ADR in civil procedure of Bangladesh
While criminal law is the body of law that deals with crime and the legal punishment of criminal offenses, civil law deals with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim. All civil proceedings in Bangladesh are regulated under the Code of Civil Procedure, 1908, unless otherwise excluded. The only one exception to the Section 89A(1), which provides that except in a suit under the Artha Rin Adalat Ain, 1990 (Bank loan recovery act).
The Judicial system takes about 20to 30 years to dismiss a suit finally. To recover from this situation, Alternative Dispute Resolution (ADR) has been introduced in the code of civil procedure 2003 by inserting the section 89A and 89B, which empowered the trial court to settle the dispute by ADR including mediation. Again in 2006 a new amendment is brought to provide this power to the Appellate court by section 89C. The mediation has been defined in the amended as follows: (a) “mediation” under section 89A, shall mean 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 dictating the terms of such compromise, (b) “compromise” under this section shall include also compromise in part of the disputes in the suit.
The procedure stated in the law in section 89A(1) that, after filing of written statement, 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 concerned Legal Aid Officer appointed under the Legal Aid Act, 2000 or to the engaged pleaders of the parties, or to the party or parties, where no pleader or pleaders have been engaged, or to a mediator from the panel as may be prepared by the District Judge under sub-section (10), for undertaking efforts for settlement through mediation.
When the reference is made through the pleaders, the pleaders shall, by their mutual agreement in consultation with their respective clients, appoint another pleader, not engaged by the parties in the suit, or a retired judge, or a mediator from the panel as may be prepared by the District Judge under sub-section (10), or any other person whom they may seem to be suitable, to act as a mediator for settlement: Provided that, nothing in this sub-section shall be deemed to prohibit appointment of more than one person to act as mediator. The mediator shall be appointed within ten days (section 89A-4) from the date of reference under sub-section (1) and if the parties fail to appoint the mediator during this time, the Court shall, within seven days, appoint a mediator from the panel as mentioned in sub-section (10) and the mediation under this section shall be concluded within 60 (sixty) days from the day on which the Court is so informed, or the dispute or disputes are referred to Legal Aid Officer, or a mediator is appointed by the Court], as the case may be, unless the Court of its own motion or upon a joint prayer of the parties, extends the time for a further period of not exceeding 30 (thirty) days.
The concerned parties shall determine the fees of pleaders and mediators and the Court shall not dictate or determine the fees etc. It shall be for the pleaders, their respective clients and the mediator to mutually agree on and determine the fees and the procedure to be followed for the purpose of settlement through mediation (section 89A-3). In the situation, if the pleaders and their respective clients and the mediator fail to determine the fees, the Court shall fix the fees and the fees so fixed shall be binding upon the parties. But when the Court shall mediate, it shall determine the procedure to be followed and shall not charge any fee for mediation.
After due mediation, the parties shall inform the Court in writing as to whether they have agreed to try to settle the dispute or disputes in the suit by mediation and whom they have appointed as mediator within ten days from the date of reference under sub-section (1).
If they fail to inform the court within the fixed time which the reference will stand cancelled and the suit shall be proceeded with for hearing by the Court. The decision of the mediator is final. It cannot be challenged by appeal and revision and no appeal or revision shall lie against any order or decree passed by the Court in pursuance of settlement between the parties under section (89A-12).
When the mediation is completed, then the mediators have duties and liabilities those are: All the parties in the mediation have certain responsibilities and liabilities of (1) mediators shall without violating the confidentiality of the parties to the mediation proceedings submit through the pleaders to the court a report of result of the mediation proceedings; and (2) if the result is of compromise of the dispute or disputes in the suit, the terms of such compromise shall be reduced into writing in the form of an agreement bearing signatures or left thumb impressions of the parties as executants; and (3) the pleaders and the mediator shall sign as witnesses and (4) when the Court itself mediates, it shall make a report and passed order in a manner similar to that as stated in sub-section (5 and 6). Then the Court shall thereupon, pass an order or a decree in accordance with relevant provisions of Order XXIII of the Code.
The proceedings of mediation under this section shall be confidential 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. When the mediation fails to produce any compromise, the Court shall subject to the provision of sub-section (9) proceed with hearing of the suit from the stage at which the suit stood before the decision to mediate or reference for mediation in a manner as if there had been no decision to mediate or reference for mediation as aforesaid. If a mediation initiative led by the Court itself fails to resolve the dispute in mediation, the same court shall refer to other competent court hearing and trial.
Mediation at appeal stage also incorporated in the section 89C(1). The Appellate Court shall mediate in an appeal or refer the appeal for mediation in order to settle the dispute or disputes in that appeal, if the appeal is an appeal from original decree under Order XLI, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties.
The provision of mediation in the Code of Civil Procedure has some challenges as well. Section 89A requires the court to refer the suit for compulsory mediation. The mediation may failed due to non-cooperation of parties and their lawyers by way of absence or otherwise. The law does not empower the court with the tools to enforce the co-operation of the parties.
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. The mediation provisions at the pre-trial and the appellate stage but mediation mechanism upon conclusion of the trial before the pronouncement of judgment has not been incorporated into the CPC. The post-trial mediation may prove to be more effective than that of the mediation at the appellate stage. The law makers may prepare a procedural rule under the law to overcome some of the loopholes of the law.