ADR in ordinary civil courts
Bangladesh judiciary is deadlocked in a vicious cycle of delays and backlogs, which is alarming for ensuring justice, rule of law and economic development of the country. According to a report of the Bangladesh Law Commission, there were more than 2.6 million cases pending in district courts till December 31, 2014. In spite of best effort and full utilisation of manpower, it is not easy to combat such alarming backlog situation without taking recourse to Alternative Dispute Resolution (ADR). For such circumstances, ADR system has been introduced within the formal justice system to minimise inordinate delays and to reduce undue litigation costs. At present, a number of statutes in Bangladesh have implemented a judicial practice of ADR through mediation, conciliation and arbitration.
The most notable ADR within the formal justice system is the one introduced to ordinary civil courts in 2003 by the amendment of Code of Civil Procedure (CPC), 1908. Though previously ADR was in practice in some special civil courts, sections 89A and 89B was inserted by this amendment to incorporate the systems of mediation and arbitration of civil disputes that lie before the court. This amendment gives option to the court to mediate between parties or refer the dispute to the pleader or the parties themselves (where no pleaders have been engaged) or to the mediator from the panel to be prepared by the District Judges. In 2006, the CPC was further amended to insert section discussing the provision of conducting ADR (mediation) during appeal. Despite the effort, the scheme did not actually work well; there was an option for the court to decide whether the dispute should be referred for mediation. Thereby, there is an exigent need for further amendments which would make ADR mandatory.
In 2012, the CPC was again amended to replace the word 'may' with 'shall' in section 89A and 89C to make mediation mandatory in both pre-trial and appellate stage in every civil litigation. Hence, sections 89D and 89E were newly added. Section 89D provides special provision for mediation when the contesting parties to a suit or of an appeal applied for mediation thereof started before the amendment of 2012. Section 89E provides for application and commencement of the provisions of section 89A and 89C in the following words: “the provision of section 89A or 89C shall be applied to such area, and commenced on such date as the government may by notification in the official Gazette, fix”. However, such Gazette notification is yet to be issued. As a result, ADR has not been ushered yet in the ordinary civil courts of Bangladesh, even after an era of introducing the provisions in the CPC.
Mediation under the CPC is a flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which a third party mediator shall facilitate a compromise to parties' disputes. After the appointment of mediator by the parties or by the court, mediation work must be completed within 90 (60+30) days from the date of appointment of mediator. The court needs to pass decree/order according to the terms of compromise within 7 days from the date of getting report of the mediator. If mediation attempt undertaken by the court fails, the same Judge shall not hear the suit subsequently.
The famous words of the US President Abraham Lincoln emphasising the profound significance of ADR may also be recalled: “Discourage litigation; persuade your neighbors to compromise, whenever you can; point out to them the nominal winner is often a real loser, in fees, expenses, and waste of time.”
Imtiaz Ahmed Sajal
Student of Law
University of Dhaka
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