Legal Sanctions to enforce the Court-based ADR in Bangladesh

Alternative Dispute Resolution (ADR) means settling a dispute through understanding between the disputants without the court’s adjudication. The flexibility of the ADR mechanism has made it an easy option for one who seeks a remedy in an amicable way. With the introduction of the Alternative Dispute Resolution in Bangladesh, the system has always been a topic of discussion in the socio-legal arena. Because of being cost-efficient, informal, less time-consuming, and effective, the ADR mechanism has widely been incorporated in the statutes regarding civil litigation and family dispute. However, the success rate of court-based ADR is very meagre in Bangladesh. Though the performance of the ADR was made mandatory, the mechanism lacks a persuasive instrument for the disputing parties to participate voluntarily in ADR.

The concept of mediation without the involvement of the court is not a new one in Bangladesh. The court-sponsored ADR commenced its journey in the civil justice system of Bangladesh through its incorporation in the Family Court Ordinance, 1985. The huge success of ADR in family Courts furthered its incorporation in the Code of Civil Procedure, 1908 and Artha Rin Adalat Ain 2003. Section 89A of the CPC provides that after the filing of a written statement, in the presence of the parties or their respective pleaders, the court adjourns the hearing and mediates the dispute in order to settle it or refers the dispute to a mediator to undertake efforts for settlement. After the appointment of a mediator within ten days of the reference made under sub-section (1), the parties have to inform the court whom they have appointed as a mediator. Thereafter the mediation is provided mandatorily to be concluded within 60 days from the day the Court is so informed (Code of Civil Procedure 1908, s. 89A(4)). Despite its incorporation in the CPC, parties to the suit and the court were inclined to avoid the ADR, to prevent which, entertainment of ADR was made mandatory through the amendment of CPC in 2012 (Code of Civil Procedure (Amendment) Act 2012, s. 2(a)(ii)). Though these provisions of CPC look quite favorable for the parties to settle their dispute through mediation, the prevalent practice says otherwise.

Making ADR mandatory was of little impact on the effective disposal of suits due to the failure of the ADR process. Intentional absence of one or both of the parties in the mediation process, as well as refusal to settle without any reason, is one of the major causes of failure of the mediation process. In most cases, either parties or their pleaders do not appear before the mediator, which renders the mediation failed. It is almost a common scenario that after a suit being referred to a mediator, any of the parties does not want to compromise and withdraws from mediation without showing any cause, which lefts no choice for the mediator but to inform the court of the failure of the mediation. Due to the whimsical attitude of parties towards mediation, the suit becomes more time-consuming and costly.

Though the provisions regarding court-based ADR enable the parties to settle their dispute through compromise, there is a lack of legal sanctions for any parties who disregard the mediation process. It seems to appear that undertaking the mediation process is only mandatory for the court but not for the parties to a suit. For example, there are no provisions in the CPC to compel the attendance and participation of the parties in a mediation. Moreover, the parties are likely to withdraw their suit from mediation without any reasonable cause. Lawyers are also alleged to have discouraged their clients from settling cases through mediation to earn more money, exploiting the delay in the trial court. In a word, the court-based ADR is failing due to a lack of a persuasive or compelling tool to ensure voluntary participation of the disputants in ADR. Consequently, each failed mediation is contributing to the existing backlog of cases in the courts.

There are instances of punishing a party who unreasonably refused or abstained from participating in mediation in many legal systems. For instance, in Dunnet v Railtrack (2002), the UK Court of Appeal, using the Part 44 and Part 1 of the Civil Procedure Rules 1998, declined to order the defeated claimant to pay the Railtrack’s costs because Railtrack refused to consider an earlier suggestion from the court to attempt mediation. However, the civil courts in Bangladesh are not empowered to do the same yet. In a joint appeal before a UK Appellate Court, the court directed the legal professionals to regularly consider with their clients whether their disputes are suitable for ADR as well as provided that failure to do so could be considered as negligence and breach of professional duty (Halsey v Milton Keynes General NHS Trust and Steel v Joy (2004)).

For the court-based ADR to be successful in Bangladesh, it needs the spontaneous participation of the disputing parties throughout the mediation process. The ADR being successful does not necessarily mean that every dispute has to be settled through ADR; rather, it means proper utilization of the ADR mechanism provided in the statutes. To ensure the spontaneous participation of parties in the ADR as well as to prevent disregard of the same, incorporation of provisions in CPC to punish the absence of parties in the ADR and unreasonable withdrawal from ADR is of utmost importance. The punishments could be fines, cost-sanction, or deduction of the cost of the suit from the party who did not participate in the ADR, as the discretion of the judge deems fit. Penalization of the disregard of the court-sponsored ADR by a party should not be considered as a threat of penalties, rather as persuasion to the parties to a suit to settle their dispute amicably through ADR.

Flexibility, cost-efficiency, practicality, and confidentiality of the ADR system have established it as a viable option for the parties of a civil suit to settle their dispute. To reduce the backlog of cases in the civil courts, we must ensure the participation of the disputants in ADR. To make the court-based ADR flourish through the participation of the disputants, the introduction of persuasive or punitive provisions in the CPC would be a proper and timely step.

References:
Code of Civil Procedure 1908
Code of Civil Procedure (Amendment) Act, 2012 (Act No. XXXVI of 2012)
Dunnet v Railtrack (2002) 2 ALL ER 850
Halsey v Milton Keynes General NHS Trust and Steel v Joy [2004] EWCA Civ 576