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Mediating legal disputes

Faiyaz Bin Hasan and Imran Anwar
THE notion of resolving legal disputes through Mediation has seen much hype lately following the amendment in -L the Code of Civil Procedure 1908 (CPC) and constructive steps by the Bangladesh International Arbitration (BIAC) in collaboration with the International Finance Corporation (IFC) arranging various trainings in Mediation by the UK based Centre for Effective Dispute Resolution (CEDR) in Dhaka.
Alternative ways of dispute resolution have been globally pulling litigants and lawyers alike towards a more consensual-settlement based approach for a while now. In most developed nations, litigations are increasingly being seen only as the last resort after alternatives have been exhausted. On the contrary, in Bangladesh, litigations although fraught with a lengthy, adversarial, complex and expensive process are seen as the proffered and preferred tool of seeking remedy at the best but wearing down the adversary with ulterior motives in most other cases. Alternative dispute resolution is advised, available and practiced only at a minuscule level.
In Bangladesh, almost 2.3 million cases are pending before the various courts according to a report captioned 'Backlog of cases' published on the Daily Star on March 18,2013. The BIAC published on its website that despite disposal of 1,023,264 cases in 2012, the number of cases pending before courts as on 1st January 2013 was still a staggering 2,454,360. Although the statistics slightly differ, what is important is that the number of pending cases is significant and the need for not only exploring but also practicing alternative ways of resolving disputes has become indispensable. In many cases, the disputes may very well get resolved through Mediation and if not Arbitration if those processes are duly facilitated and advocated. Unfortunately, a considerable number of those proceedings are vexatious and identifying a concocted one is not always the easiest task at the outset for the courts.
The CPC was amended to
give effect to Mediation and Arbitration. Mediation is described in Section 89A of CPC under Explanation (1) as a "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 above-stated provision of the CPC requires the Court [except in a suit under the Artha Rin Adalat Ain, 2003 (Act No. 8 of 2003)| to adjourn the proceeding if all contesting parties are present and either initiate the process of Mediation by itself or refer the Mediation to a member of a predetermined Panel with a restrictive timeline for competition. The benefit of Mediation is that a neutral third party mediator works as a 'shuttle diplomat' between the parties and explores the scopes of concession or compromise without directing or imposing on the parties as to what they should agree. Thus, unlike in court, the ultimate control of the mediation remains in the hands of the parties. While incorporation of the provision regarding Arbitration in the form of section 89B in the CPC deserves its share of accolades in addition to the pre-existing provisions in the Arbitration (Salish Ain) Act 2001 (Act No. 1 of2001), Mediation appears to be a more lucrative proposition over Arbitration in terms of both cost and time if the obstacles that had challenged the increased success of Arbitration in Bangladesh are duly addressed. Arbitration has been around in Bangladesh for a few years; however, its success has indeed been very restricted for a number of reasons.
Firstly, the lack of trained Arbitrators and the perception of the choice of Arbitrators being restricted mostly in retired judges have meant that following the basic principle of demand and
supply. Arbitration is still an expensive and also time consuming process. In case of Arbitration abroad, although the timeframe is more tolerable, the cost consideration is hugely compromised.
Secondly, the hindrance that has impeded greater success of Arbitration and is likely to act in the same way and more in case of Mediation is the lack of incentive to opt for ADR or in other words, there being no factors deterring the litigants from going to court before exploring other options. A litigant's own costs are not always enough to dissuade him from initiating court proceedings and thereby putting the other party through the mental, physical and financial stress and burden involved in litigation. Although in most cases, the parties pray for costs in their respective plaints/petitions etc. and the provision regarding award of cost are dealt with in section 35 of the CPC, there are seldom any awards as to costs by the courts. Section 35(1) in general and 35A (specifically in respect of false or vexatious claims or defences) of the CPC provides for discouraging non-meritorious court proceedings by allowing the Courts the discretion of awarding compensatory costs to parties to cover their expenses. But in practice, the one thing that has become synonymous with Court orders is the expression 'no order as to costs' at the end of the order. Section 35(2) further provides, "Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing." However, the parties and their lawyers hardly ever come across such an occurrence or practice. It is therefore, no wonder that litigious individuals and 'professional plaintiffs' as they are sometimes referred to as, will flock around in the courtrooms and in the process cause delay and often denial of justice to the genuinely aggrieved ones.
Finally, and this is also related to the first reason of lack of expertise, the general mindset of lawyers and through them their clients, calls for a major overhaul. A significant majority of the lawyers earn their bread and butter through litigation and those advising their clients to tty ADR over initiation of Court proceedings are numbered. With an increase in trained Mediators and Arbitrators many of whom may be those lawyers themselves, coupled with gradual acceptance of those ADR professionals in addition to the retired judicial officers will in evety likelihood see an upward trend in lawyers advising their clients to chose Mediation and even Arbitration over litigation.
The purpose of ADR is not to inhibit access to justice but ensuring that a proper approach is followed, thereby reducing burden on courts. Although ADR is an old concept, it only became an integral part of English Civil Procedure in 1998 through the Reports of Lord Justice Woolf. With the courts of Bangladesh being flooded with overwhelming number of claims, it is perhaps about time that we appreciate the concept of ADR and take appropriate steps to facilitate Mediation and Arbitration not merely by bringing amendments in the laws but also enforcing them. With organisations like IFC and BIAC actively working on structuring Rules for Mediation and setting up the scene by preparing ADR professionals, the Courts and lawyers now need to work towards making ADR a voluntary and favoured choice of potential litigants over and above court proceedings. The chances of Mediation overcoming difficulties encountered by the process of Arbitration shall much depend on whether it is imposed or voluntary as well as due adherence to the laws and rules by the courts and code of ethics by the learned lawyers of the nation.
THE WRITERS ARE ADVOCATE, BANGLADESH SUPREME COURT, AND