Law analysis
Six years of introducing ADR: Challenges ahead
Md. Abdul Halim
Many countries of the world have adopted Alternative Dispute Resolution (ADR) mechanism and achieved tremendous success in reducing pending cases and access to justice to poor. Apart from introducing ADR mechanism in some special legislation, ADR mechanism has been introduced for the first time in general civil litigation in 2003 by way of the Code of Civil Procedure (Amendment) Act, 2003 (CPC). This Act created three new sections (89A, 89B, 89C) designed for ADR mechanism in all civil suits. Unfortunately the success of ADR in general civil litigation is being frustrated by some legal shortcomings which will be discussed in this write up.
Shortcomings in the provision of CPC: Six years have passed since ADR was introduced in the CPC back in 2003. However, no official statistics on the achievement of ADR is available either at the Ministry of Law or in the Supreme Court. Without substantive reports and statistics from the respective courts it is very difficult to predict how successful the new system of ADR has been and what needs to be done further to develop the system. One thing is very clear from the statistics of pending cases that in last five years situation has not improved at all; rather it has deteriorated as the number of pending cases keeps mounting in a leap frog style. The newly adopted system of ADR has not been kept under review since its inception in 2003. Secondly, some working experience on ADR proceedings in different civil court suggests that there are some important shortcomings in the provisions in section 89A. They are as follows:
Compelling appearance of the parties for mediation: In sub-section (1) of section 89A it is stated that after filing of written statement if all the contesting parties are in attendance in court in person or by their pleaders, the court may by adjourning hearing, mediate. What will happen if either the parties or their pleaders do not attend courts together? Reality is that neither parties nor their lawyers attend the court together; if the lawyer of the plaintiff attends, lawyer of the defendant does not attend and the courts have no other option but to give date one after another. This problem is complemented by another problem. Suppose lawyers of the both the sides appear and the court makes an order for appearing before a mediator for settlement or asks themselves to mediate and report the court, the parties or party does not attend mediation. What is the consequence? This makes the life of the suit lengthier only. The court has not been given any power to impose any penalty or measure as this is the stage even before first hearing. Thus the present provision adds up delays. A mechanism, however, is there in Order X of the Code which has not been made available in case of mediation under section 89A. Provisions in Order X should be linked with section 89A to the effect that both the parties and their pleaders must appear before the court at first hearing which would be also considered for mediation hearing and if any of the parties fail to attend, the court may dismiss the suit or proceed exparte as the case may be. These provisions have also been incorporated in the Indian CPC. Rules 1A, 1B, 1C have been added to Order X of Indian CPC. Without such mandatory penal measures it is very unlikely that lawyers could be compelled to follow provisions of mediation. Sub-rule (2) of Rule 4 empowers the court to dismiss the suit (if the plaintiff fails to appear) or to proceed ex-parte (if the defendant does not appear).
Measure for not attending mediation or not compromising: Very often it is the case that lawyers of both the parties attend mediation meetings. The mediator suggests a compromise between the parties. However, one party does not want to compromise. In such a case the mediator has to give a report of disagreement. There is no measure to be taken against the party which unreasonably withdraws from compromise. In such a situation the court should be armed with power to impose fine to the unreasonable defaulting party and this can be done by making a link with rule 6 of Order XIV of the Code of Civil Procedure.
Incentive for lawyers: To make the provisions of ADR successful the cooperation of lawyers is a must and for their cooperation some incentives from the judiciary is also necessary. This is because lawyers do not want to mediate because if they have to mediate soon after filing and submitting written statement, their income will be limited to only two to three dates. To encourage lawyers to be proactive in mediation as well as to develop a culture and environment of ADR in the country following provisions should be made. First, provision should be made regarding mediator-of-the year. From the panel of mediators, one who has mediated the highest number of suits in a district in the preceding year may be honoured with the title as the mediator-of-the year. Second, provisions should be made regarding advocate-of-the year. Advocate engaged by either of the parties to the suit who has assisted the mediator in arriving at the settlement of highest number of the suit/case in the district may be honoured with the title as Advocate-of-the year. Third, provisions should be made to provide monthly honorium to the Advocate-of-the year and Mediator-of-the year from the Government fund at the rate of Tk. 2000 per month for a period of next 12 months.
Certificate to get back court fees: Sub-section (11) of section 89A provides that on settlement of a suit by mediation the court shall issue a certificate directing refund of court fees within 60 days. Although this provision has been made to encourage mediation by the parties, in fact this has been proved meaningless. No allocation is made in the budget of the Government for this purpose and the accounts offices of the Government refuses to refund as such on the ground of non-allocation of budget. Thus to create a congenial atmosphere of ADR the Government should consider allocating budget for this purpose so that court fees may be returned effectively and without any hassle on mediation. At the same time, necessary provision for return of court fees must be inserted in the Court Fees Act, 1870 as has been done in India also.
Concluding remarks
Given that most of the developed and developing countries have gained tremendous success in reducing pending cases by adopting ADR, Bangladesh should develop its system of ADR without any delay and this should be of prime importance in view of the fact that ADR process can be of great help to strengthen the legal framework, which in turn can certainly bring about changes so that people can get justice quicker.
The writer is Barrister-at-Law, Advocate of the Supreme Court of Bangladesh.
