Alternative dispute resolution

M S Siddiqui

THE courts, in the country, are overburdened with cases. Shortage of judges and courts only make the problem more acute. There is little possibility of increasing the number of judges or courts immediately.

According to Law, Justice and Parliamentary Affairs ministry, disposing off over million cases pending with the courts in Bangladesh, would take at least 86 years, if no new case are lodged. Of the cases, 4,946 are pending with the Appellate Division of Supreme court. The pending cases make litigant public suffer as they cause loss to the state. Bangladesh Telecommunication Company Limited (BTCL) filed 16,000 cases to realise Tk 5.40 billion in long overdue bills, and other disputes with its subscribers. The cases are pending before different courts. The law minister recently said the government is unable to realise Taka 77.29 billion in arrear revenue against imports due to as 17,691 cases, pending with the High Court division of the Supreme Court.

The judicial system may collapse unless the remedial steps are taken immediately by the executive and the legislators. Newer litigation together with a quantum jump in the number of cases, increased the load on the judiciary manifold. Litigation against the state as well as government and semi-government entities has increased substantially. Prompt and complete compliance by the state of the court orders is absolutely necessary to bring a litigation to a conclusion.

To reduce the burden on the courts, alternative dispute resolution, known in Bangladesh for long for its efficacy, could be useful. The Panchayat system, introduced in 1870 to locally resolve minor revenue disputes, took off the burden on the court. Only major disputes went to the courts. In 1919, under the Bengal Village Self Government Act, Union Courts were set up to resolve disputes locally. Subsequently, the Bengal government led by Prime Minister Sher-e-Bangla AK Fazlul Haque established the Rin Shalishi Board (Debt Settlement Board) free the peasants from the oppressive moneylenders locally known as 'mahazons'. The landmark Family Court Ordinance of 1961 and the Village Court (Gram Sarker) Act of 1976 authorised the Chairmen of Union Parishads to try and settle local petty cases and small crimes on consensual decision. The local bodies were strengthened in 1985 with additional power to settle matters related to the rights of women and children. The village court consists of UP chairman, members and representatives from concerned parties.

Under the Village Court Act of 1976, the Gram Sarker (village government) could try disputes over property valued not exceeding Tk. 5,000. The village court also has the power to summon a person to stand witness and impose a fine of up to Tk. 500 on contempt charges. This law exists no more.

The Union Parishad, the first local government tier in Bangladesh, has a mandate to settle small local disputes through 'Shalish' (arbitrator). The system involves the village elite in dispute resolution. The decision is binding upon the parties.

Due to political influence, sometimes, biased decisions are taken. Many non-government organisations (NGOs) are, nowadays, involved in mediation between disputants. But, still, the rural people are not acquainted with the alternative dispute resolution system.

Commercial, matrimonial, labour and employment disputes now need litigation for a settlement. But mediation and counselling could be more effective to resolve these matters with emotional angles.

The Artho Rin Adalat Act 2003 stipulates a provision of mediation meeting under the chairmanship of judge of Artho Rin Adalat (Financial Loan Court). But the provision is flawed as banker or lender alone has the option to accept or reject a decision.

In the United Kingdom, alternative dispute resolution became an integral part of the Commercial Courts' own procedure under a Practice Statement issued in December, 1993.

In India, the court feels duty-bound to assist the parties in arriving at out of court settlements in litigations by or against the government or public officers in their official capacity. The court also does it on matters relating to family disputes for matrimonial relief, guardianship, custody, maintenance, adoption, succession and the like.

The Arbitration and Conciliation Act, 1996, as well as the Industrial Disputes Act, 1947 provide for arbitration for industrial disputes settlement.

The Bangladesh Council of Arbitration (BCA), introduced by the Federation of Bangladesh Chambers of Commerce and Industry (FBCCI) for the resolution of commercial disputes through simple, harmonious, in-expensive and speedy process of arbitration has been providing a useful service to the business community to amicably settle disputes.

For the settlement of international commercial disputes, the International Chamber of Commerce (ICC), Bangladesh has established the Bangladesh International Arbitration Centre jointly with the Metropolitan Chamber of Commerce & Industry (MCCI), Dhaka and The Dhaka Chamber of Commerce & Industry (DCCI.). The ICC initiative is mainly to solve the disputes between Bangladesh and foreign businesses.

While the slow, costly and lengthy procedure of formal legal system discourages an aggrieved woman not to seek justice, the informal justice system of Shalish, opened the scope for speedy and inexpensive out-of-court settlement of disputes. But Shalish more often is not fair to women.

It is in this context, that several NGOs, such as BRAC, Ain O Salish Kendra (ASK), Bangladesh National Women Lawyers' Association (BNWLA), Madaripur Legal Aid Association (MLAA), Banchte Sheka 2 etc., began to provide community legal aid especially to women. As these are proving not sufficient to mitigate the problem, then is the need to make a law to facilitate more effective alternative dispute resolution.

It would enable people avoid expensive, lengthy and complete legal procedure, which more often stimulates conflicts for generations.

Alternative dispute resolution is possible through community initiative as well as legal procedures. Societies across the world have long used non-judicial, indigenous methods to resolve disputes.

The Arbitration Act and the amendment to the Code of Civil Procedure, 1908, stipulate alternative dispute resolution of contain categories of commercial, tax and bank loan matters.

The age-old alternative dispute resolution enables people to amicably settle their disputes without going to courts. Though not institutionalised, authorities do not, usually, challenge it. The disputants as well as the community accept it.

In Bangladesh, these are popularly known as 'Shalish' and 'Mimangsha' (settlement and reconciliation). The community leaders, with local knowledge go into the root causes of a dispute in the presence of the two parties, hear the viewpoints of disputants, and try to find a solution acceptable to both. Such dispute resolution through community initiative is commonly known as alternative dispute resolution.

Traditional Dispute Resolution Mechanism implies resolving disputes through negotiation, mediation, reconciliation and arbitration. That way alternative dispute resolution (ADR) is not unknown in Bangladesh. ADR is among three important ways of dispute resolution.

Under the system, the parties in dispute seek a solution through negotiation. The process of negotiation provides the disputants, an opportunity to exchange ideas, identify the irritant points of differences, find a solution, and get the commitment from each other to reach an agreement. Bargaining is a common feature of the negotiation process. This feature makes it different from mediation and arbitration.

In negotiation, a third party may or may not be involved. When a third party is not involved, someone usually takes the initiative to break the ice, brings the parties to the negotiation table and then withdraws from the negotiation process.

In mediation, which is simply an extension of the negotiation process, the mediators are individuals experienced in the negotiation process. If brings disputing parties together and makes attempts to work out a settlement or agreement that the two sides can accept or reject.

Mediation is used for a wide gamut of cases, including interpersonal, local business as well as national issues. Mediation is a third party intervention between conflicting parties to promote reconciliation, settlement or compromise.

In arbitration, the court authorises a neutral person or a third party to resolve dispute at the place of occurrence.

It is easier in arbitration to resolve the dispute, since the dispute is known and understood by all the parties involved. It facilitates meeting all social obligations. The legal procedures involve a process of dispute resolution in a court of law. People go to a court expecting a favourable verdict to have the feeling of victory against the other party. The victory exceeds actual gains. It is a win-lose game. This process often does not end disputes, and leaves permanent scars on the minds of the losing parties. When the losing party gets a chance, it looks for revenge.

Alternative dispute resolution requires the consent of the parties to sit for negotiation with willingness to resolve a dispute. The credibility of the mediator is essential. The parities, instead of sitting immediately, wait for the right time to address the problem.

Initiatives are needed to create awareness about ADR. NGOs could be involved in ADR to resolve disputes of rural women. There may be partnership between government and NGOs for the purpose. The Bar Associations should be involved in other cases where they can play a useful role. Lawyers in developed countries take mediation professionally to settle disputes. The moderators and others involved in ADR should have proper training on law, rule and the practices.

The writer, a part-time teacher at Leading University, can be reached at shah@banglachemical.com