Resolving disputes without involving the court
Mediation is one of the alternative ways of dispute settlement without taking resort to legal actions, whereby the parties select their mediator(s) and resolve disputes maintaining utmost confidentiality. The rules of mediation make it clear that information gathered, and documents exchanged during the mediation, are kept confidential and are not shared unless the parties give express permission to that effect. They remain under the protection of law as well as the code of professional conduct and etiquette for the mediators, provided no exception arises. It is worth mentioning here that anything admitted or confessed by the parties during mediation are inadmissible in legal proceedings and therefore, cannot be presented before the court or tribunal in any subsequent legal contests. These elements ensure the privacy of the parties and enable them to solve the disputes while saving both time and money as well as leaving room for the improvement of mutual relationship.
There are ways of settlement enforcement procedures including formation of a contract of settlement, court order, arbitration order etc. However, the list is not exhaustive. In case of absence of an agreement, the parties are free to go for other methods of ADR, for example pursuing arbitration or even contesting the matter in the court.
However, the court proceedings may not seem convenient and suitable for all family disputes when the matter involves, among others, divorce, custody of child, and related issues. Once the matter is before the court, the privacy of a family becomes open to the world. Moreover, the court proceedings might consume a lot of time and the minor children affected by their parents' dispute may even attain the age of majority by the time the issues get resolved.
The world of business is getting expanded day by day across borders. The recent pandemic has urged the mediators and lawyers to use the virtual meeting platforms equipped with modern features to resolve disputes remotely. Since the pandemic started, the practice of mediation, in the developed nation has been the 'new normal' way of settling disputes via using both virtual and actual platforms. The whole world including countries most notably like Singapore, Hong Kong, Malaysia, India, China, the UK, the UAE, the USA and many more are taking resort to mediation facilities and resolving their disputes without seeking direct involvement of the courts.
In the context of Bangladesh, the concept of mediation is not alien to our legal system, and there are several provisions of mediation in our domestic laws. For example, as per section 89A of the Code of Civil Procedure, 1908, the court may order the parties to participate in mediation. Section 89C of the same law confirms that the parties can participate in mediation even at the appellate stage. The Family Courts Ordinance, 1985 introduced the concept of mediation long time ago. Besides, the Village Court Act, 2006; the Artha Rin Adalat Ain, 2003; the Arbitration Act, 2001; and the Labour Act, 2006 also recognise mediation.
In August 2021, the Supreme Court's Judicial Reform Committee issued a set of comprehensive guidelines on mediation, which stresses on the use of mediation. It was directed that the copy of the Guidelines is to be handed over to the disputing parties and circulated among the lawyers as well. This indicates that Bangladesh is getting prepared to enter the domain of wider use of mediation in order to reduce the backlog of cases pending with the courts.
However, very few disputants are encouraged to participate in mediation. There are people who are not even aware of the benefits of mediation whereas the rest of the world has already enacted and implemented relevant laws.
The businessmen, entrepreneurs, companies, stakeholders of financial institutions, foreign investors and joint ventures will be more confident in their business relationships, if they know for sure that there is scope of mediation in case any disagreement ever arises. Several international institutions such as Singapore International Mediation Institution (SIMI), as well as judges and lawyers of Bangladesh believe that foreign investors will be at ease to invest in any country if they get the assurance of the protection mechanisms from the host country including any dispute settlement mechanisms capable of avoiding extra burden of contesting litigation, involving the waste of time, money, and energy.
Therefore, the expansive use of mediation facilities will be an added benefit to our economy as this would accelerate our trade and investment. The recent studies show that mediation is the right tool for settlement of cross-border disputes since the process of mediation is able to consider the needs of the stakeholders, mitigate the gap between the dissimilarities between and among laws of different countries, reckon social values and culture of the parties, among many others. As a result, the process of mediation will alleviate the huge backlog of cases that stays with the judiciary by resolving many disputes outside court upholding our country's reputation by resolving disputes easily and speedily, specially during this pandemic.
There are few organisations in Bangladesh who are providing services of mediation, namely Bangladesh International Arbitration Centre (BIAC), Bangladesh International Mediation Society (BDIMS). The NGOs such as Madaripur Legal Aid Association (MLAA), Bangladesh Legal Aid and Services Trust (BLAST), Ain-o-Salish Kendra and Nagorik Uddayog, are also providing mediation services. Many International mediation providers also keep list of licensed mediators capable of mediating anywhere in the world including Bangladesh, for example International Mediation Institute (IMI), Singapore International Mediation Institute (SIMI) etc.
THE WRITER IS AN ADVOCATE, DISTRICT AND SESSIONS JUDGE COURT, DHAKA.