Abstract:
These Alternative Dispute Resolution (ADR) modalities are considered as less likely to fuel parental conflicts, more likely to induce the parties to resolve their conflicts in an amicable manner preserving the future relationship between the parties and reducing cost. delay and loss of energy to a significant extent. Following the considerable advantages of ADR almost every county of the world has introduced ADR system in its justice delivery system which has paved the way to the promotion of access to justice indiscriminately for all. This paper is an attempt to provide a comprehensive idea about obstacles in the way of access to justice in our legal system and by analyzing the different mechanisms of ADR and court and non – court based practices of those modalities under different legislations of Bangladesh, to show the fairness, efficiency and effectiveness of ADR towards the promotion of access to justice and to provide some recommendations for the complete success of ADR towards the effective, non – discriminative, speedy and easy access to justice for all either rich or poor, literate or illiterate, male or female and elite or lower class.
Introduction:
In the civil adjudication system, Alternative Dispute Resolution (ADR) is a well-established method; nevertheless, it has not been generally adopted in the criminal justice system. The criminal justice system is becoming more complex and trials are taking longer due to factors including a lack of witnesses and an insufficient number of judges. As a result, it is imperative to implement ADR mechanisms in the criminal justice system in order to minimize any complexity or trial delays.
The compoundable offenses are discussed in Section 345 of the Code of Criminal Procedure, 1898. Minor offenses can now be compounded with the parties’ agreement. If the parties are willing to do it amicably, compounding as an offense does not require the court’s approval. Compromise, However, serious crimes like murder do not really lend themselves to compromise. In addition, pity crimes can be resolved by reaching an agreement between the parties, but this requires that natural justice be upheld and that legal proceedings serve as a guide.
ADR has become a well-liked option for the general public to resolve disputes since it saves time, money, and allows parties to bypass procedural complexity. Compounding is conceivable at any point throughout the trial, and in many circumstances, it is possible before the judgment is handed down. The compromise, which is the fundamental form of ADR, was highly valued by the Supreme Court of Bangladesh in the case of Md. Joynal and others v. Rustom Ali and others (1984) 36 DLR (AD) 240.
Indeed, extending the purview of section 345 of the Code of Criminal Procedure, 1898, is a crucial step to promote ADR. The use of the ADR mechanism is also highly likely to compromise offenses under section 385 of the Penal Code of 1860, but this is only achievable with the introduction of the appropriate legislative revisions. The ADR process is not well understood by many lawyers and other legal professionals. A number of training facilities should be set up as soon as possible to educate them. (Khan 2021)
What is ADR?
Alternative Dispute Resolution (ADR) is a collection of procedures for resolving conflicts or disputes informally and confidentially. ADR offers alternatives to traditional procedures such as grievances and complaints; However, it does not replace these traditional processes. The ADR office is a resource available to all CDC and ATSDR employees. The ADR office is a place to go if you need advice on how to deal with a concern directly, are unsure about raising a matter through other established channels, are unsure who to speak to about an issue or concern want an informal approach, escalate, need a fresh and unbiased perspective, want to discuss strategies or possible options for resolving an issue, and want to retain as much flexibility as possible in handling an issue, or simply need a sounding board.
According to the law Dictionary of the Glossary ― The term ‘ADR’ describes a range of methods used to resolve disputes out of court including negotiation and settlement, mediation and arbitration the many kinds. The common denominator of all ADR methods is that they are faster, less formal, cheaper and often less controversial than court proceedings. (Halim 2010)
Origin of ADR
ADR is nothing new. This quasi-judiciary system is like an ancient civilization. Various forms of ADR have been around for thousands of years. The Firm Arbitration Act (a form of ADR) was passed under William III in 1698: this was an act to make the appointment of arbitrators more effective in all cases for the final determination of disputes submitted to them by merchants and merchants or others make.
In 1854, Common Law Procedure Art expressly empowered the courts to refer an arbitral award for reconsideration by arbitrators. It is intended for courts that have the power to stay (stop) an action in court if the parties had agreed to submit the dispute to arbitration. In fact, the Arbitration Law 1440 provides a number of modern steps to resolve disputes between the parties: the parties appoint arbitrators, the court can also appoint arbitrators if the parties do not; adjudicate disputes informally, make an arbitration award, or settle the dispute through mediation, compromise, or other means; the court shall make an order consistent with the arbitral award and the duly rendered judgment, and the arbitral tribunal shall have jurisdiction. x m appoints an expert or legal advisor to report on a specific issue, or a consultant to assist you with technical matters. Later, in the Arbitration Act 1950, there was a consolidation of the 1889 and 1934 arbitration agreements. It included the power of a court to stay claims where an applicable arbitration agreement existed. In addition, Arbitration An enacted the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1975. In 1976, Professor Frank Sander said in his book Varieties of Dispute Processing: “In the future there will be not just one court, but a dispute resolution body or a multi-door court where litigants are evaluated and guided through a variety of dispute resolution procedures, such as arbitration. , Arbitration, Misconduct Inquiry Panel, Supreme Court or Ombudsman Law House granted a UP President or Gram Adalat President the power of a third claw judge. The court consists of 5 members, including the president. 2 general members and 2 members elected by the plaintiff and the defense counsel. The judgment of the court is upheld by unanimous support or by a majority: 4:1. No one came, raising doubts about the legality of the verdict. The Arbitration Act 1979 was primarily concerned with regulating the powers of the courts to review arbitral awards and to resolve legal issues arising in the course of the arbitration. In 1980 the then Government of Bangladesh had passed legislation establishing a Office of Ombudsman to fulfill a constitutional obligation; Following the same last year, the government has adopted a policy of introducing sectoral ombudsmen and has already appointed a tax ombudsman.
In 1981 considering the costs and delays in handling cases through the Indian legal system. The Supreme Court of India has ruled in the case of Guru Nanak Foundation v. We Rattan Singh and Sons, AIR 1481 SC 2075′ say: Endless, slow, complex and costly litigation prompted legal professionals to seek an alternative, less formal, more effective and messy dispute resolution forum that avoids procedural nonsense and this led them to Im In 1982, Richard Abel summarized the political ambiguity that permeates the history of ADR in The Politics of Informal Justice: However, when the goals of informal justice are contradictory and, because of contradictions inherent in advanced capitalism, they are not in the able to realize them, should they not be in the formalism, they are simply dismissed as a mere evil to be resisted, or dismissed as a fringe phenomenon that can safely be ignored. It is defended by reformers and embraced by competitors precisely because it expresses values that deserve a broad following: a preference for harmony over conflict, for mechanisms that offer equal access to the many rather than unequal privileges to the few within operate to allow all citizens participation in decision-making, rather than restricting authority to “experts, more familiar than esoteric, who fight for and achieve material justice, rather than thwarting it in the name of the Way.” .Burger of the United States Supreme Court asked: Isn’t there a better way? In the Annual State of Justice Report to the American Bar Association. Chief Justice Burger’s call for the legal profession to consider its traditional role as a healer of human conflict and to make fuller use of negotiation and arbitration processes, followed by several initiatives in the United States to explore alternatives to adjudication. (Zaman 2007)
Different types of ADR in Bangladesh:
Sumaiya Khair suggests that there are three streams of ADR in Bangladesh:
→ Extra – judicial or community based ADR ( informal );
→ ADR in Quasi – formal systems;
→ and ADR in formal legal system.
All these ADR modes have been discussed in different chapters in this book with their merits and demerits.
Formal ADR in different laws are shown in the diagram below:
→ Code of Civil Procedure (Sec. 89A, 89B, 89C)
→ Muslim Family Laws Ordinance 1961 (Sec. 7, 8)
→ Artha Rin Adalat Ain, 2003 (Sec. 21, 22)
→ Negotiation, Conciliation, Arbitration (Sec. 210 of the Labour Code, 2006)
>Pre – Litigation
>Part of litigation (Khair 2008)
Present Practices of ADR in Bangladesh
There are different forms of ADR practice in Bangladesh . The main forms are briefly stated below :
Arbitration: Arbitration is a judicial dispute resolution process in which one or more arbitrators decide the matter after an expedited adversarial hearing, where each party has an opportunity to present evidence and arguments. Arbitration is a private process in which the parties to the dispute submit their differences to the judgment of an impartial person or group, determined by mutual agreement or by statutory provision. Arbitration is procedurally less formal than judicial decision: the parties can determine the procedural rules and substantive law. After the hearing, the arbitrator will make an award. Some awards simply announce the decision and others give reasons. The arbitration process may be binding or non-binding. If the arbitration is binding, the decision is final and may be enforced by a court. If the arbitration is non-binding, the award will be advisory in nature and can only be final if accepted by the parties.
Mediation: Mediation is a voluntary and informal process in which the parties to the dispute choose a neutral third party to help them reach a mutually acceptable agreement. Unlike a judge or arbitrator, the mediator has no authority to impose a solution on the litigants; Instead, the mediator helps them find solutions that suit their interests. The role of the mediator and the mediation process can vary greatly depending on the nature of the dispute and the mediator’s approach. Mediators can use a wide range of techniques, e.g. help the parties to communicate effectively and develop a cooperative problem-solving attitude, identify the underlying interests of the parties; identify and reduce problems; Transmission of messages between the parties: Explore possible agreement options and the consequences of not reaching an agreement. In mediation, the parties have an opportunity to describe the issues, discuss their interests, understandings and feelings, provide each other with information and explore ideas for resolving the dispute.
How is mediation different from arbitration?
Arbitration differs from mediation in that neutral arbitration has the authority to make a decision on the dispute. Arbitration is similar to a process in which the parties make opening statements and present evidence to the arbitrator. Compared to traditional court proceedings, arbitration is often completed more quickly and is less formal. For example, parties often do not have to follow the laws of evidence, and in some cases the arbitrator does not have to apply applicable law.
Conciliation: Conciliation is a kind of mediation wherein the disputing parties use a impartial third party, a conciliator who meets the parties one after the other in an try and solve their differences. Conciliation differs from mediation the purpose is to conciliate, maximum of the time via way of means of looking for concessions. In conciliation the events seldom , if ever. truely face every different throughout the desk with inside the presence of the conciliator, alternatively a conciliator meets with the events one after the other. Such shape of conciliation is known as commute diplomacy.” third person Mediation and conciliation structures are very comparable in that they interject among the disputants, both to mediate a particular dispute or to reconcile their relationship . Mediators and conciliators might also additionally truely facilitate communication, or might also additionally assist direct and shape a settlement, however they do now no longer have the authority to determine or rule on a settlement. (Khan 2007)
Negotiation: Negotiation is the most common form of alternative dispute resolution. Negotiation is a face-to-face conversation between the parties with the aim of reaching an amicable settlement. It is the process by which the parties voluntarily seek a mutually acceptable agreement to resolve their mutual dispute. Compared to the process involving third parties, negotiation usually allows the parties to the process to control the process and the solution themselves. In other words, the negotiation system creates a structure to encourage and facilitate a direct settlement between the disputing parties without third-party intervention. The parties to the dispute can be represented. by lawyers in trial. Negotiation differs from mediation in that there is no neutral third party or person to help the parties negotiate. However, sometimes a third party may involve a negotiation, and when a third party is involved, they usually break the ice and bring the parties to the negotiating table and then withdraw from the negotiation process. Negotiation is a common feature of the negotiation process. This feature also distinguishes it from mediation and arbitration.
Mini-Trial:
Mini-Trial, an evolution of Alternative Dispute Resolution, is found in the resolution of large-scale disputes involving complex issues of mixed law and fact, such as: B. product liability, mass construction and antitrust cases. In a mini-trial, each side presents its case as in a regular trial, but with the notable difference that the case is heard by the parties themselves and the presentations are dramatically shortened. In a mini-trial, lawyers and management experts from both sides present a summary of the case. Often a neutral advisor, sometimes an expert in the field, sits down with management and conducts the hearing. After these presentations, the top management of Representatives, now more aware of their strengths and unable to do so, often ask the best neutral advisor about the likely outcome of the case. Then they resume negotiations. The key to the success of this approach is the presence of senior officials from both sides and the exchange of information during the mini-trial. Too often, pre-trial work has isolated management from the true strengths and weaknesses of their cases. Mini-trial presentations allow them to see the argument as it would appear to an outsider and set the stage for a cooperation agreement. (Khan 2007)
Other Different types of ADR in legal framework of Bangladesh:
ADR is a means of resolving dispute which is an alternative to going to the court. It may be any one of the two forms either determinative or elective, all mechanisms of ADR fall within these two forms.
Determinative ADR is any non-court process which will determine the outcome of the dispute. It involves a third party, whether an arbitrator or an adjudicator or an expert acting as a determinative capacity. Elective ADR is that which facilitates discussion, which usually turns into negotiations which does not produce any judgment or finding which is binding on the parties. (Nigel 2009) The various modalities of ADR, Conciliation, Mediation, Settlement Conference, Arbitration, Minitrial, Negotiation, Appellate ADR, Village court, Board of Conciliation and Traditional Salish (Halim) which are practiced in
Bangladesh can be classified under the following three categories –
- Formal/judicial ADR
- Quasi-formal/statutory ADR
- Informal /Non-formal ADR
Formal / Judicial ADR
This form of ADR indicates those processes of dispute resolution which have been enumerated in the statutes and conducted either by the court or by the third person upon the reference of the court. ADR processes in the formal ways are conducted by the following Statutes of Bangladesh.
ADR in Civil Cases
For actions brought in family courts under the Family Courts ordinance 1985, Section 10 provides that a pre-trial hearing is to be included in a claim within thirty days of the filing of the defendant’s written statement. The family court will endeavor to reach a compromise or reconciliation between the parties and if no compromise is reached the court will proceed to hear the claim. The parties are reportedly negotiating a whole range of claims at this stage and the litigants are now enjoying the fruits of the system’s implementation. The Artha Rin Adalat Complaints under the 2003 Artha Rin Adalat Ain have provisions for pre-trial and post-trial dispute resolution by Settlement Conferences. Section 24 provides that if the parties agree to resolve the Dispute through mediation, Adalat will stay the further proceedings of the Dispute and refer the matter to the parties’ counsel or, in the absence of counsel, to the parties. Adalat may also authorize the local officials of the financial institutions, by issuing the necessary orders under Article 24, to conduct arbitration if they wish to settle their disputes under Articles 21 and 22. If an arbitration is reached between the parties, an agreement containing the terms of the agreement shall be signed by the parties. The Artha Rin Adalat will approve the necessary order based on such agreement. There is no appeal or review against such an order. Article 45 obliges the parties, without prejudice to the provisions of Articles 21 and 22, to settle their disputes at any stage of the proceedings. We noticed that the parties are now trying to resolve their disputes even at the stage of conducting the proceedings. (Islam 2011)
The Code of Civil Procedure (Amendment) Act, 2003 –
Mediation and arbitration have been inserted in section 89A and 89B of the Code of Civil Procedure, for all civil suits except suits under the Artha Rin Adalat Ain 2003, through the Code of Civil Procedure (Amendment) Act 2003. Section 89A stipulates that at any stage, after filing the written statement, if all the contesting parties are present in person or by their pleaders apply to the court showing their willingness to settle the dispute through mediation, the court may, adjourning the hearing, mediate in order to settle the dispute or refer the dispute to the engaged pleaders of the parties or parties, where no pleader has been engaged or refer to the mediator from the panel as prepared by the district judge in consultation with the president of the District Bar Association. The mediator of the panel may be a pleader or retired judge or person known to be trained in the art of dispute resolution or such other person or persons as may be deemed to be appropriate for this purpose but any person holding office of profits in the service of the republic shall not be qualified for being mediator of the panel. It is also stipulated that a mediator shall not act as mediator between the parties if he has been engaged by either of the parties as a pleader in any suit. Mediation has been defined under section 89A as flexible, Informal, Non-binding, confidential, non-adversarial and consensual dispute resolution in which the mediator shall facilitate compromise of the dispute without direction or dictating the terms of such compromise. It is the discretionary power of the court that after the filing of the written statement, it may either mediate or refer the dispute to the pleaders or the parties or the mediator for settlement. Thus, unlike the USA where pre-trial mediation is compulsory but the judicial mediation in civil suits in Bangladesh is consensual and voluntary. So, the provisions regarding mediation remained mostly unpracticed for making it voluntary for the judges to take step for mediation, lack of motivation of the concerned judges, ignorance of the parties and unwillingness of the lawyers.
When reference under s/s (i) is made to the pleaders of the parties, they shall in consultation with the clients appoint another pleader or a retired judge or a mediator from the panel or any other person whom they seem to be suitable. Here the parties have the option to appoint more than one mediator. The procedure of mediation and the fees of the mediator shall be determined by the parties and pleaders, not by the court. But when the mediation is conducted by the court then the procedure of mediation will be determined by the court and no fee will be charged from the parties.
A time-frame has been set out for speedy disposal of mediation. Within 10 days from the reference, the parties shall inform in writing to the court that whether they have agreed to settle the dispute through mediation or not and within 60 days from the day on which the court is so informed the mediation shall be completed unless the time is further extended for 30 days for the joined application of the parties. The mediator shall submit a report regarding the result of the mediation proceeding. If any settlement is possible, an agreement incorporating the terms of settlement shall be reduced to writing signed by the parties, pleaders and mediator and the court shall pass an order or a decree following the report of the mediator. Where the court itself mediates the dispute, it shall also pass an order or decree in the similar manner. And the court shall issue a certificate directing refund of the court fees paid by the parties. And no appeal or revision shall lie against the order or decree passed by the court on the basis of settlement through mediation. (Abdul Halim 2009)
Where compromise is not possible, the court shall proceed with the hearing of the suit from the stage at which the suit stood before the decision to mediate. Where the court itself tried to settle the dispute through mediation and failed, in that instance, the suit will be heard by another competent court. (Abdul Halim 2009) This rule is inserted to avoid the biasness of the judges. On the other hand, failure to settle the dispute shall not limit the option of the parties regarding withdrawal, adjustment and compromise of the suit under Order23 0f the C.P.C 1908. This provision has made open other methods of alternative settlement.
It is always open for the parties to withdraw the suit for arbitration either they have taken the help of mediation or not. Section 89B provides that if the parties, at any stage of the proceeding, are willing to settle the dispute through arbitration may apply before the court for the withdrawal of the suit and refer to the arbitrator and it will be settled by the arbitrator in accordance with the Arbitration Act 2001.
Following the massive success of mediation at the trial stage, the mediation proceeding has been incorporated at the appellate stage by section 89C of the Code of Civil Procedure through the Code of Civil Procedure (Amendment) Act 2006. For mediation in appellate stage the procedure described in section 89A will be followed. (Halim 2009)
The Family Courts Ordinance, 1985 –
The most important provisions have been inserted in the Family Courts Ordinance 1985 for the conciliation between the parties at pre-trial stage and trial stage of suits concerning divorce, dower, maintenance, restitution of conjugal life and custody of children. An attempt to settle the dispute through alternative process is compulsory for the judges. Section 10 says after the filing of the written statement, the court shall examine the plaint, written statement and the documents filed by the parties and if it deems fit, hear the parties. It shall ascertain points at issue and attempt to reach a compromise between the parties. If no compromise or conciliation is possible at this pre-trial stage, the court shall proceed for the trial of the dispute. Section 13 provides that again the Family Court, after the close of all evidences but before the pronouncement of the judgment, shall make an effort to effect compromise or reconciliation between the parties. These good provisions on mediation have been inserted in family matters just to preserve the relationship and peace between the parties.
These healthy provisions on mediation remained unpracticed since the enactment of the Ordinance due to lack of motivation of the concerned judges and due to using the adversarial system the judges presiding over Family Courts were completely ignorant about mediation. To activate ADR provisions in the Family Court a pilot project was taken in 2000 in the Family Courts of Dhaka. Following the massive success of these courts it was extended to all the Family Courts in Bangladesh and different forms of ADR have been introduced by amending many laws of the country. In mediation in Family Courts the parties can directly participate in the settlement process and they are allowed to voice their position in joint session because settlement opportunities are discussed privately. The parties are helped to realize the result of the suit if they proceed with the litigation. The most positive result of it is to provide opportunities to the women, who are unwilling to expose themselves to public eye going to the court, to directly participate in the dispute resolution process and voice her grievance without being condemned by critical eyes because all the activities performed on mediation in family courts are quite confidential. (supra-27)
Artha Rin Adalat Ain, 2003 –
Under sections 21 and 22 of theArtha Rin Adalat Ain 2003, two modes of the ADR, settlement conference and arbitration, have been introduced in the commercial dispute. Section 21 defines the Settlement Conference as a conference comprising the parties, their lawyers and their representatives and presided over by the judge of the Artha Rin Adalat for disposing of the suit in an informal, non-binding, confidential and non-adversarial manner on the basis of mutual cooperation and understanding of all concerned.Section 21 deals with the details procedure of the Settlement Conference and section 22 provides for the arbitration of the commercial dispute. After the filing of written statement the court may, keeping pending all subsequent proceeding refer the suit to the lawyers of the parties or where no lawyers have been engaged, to the parties themselves. But where the parties agree to try and settle the dispute through arbitration, the court is bound to refer the dispute for arbitration. Inserting the ADR system in commercial dispute certainly improves the investment in this field. (Rahman 2008).
Quasi-formal ADR:
Where the application, jurisdictions and modes of ADR are regulated by statute but conducted by a non-judicial body that is Quasi-formal ADR. Quasi-formal ADR mechanisms in different legislations of Bangladesh are –
The Muslim Family Laws Ordinance, 1961 –
To make the divorce effective the husband after pronouncement of talaq shall send a notice as soon as possible to the chairman and a copy of it will also be sent to the wife. From the date of receiving the notice of talaq within 30 days the chairman shall constitute an arbitration council which shall take all necessary steps for reconciliation between the parties. A talaq will not be effective until the expiration of ninety days from the day on which the notice was delivered to the chairman or if the wife is pregnant after the pregnancy ends, whichever period is longer. In what form either Ahsan or Hasan or Bidaat form, the talaq is pronounced it will be deemed as a single talaq in Ahsan form, so husband can revoke the talaq anytime either expressly or impliedly i.e.. to kiss her or consummate with her or touch her etc. or after ninety days by remarry if it is not for third time. The failure of husband to give notice to the chairman is deemed to be revocation of talaq. In Abdul Aziz vs. Rezia Khatoon, it was held the non-compliance with section 7(1) makes talaq legally ineffective.48 Where wife exercise the delegated right that is talaq-e-tawfez, she must also follow the procedure of section 7. This healthy provision on conciliation has been incorporated in the Muslim Family Laws Ordinance 1961 to prevent the separation between husband and wife which is the result of pronouncement of talaq that usually occurs on sudden anger of husband. For taking additional wife or to get adequate or equitable maintenance. the party must apply before the chairman who will constitute the arbitration council which will decide these matters in informal and amicable way without following the procedure of courts. (Rahman 1996)
ADR In Gram O Shalish Ain:
In order to resolve disputes between the contending parties, an impartial third party mediates shalish. The concept has significant civil and legal importance as it helps to restore community harmony formally and informally. Since Shalish vivifies the dynamics of rural power structure of Bangladesh, it has enormous theoretical implications . First, it stabilizes socio – political livelihood and class – conflict in small community context. When social conflicts, disintegration, violence and terrorism, and chaos erupt in community : shalish appears to supplement and substitute immediate legal needs of the community . Second , shalish is a strong means to establish community solidarity , social bondage and reciprocal coexistence . As well , shalish is a traditional democratic mode of conflict resolution . The Banglapedia ‘ defines shalish as a social system for informal adjudication of petty . disputes both civil and criminal , by local notables , such as matbars . ( leaders ) or shalishkars ( adjudicators ) . Two types of adjudication have been in place in rural Bangladesh from days of antiquity , these were shalish and extension of the state’s judicial arm into the rural areas through specific legislation . na of Normally , the process of a particular shalish starts with interrogating the disputants to ascertain the facts . Then the shalishkars offer their solutions , and seek the opinions of disputants before ; finally , they come to a decision . Although this procedure is found to be uniform throughout the country , there are local variations depending on local customs and tradition . Shalish is supposed to lead to conciliation between the contesting parties . But , in the context of Bangladesh’s rural social structure , shalish seems to have more often than not been used as an appendage of the existing rural power structure , sometimes , of religious bigotry . Shalish is meant to be a medium for out – of – court settlement of petty quarrels or disputes in the rural society . This conventional system of mediation is deeply rooted within the history , culture and humanities of Bangladesh . Shalish organizations in Bangladesh and elsewhere in the subcontinent are usually practiced through the Gram ( Village ) Panchayets the lowest tier of local government . The Panchayet – led shalish has been a popular medium of dispute resolution in the rural areas of Bangladesh over centuries . The Gram Panchayet functions to resolve or to mediate disputes between the villagers of different religions . castes and occupations . To some extent , the Panchayet exercises power as like as a judicature . During the ancient period , the panchayet was usually nominated by the king or elected by the people of respective villages . The esteemed members of the Village Panchayet were responsible for the distribution of land among the villagers and tax collection . As Gram Panchayet is considered to be a community – based initiative of dispute mitigation , there are no written rules or standards for conduction of shalish . Therefore , mode of shalish management differs from one region to another and one religion to the other . Usually the legal notion of shalish differs from its popular notion . Mukerjee , ( 1970 ) describes creating a culture of excellence It is not fixed set of written rules or it solely an instrument of power . Law is living social , institution for authoritative decision – making ‘ . These decisions regulate the reciprocal interests of individuals , institutions , and the State , and coordinate their efforts towards a common goal … there has long been a notion in the mind of common man that law exists in the form of ‘ rules ‘ in the statute book . This conception of law is , however , not adequate ; because , knowledge of these rules cannot ensure a knowledge of the law , which must take into account the judicial pronouncements upon them . The relationship between law and shalish has remained yet a disintegrated phenomenon in Bangladesh local administration system . Shalish sometime recreates confusion and controversy that lead to conflict and contradictions with the domestic law . The United States State Department Report 2002 writes , In January 2001 , the High Court ruled illegal all fatwas , or expert opinions on Islamic law . Fatwas can include the decision as to when a holiday is to begin based upon the sighting of the moon , or an opinion on a religious issue . Fatwas also commonly deal with marriage and divorce or mete out punishments for perceived moral transgressions . Islam dictates that only those Muftis (religious scholars) who have expertise in Islamic law are authorized to declare a fatwa . However , in practice village religious leaders sometimes make declarations in individual cases , calling the declaration a fatwa . Sometimes this results in extrajudicial punishments , often against women for their perceived moral transgressions . While the court’s intention was to end the extrajudicial enforcement of fatwas or other declarations by religious leaders , the ruling declared all fatwas illegal . and resulted in violent public protests (see Section III ) . Several weeks later , the Appellate Court stayed the High Court’s ruling. To ensure the welfare of the state , it is necessary to ensure the contribution of law in of the regulating the preocal interests of individuals, groups and the state and in coordinating common efforts for the realization of common goals , i.e. , peace , justice and development. (Alam 2018)
The Village Court Act, 2006 –
If any dispute either civil or criminal comes within the ambit of The Village Court Act 2006, it shall be dealt with by the Village Court consisting of five members including the chairman who will preside over the Village Court and each party shall select two members of which one must be a member of Union Parishad. The procedures enumerated in the Evidence Act, the C.P.C and the Cr.P.C shall not be applicable in village court and no party has right to engage any lawyer in proceeding of such court. (Azad 2009)
ADR IN CRIMINAL CASES
There are two types of ADR in criminal cases , in another word ; we can say that there are two ways to use the concept of ADR in criminal cases . They are :
- Compounding of Offence.
- Plea Bargaining.
Compounding of Offence
Generally , alternative dispute resolution is nothing but an alternative way to resolve disputes , which otherwise , shall be a subject of court procedure . Thus , ADR provides a wide range of resolution mechanism which is in time become a necessity for the society as well as for the legal system . It has already been submitted in the article that ADR has already in existence when it comes to civil cases , where in criminal cases ADR is not expressly recognized . However , compounding of minor criminal offences is permitted under the Code of Criminal Procedure 1898 ( CrPC ) , which enacts . provision for compromising between the adversary parties to a little extent . Again the provisions of the Gram Adalat Ain , 2006¹2 and Birodh Mimangsha ( Paura Elaka ) Board Ain , 2004¹3 deals to dispose of some petty criminal offences by compromise . The provision of section 345 of the Code of Criminal Procedure provides a table which follows the offences punishable under the section of the Penal Code that can be compounded by the persons mentioned . Mahua Gulfam , the writer of the ” Introducing Alternative Dispute Resolution ( ADR ) in Criminal Justice System : Bangladesh Perspective ” have submitted that ‘ Compounding means compromise or amicable settlement . Generally , a criminal act in which a person agrees not to report the occurrence of a crime or not to . prosecute a criminal offender in exchange for money or other consideration is called compounding offences . ” Thus , compounding offences are acts which can be compounded expressly with the permission of the Court or without the permission of the Court . Two different types of compounding are suggested in CrPC under two different lists . The first list in section 345 ( 1 ) of CrPC provides the list of offences which can be compoundable without the permission of the Court . The first one suggests offences like uttering words with deliberate intent to wound the religious feelings of any person , causing hurt on provocation , wrongful detainment or confinement , and forced labour etc. as compoundable with the intent of the aggrieved person . Most of the offences included in the first list are minor offences punishable with maximum one year imprisonment or fine . The second list in section 345 ( 2 ) of the CrPC provides the list of offences which are not compoundable without the permission of the Court . The second set of compoundable offences includes more grievous offences like rioting with deadly weapon , voluntarily causing grievous hurt , act endangering the personal safety of others , and assault or criminal force to women with intent to outrage her modesty.16 Punishment for these offences varies from two to seven years along with fine . These offences are also compoundable by the aggrieved person but only with the permission of a court . Our existing legislation thus has already accepted one form of ADR . Moreover , the Supreme Court also encourages compromise in criminal cases in the case of Md. Joynal and others v . Rustam Ali and others. 7 Promoting the idea of compounding in criminal cases is actually providing us the concept that the offences shall not emerge in the court as a crime , but still , the offences has all its effects as a crime in the society . Compounding offences also provide certain advantages to the accused . For example , if the Judge permits any case to be compromised , under section 345 clause 6 of the CrPC, the judge has no alternative but to acquit the accused and set aside the conviction and sentence.18 However , the question may arise that when compounding is possible ? At any stage of Criminal Proceeding the parties may take the initiative to submit a deed of compromise and even in appellate stage it can be submitted before the Court. However , compromise deed must be filed before the pronouncement of judgment. The Pakistan Supreme Court permits the submission of the deed of compromise after serving the conviction and acquit the accused in appellate stage . But when the lower Court record is called for under section 435 of the Code of Criminal Procedure , Magistrate cannot permit the parties to submit compromise deed . Thus, for compounding offences as an instrument of ADR , we have proper legal. structure to impose the device in order to function it practically.
Plea Bargaining
There is also another type of ADR mechanism suggested for criminal cases. The name of the mechanism is plea bargaining which is widely practiced in many developed countries like USA, UK and Australia . Barrister Md. Abdul Halim in his newspaper article named ” Prospects of introducing plea bargaining in Bangladesh ” have defined Plea Bargaining ‘ as a pre – trial negotiations between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution. ¹20 Thus, plea bargaining also provides a lenient view of the criminals, who admit their guilt and repent, while awarding punishment to them. Generally, Plea Bargaining ‘ can be of two types including charge bargain and sentence bargain. Charge bargain generally gives the accused an opportunity to negotiate with the prosecution and to reduce the number of charges that may have been framed against him. Whereas, a sentence bargain gives the information to the accused in advance what will be his sentence if he pleads guilty. Thus, a sentence bargain allows the prosecutor to obtain a conviction in a serious charge, while assuring that the accused will not be convicted with the maximum penalty allowed by law.21 Thus, in a simple sentence we may say that a plea bargaining is the process of negotiation where an offender admits his / her offence and negotiates for lower criminal charges. (Chowdhury 2013)
Model of ADR in criminal cases in foreign Country
America
A brief look at the international scenario of the ADR mechanism reveals the popularity of its usage in various countries. The seed of ADR in the U.S.A can be traced back to the early Dutch and British colonial periods in New York City. Shortly, after independence, the ADR found its place in a number of applications, for example, in The Patent Act of 1790, congress also provides for an Arbitration system of competing Patent claims.
In the late 19th century congress organized the Mediation process for the collective bargaining disputes and special Mediation agencies like BMC for railway labor, Criminal matter and FMCS was formed to carry out negotiations regarding employment. In the early 20th century, ADR served as a litigation alternative. Later on, several Arbitration laws were enacted including a federal cognate, the federal Arbitration act.
With the formation of the American Arbitration Association in 1926, to guide arbitrators and for developing rules on the proper method of Arbitration throughout the 20th century, ADR grew in popularity at the state and federal government levels. Towards the 21st century, American Bar Association showed that the majority of law schools had some form of ADR-related programs including extra-curricular competitions. Today Arbitration exists at all levels of US legal professions to offer ADR mechanisms to individuals and businesses. Thus, ADR as a legal system has become firmly entrenched in the United States.
Japan
In Japan, Mediation was used as a primary means of conflict resolution. Judges intervene extensively during the In-Court settlement; every Japanese Judge is expected, both by law and litigants, to move a case towards settlement, this has a force of statutory law. At least 40% of the cases are settled. The Judge, who decides to switch from litigation to a settlement mode, takes off his robe and acts as a mediator.
China
In China, the ADR theory is quite different from that under the western legal system. Although a similar independent ADR institution now exists in China. The general idea of ADR under the PRC legal system is actually amalgamated into the judicial or Arbitration process in hearing. The People’s Meditation System is the ADR formality for Chinese parties and its oriental experience’ has won high praise in an international judicial circle. ADR in China is more often conducted by the same Court or tribunal during or after the hearing rather than by an independent organ before the hearing. The less confrontational nature of such Mediation methods can also help preserve the commercial relationship between the disputing parties. (REDDY 2021)
France
In France, legal recognition of Mediation in Francophone Europe started in the early 1990s. A huge increase in the number of divorces in the 1980s and the concern of public authorities of the cost of these procedures was one important factor for the rapid introduction of Mediation into civil law procedures and criminal law procedure. Mediation was formally recognized by Loi. Under Mediation a Judge hearing a matter can appoint a third person for up to 3 months with the consent of the parties and can be extended to another 3 months if the Mediator requests.
Arbitration deal with in civil and Criminal affairs. Arbitrators are free to fix procedures and have the right to exercise their instructions and are assimilated to regular magistrates.
Russia
In Russia, there is a growing interest in the out of Court method of dispute resolution. Thus, two of the most important factors reflecting the current position of ADR in Russia are realization by the society of the need to create a parallel system of non-formal jurisdiction; and legislative tendencies toward the development of alternative forms and improvement of proceedings. The long-felt need of Russian society to create an alternative sphere is reflected in the current flurry of such practices, and in the emergence of the so-called public movement for alternative dispute resolution.
Russia does not have varied methods of ADR. Arbitration is the most widely used form of ADR and is actively used in commercial dispute resolution. Aside from this, a certain type of reconciliatory proceedings has been created as a sort of claim order of dispute settlement, friendly negotiations, and Mediation directly initiated by parties to a legal conflict.
The Hong Kong International Arbitration Centre, most probably the largest Arbitration service center in Asia, has held the view as Arbitration as compared to litigation has become very popular for resolving disputes. Similarly, conciliate and Mediation finds an increasing measure of support in the future.
A brief reformative proposal under the light of foreign practice:
The traditional process of litigating has been one of the best ways of resolving disputes from time immemorial because of its credible methods of examination, depiction, and judgment-giving. But as the world population grew, judiciaries across the globe became overburdened and a colossal number of cases now rest in files “neatly” organized in cupboards. With the incessantly growing urge to cater to the needs of the disputants, countries sought to decipher alternatives to the traditional litigation system.
UK came first after it enacted the very first arbitration statute in 1698 which primarily aimed to settle disputes between merchants without having to submit them to a judge. But recently, when the brilliant legal minds of the South Asian countries gathered together for a webinar organized by the Bangladesh International Arbitration Centre (BIAC), it became clear that South Asian countries of the oriental wing is not far behind.
For over a decade now, countries like Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka have vastly invested in the Alternative Dispute Resolution (ADR) spectrum to stimulate the emancipation of the disputants by way of peaceful settlement. In Bangladesh for example, section 89A of the Code of Civil Procedure has included mediation as a viable option to settle disputes, showing legislative steps taken towards promoting ADR. The state of ADR in other countries like India is neither too dim nor very bright, particularly on account of the pandemic. Private mediation is famous only in the southern part of India and has not picked up in the northern arena.
For countries like Bhutan, the ADR centers have been established to expedite the justice delivering system whilst in the context of the Maldives, 50-60% of the cases are getting resolved by way of mediation or negotiation even during the pandemic.
It is indeed a promising position that these countries are in. However, to maintain this and improvise, it is imperative that these South Asian countries realize the need for reforms that must be made to ADR on an emergency basis to enable the countries achieve Sustainable Development Goal (SDG)-16.
As per the experts invited by BIAC, the first reform suggested is that ADR must be introduced in the consumer sector to resolve consumer disputes resulting from faulty industrial products. For example, it is not uncommon to find faults in the electronic mosquito bat that you recently bought. But either the cases are treated as minor ones and thereby wafted away, or the customers do not bring them to light because they are confident of not finding any solution.
Therefore, ADR in the consumer sector is very important to build the trust, to eradicate the disillusion and apathy nurtured in consumer minds and to contribute to the achievement of SDG-16, which is very crucial for the growth of a country.
ADR should get equal importance in Government contracts and public sector agreements as well so as to create a business-friendly environment in Bangladesh and to build a strong ADR infrastructure that foreign investors can rely on. To do so, inspiration can be taken from the Delhi High Court which supported the Delhi Dispute Resolution Society and has encouraged mediation at both community and state level.
However, it is crucial to comprehend that ADR methods that already exist to help the people are not being used due to lack of awareness. People do not know that they have a way to access justice. Hence, awareness campaigns by use of social media, print and broadcasting media etc. are of utmost importance.
The second suggested reform is that, more people, especially legal practitioners, should be given training that shall not remain limited to gaining a certificate but also be put to practice. Furthermore, if these trained ADR practitioners can build a linkage among the SAARC countries, it is plausible that these highly trained arbitrators and mediators of the oriental countries can freely outsource themselves in a cost-effective manner and contribute to the growth of ADR centers across all of the SAARC countries. Not only will it be a novel step towards economic growth but also will be a revolutionary one.
A third reform is to make ADR a regulatory parallel to the usual judicial system. Many experts have already addressed ADR as “additional” dispute resolution instead of “alternative” dispute resolution. Therefore, because it is visible that the purpose of both the judiciary and the ADR mechanisms are the same, they should receive the same importance, infrastructure and resources.
In a nutshell, the problem is that South Asian countries still have limited access to justice and the solution is the removal of limitations such as high cost, unnecessary delay, and other complexities associated with litigation. If such limitation is removed, and it should be removed by now, SDG 16 can easily be achieved by these oriental countries. However, as mentioned above, people should be made aware of their rights and available alternatives so that they know that they have access to justice and that, efforts are being made to protect their rights.
Let us not forget that United Nation’s SDG-16 is nothing new. For instance, for Bangladesh, it is a reiteration of what the Constitution of Bangladesh has enunciated years ago. Therefore, as legal practitioners and/or ADR specialists, it is our responsibility to uphold the constitution and to contribute to the upholding of rule of law, equality and justice by introducing community-based institutional ADR practices with new and sufficient reforms and advancements. (Raha 2021)
Conclusion:
Alternative Dispute Resolution mechanisms are believed to be a consensual approach to the settlement of dispute not following the intractable formalities of the adversarial trial system. It is described as informal, confidential, expeditious, effective, mutual participatory, cost and emotion effective, promoter of peace and social harmony by removal of enmities and contributor to a breakthrough in prevailing crisis of backlogging of cases. The Alternative disputes resolution schemes are not a new phenomenon in our society but never widely used for formal civil process. What is new is the extensive promotion and proliferation of ADR models and its increased uses. The traditional smallish system was practiced in the community level for the settlement of disputes during Muslim period in this sub-continent and the Panchayat model was introduced in 1870 during the British period to resolve minor disputes within the local area and are practiced all over Bangladesh till now and the NGOs assisted mediation especially in family related matters, is a popular method of dispute resolution to the marginalized people of the country due to their enthusiastic approach to the settlement. Though the traditional smallish has a potential utility, considerable advantages of the parties and effectiveness, it is now increasingly losing credibility due to imposing the arbitrary decision on the reluctant disputants by the powerful personnel of the village. But court annexed ADR schemes are the very recent development in Bangladesh since 2000 and achieved a tremendous success to settle the disputes in alternative way with the intervention of the court. It has created a great expectation and hopes to the litigant public because when a dispute is settled expeditiously with the saving of cost and time of the parties in an amicable way under the supervision of the court it is likely to ensure integrity, impartiality and authenticity of the mechanisms. The incorporation of compulsory ADR mechanism in Family Court has effectively opened the multidoor house of delivering justice to the people. The very recent development of ADR in civil suits both at trial and appellate stages and in commercial disputes reflect a shift from traditional litigation to ADR for enhancing access to justice. These newly inserted provisions of ADR in different legislations of Bangladesh have created a window of opportunity of access to justice for all especially for the poor or disadvantaged groups of people who cannot go to the court due to their financial constraint or if they go to the court, they cannot equally move against the strong opponent by engaging a powerful lawyer for their financial limitation. Almost invariably, as found from this article that ADR has a very significant role towards the enhancement of access to justice avoiding all kinds of procedural and other complexities. ADR in compare to the regular courts keeps efficacious and effective role for the promotion of access to justice by ensuring consensual settlement, actual participation of the parties, reducing cost and saving the time and energy of the parties. Realizing the great success of ADR, almost all countries of the world have inserted the provisions of ADR in their civil and criminal justice system. In Bangladesh after the insertion of ADR in the Family Court, the Civil Court and Artha Rin Adalat it has acquired a great success in this field. But for getting satisfactory success of ADR, it requires a motivation of the concerned judges, training program of the judges, lawyers and mediators, should take awareness building program for the general people, needs adequate institutional and policy support, to take appropriate legal reform and in particular the judges should take an activist stand to fully utilize the court annexed ADR in Bangladesh.
Reference
1) Md. Mahbub Ulf Allam Khan, December 18, 2021 ADR in our country, The daily star.
2) Md. Abdul Halim, “ADR in Bangladesh: Issue and Challenges”, (CCB Foundation, Dhaka, Bangladesh. 2010)
3) Md. Akhtariazzaman Concept and Laws on ” Alternative Dispute Resolution and Legal Aid ” 1 ” Edition, 2007, page 38
4) Sumaiya Khair, Legal Empowerment for the Poor and disadvantaged: Strategies, achievement and Challenges (2008), Sufi publication, Bangla Bazar, Dhaka.
5) Dr. Ansur All Khan, “An Introduction to Alternative Dispute Resolution, (Dhaka, Bangladesh, 2007)
6) Broadbent Nigel, (2009) Alternative Dispute Resolution, Cambridge journals, Legal information management (2009) the British and Irish Association of Law Liberations, p-195
7) Halim Madgul (2010) ADR in Bangladesh: Issues and Challenges. Its edition, CCB Foundation, p-33
9) Abdul Halim 2009. The Code of Civil Procedure, 1908 Beacon Publications, Bangla Bazar, Dhaka.
10) supra-27, p-127
11) Ibid, p-128.
12) Drabber Rahman, April 2008. Artha wren Adalat aim 2003), University publication, Nil khet Dhaka.
13) Gazi Samsun Rahman, may 1996. The Muslim Family Law Ordinance 1961 (Ordinance No. 8 of 1961), Khursheed kitab mahal, Bangla Bazar, Dhaka.
14) Advocate Muhammad Saiful Allam, 2018. Salish Ain 2001, Khurshed Kitab Mahal, Bangla Bazar, Dhaka.
15) Abul Kalam Azad, 2009. Village Court Act 2006, Lipi Law book House, Nil khet, Dhak.
16) K. RAJEEV REDDY 2021, Critical Analysis of ADR in different Countries.
17) Anusha Islam Raha 2021, Urgent reformative ADR, The daily star.
18) Prof. Dr. Jamila A. Chowdhury (9 March 2013) Introduction of ADR in criminal cases, The Daily Star, (Bangladesh)
Author: Mahbubur Rahman Jasim
Department of Law, LL.B. Honor’s (4th year);
State University of Bangladesh.
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