Topic: Critically evaluate the scope and potential implications of using different

forms of ADR in the criminal justice system of Bangladesh.

Alternative Dispute Resolution (ADR) is the procedure for settling disputes

without litigation, such as arbitration, mediation, or negotiation. ADR procedures
are usually less costly and more expeditious

One of the primary reasons parties may prefer ADR proceedings is that, unlike
adversarial litigation, ADR procedures are often collaborative and allow the parties
to understand each other's positions. ADR also allows the parties to come up with
more creative solutions that a court may not be legally allowed to impose.

Different types of ADR in legal framework of Bangladesh:

ADR is a means of resolving dispute which is an alternative to going to the court.

It may be any one of the two forms either determinative or elective, all
mechanisms of ADR fall within these two forms. Determinative ADR is any non
court process which will determine the outcome of the dispute. It involves a third
party, whether an arbitrator or an adjudicator or an expert acting as a determinative
capacity. Elective ADR is that which facilitates discussion, which usually turns

into negotiations which does not produce any judgment or finding which is binding
on the parties.31 The various modalities of ADR, Conciliation, Mediation,
Settlement Conference, Arbitration, Minitrial, Negotiation, Appellate ADR,
Village court, Board of Conciliation and Traditional Salish32 which are practiced
in Bangladesh can be classified under the following three categories –

1. Formal/judicial ADR

2. Quasi-formal/statutory ADR

3. Informal /Non-formal ADR

Formal /judicial ADR

This form of ADR indicates those processes of dispute resolution which have been
enumerated in the statutes and conducted either by the court or by the third person
upon the reference of the court. ADR processes in the formal ways are conducted
by the following Statutes of Bangladesh.
1. The Code of Civil Procedure (Amendment) Act, 2003: Mediation

and arbitration have been inserted in section 89A and 89B of the Code

of Civil Procedure, for all civil suits except suits under the Artha Rin

Adalat Ain 2003, through the Code of Civil Procedure (Amendment)

Act 2003. Section 89A stipulates that at any stage, after filing the

written statement, if all the contesting parties are present in person or

by their pleaders apply to the court showing their willingness to settle

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the dispute through mediation, the court may, adjourning the hearing,

mediate in order to settle the dispute or refer the dispute to the engaged

pleaders of the parties or parties, where no pleader has been engaged

or refer to the mediator from the panel as prepared by the district judge

in consultation with the president of the District Bar Association. The

mediator of the panel may be a pleader or retired judge or person

known to be trained in the art of dispute resolution or such other

person or persons as may be deemed to be appropriate for this purpose

but any person holding office of profits in the service of the republic

shall not be qualified for being mediator of the panel. It is also

stipulated that a mediator shall not act as mediator between the parties

if he has been engaged by either of the parties as a pleader in any

suit.33 Mediation has been defined under section 89A as flexible,

Informal, Non-binding, confidential, non-adversarial and consensual

dispute resolution in which the mediator shall facilitate compromise of

the dispute without direction or dictating the terms of such

compromise.34 It is the discretionary power of the court that after the

filing of the written statement, it may either mediate or refer the

dispute to the pleaders or the parties or the mediator for settlement.

Thus, unlike the USA where pre-trial mediation is compulsory but the

judicial mediation in civil suits in Bangladesh is consensual and

voluntary. So the provisions regarding mediation remained mostly

unpractised for making it voluntary for the judges to take step for

mediation, lack of motivation of the concerned judges, ignorance of

the parties and unwillingness of the lawyers.

When reference under s/s (i) is made to the pleaders of the parties, they

shall in consultation with the clients appoint another pleader or a

retired judge or a mediator from the panel or any other person whom

they seem to be suitable. Here the parties have the option to appoint

more than one mediator.35 The procedure of mediation and the fees of

the mediator shall be determined by the parties and pleaders, not by the

court. But when the mediation is conducted by the court then the

procedure of mediation will be determined by the court and no fee will

be charged from the parties.36

A time-frame has been set out for speedy disposal of mediation.

Within 10 days from the reference, the parties shall inform in writing

to the court that whether they have agreed to settle the dispute through
mediation or not and within 60 days from the day on which the court is

so informed the mediation shall be completed unless the time is further

extended for 30 days for the joined application of the parties37. The

mediator shall submit a report regarding the result of the mediation

proceeding. If any settlement is possible, an agreement incorporating

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the terms of settlement shall be reduced to writing signed by the

parties, pleaders and mediator and the court shall pass an order or a

decree following the report of the mediator. Where the court itself

mediates the dispute, it shall also pass an order or decree in the similar

manner. And the court shall issue a certificate directing refund of the

court fees paid by the parties. And no appeal or revision shall lie

against the order or decree passed by the court on the basis of

settlement through mediation38. Where compromise is not possible, the

court shall proceed with the hearing of the suit from the stage at which

the suit stood before the decision to mediate. Where the court itself

tried to settle the dispute through mediation and failed, in that instance,

the suit will be heard by another competent court.39 This rule is

inserted to avoid the biasness of the judges. On the other hand, failure

to settle the dispute shall not limit the option of the parties regarding
withdrawal, adjustment and compromise of the suit under Order23 0f

the C.P.C 1908.40 This provision has made open other methods of

alternative settlement.

It is always open for the parties to withdraw the suit for arbitration

either they have taken the help of mediation or not. Section 89B

provides that if the parties, at any stage of the proceeding, are willing

to settle the dispute through arbitration may apply before the court for

the withdrawal of the suit and refer to the arbitrator and it will be

settled by the arbitrator in accordance with the Arbitration Act 2001.41

Following the massive success of mediation at the trial stage, the

mediation proceeding has been incorporated at the appellate stage by

section 89C of the Code of Civil Procedure through the Code of Civil

Procedure (Amendment) Act 2006. For mediation in appellate stage

the procedure described in section 89A will be followed.42

The Family Courts Ordinance 1985

The most important provisions have been inserted in the Family Courts

Ordinance 1985 for the conciliation between the parties at pre-trial

stage and trial stage of suits concerning divorce, dower, maintenance,

restitution of conjugal life and custody of children. A attempt to settle

the dispute through alternative process is compulsory for the judges.

Section 10 says after the filing of the written statement, the court shall

examine the plaint, written statement and the documents filed by the

parties and if it deems fit, hear the parties. It shall ascertain points at
issue and attempt to reach a compromise between the parties. If no

compromise or conciliation is possible at this pre-trial stage, the court

shall proceed for the trial of the dispute. Section 13 provides that again

the Family Court, after the close of all evidences but before the

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pronouncement of the judgment, shall make an effort to effect

compromise or reconciliation between the parties. These good

provisions on mediation have been inserted in family matters just to

preserve the relationship and peace between the parties.

These healthy provisions on mediation remained unpracticed since the

enactment of the Ordinance due to lack of motivation of the concerned

judges and due to using the adversarial system the judges presiding

over Family Courts were completely ignorant about mediation.43 To

activate ADR provisions in the Family Court a pilot project was taken

in 2000 in the Family Courts of Dhaka. Following the massive success

of these courts it was extended to all the Family Courts in Bangladesh

and different forms of ADR have been introduced by amending many

laws of the country. In mediation in Family Courts the parties can

directly participate in the settlement process and they are allowed to

voice their position in joint session because settlement opportunities

are discussed privately. The parties are helped to realize the result of

the suit if they proceed with the litigation. The most positive result of
it is to provide opportunities to the women, who are unwilling to

expose themselves to public eye going to the court, to directly

participate in the dispute resolution process and voice her grievance

without being condemned by critical eyes because all the activities

performed on mediation in family courts are quite confidential.44

Artha Rin Adalat Ain, 2003

Under sections 21 and 22 of the Artha Rin Adalat Ain 2003, two

modes of the ADR, settlement conference and arbitration, have been

introduced in the commercial dispute. Section 21 defines the

Settlement Conference as a conference comprising the parties, their

lawyers and their representatives and presided over by the judge of the

Artha Rin Adalat for disposing of the suit in an informal, non-binding,

confidential and non-adversarial manner on the basis of mutual

cooperation and understanding of all concerned.”45 Section 21 deals

with the details procedure of the Settlement Conference and section 22

provides for the arbitration of the commercial dispute. After the filing

of written statement the court may, keeping pending all subsequent

proceeding refer the suit to the lawyers of the parties or where no

lawyers have been engaged, to the parties themselves. But where the

parties agree to try and settle the dispute through arbitration, the court

is bound to refer the dispute for arbitration. Inserting the ADR system

in commercial dispute certainly improves the investment in this field.

Quasi-formal ADR
Where the application, jurisdictions and modes of ADR are regulated

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by statute but conducted by a non-judicial body that is Quasi-formal

ADR. Quasi-formal ADR mechanisms in different legislations of

Bangladesh are -

The Muslim Family Laws Ordinance 1961

To make the divorce effective46 the husband after pronouncement of

talaq shall send a notice as soon as possible to the chairman and a copy

of it will also be sent to the wife. From the date of receiving the notice

of talaq within 30 days the chairman shall constitute an arbitration

council which shall take all necessary steps for reconciliation between

the parties. A talaq will not be effective until the expiration of ninety

days from the day on which the notice was delivered to the chairman

or if the wife is pregnant after the pregnancy ends, whichever period is

longer. In what form either Ahsan or Hasan or Bidaat form, the talaq is

pronounced it will be deemed as a single talaq in ahsan form, so

husband can revoke the talaq anytime either expressly or impliedly I.e.

to kiss her or consummate with her or touch her etc or after ninety

days by remarry if it is not for third time. The failure of husband to

give notice to the chairman is deemed to be revocation of talaq.47 In

Abdul Aziz vs. Rezia Khatoon, it was held the non-compliance with

section 7(1) makes talaq legally ineffective.48 Where wife exercise the

delegated right that is talaq-e-tawfez, she must also follow the

procedure of section 7.49 This healthy provision on conciliation has

been incorporated in the Muslim Family Laws Ordinance 1961 to

prevent the separation between husband and wife which is the result of

pronouncement of talaq that usually occurs on sudden anger of

husband. For taking additional wife50 or to get adequate or equitable

maintenance,51 the party must apply before the chairman who will

constitute the arbitration council which will decide these matters in

informal and amicable way without following the procedure of courts.

The Conciliation of Dispute (Municipal areas) Board Act, 2004

The Municipal Board consisting of five members chaired by the

chairman of the municipal area has exclusive jurisdiction without some

exceptions in cases mentioned in the Schedules as per Section 4(1).52

In the proceeding of the Municipal Board, CPC, Cr. P.C and the

Evidence Act will not be applied53 and no party can engage any

advocate in such proceeding54 The Act is entirely on conciliation and

within its framework that the decision of the conciliation board is

mandatory, but right to appeal is open.

The Arbitration Act, 2001

The Arbitration Act 2001 is applicable in respect of recognition and

enforcement of foreign arbitral awards and in relation to a dispute

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arising out of the arbitration agreement entered into before or after the

enforcement of the Act.55 Under the Arbitration Act 2001, arbitration

is mandatory if any dispute falls within the ambit of the Act56 or if any

civil suit, at any stage of it, is withdrawn on the application of the

parties for arbitration then it will be settled in accordance with the

Arbitration Act 2001.57

The Village Court Act, 2006

If any dispute either civil or criminal comes within the ambit of The

Village Court Act 2006, it shall be dealt with by the Village Court

consisting of five members including the chairman who will preside

over the Village Court and each party shall select two members of

which one must be a member of Union parishad. The procedures

enumerated in the Evidence Act, the C.P.C and the Cr.P.C shall not be

applicable in village court and no party has right to engage any lawyer

in proceeding of such court.

The Labour Code, 2006

Chapter 14, section 210(1) to (19) describes the procedures of

mediation, conciliation and arbitration.

ADR Mechanism in Criminal Justice System

In criminal justice system the ADR system has not been properlydeveloped in our
country. A list of petty offences which are compoundable described in section 345
of the Cr.P.C 1898.58

Informal /Non- formal ADR

Disputes are also resolved through alternative methods at the community level in
both civil and criminal matters by non-judicial body, which may be described as
informal ADR. Different NGOs ([Link] Legal Aid Association (MLAA),
Bangladesh Legal Aid and Services Trust (BLAST), Ain O Shalish Kendra (ASK)
and Banchte Shekha (BS) etc) are involved in the dispute resolutions at the
community level.

Recommendations towards an effective ADR system:

No doubt, ADR is efficient and effective towards the promotion of

access to justice, yet there are some weaknesses which are the

impediments to the effective ADR system which are (i) lack of

knowledge and awareness among the people; (ii) inadequate roles

played by the legal professionals;(iii) absence of appropriate and

institutional framework; (iv) absence of trained lawyers and judges

regarding mediation;(v) negative impression among the lawyers

regarding ADR; (vi) non-application of ADR in old cases under

section 89A;(vii) mediation and arbitration are optional under

C.P.C;(viii) in criminal cases non-inclusion of certain petty offences in

the compounding provisions of the Cr.P.C;(ix) want of separate ADR

legislation;(x) deep-rooted faith and mind sets in the traditional

systems; and (xi) the community based ADR mechanism is weakened

by endemic corruption, partisan, conflicting local politics, illiteracy

etc. These impediments can be removed by the implementation of the

following recommendations which will enhance the access to justice

through the effective ADR mechanisms:

1. Various actors like the GOB ministries, the NGOs, the local

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government bodies, the media and other civil society can play an

important role in promoting awareness, popularity and

effectiveness of the ADR mechanism in Bangladesh.

2. The judiciary both civil and criminal may play an important role

towards the effectiveness of the ADR.

3. For the performance of the activities of ADR a separate

institutional framework should be developed and equipped

with proper decorations.

4. Separate skilled and trained mediators should be appointed only

for performing mediations.

5. Separate code can be enacted for the successful ADR in

Bangladesh.

6. Establishment of separate mediation courts, for both civil and

criminal matters, with jurisdictions is essential for the success of

ADR.

7. Family Court Model of Pre-trial hearing should be inserted in all

civil suits.

8. The limitation imposed by section 23 of the Artha Rin Adalat

Ain 2003 must be removed.

9. To acquire success through ADR the attitude of lawyers and

judges must be changed.

10. Legal aid must be given to the poor litigants. For this purpose

the Aingoto Sohayota Prodan Ain 2000 must be amended.

11. Establishment of a statutory body entrusted with the

responsibilities of policy formulating, planning, promoting and

monitoring the overall ADR system of the country.

12. Considering the nature of the dispute the fee of the mediators,

arbitrators and conciliator should be determined by the statute.

13. It is bare necessary to review sec. 345 of Cr.P.C1898 and the list

of compounding offences must be enlarged.

14. In criminal cases ADR is applied only in some C.R cases, so

provisions should be made so that the G.R cases can also be

resolved through ADR.

15. The mediation courts should be established in every Upazila/

Thana