Mediation at the instance of the court

Dispute resolution through Alternative Dispute Resolution (ADR) methods received massive legislative support and recognition in Bangladesh in the last two decades. The amendments made in 2003 to the Code of Civil Procedure 1908 created scope for dispute resolution through the process of mediation and arbitration in sections 89A- 89E.

In the similar vein, the legislature has introduced amendments to the Money Loan Court Act 2003. By an amendment in 2010, sections 22-23 were inserted providing scope for mediation in money-loan cases at two stages. First, after filing a case and upon submission of written statements by the defendant(s), it is incumbent upon the court to refer the case to mediation. If mediation is unsuccessful at the pre-trial stage, the chance for mediation is also available after conclusion of the trial and before delivery of the judgment. It takes place before pronouncement of the judgment and upon joint prayers by the disputing parties. 

The main feature of the amended law is that the mediation takes place during proceedings in court mandatorily. However, it is not made as a mandatory first step prior to the initiation of proceedings. After the commencement of litigation, the parties take an adversarial position which minimises the chance of dispute resolution through consensual means. In the social context of Bangladesh, it turns to be more serious when a party drags his opponent to the premises of courts. In most cases, the mindset of the parties becomes so confrontational that they prefer to continue with legal battle in courts to secure win at any cost. Therefore, mediation hardly works as it is not a mandatory first step before litigation. Secondly, the amended law has left no option for the court to apply its discretion to decide whether the dispute can be resolved through alternative means to begin with.

In some instances, dispute cannot be resolved through alternative means, for example, when a party alleges fraud against the other or when there exists high level of animosity between the parties or when a case is so complex that it requires judicial decision. Thirdly, pursuant to a court order, mediation does not take place under any accredited institution dedicated to providing for mediation service.

Finally, the relevant legislations do not contain any provision providing for a limit as to the fees of a mediator. There is no standard guideline or rules fixing the mediator fees based on the complexity of the subject matter or valuation of a case. The absence of such rules burdens the parties with additional expenses. The situation becomes more complicated when both parties are not equal. The power imbalance between the parties results in a failed mediation.

In light of the discussions above, it can be said that the infrastructure for mediation, at the direction of the court under the amended laws, is not encouraging for ADR users. In a legal proceeding prior to its trial, the disputing parties often view this compulsory mediation as an additional hurdle, an added investment of time and costs with no security of a return. As a result, after the lapse of the statutory period for mediation, the majority of cases return to the normal court system. In the process, it causes further delay in the disposal of cases. And it benefits a party who takes undue advantage of the delay. 

In the UK, the Civil Procedure Rules provide support for the use of ADR through case management and sanctions. The court can penalise a party in costs if it unreasonably refuses to attempt ADR, particularly if it is ordered by the court to do so. To support the use of ADR, the Civil Mediation Council has been set up in 2003, which sets standards for training, practice, and also there exists a standard guideline for fees that may be charged for mediation services.

Bangladesh should introduce necessary amendments to the Code of Civil Procedure 1908 and the Money Loan Court Act 2003 to make ADR, in particular mediation, a meaningful practice for dispute resolution.  

The Writer is an Advocate, Supreme Court of Bangladesh.