateral or otherwise) which is intended to have a binding effect. Conciliation/mediation is the key component in arrangement for the dissolution of families. It is argued in favour of mediation/conciliation that other forms of dispute resolution share the objective of agreement rather than judgment. However in conciliation it is the parties who are deemed to be in control. It is seen as a space which allows the parties to work out their own problems in their own way.
Conciliation to resolve marital conflicts can be traced back to Quran and Sunna (tradition of Prophet). When the husband and wife cannot live together in peace and harmony, they are given the option to separate,[94] but before such a separation it is recommended that there is an attempt at reconciliation. The Quran (IV: 35) counsels arbitration between spouses:
If we fear a breach between them twain, appoint (two) arbiters. One from his family and the other from hers; If they wish for peace God hath full knowledge and is acquainted with all things.
Ali, commenting on the verses, states that it is clear that not only must there be a good cause for divorce, but that all means to effect reconciliation must have been exhausted before resort is had to this extreme measure. The impression given is that a capricious use of talaq is a grave distortion of the Islamic institution of divorce[95].
It can be argued that Islam condemns the husband giving talaq to his wife unreasonably and encourages reconciliation between the couple before a hasty decision is made by the husband. Ali has pointed out that the Prophet restrained the husbands’ power of talaq he gave to women the right of obtaining a separation on reasonable grounds; and towards the end of his life he went so far as practically to forbid its exercise by men without intervention by arbiters or a judge.
The Muslim Family Laws Ordinance, 1961 was enacted with the object to give effect to the sanction of the Quranic verse cited. The Ordinance incorporated provisions for conciliation to resolve marital disputes without the intervention of the court. The provisions are equally applicable to both husband and wife exercising their right to divorce. Apart from the Muslim Family Laws Ordinance, 1961, the Family Courts Ordinance, 1985 went a step further in resolving marital disputes through conciliation, during the progress of the family suits.
7.11 Women and Divorce:
Of all religions, Islam was the first to recognize the right of women to seek the dissolution of marriage on various grounds, including incompatibility of temperament rendering it impossible for the husband and wife to live within the limits ordained by Allah. Islam emphasis’s the importance of the happiness of both spouses. It ordains that every attempt should be made to maintain the marriage tie, but once it is established that the marriage has broken down, the Quranic law allows the parties to dissolve the marriage in order to avoid a greater evil. Despite the freedom of the parties to divorce, Islam warns both parties against the unscrupulous use of this right. It says that divorce is the most detestable thing even when lawfully allowed or permitted.
The modernists proclaim that the nature of divorce under the Quranic law is based on the so-called ‘breakdown theory’[96]. According to this theory divorce is available to both the spouses without the need to establish any specific grounds for the divorce. It allows for the dissolution of the marriage at the instance of husband (by talaq) or the wife (by khula) and by mutual consent (by Mubara’at). The modernists reject the orthodox view that a husband enjoys under the Quranic law, unlimited authority to dissolve the marriage whereas a wife has a limited or no right to do so and argue that the orthodox view is against the spirit of the Quran and Sunna.
Under the Quran and Sunna (i.e. non-statutory law of divorce) a wife can exercise her right to divorce, either by talaq-e-tafweez or khula, without the intervention of Court. A Muslim wife can at the time of marriage or subsequent to marriage, reserve in the kabinnama (marriage contract deed) a right to dissolve the marriage in specified circumstances. This is called talaq-e-tafweez (the right to divorce delegated by the husband to the wife), which can be effected without the intervention of the court. Irrespective of the inclusion of conditions in the kabinnama, the wife has a right of khula (divorcing her husband by forgoing dower). In the khula form of divorce, the wife has to compensate the husband or forgo her dower [marriage consideration I for her release from the marital bond. If the husband consents to the compensation the khula takes effect extra-judicially, but if the husband tries to maintain the marriage the wife can ask for a judicial khula. Despite these Quranic rights, women’s rights have continued to be undermined due to the conservatism of the orthodox jurists[97]. The scholarly debates on the orthodox law have led to modern legislative reforms in many Muslim countries, including Bangladesh.
The reforms have had two main objectives. First, they have tried to prevent the husband from abusing his power to affect a unilateral talaq (as popularly understood by the orthodox jurists). Secondly, they have tried to enhance women’s rights to divorce.
The first step towards legislative reform of the Muslim Family Laws of British India came with the enactment of the Muslim Personal Law Application (Shariat) Act; 1937, followed by the Dissolution of Muslim Marriages Act, 1939. The Act of 1939 was considered one of the most important enactments of the British Indian legislature for safeguarding the rights of Muslim women in the Sub-continent. This Act allowed women to obtain a decree for the dissolution of marriage from a court on certain grounds which they could not ordinarily do without a right delegated to them by the husbands or without their husbands’ consent.
Although the Act gave more options to women exercising their right to judicial divorce, it did not protect women from the threat or abuse of talaq by their husband. This led the reformers to pass a procedural law; the Muslim Family Laws Ordinance, 1961. This Ordinance aimed to minimize the practical complexities of a court hearing, viz, the lengthy procedure and cost. Since most women are barely in a position to support them the cost and time of court proceedings the same acted as a strong deterrent against making use of their rights.
Chapter-8
8.1 The Muslim Family Laws Ordinance, 1961:
The Muslim Family Laws Ordinance, 1961 provided equal opportunity to women to dissolve marriages extra-judicially (without the intervention of the court). It sponsored the idea of reconciliation in the case of divorce by either spouse in accordance with the spirit of the Quran and Sunna. The Chairmen (elected member) of the City Corporation or Union Parishads (Administrative council at local level) are empowered to affect the procedure of reconciliation before the disputants after its process is initiated by service of notice. The purpose of notice of talaq to be served upon the Chairmen of Union Parisad and the wife is to prevent hasty dissolution of marriage or offer a second chance to the disputants, which is beneficial to both the parties in the event reconciliation is effected. When the due service of notice is satisfactorily established the talaq in the event of failure of reconciliation becomes effective after the expiry of 90 days from the date of service of notice under section 7 of the Muslim Family Laws Ordinance, l961 Section 7 introduced a single method of dissolving marriages and considered all talaq by the husband as single revocable talaq[98]. Section 8 provided that the wife, who wished to dissolve her marriage, could follow the procedural law in the same way as the husband.
This was affirmed in the judgment in Hefzur Rhaman’s case in which the judgment of the court was given by Mr. Justice Mustafa Kamal:[99]
When a divorce proceeds from the husband, it is called talaq, when effected by mutual consent, it is called Khula or Mubara’at, according as the terms are. The Muslim Family Laws Ordinance, 1961 has given statutory recognition to a wife’s .right of divorce (Talaq-i-tafwez) in exercise of her delegated power to divorce, as also to dissolution of marriage otherwise than by talaq. There are different modes of talaq according as the pronouncement of talaq is by husband. In the case of Talaq Ahsan (most proper), a single pronouncement is made during a tuhr (period between menstruation) followed by abstinence from the sexual intercourse up to three following menstruations, at the end of which talaq becomes absolute. In the case of Talaq tasan (proper), three pronouncements are made during successive tuhrs, there being no sexual intercourse during any of the following three tuhrs. In the case of Talak-ul-bidaat or Talak-i-badai (which is popularly called Bain talaq in Bangladesh), either three pronouncements are made during a single tuhrs in one sentence or three separate sentences or a single pronouncement is made during a tuhrs clearly indicating an intention to dissolve the marriage irrevocably. This from of talaq is not recognized by the Shafi and Shia Schools of thought, but the Muslim Family Laws Ordinance, 1961 recognizes “pronouncement of talaq in any form whatsoever”[100]
The procedure makes it incumbent upon the husband to send notice of talaq to the Chairman of the Union Parishad. The Chairman must take all steps necessary to bring about reconciliation between the spouses. The divorce will, if not revoked earlier expressly or by conduct (as a result of reconciliation brought about by the Union Parishad or otherwise) be effective only after the expiry of ninety days from the date of the notice, or if the wife is pregnant after the pregnancy ends, whichever period is longer. If and when a divorce becomes effective, the parties may remarry each other without intervening marriage, i.e., hila except in the case of a third divorce. Section 7(3) if the Ordinance provides that talaq will not be effective until the expiry of 90 days from the receipt of notice by the Chairman. Failure on the part of the husband to give notice or his abstention from giving notice to Chairman connected should perhaps be deemed, in view of section 7, as if he has revoked the pronouncement of talaq[101].
Section 7 of the Muslim Family Laws Ordinance, 1961 provides:
In the case Abdul Aziz vs Rezia Khatoon,[102] it was held the non-compliance with the provisions of section 7(1) makes talaq legally ineffective. However, very recently the Appellate Division of the Supreme Court of Bangladesh in apparent contradiction to section 7 of the Ordinance held:
The petitioner husband divorced his wife by swearing an affidavit before Magistrate and accordingly sent the copy thereof to the Nikah Register in whose office the divorce was registered as required under section 6 of the Act, 1974 and the marriage tie is in consequence stands dissolved and as such he wife is entitled to the payment of entire, dower, both prompt and deferred. He cannot take the advantage of his own wrong in respect of no service of notice to the Chairman as required under section 7 (1) of the Ordinance l961[103].
The apparent contradiction can be explained by Court’s desire to prevent the husband from using the statutory requirements of service of notice of talaq to the Chairman of Union Parishad as devise to defeat the claim of dower of the divorced wife following the talaq. The Court probably relied on the following well known principle “Equity will not allow a statute to be used as an instrument of fraud”.[104] Section 7 of the Muslim Family Laws Ordinance, 1961 also applies to the wife who wishes to dissolve the marriage. Section 8 of the said Ordinance has made it incumbent upon the wife who wishes to dissolve the marriage to follow the procedure laid down in section 7 of the Ordinance with necessary changes. Where the wife wishes to exercise her delegated right, that is talaq-e-tafwez, she must send notice to the Chainman of Union Parisad after actually exercising the right of divorcing herself.
Muhammad Amin vs Surrava Begum[105] and Muhammad Ishaque vs Ahsan Ahmed [106]
In one case it was held that it is not necessary to inform the Chairman Union Parisad after the court has granted a decree under section 2(u) of the Act of 1939 on the basis of the option of puberty. But in another case the Lahore Court of Pakistan had dealt with the question extensively and held that after the decree for dissolution has been made by the family court, that court must send a copy of the decree to the Chairman. At the same time it is necessary for the wife, in whose favor the decree is passed, to independently inform the Chairman about the decree, and also to send a notice thereof to the husband. An issue rose before the honorable learned court was the effectiveness of the decree of the dissolution of the marriage after a successful reconciliation. The honorable court held that in an instance of total successful conciliation, the decree shall be deemed to have been abandoned by the wife. The conciliation will have the effect of compromise and thus avoidance of the decree. In other words the decree shall have no effect if within the specified period the reconciliation has been effected between the parties in accordance with the provisions of the Family Laws Ordinance and rules made there under[107].
The Pakistan Court of Baghdad-ul-Jahid held that as a result of the promulgation of the Muslim Family Laws Ordinance of 1961 reference to Arbitration Council has become a pre-condition for applying to a family court for dissolution of marriage by khula. It further held that khula is operative in cases where the wife has as ‘fixed aversion’ for the husband, in which case any amount of reconciliation would be of no use. The Ministry of Law has undertaken different measures to motivate and sensitize judges, lawyers and the litigant public about the merits and advantages of the ADR. Workshops, seminars, training programs have been organized for judges, lawyers and court support staff in the divisional headquarters and selective districts. A widely acclaimed documentary film titled "Settlement of Disputes through Mediation" has been made and shown to the participants and the stakeholders all over the country.
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[108].
The High Court Division of the Supreme Court of Bangladesh in Sirin Akhter and another vs. Md Ismail.[109]
In this case it has been held:
When the husband admittedly received the notice of exercise of right of talaq-tafwez and the notice thereof was served upon the Chairman concerned, there was compliance with the requirement of law and the talaq became effective. Direction for restitution of conjugal rights as a consequence relief is wrong in law and is opposed to the principle embodied in article 27 and 31 of the Constitution[110].
Section-8 says “where any of the parties to marriage wishes to dissolve the marriage otherwise than by talaq”, which apparently means dissolution of marriage through court, khula and Mubara’at equally falls within the section. These forms of dissolution of marriage, particularly judicial dissolution, need careful examination in the light of section 23(2) of the Family Courts Ordinance, 1985. The provisions for mediation may be found in sections 10 and 13 and 23(3) of the Family Courts Ordinance 1985 which are to the effect: –
Ordinance 1961 will come into operation. A question may be raised in view of section 23 of Family Courts Ordinance 1985 and sections 7 and 8 of the Muslim Family Laws Ordinance 1961 concerning the time when the dissolution of marriage will be effective, is it after the expiry of 90 days from the receipt of the notice from the wife when she initially filed the suit or action; or is it after the expiry of 90 days from the receipt of the certified copy from the court?
In the two famous case
Muhammad Amin vs Surrava Begum1969 [111] & Muhammad Ishaque vs Ahsan Ahmed1975[112]
In one case it was held that it is not necessary to inform the Chairman Union Parisad after the court has granted a decree under section 2(u) of the Act of 1939 on the basis of the option of puberty. But in another case the Lahore Court of Pakistan had dealt with the question extensively and held that after the decree for dissolution has been made by the family court, that court must send a copy of the decree to the Chairman[113]. At the same time it is necessary for the wife, in whose favour the decree is passed, to independently inform the Chairman about the decree, and also to send a notice thereof to the husband. An issue rose before the honourable learned court was the effectiveness of the decree of the dissolution of the marriage after a successful reconciliation. The honourable court held that in an instance of total successful conciliation, the decree shall be deemed to have been abandoned by the wife. The conciliation will have the effect of compromise and thus avoidance of the decree. In other words the decree shall have no effect if within the specified period the reconciliation has been effected between the parties in accordance with the provisions of the Family Laws Ordinance and rules made there under[114].
In the khula form of divorce there is no problem when the husband gives consent to the divorce and the wife may then obtain the divorce extra-judicially by serving the notice upon the Chairman. If when he refuses to give his consent the wife has to seek khula through family court and then the same question arises with regard to the applicability of sections 7 and 8 of the Ordinance. The Pakistan Court of Baghdad-ul-Jahid held that as a result of the promulgation of the Muslim Family Laws Ordinance of 1961 reference to an Arbitration Council has become a pre-condition for applying to a family court for dissolution of marriage by khula. It further held that khula is operative in cases where the wife has as ‘fixed aversion’ for the husband, in which case any amount of reconciliation would be of no use21. The court in this case only gave the probable consequences of ‘reconciliation’. It was very practical from the point of view of khula sought through court because the wife after going though the trauma of court procedure the wife would not wish to be reconciled the marriage. Nonetheless, whatever the least chances of successful reconciliation the court did not specifically provide that sections 7 and 8 are not applicable to khula.
In mahara’at form of divorce which is based on the mutual aversion of the parties there is no occasion of going to the court. The marriage can be dissolved by serving the notice by either party upon the Chairman of Union Parishad. The prospect of reconciliation is of no effect as the parties have mutually consented to the divorce. It can be contended that Muslim Family Laws Ordinance, 1961 is more appropriate in the cases of divorce without intervention of the court
8.2 DIVORCE CONCILIATION:
Without the intervening of the Court and Built in Conciliation in Family Court Proceedings
Divorce is the most detestable thing in Islam, nevertheless these do happen and Chairmen of Union Parishad often receive notice of divorce. The provisions of sections 7 and 8 of the Muslim Family Laws Ordinance, 1961 enable the Chairmen to make conciliation between the disputant parties without the intervention of the court. The Family Courts Ordinance, 1985 also provides for conciliation between the disputants in the midst of the court proceedings but these statutory provisions have not been so far properly understood and practiced. The intention of these statutory provisions is to maintain harmony with the spirit of Quranic sanctions relating to divorce. This article focuses on conciliation facilities and the process of its proper utilization through the creation of right-awareness among the disputants, the Chairmen of Union Parishad and Family Court Judges.[115]
Muhammad Amin vs Surrava Begum[116] and Muhammad Ishaque vs Ahsan Ahmed [117]
In one case it was held that it is not necessary to inform the Chairman Union Parisad after the court has granted a decree under section 2(u) of the Act of 1939 on the basis of the option of puberty. But in another case the Lahore Court of Pakistan had dealt with the question extensively and held that after the decree for dissolution has been made by the family court, that court must send a copy of the decree to the Chairman. At the same time it is necessary for the wife, in whose favour the decree is passed, to independently inform the Chairman about the decree, and also to send a notice thereof to the husband. An issue rose before the honourable learned court was the effectiveness of the decree of the dissolution of the marriage after a successful reconciliation. The honourable court held that in an instance of total successful conciliation, the decree shall be deemed to have been abandoned by the wife. The conciliation will have the effect of compromise and thus avoidance of the decree. In other words the decree shall have no effect if within the specified period the reconciliation has been effected between the parties in accordance with the provisions of the Family Laws Ordinance and rules made there under[118].
8.3 The Family Courts Ordinance, 1985:
DIVORCE CONCILIATION:
Without the intervening of the Court and Built in Conciliation in Family Court Proceedings
Divorce is the most detestable thing in Islam, nevertheless these do happen and Chairmen of Union Parishad often receive notice of divorce. The provisions of sections 7 and 8 of the Muslim Family Laws Ordinance, 1961 enable the Chairmen to make conciliation between the disputant parties without the intervention of the court. The Family Courts Ordinance, 1985 also provides for conciliation between the disputants in the midst of the court proceedings but these statutory provisions have not been so far properly understood and practiced. The intention of these statutory provisions is to maintain harmony with the spirit of Quranic sanctions relating to divorce. This article focuses on conciliation facilities and the process of its proper utilization through the creation of right-awareness among the disputants, the Chairmen of Union Parishad and Family Court Judges.
Conciliation or mediation (the terms are interchangeable) is a process of joint decision making by the disputants themselves with the help of a third party. In conciliation or mediation, there is no surrender by the disputing parties to the third party intervener of the power to make any decision (unilateral or otherwise) which is intended to have a binding effect. Conciliation/mediation is the key component in arrangement for the dissolution of families. It is argued in favor of mediation/conciliation that other forms of dispute resolution share the objective of agreement rather than judgment. However in conciliation it is the parties who are deemed to be in control[119]. It is seen as a space, which allows the parties to work out their own problems in their own way.
Conciliation to resolve marital conflicts can be traced back to Quran and Sunna (tradition of Prophet). When the husband and wife cannot live together in peace and harmony, they are given the option to separate,[120] but before such a separation it is recommended that there is an attempt at reconciliation.
The Quran (IV: 35) counsels arbitration between spouses:
The Family Courts Ordinance, 1985, established the family courts and follows procedures as laid down therein. Family matters include suits for dissolution of marriage, restoration of conjugal rights, custody of children, recovery of dower money and maintenance. The provisions for mediation may be found in sections 10 and 13 of the Family Courts Ordinance 1985 which are to the effect:-
The majority people of Bangladesh being Muslims, the inspiration to include the aforementioned provisions for conciliation in the Family Courts Ordinance was drawn from the Koran.[121]
“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, God will cause them reconciliation for God hath full knowledge and is acquainted with all things.”
The Family Courts Ordinance ‘85 thus provided the courts with arms to exercise mediation in suits pending before it both at the pre trial stage under section 10 and after close of evidence following framing of issues and fixing a date of preliminary hearing under section 13. Unfortunately since the enactment of the Ordinance, the Family Courts failed to take cognizance or to apply these provisions to mediate disputes in pending suits before them. The reason being lack of motivation of the concerned judges. Being used to adversarial system the judges presiding over family courts were completely ignorant about mediation. No attempt was previously made to train the judges in the art of mediation, nor were they directed to use mediation. As a result these courts had been treating the aforementioned provisions of the Family Courts Ordinance as redundant to Family Courts’ proceedings.
The Family Court Ordinance, 1985 (No. XVIII of 1985) has been enacted to resolve disputes arising out of marriage, restitution of conjugal rights, dower, and maintenance dissolution of marriage, guardianship and custody of children. The object of the Ordinance is to provide a cheaper and more expeditious remedy and render the court accessible to all sections of society. The Family Court (Amendment Act, 1989) made explicit provision for expeditious judgments emphasizing the intention and aim of passing the original Ordinance.
The Family Court has no jurisdiction to entertain other issues of family law as for instance inheritance, partition, gift or wakf further, the jurisdiction of the Family Courts includes only the civil jurisdiction regarding these issues. The Family Court Ordinance applies to all citizens irrespective of religion. This Ordinance has not taken away any person right of any litigant of any faith. It has just provided forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance.
The Family Courts Ordinance, 1985 has built-in conciliation mechanism enabling disputant parties to resolve the outstanding issue informally, discreetly and with a sense of accommodation in which the Family Courts play the role of a well-wisher and friends rather than an adjudicator.[122]
After the filing of the plaint, written statement and service of summon, the Family Courts proceeds with the pre-trail hearing of the suit.24 According to section 10 of the Family Courts Ordinance, 1985 the Court shall fix a date ordinarily of not more than thirty days for a pre trial hearing of the suits. Subsection 3 states that 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 that is possible. If no compromise or reconciliation is possible at the stage, the court shall frame the issues to be tried in the suit and fix a date ordinarily of not more than 30 days for recording of evidence. At the conclusion of the trial but before the pronouncement of the judgment the Family Court Judge makes another effort to effect a compromise or reconciliation between the parties.[123]
The Family Court Judge here acts as a mediator a conciliator between the disputant parties. The intention of Legislature to uphold the spirit of the Quran and Sunna- “With all the most detestable of all things permitted is divorce”
8.5 Mediation Under The Family Courts Ordinance-1985 (By former Chief Justice Mustafa Kamal):
When I retired as the Chief Justice of Bangladesh on the I SI January 2000 I was contacted by the American Center at Dhaka to meet Mr. Steve Mayo, an attorney from San Francisco. He told me that he represented a San Francisco based voluntary organization of judges and attorneys called Institute for the Study and Development of Legal Systems, shortly ISDLS, which was then operating in a dozen countries outside U.S.A. to help implement the A.D.R. in harmony with the legal systems prevalent in each country. If Bangladesh is interested, ISDLS can help. As a first step, he suggested, we should form a small Legal Study Group (LSG). I took no time in jumping to the idea and formed an LSG. The LSG comprised of myself, Mr. Justice K.M. Hasan (then the senior most Judge of the High Court Division, later a Judge of the Appellate Division), Professor Dr. Shah Alam (then a member of the Law Commission, now the Chairman of the Faculty of Law, University of Chittagong), Mr. Anwar-ul-Huq (then Joint Secretary, Ministry of Law, Justice and Parliamentary Affairs, later elevated as a Judge, High Court Division) and Barrister Shafiq Ahmed (then President of the Supreme Court Bar Association), with myself as the Chairman. At the invitation of ISDLS we all four visited San Francisco in February, 2000 and obtained a firsthand insight into the working of A.D.R. methods and techniques in all types of courts in that city and also in San Jose. A strong team of judges and attorneys of San Francisco visited Bangladesh in April 2000. [124]The Ministry of Law arranged an assortment of Assistant Judges from all over Bangladesh to meet them and to talk to them. The then Chief Justice and the then Law Minister extended all help and the meeting was held in their presence and in the presence of other senior Judges of the Supreme Court at the Judges' Lounge of the Supreme Court. The American Center provided all the logistics. The ISDLS team explained in great details the mechanism and working of A.D.R. and convinced the participants that Bangladesh should give it a try without shaking up the civil justice delivery system and without amending any law or involving any extra expenditure to the public exchequer. It was found that of all the nearly 2000 statutes prevalent in Bangladesh, it was only the Family Courts Ordinance, 1985 which gave the trial court judge the jurisdiction and authority to "conciliate" between the parties both before and after trial. This statute was therefore considered to be the ideal starting point of A.D.R. in Bangladesh, because it would not involve any change in legislation or any extra public expenditure. Some of the Assistant Judges informed that they had mediated between the parties successfully in many cases following their own individual methods, but others pointed out that they did not feel encouraged to try conciliation between the parties under this statute, because they were entitled to one credit for holding one trial and did not get any credit at all for effecting a compromise decree. Their labour for 3 or 4 days was thereby wasted[125].
Chapter-9
9.1 Bangladeshi law relating ADR
In Bangladesh there are many laws for end the dispute out side the court. The government of Bangladesh want to make settle the dispute outside the court. For that reason they passed many law, which make end the suit outside the court. This laws are given below.
1 The Family Court Ordinance, 1985
2 The Salish Ain 2001(the arbitration Act 2001)[126]
4 the Salish (amendment) Ain 2004[127]
5 the code of Civil Procedure (amendment) Act 2003[128]
6 the Artha Rin Adalat Ain 2003[129]
7 the Artha Rin Adalat(amendment) Act 2004[130]
8 the Conciliation of Dispute (municipal areas) board Act 2004
9.2 ALTERNATIVE DISPUTE RESOLUTION (ADR) FOR CIVIL CASES AND Benefits of ADR
Using ADR may have a variety of benefits, depending on the type of ADR process used and the circumstances of the particular case. Some potential benefits of ADR are summarized below.
Save Time
A dispute often can be settled or decided much sooner with ADR; often in a matter of months, even weeks, while bringing a lawsuit to trial can take a year or more.
Save Money
When cases are resolved earlier through ADR, the parties may save some of the money they would have spent on attorney fees, court costs, experts' fees, and other litigation expenses.
Increase Control over the Process and the Outcome
In ADR, parties typically play a greater role in shaping both the process and its outcome. In most ADR processes, parties have more opportunity to tell their side of the story than they do at trial. Some ADR processes, such as mediation, allow the parties to fashion creative resolutions that are not available in a trial. Other ADR processes, such as arbitration, allow the parties to choose an expert in a particular field to decide the dispute.[131]
Preserve Relationships
ADR can be a less adversarial and hostile way to resolve a dispute. For example, an experienced mediator can help the parties effectively communicate their needs and point of view to the other side. This can be an important advantage where the parties have a relationship to preserve.
Increase Satisfaction
In a trial, there is typically a winner and a loser. The loser is not likely to be happy, and even the winner may not be completely satisfied with the outcome. ADR can help the parties find win-win solutions and achieve their real goals. This, along with all of ADR's other potential advantages, may increase the parties' overall satisfaction with both the dispute resolution process and the outcome.[132]
Improve Attorney-Client Relationships
Attorneys may also benefit from ADR by being seen as problem-solvers rather than combatants. Quick, cost-effective, and satisfying resolutions are likely to produce happier clients and thus generate repeat business from clients and referrals of their friends and associates.
The family courts were established by the Family Courts Ordinance, 1985 and follows procedures as laid down therein. Family matters include suits for dissolution of marriage, restoration of conjugal rights, custody of children, recovery of dower money and maintenance.
9.3 A REPORT ON MEDIATION IN THE FAMILY COURTS: BANGLADESH EXPERIENCE BY JUSTICE K. M. HASAN.
(Presented in the 25th Anniversary Conference of the Family
Courts of Australia held in Sydney, 26-29 July ’01).
Law is more than norms, it is reflection of the aspiration through which a nation passes. With the changing needs of society its legal system, changes. If it does not it slowly becomes a dead and useless system. The legal system we have inherited had been formulated in the context of aspirations available then. Therefore, our legal system is not only logic but also the experience, situations and circumstances, many of which do not exist any more, as a result it has become antiquated and overburdened by its in built inability to recognize new problems. In other words our legal system does not know how to deal with modern day problems like backlog of cases. Whereas the vigorous legal systems of the world have by creative experiments found solutions to their problems.
The causes of backlog and delay in our country are systemic and profound. The legal system’s failure to impose the necessary discipline at different stages of trial of cases allows dilatory practice to protract the case life. As a result, the current backlog and delay problem in our country has reached such a proportion that it effectively denies the rights of citizens to redress their grievance.[133]
.
Mediation in the family courts is recommended on a careful assessment of the current problems, their causes and potential solution. This is the culmination of nearly a year long intensive study in collaboration with American experts from the Institute for the Study and Development of Legal Systems (ISDLS). Through authoritarian lectures, demonstrations, observations, commentaries, conferences, seminars at every phase, Bangladesh Legal Study Group decided to recommend the introduction of mediation in Family Courts and start a pilot project. The idea was that through the pilot project judges, lawyers and the litigants would come to appreciate the value of mediation and decant the age old ideas inhibiting the Bangladesh civil justice system.[134]
The plan proposed by the Bangladesh Study Group is built to a great extent, on the sound foundation of the country’s legal system. There are different jurisdictional categories of suits of a civil nature known as civil suits, commercial suits, family suits, loan recovery suits and bankruptcy suits. The courts and filing requirements of each type are different. But the reason for inclusion of the Family Courts in the Pilot Project is that it does not involve any new legislation. The Family Courts Ordinance itself provides for conciliation whereas inclusion of other courts at this stage might need legislation or amendment of the Civil Procedure Code. Considering the magnitude of the problems faced by our courts, the report proposed to confront the present scenario immediately, by initiating a pilot project involving the Family Courts, without going for legislation, to include other civil courts which might take some time. In other words the implementation of the plan is carefully crafted to commence the reforms without first requiring a change in the procedural rules.[135]
The Family Courts Ordinance ‘85 thus provided the courts with arms to exercise mediation in suits pending before it both at the pre trial stage under section 10 and after close of evidence following framing of issues and fixing a date of preliminary hearing under section 13. Unfortunately since the enactment of the Ordinance, the Family Courts failed to take cognizance or to apply these provisions to mediate disputes in pending suits before them. The reason being lack of motivation of the concerned judges. Being used to adversarial system the judges presiding over family courts were completely ignorant about mediation. No attempt was previously made to train the judges in the art of mediation, nor were they directed to use mediation. As a result these courts had been treating the aforementioned provisions of the Family Courts Ordinance as redundant to Family Courts’ proceedings.
It is felt that without their co-operation introduction of mediation in the civil courts will not be successful. The aim has been to dispel their fear of loss of cases, financial hardship and above all fear of unknown and to give assurance that mediation will not adversely effect them financially but will open up new horizons for them. A successful mediation lawyer will always attract new clients wanting to try mediation who would otherwise have shunned the court. [136]
9.5 legislation for the agenda of full case management and mandatory ADR by judicial intervention.
A number of years before the BBC findings, Mr. Justice Mustafa Kamal, a former Chief Justice of Bangladesh, expressed his concern with regard to failure of justice system, in his speech under the title ‘Introducing ADR in Bangladesh’ on 24th July 2003, stating that ‘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 …’ [137]
Mr Justice Mustafa Kamal also said, ‘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’.Under the above circumstances, the General members of the public are extremely concerned of their life, liberty, property and security because of serious prevailing injustice in litigating process and/or drastic failure of the formal court system of the country; the victims are mostly the poor. [138]
Legal Aid has nothing to do with the concept ‘Justice for the Poor’, it is considered to be just an approach to facilitate the deprived and disadvantaged class to have access to the formal court system with the financial assistance of the donors. It does not guarantee justice to the legal aid parties, once the case is filed, their fate is no different than the other parties without legal aid.[139]
ADR is nothing new. This informal quasi judiciary system is as old as civilization. Different forms of ADR have been in existence for thousands of years.
Side by side, Bangladesh was not falling behind; The Family Court Ordinance 1985 had given jurisdiction to the trial Judge to effect reconciliation between the parties both before and after trial. And the Ordinance dealt with divorce, restitution of conjugal rights, dower, maintenance and custody of children. The Ordinance deals the concerning issues like (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 (ii) after the close of evidence of all parties, the family court shall make another effort to effect a compromise or reconciliation between the parties and (iii) 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[140].
ADR is not meant to be a replacement for adjudication but a complementary mechanism to reduce the work load or pressure on the courts’. [141]
The ADR system is yet to be familiarized among the judges and lawyers and in particular among the disputants and litigants in Bangladesh. The reasons, why disputants should consider ADR, are described by Dr Belal Husain Joy in his book, ‘Law Management Skills (2005)’ as: (1) gives a wider range of settlement solution comparing with formal litigations; (2) makes substantial contribution to a more efficient use of judicial resources; (3) saves time and money both, of both the parties; (4) saves judicial time, accelerating the disposal of and reducing the backlog of cases; (5) Preserves the trial court’s statutory authority and jurisdiction to try the case should ADR fail; (6) ADR is non-binding, the arbitrators or mediators take on the role of investigator as well as impartial judge; (7) ADR proceedings are confidential, and not admissible in the litigation. [142]
To make ADR effective in Bangladesh, it is important to install an efficient justice delivery system free from corruption, infliction of injustice and unreasonable interruption. An awareness scheme must be initiated for the disputants, lawyers and members of the judiciary. Considering the benefits of ADR as a traditional system with modern approaches and its overall effectiveness in resolving the disputes; commercial or non-commercial; domestic or international; we must not allow justice to be delayed, to be ultimately denied; we must ensure accountability, transparency and integrity of the ultimate arbiters which must remain above reproach in the process of justice delivery system[143].
9.7 A Report on Familiarizing family courts by Zahidul Islam(A researcher of ADR)
Family courts, which have been established in the country more than twenty years ago, need not be made familiar once again. If you are not a lawyer you may not have to learn the procedure of trial in the courts. It may even not be necessary for everyone to know the jurisdiction of the courts. But you must know your rights to be exercised through family courts. Hence, this write-up aims to make you informed about your dealings with a family court.
By the Family Courts Ordinance 1985 the Family Courts get hold of exclusive jurisdiction for expeditious settlement and disposal of disputes only in suits relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. The courts began working all over the country except in the hill districts of Rangamati, Bandarban and Khagrachhari. Soon after the court began functioning, questions were raised about whether the Family Courts would deal only with the family matters of Muslim community or of all communities. The uncertainty lasted for a long time until in 1998 a special High Court bench of the Supreme Court in a path finding judgment removed all the questions regarding family court's jurisdiction. Every lawyer and judge dealing with Family Courts are supposed to be aware of the judgment. But the common people for whose benefit the courts have been constituted seem still uninformed about the great decision relieving the justice-seekers in the Family Courts of a harming uncertainty.[144]
In Krishnapada Talukder Vs Geetasree Talukder[145] the question was whether a woman, Hindu by faith, could file a suit in a Family Court for maintenance against her husband. The honourable judge of the High Court Division held that “As per the provisions of the present Ordinance, all the sections of the 27 section statute have been made available for the litigants who are Muslim by faith only.”
The said judgment came on 5th June 1994, and just a few days later on 25th July 1994 in Nirmal Kanti Das Vs Sreemati Biva Rani [146]
the High Court Division expressed diametrically opposite view. The learned judge of the High Court Division referring section 3 of the Ordinance held that the provisions of Family Courts Ordinance shall have effect notwithstanding anything contained in 'any other laws' for the time being in force. From the expression 'other laws', it appears that the Family Court Ordinance controls the Muslim Family Laws Ordinance, 1961, and not vice versa. Thus, any person professing any faith has a right to bring a suit for settlement and disposal of disputes relating to dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. And so, a Hindu wife is entitled to bring a suit for maintenance against her husband in a Family Court.
In Meher Nigar Vs Md Mujibur Rahman[147]
the High Court Division corroborated the abovementioned view by holding that the Muslim Family Laws Ordinance 1961 introduced some changes in the orthodox Muslim personal laws relating to polygamy, <>talaq<> and inheritance and in order to keep those reformative provisions of the Ordinance of 1961 effective it has been provided that the provisions of Muslim Family Laws Ordinance of 1961 shall not be affected by the provisions of the Family Courts Ordinance of 1985; and section 23 of the Family Courts has specified the area not to be affected. It otherwise indicates that the provisions of the Family Courts Ordinance are applicable to other communities which constitute the populace of Bangladesh.[148]
Following such dissimilar views and decisions, the confusion regarding jurisdiction of the Family Court was natural. And such confusion continued until 1997 when a larger bench of the High Court Division of the Supreme Court in its path-finding judgment-
In Pochon Rikssi Das Vs Khuku Rani Dasi and others[149] removed all the confusions. The special bench of the High Court Division comprised of three Judges upheld that “the Family Court Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance, which provides that there shall be as many Family Courts as there are Courts of Assistant Judge and the latter courts shall be the Family Courts for the purpose of this Ordinance.Moreover, the court also declared that 'Family Courts Ordinance applies to all citizens irrespective of religion'.
It seems quite pertinent to refer some of the submissions which the Court relied on. It was submitted that:
9.8 A report by Al Asad Md. Mahmudul Islam & Fairoze Tasnim
In order to ensure access to justice of the poor, following must be done regarding the profession itself:
(i) The professional etiquette and responsibility of the lawyers must be upheld,
(ii) The overall qualities of the honourable members of the Bar must be developed.
Bangladesh Bar Council has taken many initiatives to train the lawyers. However, these have not been well responded and found ignored by many of them. It is praiseworthy that the conducting of Bar Vocational Course (BVC) is essentially included as a precondition of availing licence for legal practice.
Similarly Bar Council can also play key role in providing legal aid, legal awareness building and conducting social and human rights advocacy:
(i) It can encourage Public Interest Litigation (PIL) on local issues from members of the local Bars.
(ii It can require an advocate to provide free legal aid service in at least five cases in a year and conduct such number of awareness building meetings, advocacy as it thinks fit.
(iii) It can enhance its monitoring and evaluation programme and can coordinate and supervise those activities with the help of local or concerned Bar Association.[150]
Like all other professionals, lawyers should also be accountable and their accountability should not be ensured by themselves. Lawyers are not only certified for representing the rich, the strong and the privileged in the court of law; their certification also require them to think about the poor and the marginalised. We must bear that lawyering for poor is lawyering for justice[151].
9.9 ADR Manual: Implementing Commercial Mediation of these programs:
Mechanisms Bangladeshi mediation is a facilitative, informal, non-binding, confidential process directed by judicial officers. The case, once filed, is immediately assigned to either an ADR track or a trial track. For cases assigned to ADR, mediation proceedings take place within two months of filing. If a settlement is not reached within this period, the case begins a continuous trial over the course of six months. If a resolution is reached through mediation, parties can request a refund of the fees paid to the court. Under this system, each case assigned to the ADR track is resolved by adjudication or by mediation within six months of filing.
Institutional Framework The majority of ADR in Bangladesh is court-annexed; a private mediation facility has not yet developed. Judicial mediators are compensated in the same amount as the traditional trial judges.[152]
Implementation Strategies Within two years, the Judiciary (or the ADR process) had successfully eliminated all opposition from the Bar Association by demonstrating that ADR did not. A Compendium of Case Studies 83 decrease lawyers’ income; within this short span of time, ADR gained great acceptability within Bangladeshi society. At the conclusion of the Bangladeshi ADR pilot project Justice Kamal noted their importance of a adhering to a thorough plan of action when implementing an ADR program. Without a decisive plan, ADR resources can be overwhelmed by undisciplined case referral or misused by the referral of cases inappropriate to ADR, causing settlement rates to suffer. The use of pilot projects allowed the program to evolve while being closely supervised and adjusted to overcome potential difficulties. Also clear from the Bangladeshi project was the necessity of a dedicated oversight team in order to spearhead and monitor the development of the project. In Bangladesh, retired judges presented an accessible and appropriate group to fulfill this necessary function.
Success and Limitations Two years after the initiation of the pilot Family Courts, 1322 family cases had been disposed of through mediation. Rates of disposal varied from 35%-83% of pending family cases, depending on the court. Between July 2003 and July 2004, 3,432 non-family cases were disposed of through mediation. In money loan recovery cases, the Loan Courts have disposed of 13,157 cases between May 2003 and July 2004.The current widespread use of mediation has necessitated consideration of a National training facility for mediators, to provide standardized training and certification for all mediators. Efforts are now being made to expand the ADR program to include commercial cases[153].
Chapter-10
10.1 Findings and Recommendations for Bangladesh ADR system
JUDICIARY of Bangladesh is caught in a vicious circle of delays and backlogs. Backlog of cases causes frustrating delay in the adjudicative process, which is eating away our judiciary. While delay in judicial process causes backlog, increasing backlog puts tremendous pressure on present cases and vice versa. This process goes on with no apparent remedy in view. Present rate of disposal of cases and backlog is alarming for justice, rule of law and economic development of the country.
Considering the benefits of ADR as a traditional system with modern approaches and its overall effectiveness in resolving the disputes; commercial or non-commercial; domestic or international; we must not allow justice to be delayed, to be ultimately denied; we must ensure accountability, transparency and integrity of the ultimate arbiters which must remain above reproach in the process of justice delivery system.[154]
10.2 The reasons for delay the suit in our civil justice. They may be identified as follows:
It has been argued that mandatory recourse to ADR at the pre-trial stage by judicial intervention would not be a welcoming development for the lawyers, for their income could fall by any success of ADR programme. It's true that any success of ADR could lead to short-term fall in lawyers' income. But the long-term outcome would be completely different. Any success of the judiciary
1.lesser obedience of the judges.
2. Slow process of service of the summons, which can be further, slowed down by the intentions of the parties concerned, indicating a poor state of court administration.
3. Too much reliance on the resort to interim injunctive relief and orders, leaving the hearing of the main contentions and issues to 'infinity'.
4. Frequent adjournments of the trial caused by the insistence of the lawyers,
5. Vested interest of the lawyers for lingering and delaying the process, for they are often paid by their appearances in the court.
6. Commonly made interlocutory orders and appeals which fracture the case into many parts and effectively stay the trial.
7. Scope for frequent amendments of the plaints and written statements at any stage of the trial.
8. Unwillingness of the judges.
9. Absence of lawyer-client accountability giving the lawyer monopoly to conduct the case the way he considers best suited to his own interest.
10. Little scope for client-to-client interaction, which hinders potentiality for alternative, dispute resolution and intensifies confliction nature of the proceedings.
11. Failure of the parties to present the witnesses – sometimes genuine, sometimes deliberate.
12. Rotation and transfer of judges,
13. Inadequate administrative and logistic support system,
14. Work-load of the judges,
15.Poor salaries and poor working conditions.
16. Insufficient internal discipline
10.3 Some suggestion for good court management
1. Good record-keeping and systematic filing of the cases;
2. Subject wise classification of the cases;
3. Good monitoring so as to classify the cases on the basis of the stages they have reached;
4. To identify and to rid the docket of 'dead' or moot matters in order to prevent them from clogging the schedules;
5. Monitoring and case-flow tracking in such a way as to know the status of each case,
6. To know its procedural position, to locate documents and records more easily and to reflect everything in transparency plate.
7. Good court administration is necessary for ready references and control over exodus of cases that are in the docket, and is to be ensured by judicial.
8. Administrators to help the court instantly with any information it needs for effective case management.
9. Sfficient court staff equipped with modern technological facilities like computerizations would be necessary for good court administration.
10.4 Some problem of ADR in our country:
1. Injustice
2. Lack of Knowledge.
3. ADR Procedure does not codify as others procedural Law.
4. Lack impartial third party facilitator – The third party neutral, the mediator, is the person who makes the entire process work. As long as there is a neutral facilitator, the parties can trust that they have some safety and are not being abused by an interested party. All of these programs work because the mediator in them is known to either be neutral or supportive of the parties and not an involved party.
5. Third party who protects the integrity of the proceedings.
6. Good faith from the participants.
7. The presence of the parties.
8. An appropriate site or venue.
10.5 The reasons for delays in our civil justice system are both systemic and subjective. They may be identified as follows:
1.Common law oriented adversarial or accusatorial character of the civil process as against inquisitorial as practiced in continental Europe, meaning that the litigation is party-controlled which provides wide maneuvering power to the lawyers, and presupposes lesser initiative and relative passivity of the judges.
2. Slow process of service of the summons which can be further slowed down by the intentions of the parties concerned, indicating a poor state of court administration.
3. Too much reliance on the resort to interim injunctive relief and orders, leaving the hearing of the main contentions and issues to 'infinity'.
4. Frequent adjournments of the trial caused by the insistence of the lawyers, and reluctance of the judges to limit these adjournments, such reluctance being explained partly by heavy case-load and partly by their unprepared ness to continue and complete the process.
5. Vested interest of the lawyers for lingering and delaying the process, for they are often paid by their appearances in the court.
6. Commonly made interlocutory orders and appeals which fracture the case into many parts and effectively stay the trial.
7. Scope for frequent amendments of the plaints and written statements at any stage of the trial.
8. Reluctance of the judges, accentuated by their statutory non-compulsion, to use pre-existing rules and orders to expedite the trial, or to sanction the parties for failing to follow the procedural requirements, meaning that the judges do not take initiative to employ procedural power already within their reach, nor do they make use of their rule making power to achieve procedural effectiveness.
9. Absence of lawyer-client accountability giving the lawyer monopoly to conduct the case the way he considers best suited to his own interest.
10. Little scope for client to client interaction which hinders potentiality for alternative dispute resolution and intensifies confliction nature of the proceedings.
11. Failure of the parties to present the witnesses – sometimes genuine, sometimes deliberate.
12. Vagueness in the terms and wordings of the plaint and written statement, charging on the court time to clarify the issues, and the failure of the judges to impose costs for frivolous suits and pleadings.
13. Rotation and transfer of judges, often meaning that the same judge who heard testimony may not decide the dispute, taking away thereby much of his incentive to push forward the proceedings to judgment and seriously impeding the process of continuous trial; the new judge may have to repeat some of the procedural requirements already fulfilled.
14. Inadequate administrative and logistic support system, enormous work-load of the judges, poor salaries and poor working conditions – all having negative impact on the initiative and efficiency of the judges.
15. Insufficient internal discipline and accountability.
10.6 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. [155]\
10.7 Suggestion for ADR to make more effective:
To make ADR more effective, extensive, and pro-active, coordination is needed among different agencies. Other initiatives are given below:
Creating awareness about ADR.
Make ADR mandatory in some specific law like (family dispute)
Make clear about the advantage of ADR
Spreading the success story of ADR.
Encouraging NGOs to become involved in ADR.
Involving the Bar Associations in ADR.
Providing training for mediators.
Matching Government and NGO efforts.
Good court administration has been defined and described in many different ways. In simple terms it may be described to imply:
(a) Good record-keeping and systematic filing of the cases;
(b) Subject wise classification of the cases;
(c) Good monitoring so as to classify the cases on the basis of the stages they have reached;
(d) To identify and to rid the docket of 'dead' or moot matters in order to prevent them from clogging the schedules;
(e) monitoring and case-flow tracking in such a way as to know the status of each case, to know its procedural position, to locate documents and records more easily and to reflect everything in transparency plate.
Institutional arrangement for the availability of the system of ADR devices (conciliation, mediation, early neutral evaluation, arbitration or even judicial settlement by a non-trial judge) with proper training for the persons to provide ADR, is to be made by the judiciary in advance.[156] While recourse to ADR would be mandatory, there would be nothing like binding decision of the ADR forum. [157]But when the consensual decision by the parties is reached, court will issue necessary order for its execution. In case ADR efforts fail, the case shall go for trial.
Application of case management techniques by the trial judge envisages active participation and joint communication among the parties and their lawyers throughout the case. It requires each side to answer the requisitions, if any, made by opposing parties and additionally, imposes sanctions for non-compliance. It requires the opposing parties to identify the real controversies in the case and seek early responses from each side on question of fact and law. Thus, case management leads to a clear identification and narrowing of the legal and factual issues to be decided. To quote one authority, "The objectives of cases management are to establish judicial responsibility for the otherwise substantially party-controlled, adversarial preparations of civil cases for trial. Specifically, case management is designed to reduce dilatory, frivolous, inefficient, and protracted litigation practices and to replace party controlled litigation processes with judge-controlled, sequential steps in the life of a civil proceeding".[158]
Chapter –11
11.1 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[159].
Before we extend the frontiers of A. D. R. to other types of litigation, I would suggest the following:
1. 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..
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.
.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 wil depend upon the way we motivate and dedicate us.[160]
To make ADR effective in Bangladesh, it is important to install an efficient justice delivery system free from corruption, infliction of injustice and unreasonable interruption. An awareness scheme must be initiated for the disputants, lawyers and members of the judiciary, which may be undertaken by the LJCBP, BCA, NGOs, professional bodies and legal skills training institutions. Reformation may also be initiated incorporating ADR as a priority subject in the education curriculum and training programmers emphasizing ‘Trainers Training’ to encourage interested lawyers to concentrate in ADR to be specialists.[161]
Considering the benefits of ADR as a traditional system with modern approaches and its overall effectiveness in resolving the disputes; commercial or non-commercial; domestic or international; we must not allow justice to be delayed, to be ultimately denied; we must ensure accountability, transparency and integrity of the ultimate arbiters which must remain above reproach in the process of justice delivery system.[162]
11.2 Conclusion:
The Family Courts set up to adjudicate on family matters were supposed to be specialist and exclusive courts to ensure effectiveness and at the same time privacy, where mediation or conciliation as well as other informal procedure in aid of resolution of family disputes were expected to be utilized frequently to make those regular practice of the court which could encourage the disputants to opt for these procedures to their advantage. In practice the Family Courts also has ordinary civil and even criminal jurisdiction, which tax upon the working hours of the presiding judge, who either does not feel encouraged to insist or prevail upon the disputant parties to opt for mediation or conciliation or does it mechanically due to pressure of other non-family matters. The desired specialization in disposing of family matters and the practice of mediation or conciliation during family court proceedings are waiting and the atmosphere or tradition of it is virtually non-existent. Probably social movement is necessary to motivate the disputant parties to invoke mediation or conciliation as a means to resolve family disputes.[163]
However, there are also some arguments against the concept of ADR. It is said that moving dispute resolution from the public to the private sphere, will prevent the law from developing to meet changing circumstances. Keeping information about the details of settlements out of the public domain prevents its use as a comparator and may lead to an increase in the number of claims, which are disputed. It is also possible that private settlements may not take into account the wider implications of the dispute.[164]
Critics believe that ADR encourages compromise. Compromise can be good way to settle some dispute, but it is not appropriate for others. In serious justice conflicts and cases of intolerable moral difference, compromise is simply not an option because the issues mean too much to the disputes. Another concern is that ADR settlements are private and are not in the public record or exposed to public scrutiny.
11.3 Bibliography
Books
P.C Rao and William Sheffield. Alternative Dispute Resolution, Edited by Universal law publication
Rao, P.Chandrasekhara, The Arbitration and Conciliation Act, sss1996, Universal Law Publication,Delhi (1997)
S.k Golam Mahbub, Alternative Dispute Resolution (ADR) First Publication April 2005. Alimuzzaman Choudhury, The Family court ordinence and others personal laws, New warsi book corporation.
Asaf A.A Fyzee, Outline of Muhammadan law. Fourth Edition
Obaidul Huq Chowdhury, Hand Book of Muslim Family Laws
Articles & Journals
Alam, M Shah. "A Possible Way Out of Backlog in Our Judiciary." Dhaka: The Daily Star, April 16, 2000.
Asia Foundation. In Search of Justice: Women's Encounters with Alternative Dispute Resolution. Dhaka: Asia Foundation, 2002.
Chowdhury, Mahfuzul H. "Popular Attitudes, Legal Institutions, and Dispute Resolution in Contemporary Bangladesh." Legal Studies Forum 17 (3) (1993): 291-300.
Hasan, Justice K. M. "A Report on Mediation in the Family Courts: Bangladesh Experience." Paper presented at the 25th Anniversary Conference of the Family Courts of Australia, Sydney, Australia, July 26-29, 2001
Institute for Conflict Management, New Delhi, has various reports on Bangladesh
Legal Aid Association. "Rawshan Ara: The Victim of Polygamy" In Constructive Conflict Management: Asia-Pacific Cases, edited by Fred E. Jandt, and Paul B. Pedersen, 88-96. Thousand Oaks, London and New Delhi: Sage Publications, 1996.
Madaripur Legal Aid Association. "Nabin and Nasima: A Clash of Hindu and Muslim Communities." In Constructive Conflict Management: Asia-Pacific Cases, edited by Fred E. Jandt, and Paul B. Pedersen, 76-81. Thousand Oaks, London and New Delhi: Sage Publications, 1996.
Madaripur Legal Aid Association. "Khukumoni and Masud: Living Happily Now." In Constructive Conflict Management: Asia-Pacific Cases edited by Fred E. Jandt, and Paul B. Pedersen, 82-87 . Thousand Oaks, London and New Delhi: Sage Publications, 1996.
Alam, M Shah. "A Possible Way Out of Backlog in Our Judiciary." Dhaka: The Daily Star, April 16, 2000.
Asia Foundation. In Search of Justice: Women's Encounters with Alternative Dispute Resolution. Dhaka: Asia Foundation, 2002.
Chowdhury, Mahfuzul H. "Popular Attitudes, Legal Institutions, and Dispute Resolution in Contemporary Bangladesh." Legal Studies Forum 17 (3) (1993): 291-300.
Hasan, Justice K. M. "A Report on Mediation in the Family Courts: Bangladesh Experience." Paper presented at the 25th Anniversary Conference of the Family Courts of Australia, Sydney, Australia, July 26-29, 2001
Daily News Paper
The Daily star
The Independent
The New nation
BBC News: South Asia. See also the BBC's Country Profile: Bangladesh
Website
http://bila-bd.com/link%20pages/publications_view.php?pid=5
http://www.minlaw.gov.bd/aadr.htms.
http://www.legalaid.wa.gov.au/LAServices/aspx/default.aspx?Page=Applying/Law.xml (Legal content last updated: September 2006)
http://www.sahmedassociates.com/practice.html
http://www.fresnosuperiorcourt.org/alternative_dispute_resolution/
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