Faculty of Law

LL.M, Final Semester

“Submitted as to fulfill the partial requirement to achieve LL.M Degree”

PRACTICE OF COURT ANNEXED ADR IN BANGLADESH:

FLOURISHING OR DECLINING

Submitted to

K M Rakibul Islam
Lecturer
Department of Law
Green University of Bangladesh

Submitted by

Jannatul Fardaws
ID: 172012011
Department of Law
Green University of Bangladesh

Submission Date: February 8, 2018

1
 Letter of Transmittal

Date: February 8, 2018.

To
K M Rakibul Islam
Department of Law
Green University of Bangladesh

Sub: Prayer for submission of research.

Dear Sir,

I am very pleased to present the research report on practice of court annexed ADR in
Bangladesh: flourishing or declining which was assigned to me as a part of the fulfillment
of Master of laws degree requirements. I tried my best to prepare the report successfully.
This research work helped me a lot to understand the situation of Bangladesh.
Overcoming all the challenges finally I am delighted to submit my report on due date.

I will be grateful if you accept my research report.

Sincerely yours,
Jannatul Fardaws
ID: 172012011
Department of Law
Green University of Bangladesh

2
 CERTIFICATION

This is to certify that the research monograph practice of court annexed ADR in Bangladesh:
flourishing or declining, is done by Jannatul Fardaws as the partial fulfillment of the
requirements for the degree of LL.M from Green University of Bangladesh. The research
monograph has been carried out under my guidance and is a record of the bonafide work carried
out by her.

K M Rakibul Islam
Lecturer
Department of Law
Green University of Bangladesh

3
 Declaration

I am a candidate for the degree of Masters of Laws (LL.M) fully aware of the result and
regulation of Green University of Bangladesh, relation to the preparation, submission, retention
and use of a research monograph.

I hereby declare that the work presented in this paper is the result of original research out by
myself based on Legal impediment to achieve Sustainable Development Goals Bangladesh
prospect.

This work has neither been submitted for any other degree in any other university or educational
institution nor has been published anywhere.

I have mentioned the relevant references within my knowledge and on portion of this document
has plagiarized .

Jannatul Fardaws
ID: 172012011
Department of Law
Green University of Bangladesh

4
 Table of Contents

Acknowledgement………………………………………………………………………5

ABSTRACT……………………………………………………………………………….....6

I. INTRODUCTION …………………………………………………………………..7

II. METHODOLOGY…………………………………………………………………8

III. COURT ANNEXED ADR UNDER THE MAJOR LAWS OF

BANGLADESH…………………(9-13)

(a) Court based ADR in family matters

(b) ADR in Civil matters

(c) ADR in money loan cases

IV. CAUSES BEHIND DECLINE OF ADR……………………………………………………….(13-

15)

(a) Non-cooperation of the lawyers

(b) Ignorance on part of the stakeholders
(c) Absence of trained mediators or arbitrators
(d) Non-utilization of arbitration
(e) Unavailability of ADR centers
(f) Absence of ADR courts
(g) Absence of sanction

V. RECOMMENDATIONS
………………………………………………………………………………(15-18)

a) Utilizing ADR under legal aid law

b) Awareness building
c) Involving local leaders, imams and priests
d) Adequate training for mediators and arbitrators
e) Reasonable fees
f) Infrastructural facilities
g) Forming ADR courts
h) Incorporating penalty provisions

VI. ARBITRATION: A POTENTIAL ADR TOOL TO CURB CASE BACKLOGS………..(18-19)

VII. CONCLUSION……………………………………………………………………………… (20-21)

5
 Acknowledgement
This research is carried out under K M Rakibul Islam , Lecturer of the department of Law. I am
very grateful to him for getting chance to work on this contemporary issue. The paper, which he
provide me, were very helpful for my comparative study. I don’t know how to thank him for his
positive encouragement. Above all it’s my pleasure to get a chance to study on such a topic that
is related to the real goals of Bangladesh.

6
 PRACTICE OF COURT ANNEXED ADR IN BANGLADESH:
FLOURISHING OR DECLINING

ABSTRACT

The judiciary of Bangladesh is burdened with more than three million case backlogs today and the
number is mounting day by day with the institution of fresh cases. Although the wheel of disposal has
been accelerated over the years, it could not manage to change the status quo due to a number of factors
including inadequate number of judges in terms of pending cases, procedural formality and complexity
and poor logistic support. In this backdrop, court annexed ADR system has been introduced into
Bangladesh over a decade ago. But the ADR system that has been very popular around the world failed to
gain ground in our country. In this paper the authors, on the basis of their own experiences in the district
level judiciary, will try to look into why the court annexed ADR system has been falling back in
Bangladesh and what should be done in order to make it truly functional.

Key words: Court Annexed ADR, Case Backlogs, Bangladesh Judiciary, Access to Justice

7
 1.INTRODUCTION

The formal adjudication system today is quite unsuccessful, in most of the cases, to ensure
access to justice for a significant number of litigants in terms of equity and fairness, though
access to justice has been recognized as a ‘right’ both in local as well as international legal
instruments.1It has proved to be ineffective in dispensing quick but inexpensive justice by
maintaining harmonious relations between the disputing parties. Issues like case backlogs, long
delay and exorbitant costs of litigation, procedural formality and complexity, unequal standing of
the litigants (in terms of finance, social status and educational qualification), among others,
appeared as the most pressing challenges before the formal adjudication system that had shaken
the confidence of the people in the judicial organ of the state itself. When the people around the
world, being tired of and shocked at the defects of formal adjudication system, were searching
for solutions, they started to realize the significance of incorporating and institutionalizing the
informal dispute settlement mechanisms into the formal adjudication system in order to make the
latter truly functional. In the march for incorporating ADR systems into the state legislations that
started in the last quarter of the twentieth century, today we hardly find any state that does not
have any state law providing scope for ADR options.

Bangladesh for the very first time accommodated the concept of court connected ADR
mechanisms into the Family Court Ordinance, 1985.2 Later on, observing the incredible success
of the Family Courts in resolving disputes, the legislature felt the impetus for incorporating ADR
provisions into the Code of Civil Procedure in 2003 (amended in 2006, 2012 and 2017).
Thereafter, we also noticed the incorporation of ADR provisions into some other laws including
the ArthaRinAdalat Ain, 2003 (as amended in 2010). About a decade has elapsed since the ADR
mechanisms have been incorporated into the major civil laws of Bangladesh but still we could
not manage to demonstrate a significant change in providing justice to the litigants by controlling
the wheel of case backlogs, time and expenses. In this backdrop, one may ask what went wrong
with ADR and why it failed to show any visible change in the administration of civil justice in
Bangladesh.

The purpose of this paper is to identify, though in a very brief stature, some of the striking
reasons behind the decline of ADR tools in yielding satisfactory result by ensuring access to

* The author is an internship student of law at Green University of Bangladesh.

1
For example, the 3rd Paragraph to the Preamble of the Constitution of Bangladesh clearly manifested the concept
of justice from political, economic and social perspective. Again, Articles 27 and 31 provided for equality before
law and equal protection of law for every citizen irrespective of economic status, religious belief, education,
color or caste. On the other hand, Articles 6 (right to be recognized as person before law), 7 (equality before law
and equal protection of law) and 8 (fair justice for all) of the Universal Declaration of Human Rights, 1948; Article
16 (right to be recognized as person before law) of the International Covenant on Civil and Political Rights, 1966
and all articles, though indirectly, of the International Covenant on Economic, Social and Cultural Rights, 1966
contribute to the realization of the concept of ‘access to justice’.
2
See Sections 10, 13 & 14 respectively of the Family Court Ordnance, 1985.

8
justice in an alternative manner. While doing so this paper also comes up with some solutions
that may be utilized in turning ADR into an effective dispute resolution tool.

2.METHODOLOGY

This article is based primarily on the experiences of the author in herrespective professions in the district
judiciary of Bangladesh. Additionally, both primary and secondary sources have been utilized while
conducting this research. The sources include relevant legal instruments, reviewing literatures focused on
ADR issues (e.g., books, journals, articles, reports and newspapers), and searching the internet. A detail
account of references is provided at the end of this paper.

9
3.COURT ANNEXED ADR UNDER THE MAJOR LAWS OF BANGLADESH

Though the journey of court based ADR in the then Indian subcontinent was started with the
promulgation of Bengal Regulation of 17723 (which for the first time statutorily recognized the import
and significance of ADR in resolving disputes as part of the court process), the court based ADR 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 success of the family court in
resolving disputes as specified in section 5 of the Ordinance, the legislature felt the impetus for
incorporating ADR provisions in the Code of Civil Procedure in 2003. Thereafter, we also noticed the
incorporation of ADR provisions into the ArthaRinAdalat Ain, 2003 (as amended in 2010), the Labour
Act, 2006, the Income Tax Ordinance, 1984 (as amended in 2011) and some other laws.

There are a number of legislations in Bangladesh that have specifically provided for the provisions
relating to ADR. The major statutes that govern ADR system, particularly in civil matters, may be
enumerated as follows:

 The Code of Civil Procedure, 1908

 The Muslim Family Laws ordinance, 1961
 The Family Courts Ordinance, 1985
 The Arbitration Act, 2001
 The ArthaRinAdalat Ain, 2003
 The Income Tax ordinance, 1984
 The Value Added Tax Act, 1991
 The Customs Act, 1969
 The Conciliation of Disputes (Municipal Areas) Board Act, 2004
 The Village Courts Act, 2006
 The Labour Act, 2006
 The EPZ Trade Union and Industrial Relation Act, 2004
 The EPZ Trade Welfare Society and Labour Industrial Relation Act, 2010

Discussion on all of the aforementioned statutes is beyond the scope of this paper. Hence, a brief
overview is discussed hereunder on three major ADR laws.

(A) Court based ADR in family matters

The Family Courts Ordinance, 1985 was promulgated with a view to expedite the resolution of cases
related to family affairs rapidly and effectively. Some family Courts have been established by the
Ordinance. These courts have been following the ADR procedure in disposing the cases both before and
after the conclusion of trial. The family court is supposed to fix a date for pre-trial hearing within thirty
days after the filing of the written statement by the defendant. In the pre-trial hearing the court generally
ascertains the points at issue between the parties and attempt to effect a compromise or reconciliation, if
that be possible, between the parties.4 The family Court, if it deems fit or on the application of any

3
A clause in this regulation provided that “in all cases of disputed accounts, it shall be recommended to the parties
to submit the decision of their cause to arbitration, the award of which shall become a decree of the court”.
4
S. 10(3), ibid

10
disputants, may conduct the whole or part of the trial in camera.5 The Court can take steps to compromise
or conciliate between the parties even after the closing 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 that compromise or reconciliation.7

(B)ADR in Civil matters

Following the unprecedented success of the family court in resolving family disputes through ADR
machinery8, the Legislature incorporated ADR mechanisms into the Code of Civil Procedure, 1908
(hereinafter referred to as the Code) by way of amendments. The amended Act of 20039 introduces the
court based mediation and arbitration as integral part of the civil proceedings in Bangladesh. However, it
was the discretionary power of the court to explore the scope of mediation. Later on, the Code was
amended again in 201210 that made the mediation system mandatory in civil proceeding. The Act went
through another amendment in 2006 that introduced the provision of mediation even at the appellate
stage.

As stated, section 89A provided for the provisions relating to mediation. Explanation 1 to the section
defines mediation 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 dictating the terms of such compromise.” The analysis of the
definition reveals that mediation under the Code is flexible, informal, non-binding, confidential, non-
adversarial and consensual in nature. Here, the third party who works as mediator just facilitates the
process: he can neither direct nor dictate how and in what terms the compromise will be reached.

The Code as it stands now after the amendment in 2012 makes the mediation process compulsory, which
means the court is now under an obligation to refer every dispute of civil nature, to which the Code may
be made applicable, to mediation. Under the current arrangement the court may, after the written
statement has been submitted before the court, itself initiate mediation proceeding, or may refer the same
to the engaged pleaders of the disputing parties, or to the parties themselves, or to a mediator from the
mediator penal prepared by the concerned District Judge under 89A (10).11 After reference of a dispute to
the engaged pleaders of the disputing parties, they shall, upon consultation with their respective clients,
appoint another pleader who was never worked for the parties before, or a retired judge, or a mediator

5
S. 11, ibid
6
S. 13, ibid
7
S. 14, ibid
8
The total realization through mediation since the introduction of mediation in the Family Courts from June 2000
to 16th May 2001 was about TK. 51,00,000 (estimated £46,360). Hasan, K.M., (former CJ of Bangladesh), ‘A
Report on Mediation in the Family Courts: Bangladesh Experience’, presented in the 25th Anniversary Conference
of the Family Courts of Australia, Sydney, 26-29 July 2001.
9
Sections 89A and 89B were inserted by section 3 of the Code of Civil Procedure (Amendment) Act, 2003 (Act No.
IV of 2003).
10
See section 3(a) of the Code of Civil Procedure (Amendment) Act, 2012 (Act No. XXXVI of 2012).
11
See section 89A (1)

11
from the penal of mediators prepared under section 89A (10), or to any other person, who, in their
opinion, is competent to facilitate the mediation process as a mediator.12

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 amount 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 aforesaid issues, in which case the parties will be bound to abide by the decision of
the court.13 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 written obligation upon the parties to
inform the court within 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 appoint
one within 7 days next. The section also restricts the time fame to 60 days within which the mediation
process must be concluded. The court may, however, of its own motion or upon a joint request preferred
by the parties extend the time period for another 30 days.14

It is quite obvious that the mediator may happen to be in contact with many sensitive matters or
documents of confidential nature and hence, the section also imposed a serious obligation upon the
mediator about maintaining confidentiality. 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 so will their lawyers, if there be any, and the mediator as witnesses.15

In order to encourage the parties to cooperate with the mediation process the section accommodated the
following arrangements:

(i) the mediation process 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;16

(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;17

(iii) in case of court initiated mediation same court shall not hear and dispose the suit, if the court
continues to be presided over by the same judge;18

(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 certificate to that effect;19

12
See section 89A (2)
13
Section 89A (3)
14
See section 89A(4)
15
See section 89A (5)
16
See section 89A (8)
17
See section 89A (7)
18
See section 89A (9)

12
(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.20

As mentioned earlier, the Code also introduced ADR at the appellate stage back in 2006. Normally,
appeal 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 another section named section 89C was inserted into the Code. Though at its birth
the mediation provision at this stage was discretionary in nature lying with the hands of the appellate
court, but the Code as it stands after 2012, makes the same as compulsory. Now every appeal deriving
from original decree must be referred to mediation and comply with the same provisions as enumerated in
section 89A.21

(C)ADR in money loan cases

The ArthaRinAdalat Ain (Money Loan Court Act), 2003 is a special law that laid down, for the very first
time, the foundation for speedy disposal of money suits connected with the banking and the 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 Ain 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 subsequent
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 conference would
be held in camera. But the ArthaRinAdalat Ain 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 ArthaRin Ain incorporated the provisions of mediation almost in the same
words and manners as is provided for under section 89A of the Code 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
ArthaRinAdalat. The Adalat will take special care as to whether the authorized officer acted, during the
mediation process, in consonance with the said authorization.22 Unlike the ADR provisions in the Code,
the ArthaRinAdalat Ain created a scope for the ArthaRin Courts, according to which the courts may
employ another 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 4 of the Ain.23 The Ain has taken a
precautionary measure in respect of disputes having monetary value exceeding take five crore. In this

19
See section 89A (11)
20
See section 89A (12)
21
See section 89C (1) (2)
22
See section 24 of the ArthaRinAdalat Ain, 2003.
23
See section 23, ibid

13
connection, section 25 provides that a special authorization needs to be obtained from the Managing
Director or the Chief Operating Officer, as the case may be, of the concerned financial institution before
concluding a deal by way of ADR mechanisms under section 22. The Ain takes one step ahead of the
Code 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 ArthaRin suit too.24

4.CAUSES BEHIND DECLINE OF ADR

Though ADR has come in rescue to the formal adjudication system in different parts of the world
including Bangladesh, ADR tools, however, have become ornamental and to a considerable extent failed
today in resolving civil disputes in our country. From our experience we have noticed that the few ADRs
that take place today at the district courts are not ADR at all to its strict sense. What happens in practice is
that the engaged lawyers on a fine morning appear before the court and pray for disposing the suit under
Order XXIII, Rule 3 of the Code by way of an agreement entered into between the disputing parties
popularly known as solenama. Then the presiding judge in order to get double disposal points for a
successful ADR25 requires the parties to submit a petition under section 89A of the Code. This is exactly
how most of the so called ADRs in the civil courts today come into being by transforming a solenama
into an ADR under section 89A. However, from our experience we have identified inter alia the
following causes that may be attributed to the decline of court annexed ADR in Bangladesh:

(a) Non-cooperation of the lawyers

Most of the lawyers at district level are not cooperative at all in resolving disputes through ADR. From
our experience we have noticed that in most of the cases the engaged lawyers by the parties remain
consistently absent when the court sets a date for ADR. Naturally, the disputing parties also remain absent
since their lawyers are absent and dissuaded them from going for ADR. The reason behind such non-
cooperation on part of the lawyers, we think, primarily lies with the fear of losing their expected amount
of income from the case if the same is disposed of through ADR at its very birth.

(b) Ignorance on part of the stakeholders

Ignorance or poor knowledge on ADR and the philosophy behind it, on part of the litigants, in general,
and the lawyers as well as the judges, in particular, is also responsible for unsuccessful state of ADR. A
significant number of litigants have very little or no knowledge at all about ADR. Further, many are
misguided and deceived by their engaged pleaders about the purposes and processes of ADR. So, this
ignorant state of the litigants, to a great extent, is also responsible for failure of ADR.

(c) Absence of trained mediators or arbitrators

Under section 89A or 89C of the Code the court itself may go for mediation or may refer the dispute to
the engaged lawyers of the parties for resolving the same through ADR or may even appoint mediators of
its own. Under section 89B the parties may require the court to permit them to withdraw the suit in order
to resolve the same through arbitration. But there is an acute shortage of trained mediators or arbitrators in
the country. The few that we have are concentrated in our capital city Dhaka. They are quite expensive

24
See section 44A and 38 respectively.
25
The Hon’ble High Court Division issued circulars in this connection. See infra note 13.

14
and mostly beyond the reach of the common litigants of the districts. In addition, a significant number of
judges have very little or no training at all on the functional aspects of ADR and there is serious lack of
trained and experienced mediators or arbitrators at district level. Thus, the few cases that are attempted to
be resolved through ADR inevitably fall flat at the very outset due to lack of skilled people in the district.

(d) Non-utilization of arbitration

Arbitration is one of the most effective tools of ADR which is very popular across the world especially
with the business community. Though section 89B of the Code incorporated arbitration as a means of
ADR and there is a separate law of arbitration26 in Bangladesh, still arbitration is not that much popular in
resolving commercial disputes let alone the ordinary civil disputes at district level. As such, non-
utilization of arbitration as one of the tools of ADR may also be held responsible for the decline of ADR.

(e) Unavailability of ADR centers

The purpose of ADR is to discourage litigation and encourage the resolution of disputes out of the court
room. But the problem is there are no formal ADR centers in the districts. Few of the centers including
Bangladesh International Arbitration Center (BIAC) are based in Dhaka that are quite expensive and
beyond the reach of the poor litigants of the district. In most of the cases, the parties sit either in the
chamber or residence of a lawyer or in a restaurant which are quite inappropriate for ADR.

(f) Absence of ADR courts

In our country civil courts of original jurisdiction are overwhelmed with the trial of civil disputes and in
most of the cases cannot manage to allocate time for trying ADR. Our experiences suggest that most of
the courts are too busy to fulfill the disposal target set by the authority. Given the fact that the lawyers are
not cooperative, many even have the preoccupied mental state that going for ADR is just wastage of time
and hence, do not try ADR at all. Even giving the benefits of double points for a successful ADR and
single point for two attempted unsuccessful ADR has proved to be ineffective.27

(g) Absence of sanction

If the ADR mechanism fails due to non-cooperation of both or either of the parties or their engaged
pleaders, there is no legal provision under the laws providing for ADR for imposing penalty in the form
of fines or taking other legal action against the responsible person that could restrain the parties from
frustrating a mediation or conciliation process altogether. But in many developed countries like the UK
have specific provisions in this regard that force the parties to consider the ADR options before opting for
litigations.28

5.RECOMMENDATIONS

26
The Arbitration Act, 2001
27
The honorable High Court Division issued circulars in this connection on 23.06.2003 vide its Memo No. 59(K)
wRand 59(L) wR. This provision has been given into effect from the 1st of July, 2003.
28
See Nayeen,SekanderZulker, “Enforcement of ADR without force”, available at <
http://www.thedailystar.net/law-our-rights/enforcement-adr-without-force-1197562 > accessed on 12 December
2017.

15
The concept of ADR is not at all new in Bangladesh. It is a historic fact that ADR has always played a
significant part in resolving community disputes from time immemorial in the rural areas of our country
and still elders mediated dispute resolution is in practice amongst the village community these days. Then
the question that may necessarily arise is why ADR has succumbed to failure today and what went wrong
with the people of this country who have the global reputation for being tolerant and peace loving and
where actually lies the problem. Well, that will require a thorough research which is beyond the scope of
this paper. However, on the basis of our experience as young law professionals at the lowest tier of the
judiciary, we like to put forward the following recommendations for making the ADR tools functional:

a) Utilizing ADR under legal aid law29

Under the Legal Aid Act a legal aid officer (LAO) has been appointed in every district who works as the
focal person in disseminating legal aid through the district legal aid committee. The LAO is appointed
from the judicial officers who have considerable experience in trying and disposing cases of different
nature in the formal courts. Since a LAO is exclusively appointed to deal with the legal aid matters
without having formal judicial duty, he can invest more time than other judicial officers in resolving
disputes through ADR. So, the LAOs should be imparted proper training on ADR and provided with
other logistic supports as required for facilitating ADR process.

ADR tools have already been proved to be effective at the hands of the LAO. For instance, the LAO of
Narsingdi upon active guidance of the District Judge has managed to successfully apply the ADR tools in
resolving disputes referred to him under section 21A (2). In the year of 2016 some 165 cases were
referred to the LAO, out of which 111 were successfully mediated. Additionally, Tk. 21,70,400.00 was
recovered. Upon an interview with the district judge and the LAO of Narsingdi we have come across
some important issues that deserve to receive due importance:

(i) In order to ensure the acceptability of the LAO as mediator the fact of his being a judicial officer
should be circulated to the common people and his designation as a judge should be encrypted into
his name plate.

(ii) Since the LAO needs to sit in separate sessions with the disputing parties during ADR, he needs a
secure room with privacy and necessary sitting arrangements.

(iii) Armed police personnel should be deployed at the legal aid office to ensure the safety and security
of the LAO as well as the people who come to legal aid office.

29
The provisions relating to ADR were incorporated 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 Resolution) Rules, 2015’. Rules 4 to 17
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 legal aid officer (LAO) appointed under section 21A (1) to act as mediator in
cases of disputes that come to him either in the form of application for legal advice from the disputing parties or
in the form of reference by any competent court or tribunal. If any disputing party consents to ADR, the LAO
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 LAO arranges a meeting in presence of the parties at a convenient place and
time. Here too the LAO tries to mediate the dispute as a third party and does not at all impose his decision.

16
 (iv) Usually the LAO sits at the district court. Many poor villagers who are willing for ADR but do not
turn up considering the distance of the legal aid office. Hence, in order to ensure increased
participation from the farthest corner of the village the LAO may sit at upazila on designated days
by rotation.
b) Awareness building

Raising mass awareness among the people in general about the ADR tools, the purposes they serve and
the benefits that follow therefrom is a must. To that effect special programmes on mass media like FM
radio, TV channels and newspapers may be featured. Social media like facebook, twitter and youtube may
also be of tremendous help. Further, lessons on ADR at secondary and higher secondary level should be
incorporated and ADR courses at the tertiary level should be made compulsory. Additionally, legal aid
office in the district court can also work as a cell in informing people about the benefits of ADR.
Furthermore, at the time of filing suits the parties to the suit should be provided with sufficient
information about ADR. In this connection, a separate cell for providing information should be set up in
every Judgeship.

c) Involving local leaders, imams and priests

In order to encourage the resolution of small disputes at grassroots the legislature enacted two
separate laws: one for village30 and the other for municipality31. But it is a common knowledge
that the powerful quarters of the village try to influence the disputing parties to disregard the
decision of the village courts or the municipal boards. In such a situation, the government should
mainstream the local leaders into the ADR process and recognize their contributions by way of
awarding certificates or memoires or in some other suitable manners.

In addition, Bangladesh is a Muslim majority country and most of the Muslims are religious and attend
the weekly religious sermons delivered by the Imam on Friday. If the Imams are trained on ADR
emphasizing its core concepts, values, philosophies and advantages, then that may seriously contribute to
the awareness building among the Muslims. There are a number of verses in the Quran and Hadiths of the
Prophet (pbuh) that ordain the Muslim to practice and uphold ADR.32 So, the Imams can quite easily
relate the concept of ADR with the Quranic verses and the Hadiths. In the same way, the priests of the
temples can also disseminate the core message of ADR to the devotees correlating the same with religious
teachings.

d) Adequate training for mediators and arbitrators

Trained and skilled mediators and arbitrators are the prerequisites for the success of ADR. Today
we have serious dearth of trained and skilled people on ADR. Training is the key factor for
having a pool of trained and skilled people. In our country an internationally exposed arbitration
centre named Bangladesh International Arbitration Center (BIAC) has been launched in 2009
with the technical assistance of International Finance Corporation (IFC) and the UKAid. They

30
The Village Court Act, 2006
31
The Conciliation of Disputes (Municipal Areas) Board Act, 2004
32
See Surah al-Hujurat (49): 9, 10; Surah Nisa (4): 36, 58, 114; Sahi Bukhari: 2690, 2693, 2707.

17
have already started training mediators and arbitrators with the help of internationally acclaimed
trainers though in a very limited scale. The government may take assistance of BIAC in
imparting training at district level.

e) Reasonable fees

As indicated earlier the lawyers do not want to cooperate with the court about ADR due to fear of losing
their income. At district level there is a practice of receiving day to day fees from the clients. So, the
longer a case lingers, the more are the chances of getting fees. In this situation, a standard amount of fees
may be set consensually in every district for ADR.

f) Infrastructural facilities

At present there is no formal ADR centers at district level established either with the initiative of the
government or any private body. It is undisputed that professional ADR centers can seriously contribute
to the success of ADR. Therefore, the government may itself under the auspices of the ministry of law
and justice establish ADR centers in every district and may at same time encourage the private initiative
to that effect. In this connection, assistance, both technical and financial, from the donor agencies may be
availed and the experience of BIAC may be utilized.

g) Forming ADR courts

As mentioned earlier the civil courts remain too much busy to deal with the trial of day to day cases and
they can hardly manage time for ADR. In this situation, two separate ADR courts, one from the tier of
senior assistant judge and another from the joint district judge, may be established who will be solely
responsible for trying ADRs. Regarding which cases will be referred to ADR courts, I think, the
concerned civil courts will decide whether the dispute is suitable for ADR and accordingly, upon
recording reasons of its satisfaction as to the suitability of ADR, refer the same to the ADR courts.

h) Incorporating penalty provisions

Currently there is no penalty provision under the existing ADR laws of Bangladesh. Consequently, the
parties do not need to face any sanction in case of their non-cooperation with the ADR process. So, the
court must be armed with the power to impose penalty in the form of fine, cost or compensation to the
party who is responsible for non-cooperation. To that end necessary amendments must be brought into the
Code.

6.ARBITRATION: A POTENTIAL ADR TOOL TO CURB CASE BACKLOGS

Arbitration is considered to be one of the most popular forms of ADR in practice in the world; especially
most of the commercial disputes today are disposed of by way of arbitration around the world. Arbitration
has always been in practice in Bangladesh or in the territories now comprising Bangladesh in this way or
the other. The concept of Salish is the glaring example of such assertion. But the arbitration in formal
form was introduced and practiced at much later stage especially by the introduction of the Arbitration
Act of 1940 and thereafter, by the Salish Ain of 2001 (Arbitration Act). The Ain of 2001 was introduced
in order to regulate and facilitate the civil disputes by way of arbitration before they were referred to a
competent civil court for its decision.

18
The Code as amended in 2003 provided for the first time that the disputing parties may, at any stage of
the proceeding in a suit, apply to the Court for withdrawal of the suit on ground that they will refer the
dispute or disputes to arbitration for settlement. If an application to that effect is made, the Court is bound
to allow the application and permit the suit to be withdrawn; thereafter, the dispute shall be settled in
accordance with the Salish Ain, 2001 so far as may be applicable. If the arbitration does not result in an
award, the parties shall be entitled to re-institute the suit permitted to be so withdrawn.33

With the enactment of the Arbitration Act, 2001, there is a general rise in the use of arbitration as an
alternate dispute resolution procedure especially in case of large scale commercial disputes. The problems
of the old regime have been addressed in the new Act. Most importantly the involvement of the judicial
system has been kept to a minimum level essential for effective operation of the tribunal’s work.
Generally the court is bound to refer parties to arbitration where an arbitration agreement exists. No
judicial authority is normally to hear any legal proceedings filed by one party to the arbitration agreement
against the other till the arbitration process is exhausted and that hearing will be done in a manner
prescribed by this Act.34

But in spite of having so many benefits that arbitration may offer over formal adjudication system like
cost and time effective, informal in nature, flexibility and procedural simplicity, Convenience, party
autonomy, it is still not that much popular with the litigants at the district level as a means of dispute
resolution tool. We believe, as indicated above, lack of awareness among the disputing parties about the
nature and benefits of arbitration and absence of trained arbitrators at the district are responsible for this
poor state of arbitration. So, these issues must be addressed as early as possible. Additionally, arbitration
facilities must be introduced at the district level on priority basis.

7.CONCLUSION

The foregoing discussion and analysis manifestly project that there is nothing wrong with the concept of
ADR. The problem, in fact, lies not with ADR but with the people who use it. ADR tools are as effective
today as they were in the past and still have been successfully applied in different parts of the world.35
The poor state of ADR in our country can be attributed to different factors including the issues identified
above. We should carefully address those issues taking the recommendations into consideration. As
indicated above, the concept of applying ADR through LAO is a novel and praiseworthy initiative. LAOs
should be imparted extensive training on ADR techniques and be provided with required assistance.

It is also to be kept in mind that ADR is not going to solve all the problems of formal adjudication system
as a panacea but it is true that if properly utilized to its proper sense and spirit, ADR tools can
significantly help realize the objectives of access to justice that have been left unrealized because of the
shortcomings of the formal adjudication system. So, it may rightly be concluded that ADR, as a dispute

33
See section 89B (1)
34
Khan M.A. (2017) Issues of Jurisdiction, Choice of Law and Enforcement in International Commercial Arbitration:
A Bangladesh Perspective. In: Garimella S., Jolly S. (eds) Private International Law. Springer, Singapore, pp 285-302.
35
For example- in the USA in 2011 alone, more than 28,000 cases were referred to ADR in 49 district courts out of which nearly
18,000 (63%) were mediated.See <http://blog.aboutrsi.org/2012/research/new-report-shows-us-federal-courts-embrace-adr-
2/>. Even in Sri Lanka 300 Mediation Boards are currently functioning that handle about 112,000 cases annually with
settlement rates between 54% to 70%.See<http://c.ymcdn.com/sites/nafcm.site-
ym.com/resource/resmgr/Research/Evaluation-Community_Mediat.pdf>, both accessed on December 12, 2017.

19
resolution system, has come to fill the vacuums of formal adjudication system but not to replace it
altogether. The need for the formal adjudication system will always be there.

Love for peace is an inherent attribute of human being. Hence, the mandate to practice ADR as a
device for promoting peace and harmony can be found everywhere starting from the local
legislations, international instruments to even the religious scriptures tracing back to thousands
of years:

“The believers are but a single Brotherhood: So make peace and reconciliation between
your two (contending) brothers: And fear Allah that ye may receive Mercy”.36

“The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their own choice.”37

36
Surah al-Hujurat (49):10
37
Article 33 of the UN Charter

20