ADR IS CIVIL JUSTICE SYSTEM IN BANGLADESH

Introduction:

Disputes are a fact of life. A. D. R. means Alternative Dispute Resolution, mostly applied to civil
cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is,
that a long time is taken to serve the process, the defendants beat the law and submit their written
statement/s after a long delay beyond the permissible statutory period of two months, lawyers
and judges do not take any interest in screening out a false and frivolous case at the first hearing
of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to
shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC
and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc.
contained in those Orders, the issues of a case are seldom framed following the Code of Civil
Procedure, the case takes several years to reach a settlement date and on the date of positive
hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none. 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.

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.

What is Alternative Dispute Resolution (ADR?)

Alternative Dispute Resolution refers to the means of settling disputes without going through
legal procedures. Through ADR settlement of disputes can be done in many formal and informal
ways but here ADR emphasis is mainly on the settlement of disputes by local community
initiatives. It is an age-old tradition of society through which disputes are resolved amicably and
which concerned parties accept. Normally authority does not challenge it. It is not
institutionalized, but both the community members and the disputants accept it. There are
different ways to resolve disputes. Some are resolved formally, others informally, and some are
resolved as time passes by.

Objectives of ADR

In the recent past the alternative dispute resolution system (ADR) has been developed in the
USA and the rate of success of ADR is significantly high, as the parties have been able to come
forward to sit together to talk together and finally resolving their disputes. The prime aim of
alternative dispute resolution system in civil justice delivery system in Bangladesh is closing the
hostility between the disputing parties and restoration of harmony. In this system a high degree
of public participation and co-ordination is badly needed. A general sense of satisfaction
develops which helps in enforcement of the decision, when peoples participation is ensured as to
tending evidence, asking questions and making opinions. Thus the reconciliation can be eased,
which is the fundamental objective of ADR system.

Different forms of ADR and their application in civil justice system:

Negotiation, mediation and arbitration are the most common features of ADR techniques in
Bangladesh. Let us discuss the three important ways of dispute resolution.

Mediation is voluntary process where a natural 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.[1]

Arbitration means a process of 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.[2]

Negotiation is a non-binding procedure in which discussions between the parties are initiated
without the intervention of any third party with the object of arriving at a negotiated settlement
of the dispute.[3]

Med-Arb is a procedure which combines, sequentially, conciliation/mediation and where the

dispute is not settled through conciliation/mediation within a period of time agreed in advance by
the parties, arbitration.[4]

Laws pertaining to ADR in Bangladesh:

a) Code of Civil Procedure,1908

For the first time in our legal system the provision with regard to ADR has been introduced by
amending the Code of Civil Procedure. In chapter V of Artha Rin Adalat Ain, the provisions of
ADR have also been incorporated. Surely, this concept is a denovo in our civil justice delivery
system. Now ADR has come within the domain of civil procedure code.
By the recently enacted sections 89A/89B of CPC, the ADR system (mediation and arbitration)
has been introduced, the two terms mediation and arbitration. Section 89A lays down that
except in a suit under the Artha Rin Adalat Ain, 1990 (Act. no 4 of 1990)

after filing of written statement, if all the contesting parties are in attendance in the court in
person or by their respective pleaders, the court many by adjourning the hearing, mediate in
order to settle the dispute or disputes in the suit or refer the dispute or disputes in the suit to the
engaged pleaders of the parties, or the party or parties, where no pleader or pleaders have been
engaged, or to a mediator form the panel as may be prepared by the District Judge under
subsection 10, for undertaking efforts for settlement through mediation. Similarly, the term
settlement conference has been used to denote mediation process in the part V of Artha Rin
Adalat. The provisions have been made in this regard that the court can mediate the suit matter
after filing the written statement by the defendant or defendants, by adjourning the subsequent
procedures of the suit

The government by amending the Code of Civil Procedure expands the avenue for shalishi. By
The Code of Civil Procedure (Amendment) Act, 2003 two new sections were incorporated
(section 89A, 89B) in the code. It empowers the court to solve the matter through mediation or
conciliation before the beginning of the trial except case under Artha Rin Adalat Ain. However
there remain some limitations too, it will not exempt the disputant parties from the appearance
before the court. This law is only relating to the pending cases,

The Civil Procedure Code (Amendment) Act, 2002 has been enacted to introduce Alternative
Dispute Resolution (ADR) system for early and consensual disposal of civil suits. Section 89A
and 89B have been inserted to allow parties to settle their disputes in suits, through mediation or
arbitration. In the mediation procedure, the court may take initiative to settle the dispute in the
suit by itself or by making reference to independent mediators. Under section 89B parties will be
allowed to withdraw pending suits and have those settled through arbitration. The provisions
have been made effective from 1st July 2003.

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. Of the mediator here the advocate or any other person may be
hired for mediation.

b) Artha Rin Adalat Ain, 2003

In our legal system, money lent by financial institutions/banks to individuals, private limited
companies, public limited companies, corporations, partnership firms, societies, co-operatives,
proprietorship firms etc. when due for default, is realised through money suits, suits for
foreclosure, mortgage by instituting the same to competent civil courts. The civil courts were
burdened with other businesses and such suits of banks consumed time for disposing of. The
delay caused made the bank sector suffer for non-realisation of dues in time and the bankers
gathered bitter experience in realising the same. To remove this difficulty, the government
enacted a special piece of legislation named The Artha Rin Adalat Ain, 1990 which had gone
under some changes by way of amendments since its inception. The law brought changes to a
great extent in the administration of justice delivery system for regulating those suits but it failed
to fulfil the expectation of the legislators/bankers to recover the dues expeditiously from the
defaulters. The thinkers on the subject gave second thoughts to frame a new law and ultimately
the legislature passed The Artha Rin Adalat Ain, 2003 (hereinafter Adalat) by repealing the
earlier one.

The law came into force on 1st May 2003 except sections 46/47 which came into operation on
1st May 2004. Within a short span of time, the law has gone under an amendment by the Artha
Rin Adalat (Amendment) Ain, 2004 which reflects weak draft of the law.

I have been working as a Judge of the Adalat for more than two years. I have taken no pain to
apply the laws during my business hours but at the same time I have seen that some provisions of
the laws are acting as barriers in discharging my responsibilities. I shall make an endeavour to
focus on those and other allied subjects in this writing.

There is no such legal provision in the Environment Court Act, 2000 like the present one.
Therefore section 4 (4) and section 4 (10) should be omitted, and the provisions if so omitted,
there would be no practical difficulty to appoint the Joint District Judges to the Adalat like the
Environmental Courts.

Section 19 has provided provisions for setting aside the ex parte decree but it does not make any
provision for notifying the plaintiff bank like Order 9 Rule 13 of the Code of Civil Procedure
1908. As a result, the plaintiff remains ignorant about restoration of the suit. This anomaly
should be removed by inserting appropriate provision. Section 20 of the law has given finality to
the order, judgment and decree of the Adalat. In spite of that the defaulter(s)/borrower(s) is/are
challenging the same in the writ jurisdiction of the High Court Division under Article 102 of the
Constitution of the Peoples Republic of Bangladesh and obtaining stay orders from the High
Court Division.

In a recent discussion on Money Loan Court Act 2003 organized by the Association of
Bankers, Bangladesh (ABB), the Governor of Bangladesh Bank asked the banks to take special
measures to recover bad loans as the defaulters filed 1,768 writ petitions in the High Court for
such loans amounting to Tk 6445 core. He told that the banks cannot recover the loans due to
stay orders from the court, and asked the monitoring cells of banks to take up these issues
seriously and hire efficient lawyers to move the cases of loan default.The Daily Star dated June
2, 2006). It is observed from regular business of court that the banks have been refraining from
taking any step against the stay orders in writ petitions. It is seen that the banks let them (the
defaulters) do the same with consent. This attitude of the bank should be changed and effective
steps should be taken to face the legal battle with the defaulters.
Apart from the aforementioned barriers, the law has been playing a very vital role in realising the
loan from the defaulter(s). Its achievement in loan recovery has been so immense that the
scenario of defaulting loan has improved significantly with number of pending Artha Rin Suits
reducing with expectancy rate. The loan defaulting culture would further be reduced if the
barriers can be removed as soon as possible.

c) Family Courts Ordinance, 1985:

Generally disputes relating to property, family matter i.e. distribution of property, dissolution of
marriage, maintenance, guardianship could be dealt by shalish. The Family Courts Ordinance,
1985 speaks for the settlement of dispute through conciliation inside the Court before the formal
proceeding of the trial started. The court may initiate a pre trial hearing to settle the disputes
relating to dissolution of marriage, maintenance, and dower, restitution of conjugal rights as well
as guardianship and custody of children. Besides, the Muslim Family Laws Ordinance 1961
empowers the Union Parishad to form an Arbitration Council for reconciliation between the
parties wishing to dissolve their marital tie through Talaq and to deal with the polygamy.

ADR in family court

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, Allah will cause their reconciliation: for Allah hath full
knowledge, and is acquainted with all things.[5]

Settlement of Dispute through Mediation in family court is started in Dhaka Jugde Court from
2000. Then, it was expanded in different cities and districts. Family Court Ordinance 1985 in its
section 10 and 13 is said about the Mediation process. The procedure provides in family court is-

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.[6]

ii) On the date fixed for pre-trial hearing, the Court shall examine the plaint, the written
statement and documents filed by the parties and shall also, if it so deems fit, hear the parties.[7]

iii) 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 this be possible.[8]

iv) Then, 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.[9]

v) If no compromise or reconciliation is possible, the Court shall frame the issues in the suit and
fix a date ordinarily of not more that thirty days for recording evidence.[10]
vi) After the close of evidence of all parties, the Family Court shall make another effort to effect
a compromise or reconciliation between the parties.[11]

vii) If such compromise or reconciliation is not possible, the Court shall

pronounce judgment and, on such judgment either at once or on some future day not beyond
seven days of which due notice shall be given to the parties or their agents or advocates, a decree
shall follow.[12]

Arbitration Act 2001.

Arbitration Law in Bangladesh

Bangladesh has enacted the Arbitration Act 2001 (the Act). It came into force on 10 April 2001,
repealing the Arbitration (Protocol and Convention) Act 1937 and the Arbitration Act 1940,
legacies of the British Raj in India. The new Act was again amended in 2004 in certain respects.
Such legislative steps were urgent in the face of increasing foreign investment in Bangladesh in
various sectors, especially in natural gas and power, and the ever-growing export trade with the
rest of the world. The Act consolidates the law relating to both domestic and international
commercial arbitration. It thus creates a single and unified legal regime for arbitration in
Bangladesh. Although the new Act is principally based on the UNCITRAL Model Law, it is a
patchwork quilt as some unique provisions are derived from the Indian Arbitration and
Conciliation Act 1996 and some from the English Arbitration Act 1996.

In Bangladesh, the present law of arbitration is contained mainly in the Arbitration Act, 1940,
there being separate Acts dealing with the enforcement of foreign awards. There are also stray
provisions as to arbitration, scattered in special Acts. Three types of arbitration are contemplated
by the Arbitration Act of 1940, namely (i) Arbitration in the course of a suit, (ii) Arbitration with
the intervention of the court, and (iii) Arbitration otherwise than in the course of a suit and
without the intervention of the court in practice, the last category attracts the maximum number
of cases.

Under the Act of 1940, an arbitration agreement must be in writing, though it need not be
registered.This also amounts to an arbitration agreement for the purposes of the Arbitration
Act, 1940. Once an arbitration agreement is entered into for submitting future differences to
arbitration, it is not, necessary to obtain the fresh consent of all the parties for a reference to
arbitration at the time when the dispute actually arises.

Concluding Recommendation:

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. To make ADR more
effective, extensive, and pro-active, coordination is needed among different agencies. Other
initiatives are given below:

1) Creating awareness about ADR

2) Spreading the success story of ADR

3) Encouraging NGOs to become involved in ADR

4) Involving the Bar Associations in ADR

5) Providing training for mediators

6) Matching Government and NGO efforts.

7) 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.

[1] Hazel Genn, Mediation in Action: Resolving

[2] SK Golam Mahbub, Alternative Dispute Resolution in Commercial Disputes: The UK and
Bangladesh Perspective 2005, at p. 21.

[3] P. C Rao, Alternative to Litigation in India, 1997, p.26

[4] ibid

[5] found in http://www.guidedways.com/chapter_display.php?chapter=4&translator=2, last

accessed on 18.04.2010

[6] Section 10 of the Family Court Ordinance 1985

[7] ibid

[8] ibid
[9] Section 14 (1 of the Family Court Ordinance 1985

[10] Section 14 (2) of the Family Court Ordinance 1985

[11] Section 13 (1) of the Family Court Ordinance 1985

[12] Section 13 (2) of the Family Court Ordinance 1985

Introducing Alternative Dispute Resolution (ADR) in

Criminal Justice
System: Bangladesh Perspective
Mahua Gulfam

Abstract
Alternative Dispute Resolution (ADR), which refers
to the process of dispute
resolution, denotes the idea of making the system o
f delivering justice friendly to the
disputed parties and ensuring quick resolution of t
he cases. For its simplicity the
popularity of this system is increasing day by day.
The justice seekers of Bangladesh
are frequently harassed in the area of courts. In t
his respect ADR can make them
harassment free. Most of the statutory laws includi
ng the main procedural law for
civil matters follow this system. The ADR System sh
ould be developed more and more
in other main Statutes including the Code of Crimin
al Procedure. ADR can act a
viable option for resolving disputes between the vi
ctim and the offender. This article
explores theoretical concerns underlying contempora
ry appeals to ADR in the
Criminal Justice System.
Keywords:
Alternative Dispute Resolution, Criminal law, Case
, Litigation, Justice, Criminal
Procedure, Settlement, Twelve Tables, Conflict.
Introduction
Man lives in a society. With a view to lead a harmo
nious life in the society, human being
undertakes their social interaction, through the di
fferent forms of social process-co-operation,
competition and conflict. Conflict creates Suits ca
ses. Unlike the suits and trial cases,
Alternative Dispute Resolution (ADR) includes proce
sses that are out of court proceedings.
Due to fact that pendency of court cases and suits
have gone through roofs, ADR has gained
paramount significance in almost every civilized di
spensation. ADR is generally classified
into at least four types-negotiation, mediation, co
llaborative 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.
The System for resolving dispute alternatively did
not evolve in a day or even in a country
rather it has been developed in different times, pl
aces, and forms of the need of people. The
provisions of Alternative resolution exist at 450B.
C. in the Twelve Tables adopted by the
Romans. According to the rules of Twelve Tables the
judges applied their reasonable
discretionary power with respect to the settlement
of stipulations arising from the contracts

Lecturer, Dept. of Law, Dhaka International Univ

ersity.
Banglavision
ISSN: 2079-567X
Vol. 13

No. 1

January 2014
206
Banglavision Vol. 13, No. 1, 2014
and the partition of lands acquired by inheritance
i
.
However, Alternative Dispute Resolution
(ADR) is a term which is frequently used in civil s
uits and proceedings. Like many other
countries Bangladesh has also introduced this proce
ss in civil litigation system. With regard
to criminal litigation the adoption of the process
of ADR has been advocated by some
researchers.
Criminal justice is the system of practices and ins
titutions of governments directed at
upholding social control, deterring and mitigating
crime or sanctioning those who violate
laws with criminal penalties and rehabilitation eff
orts. There are arguments both for and
against with regard to ADR in criminal justice syst
em. Because the criminal justice system
emphasizes the role of the state in resolving offen
ces to ensure peace and to protect the life
and property of its subjects. State can never compr
omise. However, it should be noted that
many offences do not fall under the category of cri
mes affecting the state, but affecting only
a particular individual or a group of individuals,
ADR can be more effective there.
In spite of the objection with regard to ADR in cri
minal cases, it has been a revolution for
speedy trial. The Constitution of Bangladesh ensure
s justice but still there are so many
pending cases because of which it is tough to ensur
e proper justice and ADR can play a big
role here to speed up the dispute resolution and th
us ensure peoples right to justice.
ii
Objectives of the study
All types of Courts in Bangladesh are burdened with
litigants. These problems have been
arisen due to the defects of adversarial system. Th
e main objective of this study is to analyze
the significant role of ADR system in Criminal Just
ice Administration for the speedy
disposal of cases. Also to recognize the concept of
ADR in procedural law for criminal
matters. This essay also focuses on the advantages
and disadvantages of ADR System and
the development of ADR method in Criminal Justice S
ystem.
Methodology of the study
This is a socio-legal research. This essay is Descr
iptive and suggestive in nature. This study
is based on both primary and secondary data collect
ed from law reports, text-books, journals,
Newspaper, websites, and training workshops on ADR
in Criminal Justice. The collected
data have been processed and prepared in the presen
t form in order to make the study more
informative, analytical and useful for the users.
Definition of ADR
ADR is the abbreviation of Alternative Dispute Reso
lution. When the disputes between the
parties are resolved through means which are altern
ative to formal litigation, this is called
Alternative Dispute Resolution.
The term Alternative Dispute Resolution includes, i
n narrow sense, only those processes in
which the decision finally arrived at is with the c
onsent of the parties. In wider sense, ADR
includes arbitration also along with negotiation, m
ediation and conciliation-because
arbitration constitutes an alternative to litigatio
n .As Arbitration process settles the disputes
Introducing Alternative Dispute Resolution (ADR) in
Criminal Justice System
207
outside the Courts it is considered as ADR, as it b
rings the parties to the negotiation table
,identifying the problems, establishing facts, clar
ifying issues, developing the option of
settlement and ultimately solving the disputes thro
ugh award which is binding on the
parties.
iii
ADR is also known as external dispute resolution. I
t is a term ordinarily used to refer to
formal dispute resolution processes in which the di
sputing parties meet with a professional
third party who assist them to resolve their disp
ute. In other words the expression,
Alternative Dispute Resolution is usually used to
describe a wide variety of dispute
resolution system which is indeed more economical a
nd a time saving mechanism.
iv
In Bangladesh perspective ADR means a process of di
spute settlement outside the formal
judicial system where the parties represent themsel
ves personally or through their
representatives and try to resolve the dispute thro
ugh a process of mutual compromise. In the
words of Justice Mostofa Kamal ADR is a non-formal
settlement of legal and judicial
disputes as a means of disposing of cases quickly a
nd inexpensively. It is not a panacea for
all evils but an alternative route to a more speedy
and less expensive mode of settlement of
disputes. It is a voluntary and co-operative way ou
t of the impasses
v
Confucianism
of China
is considered as the philosophical basis of ADR. Pr
of. Dr. Mizanur
Rahman, in his Book of Alternative Dispute Resolut
ion said that The Philosophy of
Confucius was, in essence, one of harmony, of peace
, and of compromise resulting in a win-
win combination. The Confucian view is that the bes
t way of resolving a disagreement is by
moral persuasion and compromise instead of by sover
eign coercion. These are based on the
strong belief that laws are not the appropriate way
to regulate daily life and hence should
only play a secondary role
vi
ADR techniques are extra-judicial in character. Man
y Scholars believe that ADR is evolving
as an alternative to the legal system. However, inc
lusion of different ADR mechanisms does
not replace the court system, rather strengthens an
d further legitimate the formal judicial
system.
Characteristics of ADR
Although the characteristics of arbitration, mediat
ion, negotiation and other forms of
community justice vary, all share a few common elem
ents of distinction from the formal
judicial structure. These elements permit them to a
ddress development objectives in a
manner different from judicial systems. The common
characteristics of ADR are given
below:
1. ADR operates without formal representation.
2. ADR program applied the doctrine of Equity.
vii
3. ADR system includes more direct participation b
y the disputants in the process.
viii
4. Give opportunity for communication between the
disputants.
5. Neutral case evaluation system.
6. ADR includes early neutral evaluation.
7. Make scope for family group conference.

Introducing Alternative Dispute Resolution in Criminal Litigation: An Overview

*Corresponding
Author:
Md. Alamin*
75
| Page
state would be saved. It would also enable the court to avoid dealing with cases that
involve no real dispute and
try only t
hose where there is a real basis for dispute.
7.2
Bene
fit to the Accused and Prisoner
For most of the accused the principal benefit of plea
-
bargaining is receiving a lighter sentence than
what might result from taking the case to trial and losing. Anothe
r benefit
that
the accused gets is that they can
save a huge amount of money which they might otherwise spend on advocates. It
always takes more time and
effort to bring a case to trial than to negotiate and handle a plea bargain. Incentives
for accepting
plea
-
bargaining, as far as judges and prosecutors are concerned are obvious.
Overcrowded courts do not allow the
judges to try every case that comes before them. It also reduces the case loads of
the prosecutors.
The defense is saved from the anxiety of u
ncertainty of the result of the trial and the cost of defending
the case on the assurance of lighter known sentence to be suffered by him. If an
accused deprived of the
privilege of bail, especially indigent ones, spends long period in jail custody he may
be persuaded to enter a
guilty plea in exchange for his release from jail custody. This initiative can be taken
by the prosecutor or the
judge in case the accused is undefended.
37
Rehabilitation process of offender would be initiated early. Alleviate the
suffering of under trial
prisoners and prison conditions would certainly improve. In the trade
-
off between languishing in jail as an under
trial prisoner and suffering imprisonment for a lesser or similar period, the latter
would be the rational choice as
long periods in jail brought about economic and social ruin.
7.3
Benefit to the Prosecutors
The prosecutor is relieved of the long process of proof, legal technicalities and long
arguments,
punctuated by
provisional
excursions to higher courts. By using
plea bargaining both the prosecution and judges
can save times and avoid uncertainty of the result of a contested trial in disposing of
criminal cases.
38
7.4
Benefit to the Victim
Victims would be spared the ordeal of giving evidence in court, which
could be a distressing
experience depending on the nature of the case. Victim would be benefited in the
sense that accused is at the end
of the day coming out with a guilty verdict, although with a lesser punishment. At
present through a long and
tiring sa
ga of trial in lower court, appeal and/or revision in the higher court when the accused
comes out with
acquittal in almost 90
-
95% criminal cases, every languishing hope of the victim is dashed and very often
he or
she feels cheated by justice system itself
. In such a situation the victim will get the sense of justice by
introducing plea bargaining.
39
Besides the above mentioned there are common advantages of plea bargaining,
those mentioned below:
(a)
In plea bargaining, the state and the court are aided in dealing with
caseloads
. Also, the process decreases the
prosecutors work load by letting them prepare for more serious cases by leaving
effortless and petty charges in
order to settle through.
(b)
F
or the judge, the key benefit of accepting a plea bargain agreement is that he can
alleviate the need to
schedule and hold the trial on a docket that is already overcrowded. Judges are also
aware of overcrowding in
jails, so they might be receptive to proc
ess out offenders who are unlikely to do much jail time anyway. This
means cases will be closed much quicker, which is good for the society as the
method de
-
clogs court systems for
more serious cases.
(c)
Plea bargains are a significant factor in restructur
ing offenders by letting them agree to the blame for their
trial and by letting them voluntarily submit before the law

without having expensive and time

-
consuming
trials.
(d)
From the criminal defenses perspective, the most useful benefit of this type of
agreement is its ability to
remove the uncertainty of a trial. It helps defendants with making sure they will not
receive more serious
charges for the criminal acts filed against them.
(e)
When it does happen that the prosecution is feeble or that the court wants proper
witnesses or evidence, and the outcome is likely acquittal, it is possible that the
prosecuting party will still find the accused guilty.
37
Kazi Ebadul Haque, Plea Bargaining and Criminal Workload,
,

Bangladesh Journal of Law, Volume

-
VII,
2003
38
Abdul Halim,
adr in bangladesh: issues and challenges
(Dhaka, CCB Foundation, 2013), P 203
39
ibid

IOSR Journal Of Humanities And Social Science (IOSR

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JHSS)
Volume 20, Issue
12, Ver. IV (Dec. 2015) PP
45
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ISSN: 2279
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ISSN: 2279
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www.iosrjournals.org
DOI: 10.9790/0837
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20124
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www.iosrjournals.org
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Critical Review of
the
Court Based ADR in Bangladesh
:
Prospects
and Challenges
Md. Khairul Islam
(
Department of Law, Northern University Bangladesh
, Bangladesh)
Abstract:
The study concentrates on the Court Based A
lternative
D
ispute Resolution (ADR)
as
a special form
of ADR in Bangladesh. It critically analyzes the present legal framework for Court
based ADR in Bangladesh.
The
Court Based ADR is not a single process or program rather, it encompasses many
different varieties,
variations, and flavors of A
DR mechanisms.
Nevertheless
,
the
research does not focus on whether ADR is
better than litigation rather it shows how the courts are transforming ADR and how
ADR is transforming
in
the
court system.
While reviewing the ADR provisions, the study
attempts
to
assess the existing position of the
court based ADR and its efficacy in settling disputes. The study focuses on
fundamental laws relating to Court
Based ADR in Bangladesh particularly in civil matters, family matters, revenue
matters and Artha Rin (Money
loan) suits. The study depicts the impact of incorporation of ADR in settling civil suits
by analyzing secondary
data.
It
investigates the feasibility of introducing any change into the existing ADR
framework in order to
develop the present Court Based ADR
mechanism. The study concludes by
finding out
the major challenges of
court based ADR in its way of success
in Bangladesh
.
Keywords:
ADR, Arbitration, Civil Court, Court Based ADR, Mediation
I.
Introduction
Court based Alter
n
ative Dispute Resolution
(ADR
)
or
Court
-
annexed ADR
(
sometimes
also
referred to
as judicial ADR or court mandated ADR
)
is a process by which courts
redirect
certain cases to any of the forms
of ADR rather than
by way of
trial
[1]
.
The
Court
Based
ADR arises where after parties have pr
esented their
case to court, the same is referred by the court to one of the ADR
machinery
for resolution.
Bangladesh for the first
time
incorporated the provisions of court
based
ADR into the Family Court
Ordinance, 1985
but that
was
almost dysfunctio
nal until the
early 2000
when
under the leadership of
former
Chief Justice Mustafa Kamal
it was
revived through initiating pilot projects in
selected
family courts in Dhaka
.
Witnessing the unprecedented results of the pilot project
s
in family courts the go
vernment was convinced to
incorporate the ADR provisions in
to
the Code of Civil Procedure
(CPC)
, 1908. Though initially
it was
optional,
the ADR provisions now have been made compulsory for every civil court
by incorporation of sections 89A and
89C of the
Code of Civil Procedure, 1908
through the Civil Procedure (Amendment) Act, 2012.
Apart from this
these two
law
s
, ADR provisions have also been incorporated into the
Labor
Act
, 2006
and the
Artha Rin Adalat
Ain
(Money Loan Court Act)
,
2003
.
1
It
is
,
therefo
re,
evident that
the
Court Based
ADR is now a settled fixture in courts in
Bangladesh
like
many
parts of
the world. However, just because a process has
gathered
widespread support does not mean that
there is no necessity
to examine how well the process has
worked.
It has been observed that
incorporation of
ADR has little impact in
effective disposal of
civil suits.
The in
vestigation
evaluates the efficacy of the existing
legal framework for
Court Based ADR and
find
out
the key
challenges in
its
suc
cess.
The
paper systematically
considers the interrelationship between ADR and traditional court processes.
II.
Notion
s
of
C
ourt
Based
ADR
ADR may either freestanding or
Court
based. In other words, ADR may be tied to a law suit or
freestanding. When the process is c
onnected to the law suit or
court case, it is called court based
ADR or
judicial ADR. The freestanding ADR has no relationship with court cases. When
disputants sit for amicable
settlement by conciliation on their own, or approach a middle man or neutral t
hird person to negotiate or
mediate their dispute that is called freestanding ADR. The commercial arbitration
and local or community based
ADR are the common example
s
of freestanding ADR
[2
]
.
The
court based
ADR refers
to
a process where both parties m
eet with an arbitrator or mediator, under
the direction of the competent court, who will help the parties to focus on their
situation and consider the
appropriate options for settlement available to them in their suits.
The
court
based ADR programs or prac
tices
1
This
special law
established special court
and procedure for recovery of
the
money
borrowed
from the
Banks and
Non
-
ba
nking
financial institution
s
in Bangladesh
.
Critical
Review of the Court Based A
DR in Bangladesh:
Prospects
and
Challenges
DOI: 10.9790/0837
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46
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are authorized and used within the court system and their procedures are controlled
by the court
2
[3].
The court
schedules dates and times for the ADR process and assures the administration of
each case referred to ADR,
including monitoring and evalu
ation. The court assures ownership of all aspects of the ADR process, including
accommodation within the court and the selection of the neutral. However, that might
be narrow description of
c
ourt based ADR. In wider sense
,
the court based ADR includes the
ADR process referred by the courts. An
agreement arising out of the court based program is enforceable as a co
urt order.
Generally, after filling
a
court
case a judge or court employee examine
s
the dispute and suggest
s
or order
s
,
as a matter of course, the
parties to
attempt to resolve their differences through ADR in forms of mediation, conciliation,
negotiation or mini
-
trial
etc. In every approach the judge himself or a neutral third person
tries
to get the disputants to reach an amicable
settlement. If t
hey do, the case is dismissed, saving the time and expenses of litigation.
The
Court Based
ADR is a not a recent
phenomenon
.
Among the differen
t modes of ADR, the court
referred
arbitration methods
was the earliest form of
formal
ADR
in this subcontinent
.
Thus, the alternative
dispute resolution
started in this arena in institutionalized form
was
through reference made by the court to the
arbitrator
.
3
Whether taking the assistance of ADR system
is
obligatory or
optional
essentially
depends on the
rules of
procedure of the court. Where
the
participation in ADR is required by the court, whether by an
individual judge's order or by a court rule that certain types of proceedings will go to
ADR, the referral is
presumptively
mandatory.
On the other hand
,
if
ADR
use is based wholly on the consent of the parties, the
referral is voluntary.
III.
Nexus between
ADR and
the
Court
Currently it has been the policy of the
g
overnment
s around the world
that disputes should be resolved
at a proportionate level, and that the co
urts should be the
last resort of
dispute resolution. Although ADR is
independent of the court system, a judge can recommend that parties involved in
litigation enter into it. The
court may also impose cost sanctions if it decides that one or more of the p
arties has been unreasonable in
refusing to attempt ADR.
4
If parties refuse an offer to mediate without good reason
,
then even if they win their
case, the judge can refuse to award them some or all of their legal costs.
However,
there are
disagreement
s
wit
h
th
e
notion
of refusal to award legal costs
.
It is thought
that
blanket invitations to mediate, particularly with an
implicit threat of penalties for refusal, may not be the most effective approach to the
encouragement of ADR at
appellate level
[4
]
.
IV.
Cour
t Based ADR in Bangladesh
Though the journey of court based ADR in the then Indian subcontinent started with
the promulgation
of Bengal Regulation of 1772,
5
which for the first time statutorily recognized the import and significance of
ADR in resolving di
sputes as part of the court process
[
5
]
, the C
ourt
B
ased
A
DR
reached its sophistication in
the later part of the twentieth century, specifically in the 1980s with the promulgation
of the Family Court
Ordinance, 1985. Later on, witnessing the tremendous suc
cess of the family court in resolving disputes as
specified in section 5, the legislature felt the impetus for incorporating ADR
provisions in the Code of Civil
Procedure in 2003. Thereafter, the ADR provisions
were incorporated
into the
Artha Rin Adalat A
in (Money
Loan Court Act)
, 2003 (as amended in 2010), the Labour Act, 2006, the Income Tax Ordinance,
1984 (as
amended in 2011) and some other laws relating to tax
ation
and
labor
.
2
World Bank in its Alternative Dispute Resolution Guidelines used the term Court
-
annexed ADR as alternative to Court Based ADR.
The g
uidelines simultaneously used the term Court
-
connected ADR. Unlike court based ADR the Court connected ADR is linked to
the court system but not part of it. Cases are referred by the appropriate courts to ADR service providers
outside the court
system. T
he
ADR center, however, might at the same time deal with cases emanating from outside the court system.
Agreements arising from
court
-
connected mediation are usually enforceable as court orders. In court
-
connected models, separate mediation centers handle
the
provision of mediation services and also take cases that have not yet been issued in court. Thus, their
pool of available ref
errals is
potentially wider tha
n that of court based programs.
3
T
he Regulation of 1787 empowered the Courts to refer certain
suits to arbitration, but no provision was made in the Regulation for
cases wherein difference of opinion among the arbitrator arose. The Bengal Regulation of 1793 (XVI of
1793) empowered courts
to
refer matters to arbitration with the consent of the parti
es where the value of the suit did not exceed Rs. 200/
-
and the suits were for
accounts, partnership, debts, non
-
performance of contracts, etc.
4
In the conjoined appeals of Halsey v Milton Keynes NHS Trust and Steel v Joy and Halliday the Appellate
Court
said that all members
of the legal profession should now routinely consider with their clients whether their disputes are suitable
for ADR. One com
mentator
comments that this is close to warning that not to do so could be negligent and a breach of profes
sional duty. However, Halsey is not
the first case where the Court of Appeal has refused to award the legal cost to the winner. In the Dunnett
v Railtrack, the C
ourt
declined to order the defeated claimant to pay the Railtracks costs because Railtrack re
fused to consider an earlier suggestion from the
court to attempt mediation. Dunnett was the first reported case where a successful party losing costs
because they declined t
o mediate.
In Dyson & Field v Leeds City Council the Court of Appeal gave warning
of this possibility to a defendant reluctant to mediate,
largely on the basis of additional sanctions in the event of losing at a re
-
trial.
5
A clause in this regulation provided that in all cases of disputed accounts, it shall be recommended to the
part
ies to submit the
decision of their cause to arbitration, the award of which shall become a decree of the court.
Critical
Review of the Court Based A
DR in Bangladesh:
Prospects
and
Challenges
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47
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4
.
1
.
Laws
referred
for
ADR in Bangladesh
It
has been stated
earlier
that
the process of resolving suits
through ADR
system is nothing new in
Bangladesh.
All sorts of ADR mechanism prevails in Bangladesh. However, the fundamental
statutes
that
govern ADR
system
, particularly in civil matters,
are
as follow
s:
a)
The Code of Civil Pr
ocedure, 1908
b)
The
Muslim Family Laws O
rdinance, 1961
c)
The
Income Ta
x
O
rdinance, 1984
d)
The Value Added Tax Act, 1991
e)
The Customs Act, 1969
f)
The Family Courts Ordinance, 1985
g)
The Legal Aid (Legal Advice and Alternative Dispute Resolution) Rules, 2015 under t
he
Legal
Aid Act, 2000
h)
The
Arbitration Act, 2001
i)
The
Artha Rin Adalat Ain (Money Loan Court Act)
, 2003
j)
The Conciliation of Disputes (Municipal Areas)
Board
Act, 2004
k)
The Village Courts Act, 2006
l)
The Labo
u
r Act, 2006
m)
The EPZ Trade Union and Industrial Rela
tion Act, 2004
n)
The EPZ Trade Welfare Society and Labour Industrial Relation Act, 2010
4.2. Classes of ADR in Bangladesh
Various types of ADR practiced in Bangladesh may be classified under three major
categories, namely,
(i)
Court based ADR or judicial
;
(ii) quasi
-
formal, statutory ADR; and (iii) informal/non
-
statutory ADR. The
primary focus of this study is on the first category, i.e., court based ADR through civil
courts.
Table
1
:
Classes of
ADR
under
different laws
in Bangladesh
Status of ADR
Relevan
t
Legislations
Relevant
s
ections
Methods
a
pplied
Key
a
ctors
Formal/
court
based
ADR
The Code of Civil Procedure, 1908
(
as a
mended up
to
2012)
S.89A, 89B, 89C,
89D & 89E
Mandatory
mediation/
arbitration
The
c
ourt itself or a third
party
neutral
The
Artha Rin Adalat Ain (Money Loan
Court Act)
, 2003
(
as amended
up to 2010)
Chapter on ADR,
Ss
. 22
-
2
5
, 38,
44A, 45
Mandatory
mediation/
arbitration
The
c
ourt itself or a third
party
neutral
The Family Courts Ordinance,1985
Ss.10(3),(4) & 13
Reconciliation/
c
ompromise
The
c
ourt itself
Quasi
-
formal/
s
tatutory ADR
The
Conciliation of Disputes (Municipal
Area) Board Act, 2004
Esp. Ss.3, 4 and
s
chedule
Almost formal civil
and criminal
adjudicatory
jurisdiction in
specified cases
Local
g
overnment
r
epresentatives
,
p
aurashava
only
The Village Court Act, 2006
Ss.1
-
2 and
s
chedule
Local
government
representatives,
union
parishad
only
The
Arbitration Act, 2001 (as amended
up to 2004)
Esp. S.22
Arbitration
Arbitration
T
ribunal
Income Tax Ordinance, 1984
Ss.152F
-
152S
Facilitation
Selected or appointed
facilitator
The Value Added Tax Act, 1991
Ss. 41A
-
41K
Facilitation
Selected or appointed
facilitator
The Customs Act, 1969
Ss. 192A
-
192K
Facilitation
Selected or appointed
facilitator
The Legal Aid (Legal Advic
e and
Alternative Dispute Resolution) Rules,
2015 under the Legal Aid Act, 2000
Rules 4
-
17
Settlement
conference
Legal aid officer
The Muslim Family Laws Ordinance,
1961
S. 6, 7(4), 9(1)
Arbitration
Local
government
representatives (up &
paurashava
)
Th
e Labour Act, 2006
S. 210
Conciliation,
a
rbitration
Selected conciliator or
arbitrator
The EPZ Trade Union and Industrial
Relation Act, 2004
Ss.
47
-
49
Conciliation,
a
rbitration
Selected conciliator or
arbitrator
The EPZ Trade Welfare Society and
Labour
Industrial Relation Act, 2010
Ss. 39
-
4
5
Conciliation,
a
rbitration
Selected conciliator or
arbitrator
Informal/
non
-
formal
ADR
Informal ADR by NGOs on c
ivil matters
Mediation
NGO
m
ediators
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DR in Bangladesh:
Prospects
and
Challenges
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4.3
.
Court Based
ADR in
Family
m
atters
The Family Courts Ordina
nce, 1985 was promulgated w
ith a view to expedite the resolution of cases
related to family
affairs rapidly and effectively
.
These courts have
been following the ADR
p
rocedure in
dis
posing
the cases
both before and after the conclusion of
trial.
The
family
court shall fix a date for pre
-
trial
hearing
within
30
(
thirty
)
days after the filing of the written statement by the defendant
.
Under sec. 10
(3)
of the
Ordinance 1985
the court generally
,
in the pre
-
trial hearing,
ascertain
s
the issue
s
between t
he partie
s and attempt
to
affect
a compromise or reconciliation
between the parties.
The F
amily Court, if it deem
s
fit or on the
application of any disputants, may conduct the whole or part of the trial in camera.
The
C
ourt
can
take steps to
compromise or conciliat
e
between the
parties
even
after the clo
sing of evidence and before pronouncing
final
judgment
[
6
]
.
Where
the dispute is settled through compromise or reconciliation between the parties, the
Court
shall execute the decree or give decision on the basis of t
hat compromise or reconciliation.
4.4
Court Based
ADR in
Civil
matters
Following the unprecedented success of the
Family Court
in resolving family disputes through ADR
machinery
6
, the
l
egislature felt
encouraged to incorporate ADR mechanisms into the Cod
e of Civil Procedure,
1908
(CPC)
.
The ADR methods come into the
civil
matters in b
roa
der way by the amendment of Civil
Procedure
Code
(Amendment) Act, 2003. The
amended
Act
of
2003
7
introduces the court based mediation and
arbitration as integral part of t
he civil proceedings in Bangladesh. However, it was the discretionary power of
the court to explore the scope of mediation.
Later on,
the
CPC
was
amended
again
in
2012
8
that
made the
mediation system
mandatory in
all sort of
civil proceeding
s
.
The Act went
through another amendment in 2006
that introduced the provision of mediation even at the appellate stage.
4
.4.1
Mediation in
Original
Civil
suits
As stated, section 89A
of the CPC provides
for the provisions relating to mediation. Explanation 1 to
the s
ection defines med
iation as
flexible, informal, non
-
binding, confidential, non
-
adversarial and consensual
dispute resolution process in which the mediator shall facilitate compromise of
disputes in the suit between the
parties without directing or dictatin
g the terms of such compromise.
The analysis of the definition reveals that
mediation under
the
CPC is flexible, informal, non
-
binding, confidential, non
-
adversarial and consensual in
nature
[7
]
. Here, the third party who works as mediato
r just facilitates
the process without any
direct
ion
or
dictat
ion
as to
how and in what terms the compromise will be reached.
The CPC as it stands now after the amendment in 201
2 makes the mediation process
compulsory,
which means the court is now under an obligation to r
efer every dispute of civil nature to which the CPC
is
made
applicable.
Under the current arrangement the court may, after the written statement has been
submitted
with the court, itself initiate mediation proceeding, or
may refer the same to the engaged p
leaders of the
disputing parties, or to the parti
es themselves, or to a mediator
from the mediator penal prepared by
the
concerned
district judge
under 89A (10)
of the CPC
.
9
After reference of a dispute to the engaged pleaders of the
disputing parties, the
y shall, upon consultation with their respective clients, appoint another pleader who
was
never worked for the parties before, or a retired jud
ge, or a mediator from the panel
of mediators prepared under
section 89A (10), or to any other person, who, in th
eir opinion, is competent to facilitate the mediation process
as a mediator.
10
When the parties themselves decide to mediate with the help of third party neutrals,
then they may,
upon discussion with their
respective
pleaders
and the mediator, fix the amo
unt of fees to be paid by each party
to the mediator, the procedure to be followed during the mediation process and all
other ancillary and related
matters.
The court
shall
intervene
only
when the parties, their respective pleaders and the mediator fail to
settle
down the a
foresaid issues
, in which case the parties will be bound to abide by the decision of the court
.
11
The amended section also brought into effect changes with regard to time frame
relating to the start and
the end of the mediation process.
The section imposes obligation upon the parties to inform the court with
in
10
days time starting from the date of reference to mediation by the court under section
89A (1) as to who is being
appointed as the mediator, failing which the court shall itself a
ppoint one within
next
7
(seven)
days. The
section also restricts
the time
f
r
ame to 60 days within which the mediation
process
must be concluded
. The court
6
T
he total realization through mediation since the introduction of mediation in the
Family
Courts from June 2000 to 16th May 2001 was
about T
K. 51,00,000 (estimated 46,360).
K.
M.
Hasan,
(former CJ of Bangladesh), A Report on Mediation in the Family Courts:
Bangladesh Experience, presented in the 25
th
Anniversary Conference of the Family Courts of Australia, Sydney
, 26
-
29 July 200
1.
7
Se
ctions 89A and 89B were inserted by section 3 of the Code of Civil
Procedure (Amendment) Act, 2003
8
Section 3(a) of the Code of Civil Procedure (Amendment) Act, 2012
9
See section 89A (1)
of the CPC
10
See section 89A (2)
, ibid
11
Section 89A (3)
, ibid
Critical
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DR in Bangladesh:
Prospects
and
Challenges
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may, however, of its own motion or upon a joint request preferred by the parties
extend the time peri
od for
another 30 days.
12
It is quite obvious that the mediator may
come
in
to
contact with
many sensitive matters
or documents
of confidential nature and hence, the section also imposed a serious obligation upon
the mediator about
maintaining confidential
ity.
It says that the mediator shall prepare a report about the outcome of the mediation
process. If the mediation is successful
, then the terms of compromise must be reduced to writing with precision
in the form of an agreement
. The parties will put their
hands as executants and their lawyers, if there be any, and
the mediator as witnesses.
In order to encourage the parties to cooperate with the mediation process
the
provision
accommodates
the following arrangements:
(i)
the mediation process shall be confid
ential and any communication made, evidence adduced,
admission, statement or comment made and conversation held between the parties,
their pleaders,
representatives and the mediator, shall be deemed privileged and shall not be
referred to and
admissible in
evidence in any subsequent hearing of the same suit or any other proceeding
;
(ii)
the parties will always have the option to get back to the stage of formal judicial
process from which
the dispute has been sent for mediation;
(iii)
in case of court initiated mediati
on
same court shall not hear and dispose the suit, if the court
continues to be presided over by the same judge
;
(iv)
the parties will get back the entire amount of money paid as court fees during the
institution of the
suit and the court will issue a certifica
te to that effect;
(v)
once an agreement is reached and executed by the parties, the same is considered
to be final and no
party will be permitted to reopen the same
either by way of a fresh suit or
by way of appeal or
revision.
4
.
4.2
Mediation in
Appeal
A
ppe
al is considered to be the continuation of the original suit. Hence, in 2006 the
parliament opened
up the avenue for the resolution of a civil dispute
through ADR
even at the appellate stage. In order to facilitate
the process
section
89C was inserted into
the CPC.
Though at its birth the mediation provision at this stage was
discretionary in nature lying with the hands of the court,
the
CPC as it stands after 2012, makes the same as
compulsory. Now every
appeal deriving from
original decree must be referre
d to mediation and comply with the
same provision
s as enumerated in section 89A.
13
4.5
ADR in the
Artha Rin Adalat Ain
(Money Loan Court Act)
, 2003
The
Artha Rin Adalat Ain (
Money Loan Court Act
)
,
2003
is a special law that laid down, for the very
first ti
me, the foundation for speedy disposal of money suits connected with the banking
and non
-
banking
financial institutions. The end in view,
inter alia
, was the quick recovery of loan amount advanced by the
financial institutions within the shortest possible
time. Before the amendment in 2010, the provision of ADR
was incorporated into the
Act
in the form of 'settlement conference'. The court could mediate the suit after the
written statement was filed by the defendant or defendants, by adjourning the
subseque
nt procedures of the suit.
According to the provision, the presiding judge would call for a settlement
conference with a view to settle the
dispute at an early stage of the case. The settlement confer
ence would be held in camera. Nonetheless,
the
Artha
Rin
Adalat Ain
(Money Loan Court Act)
as it stands now after amendment in 2010 has incorporated the
provisions of mediation both at trial as well as the appellate stage repealing the
provisions relating to settlement
conference.
Section 22 of the amended
Arth
a Rin Ain
(Money Loan Act)
incorporated the provisions of mediation
almost in the same words and manners as is provided for under section 89A of the
CPC but with the exception
that in the former case a special resolution providing for authorization of the
Board of Directors of the
concerned financial institution authorizing one of its officers must be passed and
submitted with the concerned
Artha Rin Adalat
(Money Loan Court
)
. The
Court
will take special care as to whether the authorized officer has
acted,
during the mediation process, in consonance with the said authorization.
14
Unlike the ADR provisions in
the CPC, the
Artha Rin Adalat Ain
(Money Loan Court Act)
created a scope for the
Artha Rin
(Money Loan)
Courts according to which the courts may employ a
nother attempt in order to effect compromise at the post trial
stage before passing a final judgment or order in accordance with the provisions of
chapter four of the
Act
.
15
The
statute
has taken a precautionary measure in respect of disputes having monetar
y value exceeding take five
crore. In this connection, section 25 provides that a special authorization needs to
be obtained from the
12
See section 89A(4)
, ibid
13
See section 89C (1) (2)
, ibid
14
See section 24 of the
Artha Rin Adalat Ain
(Money Loan Court Act)
, 2003.
15
See section 23, ibid
Critical
Review of the Court Based A
DR in Bangladesh:
Prospects
and
Challenges
DOI: 10.9790/0837
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20124
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managing director or the chief operating officer, as the case may be, of the
concerned financial institution before
conclu
ding a deal by way of ADR mechanisms under section 22. The
Act
takes one step ahead of the C
ivil
P
rocedure
C
ode
in the sense that it provides for mediation provisions not only at the appellate stage,
but even at
the revision and execution stage of an
Artha
Rin
(Money Loan)
suit as well.
16
V.
Quasi
Form
al ADR
A number of statutes are now in force in Bangladesh in which ADR provisions in
quasi formal form
have specifically been incorporated.
17
Those statutes include,
inter alia
, the Muslim Family Laws Ordinance,
1961, the Income Tax Ordinance, 1984, the Arbitration Act, 2001, the Conciliation of
Disputes (Municipal
Areas) Board Act, 2004, the Village Courts Act, 2006 and the Labour Act, 2006.
Though the primary objective
of this research is to study the functiona
l aspects of CBA in the civil courts of Bangladesh, still the researcher
find it necessary to focus on some of the statues which provided for ADR
mechanisms in quasi formal manner.
The ADR mechanisms in some of those statutes are enumerated hereunder:
5.1
.
Under
the
Muslim Family Laws Ordinance, 1961
The fundamental rules relating to succession (doctrine of representation under
section 4), polygamy,
divorce, maintenance and dower of Bangladeshi Muslims residing in Bangladesh are
codified in Muslim Family
Laws Ordinance, 1961 (MFLO). This Ordinance provides mechanism for
reconciliation through Arbitration
Council in case of polygamy, divorce and maintenance.
18
However, the Ordinance does not provide for any
description of the arbitration procedure. The proce
eding of the Arbitration Council is not a judicial proceeding.
The Arbitration Council under MFLO is constituted by the Chairman and
representatives of each of the parties
to a matter.
19
The Arbitration Council facilitates the settlement of dispute regardin
g:
i.
Polygamy (section 6)
ii.
Talaq
or dissolution of marriage (section 7)
iii.
Maintenance (section 9)
5.2.
Under the
Income Tax Ordinance, 1984
The Income Tax Ordinance, 1984 (ITO) to be read with the Income Tax Rules, 1984
provides for the
detail provisions relat
ing to the income tax matters including but not limited to the method of maintaining
books
of accounts, methods of calculation of taxable income, methods of resolution of
disputes arising between the
assessee and the Deputy Commissioner of Taxes (DCT) incl
uding the provisions of appeal and reference,
penalty provisions and provisions relating to criminal prosecution. The ADR
provisions were not there in the
ITO that
has
been inserted for the first time in 2011 by the Finance Act of 2011. A brand new
chapter
titled
Chapter XVIIIB was incorporated having sections starting from 152F to 152S.
Though the term mediation can
be found nowhere in the body of the said sections, a plain reading of the sections,
however, reveal that
mediation in the form of facilitat
ion by a third party facilitator has been incorporated into the ITO.
It
ha
s
already
been
noticed that the CPC and the
Artha Rin Adalat Ain
(Money Loan Court Act) have
provided for compulsory ADR mechanisms but the ITO sets an eligibility test for the
agg
rieved assessee before
s/he
may avail the recourse of the ADR mechanisms. A dispute shall not be a matter of
procedure referred to
ADR as is the case under the CPC and the
Artha Rin Adalat Ain
(Money Loan Court Act). Section 152I provides
that any aggrieve
d assessee may apply for permission for resolution of the dispute through the ADR
process.
The application must be in such form and within such time accompanied by such
fees as may be prescribed by
the National Board of Revenue (NBR). Again, as to the elig
ibility to apply for ADR, section 152J provides for
two preconditions. An assessee shall not be eligible to apply for ADR if he fails to
-
(a)
submit the return of income for the relevant year or years; or
(b)
p
ay tax payable under section 74
Further, section 152
N imposes certain obligations upon the facilitator appointed under section 152K as
to whether the aforesaid conditions have been satisfied by an applicant assessee. In
order to satisfy himself as to
the fulfillment of the conditions, the facilitator shall,
upon receiving the application of ADR, forward a copy of
the application to the respective DCT and also call for his opinion on the grounds of
the application and also
whether the conditions referred to in sections 152I and 152J have been complied
with. T
he DCT shall respond
within five working days, failure of which shall lead to a presumption that the
conditions have been fulfilled.
16
See section 44A and 38 respectively, ibid
17
The ADR is termed
quasi
formal because no ci
vil court is directly involved in the ADR process under those enactments. In almost
all the laws as listed above the parties themselves play the central roles in the ADR process.
18
See sections 6, 7 and 9 respectively of the MFLO, 1961
19
Section 2,
ibid
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Section 152N also empowers the facilitator to serve notice upon the parties, adjourn
the proceeding when so
required, call
for records or evidences and cause to make such enquiry as he may deem fit and
proper.
Section 152L provides for certain rights as well as certain duties of an assessee
during an ADR process.
An assessee shall be entitled to negotiate himself or by an auth
orized representative. He may even be dispensed
of his personal appearance if he can furnish sufficient reasons for doing so. Again,
an assessee is obliged to
carry out certain duties including submission of all related papers and documents
and disclosure
of all issues of
law and facts. He also needs to be cooperative, interactive, fair and
bonafide
while negotiating for resolution. If
it is proved that any agreement has been reached by way of untrue declaration, or
submission of any false
document, the agr
eement shall be set aside and appropriate legal action be initiated against him.
Upon conclusion of the facilitation process, a dispute may be partly or fully resolved.
Whatever be the
case, in each case the facilitator shall record in writing the details
of the agreement reached between the assessee
and the representative of the Commissioner. The agreement shall include the terms
of the agreement including
any tax payable or refundable and any other necessary and appropriate matter and
the manner in which
any
sums due under the agreement shall be paid and such other matters as the
facilitator may think fit to make the
agreement effective. Thereafter, the agreement must be signed by the assessee and
the Commissioner's
representative and the facilitator.
Whe
n an agreement is finally reached and executed by the parties, it shall immediately
become binding
upon both the parties and it cannot be challenged or reopened before any Tribunal
or Court either by the
assessee or any other income tax authority. Like the
CPC and the
Artha Rin Adalat Ain
(Money Loan Court
Act), ITO also provides that if the facilitation process fails to produce any effectual
result, in that case the
parties shall be entitled to take the recourse of appeal and in computing the
prescribed ti
me limitation for
preferring appeal, the time passed between the filing of the application and the
decision or order of the ADR
shall be excluded.
Similar ADR provisions have also been incorporated into The Value Added Tax Act,
1991
and The Customs Act, 1
969 by the Finance Act of 2011.
5.3.
Under the
Conciliation of Disputes (Municipal Area) Board Act, 2004
The Conciliation of Disputes (Municipal Area) Board Act, 2004 establishes a dispute
Resolution Board
for easy and speedy settlement of a number of di
sputes within municipal areas. The Act entirely follows the
conciliation as a method to settle the disputes mentioned in its schedule. Though the
Act does not define
conciliation, the decision of the Dispute Conciliation Board is binding upon the
parties
.
20
The Act empowers
the board to try both petty civil and criminal matters as stated in the schedules.
However, the Board shall not try
the case if the accused is found guilty of another cognizable offence (in case of
offences in first part of the
schedule
), if there is a question of a minors interest or a previous
agreement in any
arbitration
between the
parties exists or a government or its employee is a party to it. Parties cannot employ
lawyers to represent them
before the Board. Nonetheless, the Board
cannot impose imprisonment but order for damages, or compensation,
restitution of property.
21
5.4.
Under the
Village Courts Act, 2006
It is pertinent to mention here that, though the term Village Court has been
mentioned in the Village
Court Act, the ad
judication under the Act is not performed by any judge.
22
The Village Court is constituted upon
an application by one of the parties to a dispute. The
Chairman
of the
Union Parishad
(UP) or any of the
members of the UP where the chairman is incapable of cha
iring or his neutrality is in question shall be the chair
of the Village Court. Each Party shall select two members of which one must be a
member of the UP.
The Village Court has exclusive jurisdiction over petty civil and criminal matters
specified in the
schedule of the Act except where the accused is found guilty of another cognizable
offence mentioned in first
part of the schedule, and if there is a question of a minors inter
est, or a previous agreement in any arbitration
between the parties exists, or
a government or its employee is a party to it. The Village Court cannot impose
imprisonment. It can only pass order of compensation for damages up to a
maximum of TK. 25,000/
-
and
restitution of property. However, the procedures as enumerated in the Evide
nce Act, 1872, the C
ivil
P
rocedure
C
ode
and the Code of Criminal Procedure, 1898 (CrPC) are not applicable to the Village
Court. In addition to
that, no lawyers can be engaged by either party before the Village Court to
represent their cases.
20
See
Section 11 (3)
of the Conciliation of Disputes (Municipal Area) Board Act, 2004
21
See Section 9, ibid
22
For a definition of who is a judge, see section
19 of
the
Penal Code, 1860
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Table 2
:
Statistics of Village Courts of selected
Districts
from 2010 to 2014
Sl.
No.
Name of the Districts
Number of civil suits filed
Number of civil suits disposed
of
Pending suits
1.
Manikgonj
486
357
129
2.
Brahmanbaria
865
696
169
3.
Gazipur
7912
5466
2466
4.
Na
rsingdi
2152
1638
514
5.
Narayangonj
2516
1838
678
Source: Field survey
5.5.
Under the
Labour Act, 2006
The Bangladesh Labour Act of 2006 incorporated provisions for the settlement of
industrial disputes
through ADR. Where an industrial dispute is likely
to arise between the employer and the workers, the employer
or the Collective Bargaining Agent (CBA) shall communicate his or its views in
writing to the other party.
23
The
party receiving it shall in consultation with the other party arrange a meeting with
the other party for collective
bargaining on the issue raised in the communication within fifteen days.
24
Where the parties reach a settlement
of the issue discussed, a memorandum of settlement shall be recorded in writing
and signed by both parties and
a
copy thereof shall be forwarded to the government, the Director of Labour and the
conciliator.
25
The government shall appoint conciliators to settle the industrial disputes and shall
specify jurisdiction
and functions.
26
If a settlement of the dispute is ar
rived at in the course of conciliation, the conciliator shall send
a report thereof to the Government together with a memorandum of settlement
signed by the parties to the
dispute.
27
However, if the conciliation fails, the Conciliator shall try to persuade
the parties to agree to refer the
dispute to an Arbitrator for settlement in which case, the award of the Arbitrator shall
be final and no appeal
shall lie against it.
5.6.
Under
ADR under the Legal Aid Act, 2000
The provisions relating to ADR were incorp
orated into the Legal Aid Act in 2013 by inserting section
21A to the Act. In order to give effect to section 21A (2) of the Legal Aid Act the
government has promulgated
a set of rules in the name of the Legal Aid (Legal Advice and Alternative Dispute Re
solution) Rules, 2015
(hereinafter referred to as the
Legal Aid Rules
). Rules 4 to 17 of the Legal Aid Rules enumerated in great length
the ADR provisions in the form of meditation. Section 21A (2) of the Legal Aid Act as
amended in 2013
empowers the lega
l aid officer appointed under section 21A (1) to act as the mediator in cases of
disputes that
come to him either in the form of application for legal advice or by reference by any
competent court or tribunal.
If any disputing party consents to ADR, the le
gal aid officer sends a letter to the other party to the dispute
seeking his consent to settle the dispute through ADR. If the other party consents to
ADR, the legal aid officer
arranges a meeting with the presence of the parties at a convenient place and
time.
28
After service of notice in accordance with the provisions as incorporated under
Rules 6, 7 and 8 the
legal aid officer shall comply with the provisions of Rule 9 which include fixing the
procedure to be followed in
the mediation, explaining the par
ties about the merits of mediation. The rule also provides that the legal aid
officer cannot impose his decisions upon the parties and the fundamental basis of
such mediation proceeding
will lie on the principle of equity, conscience and impartiality.
29
The
legal aid officer has the power to adjourn
the mediation proceeding for a period not exceeding 7 (seven) days if the same
cannot be concluded on a day or
the parties fail to reach a decision.
30
The legal aid officer while in the process of dispute resoluti
on through
ADR is directed to adhere to the provisions as incorporated under Rule 11.
Though the Legal Aid Rules on ADR were promulgated in 2015, the original
provisions on ADR were
incorporated into the Legal Aid Act in 2013. The researcher has managed to
collect a report on ADR by the
district legal aid officers. The report is reproduced hereunder:
23
See Section 210(1) of the Labour Act, 2006
24
See
Section 210(2)
, ibid
25
See
Section 210(3)
, ibid
26
See Section 210(5), ibid
27
See
Section 210(8)
, ibid
28
Rule 4 (1) & (2) and Rule 5 of the Legal Aid Rules
29
Rule 9 (2) and (3) of the Legal Aid Rules
30
Rule 10, ibid
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Table 3
:
Statistics on ADR chaired by the District Legal Aid Officer, 2014
Sl.
No.
Name of Districts
Number of cases
sent by Court or
Tribunal
Number of
cases
taken up for ADR
Number of cases
resolved by ADR
Number of
beneficiary of
ADR
Amount of
money
recovered
through
ADR
1.
Kishoreganj
-
73
55
146
20,00,000/
-
2.
Gopalganj
-
16
15
22
5,00,000/
-
3.
Bogra
46
38
12
30
9,90,000/
-
4.
Rangpur
-
7
3
6
-
5.
Chittagon
g
-
10
8
15
-
6.
Comilla
02
47
4
5
3,00,000/
-
7.
Brahmanbaria
-
6
2
12
3,60,000/
-
8.
Moulavibazar
-
4
2
7
-
9.
Barisal
-
44
36
75
-
Source: National Legal Aid Services Organization (Bangladesh)
The
Table
shows that the
District
legal aid officers have achie
ved a commendable success in resolving a
good number of disputes by way of ADR. Since the ADR rules have been formulated
recently, the legal aid
officers, it is hoped, will be able to resolve more disputes in an amicable manner
through applying the ADR
too
ls. This will in effect help to reduce the existing backlog of cases pending for
disposal before the formal
courts and tribunals
.
VI.
Achievements of
Court Based
ADR
6
.1
.
In
Family Courts
The Family Court Ordinance was promulgated in 1985. In this Ordinanc
e the provision of mediation,
an ADR process been incorporated in section 10, 11 and 13 giving the court
ample
scope to mediate the disputes
among the parties. But the courts did not practice these p
rovisions widely until the year
2000. A total sixteen
pil
ot courts were
undertaken
in
between 2000
to 2001 in different districts of the country. Trained judges were
posted there. Those pilot courts achieved immense success in disposing of the
family cases through mediation.
A statistics shows that the pilot cou
rts disposed 2418 family cases (about 35% of total pending family cases) and
realized
T
k
.
74.47 million through mediation in three years (from July, 2001 to June, 2004) after
their
establishment
[
8
]
. Whereas, before these initiatives from 1985 to 2000, in
fifteen years, the total
amount of
money realized
through
some
70 Family Courts were about T
k
. 6.2 million and those courts disposed less than
one thousand family cases through mediation
[
8
]
.
6.
2
.
In
Civil
and Money Loan Courts
The success in the
Famil
y Court
encouraged the
parliament
to enact a provision of ADR for the civil
courts. Finally the provision of ADR was incorporated in
to
the Code of Civil Procedure in July, 2003.
In order
to observe the working of the civil courts
,
quarterly statements of d
isposal of suits in the civil courts for three
years starting from 2012 to 2014 have been collected from the
administrative officers of four district courts.
Table 4
State
of pending and disposal of
civil
suits in
2012
-
2014
Name of
the
Districts
Year
Numb
er o
f
cases at the
end of the
previous
year
Number
of cases
filed
Total
Number
o
f
disposal
Number
o
f
disposal
through ADR
Percentage (%)
of
disposal through
ADR
out of
total
disposal
Pending
cases at
the
end of
the
year
Jamalpur
2012
9356
2592
11948
1618
72
4.45%
10330
2013
10330
3942
14272
2018
74
3.67%
12254
2014
12254
7426
19680
3304
77
2.33
16376
Narsingdi
2012
7131
4123
11254
2575
78
3.03%
8679
2013
8679
9646
18325
2989
68
2.28%
15336
2014
15336
12728
28064
4955
48
.97%
23109
Manikganj
2012
8045
4307
12352
2038
38
1.86%
10314
2013
10314
4610
14924
1918
41
2.13%
13006
2014
13006
3076
16082
2174
132
6.07%
19908
Kurigram
2012
9224
3435
12659
2592
34
1.31%
10067
2013
10067
3155
13222
2350
10
.43%
10872
2014
10872
2729
13601
2901
25
.86%
10700
Total
124614
61769
186383
31432
697
2.22%
160951
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The above
Table
shows a clear picture of how the ADR provisions in the selected districts have been
working in the last three years. The figure of disposal of civil suits through ADR is
quite shock
ing.
The
total
number
of disposal of suits in the four selected districts
in last three years was 31432, out of which
only 697
suits were disposed of through ADR
.
The percentage of disposal through ADR is only
2.22% of the total
number of
disposal. The off
icial statistics demonstrate that
ADR is not working satisfactorily
which needs
immediate
intervention by way of overhauling
the entire ADR regime
.
VII.
Challenges
of ADR in Bangladesh
As is evident
from the preceding
discussions
,
m
ore than a decade has been
elapsed since the
incorporation of ADR provisions into the civil law of the country.
However,
Bangladesh
still
could not manage
to institutionalize and make the ADR tools truly functional. The high expectation of
success of ADR tools in
curbing case backlo
g and providing quick but inexpensive remedy avoiding procedural complexity and
formality in the civil,
Artha
Rin
(Money Loan)
and to some extent in the family cases
has met with
failure
[9
]
.
Some
problems and challenges
faced by the
legislations
related t
o court based and quasi formal ADR
are
discussed hereunder:
7
.1
Challenges
of ADR in
Family matters

The
Family Court
Ordinance (FCO) does not have provision relating to ADR at the appellate stage like
the CPC. Further, like
the
CPC there is no provisio
n for
the substitution
of judge in case of failure of
judge sponsored ADR under the FCO
[1
0
]
.

It was envisaged in the FCO to form and establish separate

Family Courts
to deal exclusively with
family disputes.
Nonetheless,
with utter surprise
that no
separa
te
Family Courts
have been established
yet, rather the court of Assistant Judge has been working as the
Family Court Judge
who is already
overburdened with other civil suits.

Family disputes are very sensitive and personal in nature that requires a judge w
ho is experienced and
well trained. But
under
section 4 of
the
FCO the court of
Assistant Judge
, the lowest tier of the
subordinate judiciary who is most inexperienced, act
s
as the
Judge
of the
Family Court
. But in India the
Family Courts Act, 1984 require
s that a person shall not be qualified for appointment as
a
judge unless
s/he has held a judicial office at least for seven years.

Currently, only the

Family Court Judges
are responsible for effecting compromise and no provision
relating to referring a di
spute to a person or institute outside of court is present in the FCO.

In the FCO there is no counseling support service in a district which is extremely

necessary for
providing assistance to the parties in resolving family disputes.
7
.2
Challenges
o
f ADR in
Civil and Money Loan
matters

In
the
CPC there is no general or specific guideline for the mediators regarding the
maintenance of
equal participation and opportunity for the parties that may create serious problem in
case of power
imbalance. There
is also no explicit provision pertaining to reviewing the agreement arrived at upon
conclusion of mediation under
the
CPC
[11]
.

Further,
the
CPC incorporates mediation provisions at the pre
-
trial and the appellate stage but
mediation mechanism upon conclus
ion of the trial before the pronouncement of judgment has not been
incorporated into
the
CPC. It is an established fact that the parties usually are aware of the merits of
their case just upon conclusion of the trial.
Therefore
,
post
-
trial
mediation may pr
ove to be more
effective than that of the mediation at the appellate stage.

Section 89A as it stands after the amendment in 2012 requires the court to refer the
suit for compulsory
mediation. If either or both the parties and their lawyers remain absent, t
he court has no option but to
postpone the stage to another date. Again, when the parties are in attendance and
the court has referred
the suit to the parties for mediation, but the parties or any of them does not appear
before mediator,
then the mediation
is bound
to
fail. In this backdrop, the section does not empower the court with the
tools
to enforce the attendance of the parties. Thus
,
the present provision adds to the existing practice
of delay.

Quite often it happens that after the suit has been ref
erred to mediation any of the party does not want
to compromise and withdraws from mediation without assigning any reason in which
case a mediator
has no other option but to report the court about the failure of the mediation. Under
section 89A there is
no
penal provision for the party who unreasonably withdraws from mediation.

It is often alleged that l

awyers
dis
courage their clients for resolving their disputes thro
ugh ADR in fear
of reduction
of their income
level
.
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VIII.
Concluding
Remarks
The legal framew
ork of
ADR has developed in
Bangladesh
over the last few years and
acquired a
distinct position in the dispute resolution
process
.
ADR mechanisms can now be applied in resolving a wide
array
of commercial disputes, family disputes and civil disputes, among
others
,
thus easing access to justice.
However,
if we juxtapose
the ADR provisions under different laws of t
he country with their functional aspects
,
then it
will
be obvious that
the
court based ADR
mechanisms could not manage to yield satisfactory result
as it
has been expected at the time of
their
introduction
.
It
is true that
Court Based
ADR
under different laws can be
transformed not only to an
aid to the e
arlier resolution of litigation
but can also be u
sed as a
tool for
case
management
.
It
is in the
public interest that the constitutional function of the judiciary
should
not compromised by
blurring its boundari
es with non
-
judicial services.
So long as the clarity of the distinction is maintained and
appropriate quality controls, including evaluative
and cost
-
benefit assessments undertaken,
then
the ADR has
much to offer in connec
tion with the judicial process. Alternatively, mandatory
ADR requires careful oversight
to ensure
that
it
should
not
be
coercive and
should
not impose too much of a barrier to
trial for those parties who
want
or need judicial determination.
References
:
[1]
Ettie Ward, Mandatory Court
-
Annexed Alternative Dispute Resolution in the United States Federal Courts: Panacea or Pandemic?,
St. John's Law Review
, Vol. 81
, 2007;
Retrieve
d from SSRN: http://ssrn.com/abstra
ct=993220, last accessed November
2
5
, 2015
.
[2]
Md. Abdul Halim,
ADR in Bangladesh: Issues and Challenges
(Dhaka, CCB Foundation, 2011)
.
[
3
]
World Bank ADR Guidelines, 2011, (Washington D.C.
,
The World Bank Group, 2011)
,
Retrieved from
http://siteresources.worldbank.org/INTECA/Resources/1532
2_ADRG_Web.pdf, last accessed November 29,
2015
.
[
4
]
Dame Hazel Genn, Paul Fenn, Marc Mason, Andrew Lane, Nadia Bechai, Lauren Gray, Dev Vencappa
,
Twisting
Arms
:
Court
Referred
and
C
ourt
Linked Mediation
under
Judicial Pressure
,
(
London
,
Ministry of Justice Research Series 1/07, 2007
)
, Retrived
from
https://www.ucl.ac.uk/
laws/judicial
-
institute/files/Twisting_arms_mediation_report_Genn_et_al_1.pdf
, last accessed
November 25, 2015
.
[5
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