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LAW OPINION

Reducing case backlog through mediation

Hussain M F Bari
***The following advantages of mediation are well established:
• Party autonomy is the hallmark of mediation so far as its scope and outcome is concerned.
• It is participatory. Parties have the unique opportunity to directly participate in the negotiation.
• The procedure is speedy, efficient and cheap.
• Compliance of the terms of the settlement is another biggest advantage why litigants frequently resort to mediation.
• The process is voluntary, and any party can relinquish it at any stage if she feels that it is not working for her.
• It runs in a familiar, friendly and conducive atmosphere.
• The mediator is a neutral third person.
• Mediation helps improve relationships between the contesting parties.
• At times, mediation is explored as an opportunity to comprehensively resolve all the differences between the parties.
• Mediation always resolves a dispute in a win -win perspective.
• In mediation, creative and non-conventional remedies are also available which satisfy the underlying and long term interests of the parties, even ignoring their legal delicacies.
• Mediation offers finality of decision. As such, there is no scope for any appeal or revision and further litigation.***
MEDIATION is a voluntary, party-controlled and structured negotiation mechanism where a neutral third party assists the contesting parties in resolving their dispute amicably. In mediation, the parties preserve the autonomy to decide for themselves whether to settle a dispute and the terms of any settlement. Even though the mediator facilitates communications and negotiations of both parties, they are always free to settle the dispute. In our society, mediation system has long been in vogue in some traditional form like rural arbitration. So far as formal litigation system is concerned, mediation, along with other methods of Alternative Disputes Resolution (ADR), has been statutorily recognised by the Code of Civil Procedure (Amendment) Act, 2003 & 2006. There are also statutory mandatory provisions for mediation in Family Court Ordinance, 1985, Artho Rin Adalat Ain, 2003.
Mediation is basically conceived as an out-of-court settlement system to avoid time consuming and expensive court procedure.
In spite of mandatory provisions for ADR in various statutes, neither the judges nor the lawyers often resort to this mechanism for multifarious reasons. Judges are apparently over -burdened with huge backlog of cases while the busy lawyers generally took no pain to instruct the parties to adhere to mediation. The contesting parties, being unaware about the cascade effects of litigation, fall in mire of apparently never ending complex legal procedure, which is often more tainted by touts and unscrupulous supporting staff of both bench and bar. The domino effect is the huge backlog of cases and untold sufferings of the litigants.
It has also been observed that indirect causality of separation of magistracy from the executive clutches is the civil courts. Mass appointments/ transfers of (civil) judges to judicial magistracy have created virtual lacunae in the civil courts of lower grades. It has been argued by many that the arduous process of acquiring judicial temperament by exploring law and facts of civil cases is awfully short to many budding judges of civil courts. Similarly, overall standard of bar too has become shockingly poor over the years. In this way, like criminal judicature, the civil courts have also become almost stagnant with mammoth caseload, frequent adjournments, frivolous interlocutory issues, rare execution of decrees, remand, avoiding the civil cases for the sake of criminal cases etc, to mention a very few. Mediation has been forwarded as plausible suggestion to arrest the stumbling block to the smooth functioning of civil courts. However, its proper application is the question of the day.
Though there is no legal bar to settle a dispute outside the court, mediation held under the control and supervision of the court acquires more force, authenticity and acceptance. It is pointed out that mediation is complementary and not contradictory with the court system. The system will get a fair
support from the judges who will accept mediators as an integral part of the system. If reference to mediation is made by the judge to the court sponsored mediation services, the mediation process will become more expeditious and harmonised. It will also facilitate the movement of the case between the court and
the mediator faster and purposeful leaving others for trial in appropriate cases.
Many cynics wrongly argued that mediation would impact negatively on law practitioners. It rather opens a new space for pro-active lawyers to become professional mediators. Furthermore, resolving a legal dispute in speedy manner would encourage other litigants to explore the judicial avenue to solve complicated legal issues. Legally speaking, the lawyers, being court officers, are indispensable part of judiciary without whose positive roles mediation can never be successful. Unlike the judges who lead a rather confined and strict procedure, the lawyers come in contact directly with parties to the suit who feels easy to express their grievances to their lawyers. Members of the bar require to play more positive roles in disposing of cases through mediation. It may be mentioned that many legal aid organisations like Madari Pur Legal Aid Organisation, Ain o Shalish Kendra, Bangladesh Legal Aid & Services Trust etc. are doing commendable job in settling family disputes through mediation. In particular, mediation in family matters has been producing lot of success, thereby easing the backlog of cases.
Judiciary, being ultimate fountain of justice, settles legal disputes in a balanced way and it enjoys the popular confidence. Our judiciary is now encumbered with about 2.7 million cases pending in courts of different tiers. Suggestion may be made that old and petty cases are selected as priority basis and settled summarily preferably in a mediation mechanism. In this way judges and members of the bar in particular should impart their respective support to make mediation a success. It is hoped that mediation will substantially reduce the case backlog and in this way our courts will be able to concentrate on cases involving complicated legal issues.
THE WRITER IS JOINT DISTRICT & SESSIONS JUDGE.