Chapter 1

Introduction

1.1 Introduction:
The legal system in Bangladesh is the legacy of the British rule in the sub-continent. Most of
the laws of that time have been adapted and are still in force with certain minor changes here
and there in the title and reference to the country1.
"It is the spirit and not the form of law that keeps the justice alive." LJ Earl Warren The
disillusionment and frustration of people over the inordinate delay in dispensation of justice
today looms large as a great threat to erode the confidence of people in the justice system of
the country. It is the constitutional obligation of the judiciary to exercise its jurisdiction to
reaffirm the faith of the people in the judicial set up. Therefore, evolution of new juristic
principles for dispute resolution is not only important but imperative. Alternative Dispute
Resolution (ADR) is an alternative route for reaching a speedier and less-expensive mode of
settlement of disputes. It includes mediation, settlement of disputes, arbitration and other
ways that are voluntary and not compulsory. Alternative dispute resolution (ADR) (also
known as external dispute resolution in some countries, such as Australia includes dispute
resolution processes and techniques that act as a means for disagreeing parties to come to an
agreement short of litigation2. Bangladesh not only the country which suffers stockpiling up
of courts cases. The developed countries such as United States of America, United Kingdom,
Canada and Australian suffer from this problem however in lesser degree. The Supreme
Court India has made a critical observation regarding the civil litigation:
“It has to be admitted frankly and fairly that there has been erosion of faith in the
dignity of the court and in the majesty of law and that has been caused no so much
by the scandalizing remarks made by politicians or ministers but the inability of the
court of law to deliver quick and substantial justice to the needy……justice cries
for long, far too long. The procedural wrangle is eroding the faith in our justice

1
Huq, Dr. Naima; ADR: Recent Changes in the Civil Process, Dhaka University Studies, part F, pp
37-58, Vol.15, June 2004.
2
Totaro, Gianna., “Avoid court at all costs” The Australian Financial Review Nov. 14 2008. (April 19,
2010), [Link] visited on 28th August,2012.

1
 system. It is a criticism which the judges and lawyer must make about themselves.
We must turn the search light inward”.3
The observation is valid in respect of our legal system. The justice system universally faces
crises of confidence. The public faith in court system is so low, and the cost of using them is
so high, that the party sometimes foregoes legitimate claims and shoulder substantial losses
rather than file a suit or case for adjudication. Therefore ADR as a compliment to formal
court process has already emerged as a significant movement and the various system of ADR
are gaining increasing recognition and acceptance all over the world and recently also in
Bangladesh legislative amendments have been introduced in the in civil process by
introducing ADR.

1.2 Background to the Study:

Due to the problem faced in the adversarial system, the ADR system gets increasing
recognition and acceptance all over the world as well as in the subcontinent and also in
Bangladesh. Though it is a new criteria of our formal legal system but this system can be seen
in our informal social justice system centuries long before.
Though the introduction of this system in Bangladesh is made very recently with great hope it
is facing many problems due to insufficient legal provisions and public conscience. This
represents a serious gap in the knowledge and implementation process required for the
efficient use of ADR system in Bangladesh.

1.3 Aim:
The aim of the research is to draw a line between the root of the ADR system and its’ present
scenario with the intention to find out a solution to the problem that the ADR system is facing
nowadays in Bangladesh.

1.4 Scope and Limitation:

The thesis is limited to the aim of the research to find out the way to have efficient ADR
system to provide easier access to justice, depending on the experience the ADR system have
gone through.
1.5 Overview of the Study:
3
AIR 1988 sc,1208 at p. 1217

2
The first two chapter deals with the introductory explanation of the thesis relating to the
origin and development of ADR system. Chapter 3 looks at process, how does the ADR
system comes to the present status from the ancient social justice system. Chapter 4
specifically notified the recognition of ADR system through national and international
legislature. Based on chapter 3 chapter 4 shows the present statutory recognition of ADR in
the sob-continent as well as in the international level.

However in chapter 5 I tried to find out the practical scenario of the ADR system in
Bangladesh context by collecting information through interviewing practicing lawyers.
Finally in chapter 6 some recommendation has been provided necessary to get rid of the
existing problem in the ADR system and conclusions are drawn in chapter 7.

3
 Chapter 2
Reviews of Theory

The previous workers, written upon the ADR system, only tried to explain the system as
alternative to the normal court system. The history or origin of the ADR has been dealt in
their writings but no exhaustive correlation or link has been drawn between the origin and its’
present status. K. Jayachandra Reddy in his writing “Alternative Dispute Resolution, in
Alternative Dispute Resolution: what it is and how it works, edited by P.C. Rao and William
Sheffield, Universal Law Publishing Co. Pvt. Ltd. 1997”only explains what ADR system is
and how it works. However Justice Mustafa Kamal (Former Chief Justice of Bangladesh)
made a critical analysis of the ADR system and provide few recommendation for the
successful implementation of the ADR system in Bangladesh perspective. In the present
thesis in chapter 5 the reason behind the unsuccessful implementation of ADR system has
been dealt with and in chapter 6 some recommendation has been provided necessary for the
successful implementation of the ADR in Bangladesh.

2.1 Research Methodology:

In order to conduct research varieties of methods available and each of the methods has its
own strengths and weakness as well as certain concepts. Each type of methods is effective in
particular area of study which may not be appropriate to another particular area of study.
However the present study has been conducted through a qualitative research method. Several
methods have also been employed in different areas of the study. The study is mainly about
general observation, informal interview and literature review.

4
 Chapter 3

Development of ADR System

3.1 The Concept of ADR:

The concept of Conflict Management through Alternative Dispute Resolution (ADR) has
introduced a new mechanism of dispute resolution that is non adversarial. A dispute is
basically 'lis inter partes' and the justice dispensation system has found an alternative to
Adversarial litigation in the form of ADR Mechanism. New methods of dispute resolution
such as ADR facilitate parties to deal with the underlying issues in dispute in a more cost-
effective manner and with increased efficacy. The resolution of disputes takes place usually
in private and is more viable, economic, and efficient. Transcending national boundaries it
renders proportionate judgments over the merchants' disputes, as the Law Merchants of
Medieval ages rendered justice in light of "fair price", good commerce, and equity 4.

3.2 ADR and Its Development:

Gandhiji said: "I had learnt the true practice of law. I had learnt to find out the better side of
human nature, and to enter men's hearts. I realized that the true function of a lawyer was to
unite parties given as under. The lesson was so indelibly burnt unto me that the large part of
my time, during the twenty years of my practice as a lawyer, was occupied in bringing about
private compromises of hundreds of cases. I lost nothing, thereby not even money, certainly
not my soul."5

Conflict is a fact of life. It is not good or bad. However, what is important is how we manage
or handle it. Negotiation techniques are often central to resolving conflict and as a basic
technique these have been around for many thousands of years. People of different groups

4
Alternative Dispute Resolution at [Link]
visited on 23rd August,2012

5
[Link] visited on 21st August,2012

5
like Bushmen of the Kalahari6, Hawaiian islanders of Polynesian, Kpelle of Central Liberia,
Abkhazian of the Caucasus Mountains of Georgia of former Soviet Union, Yoruba of Nigeria
used their traditional instruments to dissolve their disputes, which have similarities with
modern ADR. ADR was practiced ancient China and Greece. In Indian sub-continent, there
was a similar system of ‘Panchayat’.
Today’s Alternative Dispute Resolution (ADR) is the outcome of this ancient social justice
system. Alternative Dispute Resolution (ADR) is an alternative to the Formal Legal System.

3.3 International Development:

ADR originated in the USA in a drive to find alternatives to the traditional legal system, felt
to be adversarial, costly, unpredictable, rigid, over-professionalized, damaging to
relationships, and limited to narrow rights-based remedies as opposed to creative problem
solving. The American origins of the concept are not surprising, given certain features of
litigation in that system, such as: trials of civil actions by a jury, lawyers' contingency fees,
lack of application in full of the rule “the loser pays the costs".
Beginning in the late nineteenth century, creative efforts to develop the use of arbitration and
mediation emerged in response to the disruptive conflicts between labor and management. In
1898, Congress followed initiatives that began a few years earlier in Massachusetts and New
York and authorized mediation for collective bargaining disputes. In the ensuing years,
special mediation agencies, such as the Board of Mediation and Conciliation for railway
labor, (1913) (renamed the National Mediation Board in 1943), and the Federal Mediation
and Conciliation Service (1947) were formed and funded to carry out the mediation of
collective bargaining disputes. Additional state labor mediation services followed. The 1913
New lands Act and later legislation reflected the belief that stable industrial peace could be
achieved through the settlement of collective bargaining disputes; settlement in turn could be
advanced through conciliation, mediation, and voluntary arbitration. 7
At about the same time, and for different reasons, varied forms of mediation for non-labor
matters were introduced in the courts. When a group of lawyers and jurists spoke on the topic
to an American Bar Association meeting in 1923, they were able to assess court-related
conciliation programs in Cleveland, Minneapolis, North Dakota, New York City, and
6
The Bushmen are hunter-gatherers living in a large, arid plain in Namibia and Bostwana.
7
[Link] visited on 21st
August,2012

6
Milwaukee. Conciliation in a different form also appeared in domestic relations courts. An
outgrowth of concern about rising divorce rates in the postwar 1940's and the 1950's, the
primary goal of these programs was to reduce the number of divorces by requiring efforts at
reconciliation rather than to facilitate the achievement of divorces through less adversarial
proceedings. Following privately funded mediation efforts by the American Arbitration
Association and others in the late1960s, the Community Relations Service (CRS) of the
United States Department of Justice initiated in 1972 a mediation program for civil rights
disputes.8
In England many critics believe that, the adversarial system has run into the sand, in that day,
delay and cost are too often disproportionate to the difficulty of the issue and amount at stake.
The solution now being followed to that problem requires a more interventionist judiciary:
the trial judge as the trial manager. 9When Lord Wolf began his examination of the civil law
process in England and Wales, the problem facing those who used the system were many and
varied. His interim published in June 1995 identified those problems.10 He noted for example:

“….the key problem facing civil system are now cost, delay, and complexity. These three are
interrelated and stem from the uncontrolled nature of the litigation process. In particular
there is no clear judicial responsibility for administration of the civil courts. Just as the
problems are interrelated, so to the solutions. Which I propose are interdependent in many
instances, the failure of previous attempts to address the problem stems not from the solution
proposed, but from their partial rather than the complete implementation.” 11 (Emphasis
supplied)

Lord Wolf while publishing his interim report stated that the main responsibility for the
initiation and conduct of proceedings rested with the parties to each individual case, and it
was normally the plaintiff who set the pace. Thus Lord Wolf noted:

“Without effective judicial control…….the adversarial process is likely to encourage an

adversarial culture and to degenerate into an environment in which the litigation process is
8
[Link] visited on 21st August,2012
9
Thermawear v Linton(1995)CA ,cited in Slapper, Gary & Keily, David,(2001),The English Legal
System, Cavendish publishing Ltd.,London,p.257
10
Huq,Naima; ADR: Recent Changes in the Civil Process, Dhaka University Studies, part F, vol.
xv(1)pp.37-58,June 2004.
11
Access to Justice , Interim Report, 1995, p.5, ,cited in slapper, Gary & Keily, David,(2001),The
English Legal System, Cavendish publishing Ltd.,London,p.258.

7
too often seen as battle field where no rules apply. In this environment, question of expense,
delay and compromise and fairness have only a low priority. The consequence is that the
expense is often excessive, disproportionate and unpredictable and delay is frequently
unreasonable.12”

His three main aspects of reforms were:

(i) Judicial case management.

(ii) Pre-action protocols.
(iii) Alternatives to going to court.

Even with that change in the civil procedure for expeditious disposal through the traditional
court process the reformer gave importance to the alternative dispute resolution.

Although a small number of individual lawyers had been interested in and were practicing
mediation ADR in Britain for some years, it was only in 1989 when the first British based
ADR company - IDR Europe Ltd. - bought the idea across the Atlantic and opened its doors
for business. This was the start of ADR Group. Since then many other ADR organizations,
including CEDR (Centre for Dispute Resolution), followed suite and assisted in the
development and promotion of ADR in the UK.13

ADR, or mediation (as it is now synonymously known as), is used world-wide by

Governments, corporations and individuals to resolve disputes big or small, of virtually any
nature and in most countries of the world.

In developing countries where most people opt for litigation to resolve disputes, there is
excessive over-burdening of courts and a large number of pending cases, which has
ultimately lead to dissatisfaction among people regarding the judicial system and its ability to
dispense justice. This opinion is generated largely on the basis of the popular belief, “Justice
delayed is justice denied”. However, the blame for the large number of pending cases in these
developing countries or docket explosion, as it is called, cannot be attributed to the Courts
alone. The reason for it being the non-implementation of negotiation processes before
litigation. It is against this backdrop that the mechanisms of Alternative Dispute Resolution

12
supra note at 16 at p.258.
13
[Link] visited on 21st August,2012

8
are being introduced in these countries. These mechanisms, which have been working
effectively in providing an amicable and speedy solution for conflicts in developed
economies, are being suitably amended and incorporated in the developing countries in order
to strengthen the judicial system. Many countries such as India, Bangladesh and Sri Lanka
have adopted the Alternative Dispute Resolution Mechanism. However, it is for time to see
how effective the implementation of these mechanisms would be in these countries.

3.4 Development of ADR in Bangladesh and Sub-continent:

ADR is by no means a recent phenomenon in subcontinent, though it has been organized and
systematized, expressed in clearer terms, employed more widely in dispute resolution in
recent years than before. In earlier times, disputes were peacefully decided by intervention of
kulas (family or clan assemblies), srenis (guilds of men following the same occupation),
parishads (assemblies of learned men who knew law) before the king came to adjudicate on
disputes. There were Nyaya panchayats at grass root level before the advent of the British
system of justice. This council used to decide simple civil and criminal disputes of a purely
local character. Though the decisions given by the panachayats were based on local custom
and weren’t strictly in accordance with once the law of the land, still there was no
interference in the working of the panchayats. Even during the Muslim rule in the
subcontinent this ancient system was to a great extent, not disturbed 14. However with the
advent of British raj these traditional institutions of dispute settlement somehow started
withering and the formal legal system introduced by the British began to rule on the basis of
the concept of omission of rule of law and the supremacy of law.15

Then in Pakistan conciliation procedure was used as a mode of dispute resolution under the
conciliation court ordinance.1961 which dealt with minor civil and criminal matters. This
ordinance was applicable to both village and town. Later with the emergence of Bangladesh
two ordinances were enacted with similar provisions to that of conciliation of court

14
See Kulshreshtha, V-D; Landmarks in Indian Legal and Constitutional History,4 th Edition, Eastern
Book Company,Lucknow,[Link].6-25
15
Reddy,KJayachandra, Alternative Dispute Resolution, in Alternative Dispute Resolution: what it is
and how it works, edited by P.C. Rao and William Sheffield, Universal Law Publishing Co. Pvt. Ltd.
Pp -79-81at 79, 1997.

9
ordinance.1961: one is the village court ordinance, 1976(LXI of 1976) which was amended
by the village courts (Amendment) Ordinance. 1979 (Ordinance no. iv of 1979) and the other
is the conciliation of dispute (Municipal areas) Ordinance, 1979(Ordinance no. v of 1979).

A recent UNDP report on Bangladesh gives a finding that village elders settle 60 to 70 per
cent of petty disputes between villagers who dare not approach the formal legal system for
fear of delay and expenses16.

The newness of ADR is the purpose behind its adoption. The purpose of alternative dispute
resolution is not to substitute consensual disposal for adversarial disposal or to abolish or
discourage informal mediation or arbitration outside the courts, but to make alternative
dispute resolution a part and parcel of the formal legal system, preserving the trial court's
statutory authority and jurisdiction to try the case should A.D.R. fail. Mediation or arbitration
conducted by village elders and some NGOs are praiseworthy efforts, but these efforts, by
themselves, have not solved the civil court's own specific problems, namely, backlog of
cases, delay and expenses in litigation. Our formal court system has not been directly and
permanently benefited by these extra-judicial exercises. If out of court mediation continues
and an exclusively adversarial system also continues in our legal and judicial system, then the
formal court system will unlikely help reduce backlog, as also unlikely ever to be as speedy
and as least expensive as we would like it to be. It will be prudent, therefore, to inject some
doses of consensual resolution into an otherwise exclusively adversarial system. If we make
alternative dispute resolution an integral part of our legal and judicial system, litigants and
potential litigants will not feel insecure to live in a legal climate where justice can be had
from the formal legal system only through a process of inordinate delays and overburdening
expenses.

Chapter 4

16
Kamal, Justice Mustafa (Former Chief Justice of Bangladesh), Keynote Paper presented at a
National Workshop on October, 31, 2002, organized by Ministry of Law, Justice and Parliamentary
Affairs, legal and Judicial Capacity Building Project, BCR 2004, Vol:XXIV, January, pp. 4-14.

10
 Statutory Recognition of ADR across the World

4.1 International Recognition:

The various institutions having provisions governing the ADR mechanisms 17 all over the
world are listed below:
a) Permanent Court of Arbitration (PCA)
b) World Trade Organization (WTO)
c) International Chamber of Commerce (ICC)
d) Court of Arbitration for Sport (CAS)
e) United Nations Commission on International Trade Law (UNCITRAL)

4.2 Different Recognized Forms of ADR:

Alternative dispute resolution encompasses a range of means to resolve conflicts short of
formal litigation. The modern ADR movement originated in the United States in the 1970s,
spurred by a desire to avoid the cost, delay, and adversarial nature of litigation. ADR today
falls into two broad categories: court-annexed options and community-based dispute
resolution mechanisms. Court-annexed ADR includes mediation/conciliation—the classic
method where a neutral third party assists disputants in reaching a mutually acceptable
solution, as well as variations of early neutral evaluation, a summary jury trial, a mini-trial,
and other techniques.
It can be distinguished as binding and non-binding forms of ADR. Negotiation, mediation
and conciliation are non-binding forms, and depend on the willingness of parties to reach a
voluntary agreement. Arbitration programs may be binding or [Link]
explanation of the various kinds of ADR mechanisms:

4.2.1 Arbitration:
Arbitration, in the law, is a form of alternative dispute resolution —specifically, a legal
alternative to litigation whereby the parties to a dispute agree to submit their respective
positions (through agreement or hearing) to a neutral third party (the arbitrator(s) or
arbiter(s)) for resolution.18
17
[Link] visited on 21st August,2012
18
[Link] visited on 23rd August,2012

11
4.2.2 Mediation:
Mediation is a process of alternative dispute resolution in which a neutral third party, the
mediator, assists two or more parties in order to help them negotiate an agreement, with
concrete effects, on a matter of common interest; lato sensu is any activity in which an
agreement on whatever matter is researched by an impartial third party, usually a
professional, in the common interest of the parties.

4.2.3 Conciliation:
Conciliation is an alternative dispute resolution process whereby the parties to a dispute
(including future interest disputes) agree to utilize the services of a conciliator, who then
meets with the parties separately in an attempt to resolve their differences. Conciliation
differs from arbitration in that the conciliation process, in and of itself, has no legal standing,
and the conciliator usually has no authority to seek evidence or call witnesses, usually writes
no decision, and makes no award. If the conciliator is successful in negotiating an
understanding between the parties, said understanding is almost always committed to writing
(usually with the assistance of legal counsel) and signed by the parties, at which time it
becomes a legally binding contract and falls under contract law.19

4.2.4 Expert Determination:

Expert determination is a historically accepted form of dispute resolution invoked when there
isn't a formulated dispute in which the parties have defined positions that need to be subjected
to arbitration, but rather both parties are in agreement that there is a need for an evaluation,
e.g. in a preceding contract. The first mention that distinguishes it specifically against the
practice of arbitration, and introduces the formula "as an expert and not as an arbitrator" was
in Dean v. Prince 1953 Ch. 590 at 591 (misquoted) and subsequently on appeal in the year
1954 1 Ch. 409 at 415.20

4.2.5 Negotiation:

19
[Link] visited on 21st August,2012
20
[Link] visited on 21st August,2012

12
Negotiation is the process whereby interested parties resolve disputes, agree upon courses of
action, bargain for individual or collective advantage, and/or attempt to craft outcomes which
serve their mutual interests. Given this definition; one can see negotiation occurring in almost
all walks of life, from parenting to the courtroom.21

4.2.6 Early Neutral Evaluation (ENE):

A court-based ADR process applied to civil cases, ENE brings parties and their lawyers
together early in the pre-trial phase to present summaries of their cases and receive a non-
binding assessment by an experienced, neutral attorney with expertise in the substance of the
dispute, or by a magistrate judge. The evaluator may also provide case planning guidance and
settlement assistance in some courts. It is purely used as a settlement device and resembles
evaluative mediation.22

4.2.7 Fact-finding:
A process by which a third party renders binding or advisory opinions regarding facts
relevant to a dispute. The third party neutral may be an expert on technical or legal questions
may be representatives designated by the parties to work together, or may be appointed by the
court.23
4.2.8 Others:
There are many other forms of ADR, such as:
1. Med-Arb, or Mediation-Arbitration
2. Judge hosted settlement conference
3. Mini-trial
4. Court based mini-trial
5. Regulatory Negotiation or Reg-Neg
6. Ombudsperson
7. Private Judging
8. Two - track approach

21
[Link] visited on 21st August,2012
22
[Link] visited on 21st August,2012
23
Ibid.

13
4.3 Statutory Recognition of ADR in Bangladesh:

Very recently the Code of Civil Procedure (Amendment) Act,2003(Act No.4 od 2003)and
Artha Rin Adalat Act,2003 (Act no.8 of 2003) introduced ADR mechanism in the broad spare
of civil litigation. The Code of Civil Procedure (Amendment), Act, 2003 has incorporated
court annexed mediation as “Alternative Dispute Resolution” in part v under the heading of
special proceedings. In sections 89A and 89B of the Code of Civil Procedure ‘Mediation’ and
‘Arbitration’ respectively have been incorporated within existing civil court system. The
Arbitration Act, 1940 in Bangladesh included statutory arbitration provided under the statutes
that were governed and regulated by the law and procedures laid down by the Arbitration
Act, 1940. The Arbitration Act 1940 is, however repealed by the new Act, Salish Ain, 2001
or the Arbitration Act, 2001 (Act no1 of 2001). in respect of loan recovery suits at the
instance of bank and financial institution The Artha Rin Adalat Act,2003 has introduced
similar built in procedure in the proceeding under section 21 titled , “Settlement
Conference.” and under section 22 title “Mediation”. The intention of the legislature appears
to avoid vexation, expense and delay, to improve quality and pace of civil justice delivery
system, to reduce backlogs of cases, to inspire confidence of the litigant in the civil justice
system and to make the system more accessible to public at large. The ADR mechanisms
involve the use of lawyers to try to resolve disputes at an early stage by using mediation. The
statutory provisions are hereunder24:

4.3.1 The Code of Civil procedure, 1908:

The Code of Civil Procedure, 1908 provides for the provisions of ADR through section 89A,
89B and 89C. In 2003 through 3 rd Amendment of the CPC these provisions have been
inserted. Here it is said that if a l l t h e c o n t e s t i n g p a r t i e s a r e i n a t t e n d a n c e i n t h e
C o u r t i n p e r s o n o r b y t h e i r respective pleaders, the Court may, by adjourning the
hearing, mediate in order to settle the dispute or disputes in the suit, or refer the dispute or
disputes in the suit to the engaged pleaders of the parties, or to the party or parties, where no

24
[Link]
The_Development_of_Alternative_Dispute_Resolution_in_the_Statutory_Laws_of_Bangladesh_A_Cr
itical_Analysis, visited on 21st August,2012.

14
pleader o r p l e a d e r s h a v e b e e n e n g a g e d , o r t o a m e d i a t o r f r o m t h e
p a n e l a s m a y b e prepared by the District Judge under sub-section (10), for undertaking
efforts for settlement through mediation 25 .M o r e o v e r s e c t i o n 8 9 A 2 6 o f t h e C P C
s a y s a b o u t different procedures for Mediation where section 89B 27 and 89C says
about the Arbitration and Mediation in Appeal. As the basic process of ADR is Negotiation,
Mediation and Arbitration, the Code of Civil Procedure has rightly discussed the basic ADR
process.

4.3.2 The Artha Rin Adalat Ain, 2003:

Artha Rin Adalat or Money Loan Court was established under a law in 1990 to
adjudicate the cases relating to the recovery of l o a n s of financial
i n s t i t u t i o n s . E a r l i e r , t h e c a s e s f o r l o a n r e c o v e r y w e r e t h e jurisdiction of
25
Section-89A(1) of the Code of Civil Procedure, 1908
26
89A.(1) Except in a suit under the Artha Rin Adalat Ain, 1990 (Act No. 4 of 1990), after filing of
written statement, if all the contesting parties are in attendance in the Court in person or by their
respective pleaders, the Court may, by adjourning the hearing, mediate in order to settle the dispute or
disputes in the suit, or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or
to the party or parties, where no pleader or pleaders have been engaged, or to a mediator from the
panel as may be prepared by the District Judge under sub-section (10), for undertaking efforts for
settlement through mediation:
Provided that, if all the contesting parties in the suit through application or pleadings state to the Court
that they are willing to try to settle the dispute or disputes in the suit through mediation, the Court shall
so mediate, or make reference under this section.
(4) Within ten days from the date of reference under sub-section (1), the parties shall inform the Court
in writing as to whether they have agreed to try to settle the dispute or disputes in the suit by mediation
and whom they have appointed as mediator, failing which the reference under sub-section (1) will
stand cancelled and the suit shall be proceeded with for hearing by the Court; and should the parties
inform the Court about their agreement to try to settle the dispute or disputes in the suit through
mediation and appointment of mediator as aforesaid, the mediation shall be concluded within 60
(sixty) days from the day on which the Court is so informed, unless the Court of its own motion or
upon a joint prayer of the parties, extends the time for a further period of not exceeding 30 (thirty)
days.
27

89B.(1) If the parties to a suit, at any stage of the proceeding, apply to the Court for withdrawal of the
suit on ground that they will refer the dispute or disputes in the suit to arbitration for settlement, the
Court shall allow the application and permit the suit to be withdrawn; and the dispute or disputes,
thereafter, shall be settled in accordance with Salish Ain, 2001 (Act No. 1 of 2001) so far as may be
applicable:
Provided that, if, for any reason, the arbitration proceeding referred to above does not take place or an
arbitral award is not given, the parties shall be entitled to re-institute the suit permitted to be withdrawn
under this sub-section.
(2) An application under sub-section (1) shall be deemed to be an arbitration agreement under section 9
of the Salish Ain, 2001 (Act No. 1 of 2001).

15
the general civil courts. To strengthen the Artha Rin Adalat (Money Loan Court), the law a
new Artha Rin Adalat Ain was enacted in 2003. Under the law specialized courts for
the settlement of disputes between the borrowers and the lenders were established in the
premises of the District Judge's Court. A civil court, the money loan court has all the powers
of the civil court. The Artha Rin AdalatAct,2003 has introduced similar built-in procedure in
the proceeding under section21, “settlement conference.”

4.3.3 The Arbitration Act:

Bangladesh has recently enacted the Arbitration Act, 2 0 0 1 ( t h e A c t ) . I t c a m e
i n t o f o r c e o n 1 0 A p r i l 2 0 0 1 , r e p e a l i n g t h e A r b i t r a t i o n (Protocol and
Convention) Act 1937 and the Arbitration Act 1940, legacies of the British Raj in
India. The new Act was again amended in 2004 in certain respects. Such legislative
steps were urgent in the face of increasing foreign investment in Bangladesh in
various sectors, especially in natural gas and power, and the ever- g r o w i n g e x p o r t
t r a d e w i t h t h e r e s t o f t h e w o r l d . T h e A c t c o n s o l i d a t e s t h e l a w relating to both
domestic and international commercial arbitration.

4.3.4 The Bankruptcy Act, 1997:

In Bangladesh there were two laws – The Insolvency ( D a c c a ) A c t , 1 9 0 9 a n d t h e
I n s o l v e n c y A c t , 1 9 2 0 . T h e B a n k r u p t c y A c t , 1 9 9 7 enacted on 11-03-1997 coming
into force on 01 August 1997 has repealed both the Acts and re-enacted the law on
insolvency using the expression “bankruptcy” in place of “insolvency”. Bangladesh is
on its way in its strides to achieve the goal of developing the areas of insolvency
and creditor rights systems, marching a h e a d h a n d i n h a n d w i t h o t h e r m e m b e r s
o f t h e c o m m u n i t y o f n a t i o n s a n d t h i s system of Bankruptcy inserts a new system of
ADR in Bangladesh.

4.3.5 The Muslim Family Court Ordinance, 1985:

Family Courts were established in t h e c o u n t r y i n 1 9 8 5 t o d e a l w i t h t h e f a m i l y
a f f a i r s r e l a t i n g t o d i s s o l u t i o n o f marriage, restitution of conjugal rights, dower,
maintenance, guardianship and c u s t o d y o f c h i l d r e n . However, the Ordinance has

16
not, in fact, prescribed for establishment of any special type of court to be presided over by
any judge with special qualification, skill or experience. As matter of fact, all Courts of
Assistant Judge are required to act as Family Courts and all Assistant Judges as the judges
of Family Courts. Consequently, it seems that the same judges and same courts are
dealing with the same matters but following somewhat upgraded, not
w h o l l y different, procedure prescribed by the Family Courts Ordinance 1985. Then what is
the dynamism in a Family Court that makes the court different from others? The
answer is 'Mediation'. Mediation which itself is a dispute resolution mode finds its place in
the formal court system for the first time through the Family Courts. The emphasis on the
mediation in the Family Courts is vivid at least in two places of the Family Courts
Ordinance 1985. Section 10 is a place which provides for Pre-trial Proceeding as:
when the written statement is filed, the Family Court shall fix a date ordinarily of not more
than thirty days for a pre-trial hearing of the suit, on the date fixed for pre-trial hearing, the
Court shall examine the plaint, the written statement (if any) and the summary of
evidence and documents filed by the parties and shall a l s o , i f i t s o d e e m s f i t ,
hear the parties. But if such mediation fails to reach a compromise, then
t h e C o u r t s h a l l f r a m e t h e i s s u e s i n t h e s u i t a n d f i x a d a t e f o r recording
evidence, as is usual in case of any suits in the civil courts. But the door for
mediation is not closed herewith.

4.3.6 The Muslim Family Law Ordinance, 1961:

Muslim Family Laws Ordinance of 1961 provides some restricted facilities for women.
The husband must give notice of talaq to the wife through proper channel for
breakdown of a marriage. He must take permission of the wife before a second marriage.
Polygamy is curtailed by this Ordinance. Any dispute under the Muslim Family Law
ordinance, 1961 will be solved by the arbitration council. According to section 6 of the
Muslim F a m i l y L a w O r d i n a n c e , 1 9 6 1 ,n o m a n , d u r i n g t h e s u b s i s t e n c e o f
a n e x i s t i n g marriage, shall, except with the previous permission in writing of the
Arbitration Council, contract another marriage, nor shall any such marriage contracted
without s u c h p e r m i s s i o n b e r e g i s t e r e d u n d e r t h e M u s l i m M a r r i a g e s
a n d D i v o r c e s (Registration) Act, 1974 (LII of 1974)]. 28An application for permission

28
Section 6(1) of the Muslim Family Law Ordinance, 1961

17
under sub-section (1) shall be submitted to the Chairman in the prescribed manner,
together with the prescribed fee, and shall state the reasons for the proposed
marriage, and whether the consent of the existing wife or wives has been obtained
thereto. 29 In deciding the application the Arbitration Council shall record its
reasons for the decision, and any party may, in the prescribed manner, within
the prescribed period, and on payment of the prescribed fee, prefer an application for revision
to the Assistant Judge concerned and his decision shall be final and shall not be called in
question in any Court. 30

4.3.7 The Village Courts Act, 2006:

To solve the disputes and wrongful activities in the village areas of Bangladesh the
Village Court Act, 2006 has been passed in 2006, from that time it works properly
and contributes more and more to develop the ADR system in Bangladesh.

Where any case falls under the jurisdiction of the of the V i l l a g e C o u r t , a n y p a r t y

o f t h e c a s e m a y a p p l y t o t h e C h a i r m a n o f t h e U n i o n Parishad with due
process of law to establish the Village Court to try the case 31 .

Any aggrieved person for disallowing application under sub-section (1), may apply for
revision against to the assistant judge32.

4.3.8 The Conciliation of Disputes ( Municipal Areas) B o a r d A c t ,

2004:
The Settlement o f D i s p u t e s ( P a u r a A r e a ) B o a r d A c t , 2 0 0 4 p r e s c r i b e s
d i f f e r e n t proceedings of solving disputes in the Paura Areas. It includes a new process
of solving the disputes which develops the ADR system in Bangladesh. Section 3
of the Conciliation of Disputes (Municipal Areas) B o a r d A c t , 2 0 0 4 s a y s a b o u t
t h e Board of conciliation of disputes3 3 .

29
Section 6(2) of the Muslim Family Law Ordinance, 1961
30
Section 6(4) of the Muslim Family Law Ordinance, 1961
31
Section-4(1) of the Village Court Act, 2006
32
Section-4(2) of the Village Court Act, 2006
33
Section 6 of the Conciliation of Disputes (Municipal Areas) Board Act, 2004

18
4.3.9 The Bangladesh Labor Act, 2006:

Labour law is designed to control and govern the continuous process by which workers
and management decide the terms and conditions of employment34. Section 210 of the
Labour Act, 2006 says about the process of settlement of industrial dispute.

Chapter 5

Practical Scenario of ADR in Bangladesh

34
William T. Schantz and Leonard F. Robertson; Essentials of Business Law,(London Glencoe Press,
1977,p.571)

19
5.1 Interviewing Practicing Lawyers:

Here to get the present practical scenario of ADR in Bangladesh I tried to find it out through
interviewing practicing lawyers of the time. The present scenario of the ADR in Bangladesh
can easily be anticipated after going through the following interviews:

Interviewee: Bijoy Krishna Das Gupta

Advocate,

Sylhet Judges Court.

Date of Interview: 29th August 2012.

1. Do you think the implementation of ADR system in Bangladesh is enough to

provide effective and proper remedy to the parties to the dispute?
-The ADR system in Bangladesh is not new; rather it is practiced in the sub-continent
from a very early age in our village panchyat system and so on. The ADR in
Bangladesh is good enough, a recent UNDP report on Bangladesh gives a finding
that village elders settle 60 to 70 per cent of petty disputes between villagers who
dare not approach the formal legal system for fear of delay and expenses.

2. Do you think that the provisions enumerated in the Code of Civil Procedure, 1908
relating to the ADR are to be amended?
-Yes, the provisions in the Code of Civil Procedure are though amended and section
89A and 89B has been inserted, there still remain some vacuum.

3. If amendment needed, then what provisions should be amended?

20
 -The provisions may much elaborately describe the issues, and the purpose the
provisions should be to dispose of the dispute at any stage of the proceedings, not
only after the receiving of the written statement.

4. Is there any chance of abuse of Human Rights or non-establishment of true justice?

Whether in our legal system protection is provided against such abuse?
-There may be chance of violation or abuse, but there is no obligation upon the
parties to mediate or conciliate.

5. Whether the judges, practicing lawyers and the litigants of the should require any
qualification for the proper implementation of ADR?
-The judges should be trained in this respect and the lawyers having at least 15 years
experience, ex-judges of not less than 10 years standing may be required to be
appointed as a mediator or arbitrator.

6. Is there up-to-date information about disposal of cases by mediation by various pilot

courts, amount realized each month by the pilot courts, pending mediations in the
pilot courts, comparison in terms of disposal and realization of money with the rate of
disposal and rate of realization of money prior to mediation, realized by execution of
decree on a previous 5-year average prior to mediation are being kept?
-The Ministry of Law keeps such statistics.

7. Don’t you think intensive training of concerned judges, lawyers and the court staff is
a must before introducing ADR in this field?
-Intensive training of the concerned judges, lawyers and the court staff is a must, a
class of such expert judges, lawyers and court staff should be made in the field of
ADR.

8. How far ADR is successful as regard the big commercial cases?

-Arhta Rin Adalat Ain,2003; The Bankruptcy Act, 1997 etc. are for the commercial cases.

21
9. Don’t you think that in that sphere non-binding arbitration or mediation is less
effective?
-In this cases non-binding arbitration and mediation is less effective as the parties
tries find out the highest possible benefit out of the matters. In this case court-
annexed arbitration may be more successful.

10. How far does the ADR system providing benefit to the litigants in our country? Do
you think it’s enough?
-Though public sometimes tries to engage in civil litigation without compromising
with the adverse party out of jealousy or ego problem, most of the cases in our
country are being resolved through the mediation and arbitration. People find it
easier to resolve the problem through ADR than going through the complex civil
procedure.

11. What’s your recommendation regarding ADR system in Bangladesh?

-Intensive training should be provided to the judges, lawyers and staffs so as to
provide a smooth justice to the public through ADR.

Interviewee: Arun Kumar Das

Advocate,

22
 Sylhet Judges Court, Sylhet.

Date of Interview: 29th August 2012.

01) Do you think the implementation of ADR system in Bangladesh is enough to

provide effective and proper remedy to the parties to the dispute?
-The implementation of ADR in Bangladesh isn’t that much satisfactory in respect of
land dispute and other related disputes except commercial disputes. The application
of ADR has its most popularity or acceptance in the field of commercial disputes.

02) Do you think that the provisions enumerated in the Code of Civil Procedure, 1908
relating to the ADR are to be amended?
-The provisions enumerated in the Code of Civil Procedure,1908 relating to the ADR
are not filly supporting to the proper blooming of the ADR. The provisions don’t
require any expertise for conducting such mediation or arbitration, as well as it
provide some strict rules regarding the ADR.

03) If amendment needed, then what provisions should be amended?

-The provisions should be relaxed and the procedure must be simplified .There
should be provisions requiring expertise to be a mediator or conciliator.

04) Is there any chance of abuse of Human Rights or non-establishment of true justice?
Whether in our legal system protection is provided against such abuse?
-Generally not.

05) Whether the judges, practicing lawyers and the litigants should require any
qualification for the proper implementation of ADR?

23
 -Yes, there shall be some required qualification of the judges, practicing lawyers and
litigants. The judges should be expertise in respect of ADR.

06) Don’t you think intensive training of concerned judges, lawyers and the court staff is
a must before introducing ADR in this field?
-The concerned judges, lawyers and the court staff must have to be trained in a pilot
basis. A batch of trainers should be created to take up this arduous job in all the
districts.

07) How far ADR is successful as regard the big commercial cases?
-ADR is successful in regard to the commercial cases, specially relating to
bankruptcy, insolvency, the recovery of l o a n s o f f i n a n c i a l i n s t i t u t i o n s .

08) Don’t you think that in that sphere non-binding arbitration or mediation is less
effective?
-Non-binding arbitration or mediation may be less effective but there the settle
conference can be more successful.

09) How far does the ADR system providing benefit to the litigants in our country? Do
you think it’s enough?
-Though the ADR system in many other countries like Australia, USA, and Japan is
much more successful than our country, but it isn’t fully dissatisfactory in our
country. In the commercial sphere it has great achievement.

10) What your recommendation regarding ADR system in Bangladesh?

-The scope of ADR must be widen, and the provisions relating to the ADR must
flexible and relaxed.

24
 Interviewee: Rezwanur Rahman

Advocate,

High Court Division of Supreme Court of Bangladesh.

Date of Interview: 29th August 2012.

01) Do you think the implementation of ADR system in Bangladesh is enough to

provide effective and proper remedy to the parties to the dispute?
-ADR has been incorporated in our legal system to decrease the overload of cases
upon the civil courts and to provide justice without complexity, at a less expense. The
ADR system in our country doesn’t include all the field of our legal system, labour
court and small cause’s court doesn’t provide provisions for ADR.

02) Do you think that the provisions enumerated in the Code of Civil Procedure, 1908
relating to the ADR are to be amended?
-The provisions enumerated in the Code of Civil Procedure shall provide a extensive
time limit or scope to the parties to mediate or conciliate at.

03) Is there any chance of abuse of Human Rights or non-establishment of true justice?
Whether in our legal system protection is provided against such abuse?
-There may be abuse of human rights, but it is more unlikely to have such situation.

04) Whether the judges, practicing lawyers and the litigants of the should require any
qualification for the proper implementation of ADR?
-The litigants should be encouraged to choose the Alternative Dispute Resolution as
it solely depends upon the willing of the litigant parties, and the judges must be
experienced so as divert them to the ADR process and also to ensure justice.

25
05) Is there any up-to-date information about disposal of cases by mediation by various
pilot courts, amount realized each month by the pilot courts, pending mediations in
the pilot courts, comparison in terms of disposal and realization of money with the
rate of disposal and rate of realization of money prior to mediation, realized by
execution of decree on a previous 5-year average prior to mediation are being kept?
-Probably the Ministry of Law keeps such information.

06) Don’t you think intensive training of concerned judges, lawyers and the court staff is
a must before introducing ADR in this field?
-As I mentioned above the judges should be experienced in this field, they must be
provided special training.

07) How far ADR is successful as regard the commercial cases?

-As regard commercial cases the ADR has much achievement. The parties try to
resolve the disputes even by compromising to some extent.

08) Don’t you think that in big commercial cases non-binding arbitration or mediation is
less effective?
-In big commercial cases non-binding arbitration or mediation can’t be said to be
less effective, abidingness may discourage the parties.

09) How far does the ADR system providing benefit to the litigants in our country? Do
you think it’s enough?
- In fact, the ADR isn’t that much successful in our court system, it some application
in commercial sphere under the The Artha Rin Adalat Ain, 200, The Bankruptcy Act,
1997 and family matters under The Muslim Family Court Ordinance, 1985.

10) What’s your recommendation regarding ADR system in Bangladesh?

-ADR must be introduced in the sphere of Labor Courts and Small Causes Court. As
such the scope of ADR must be made wider.

26
 Interviewee: Rezwanur Rahman

Advocate,

Dhaka Judges Court,Dhaka.

Date of Interview: 29th August 2012.

1. Do you think the implementation of ADR system in Bangladesh is enough to

provide effective and proper remedy to the parties to the dispute?
-The implementation of the ADR in Bangladesh is problematic. The justice provided
through ADR is having many lacunas. In Civil Litigation regarding Land Disputes, it
is not much effective, because no mediator is appointed by the court or referred to
the mediators who may find a solution. Litigant’s tendency is not enough in
compromise.

2. Do you think that the provisions enumerated in the Code of Civil Procedure, 1908
relating to the ADR are to be amended?
-Yes, I do. The proper procedure to refer a case to ADR is to refer it after filling of
written statement. I think it should be made at any stage of the proceedings and as
such amended.

3. If amendment needed, then what provisions should be amended?

- The provision relating to the stage of ADR process which is generally made after
the receiving of written statement. If the amendment comes into force, the judges will
be trained to refer a case for mediation or non-binding arbitration after receiving the
written statement in all suitable cases, but they will be further trained to refer
pending cases for mediation or non-binding arbitration when both parties agree or
according to the judge's own discretion, the stage of the suit not being very
important.

27
4. Is there any chance of abuse of Human Rights or non-establishment of true justice?
Whether in our legal system protection is provided against such abuse?
-There is always a chance to abuse of such rights and failure of true justice but it
depends upon the system. Where the parties are representing the different groups i.e.
one is rich and another poor there, is a chance that the judges of ADR favor the rich.
But there the door is always open to the parties to proceed to the normal court
system, if any such confusion arises.

5. Whether the judges, practicing lawyers and the litigants of the should require any
qualification for the proper implementation of ADR?
-.The presiding judge should be made, a judge of co-equal jurisdiction.

6. Is there up-to-date information about disposal of cases by mediation by various pilot

courts, amount realized each month by the pilot courts, pending mediations in the
pilot courts, comparison in terms of disposal and realization of money with the rate of
disposal and rate of realization of money prior to mediation, realized by execution of
decree on a previous 5-year average prior to mediation are being kept?
-The Ministry of Law manage and provide up-to-date information about disposal of
cases by mediation by various pilot courts, amount realized each month by the pilot
courts, pending mediations in the pilot courts, comparison in terms of disposal and
realization of money with the rate of disposal and rate of realization of money prior
to mediation, realized by execution of decree on a previous 5-year average prior to
mediation .

7. Don’t you think intensive training of concerned judges, lawyers and the court staff is
a must before introducing ADR in this field?
- Intensive training of concerned judges, lawyers and the court staff is a must. The

28
 training will be on a continuous basis, including new entrants to the Judicial Service.
A group of trainers should be created to take up this job in all the districts.

8. How far ADR is successful as regard the big commercial cases?

-As regard big commercial cases mediation or non-binding arbitration is not that
much successful. It is also successful to some extent in the Family Law related
disputes.

9. Don’t you think that in that sphere non-binding arbitration or mediation is less
effective? -Yes, Bangladesh Shilpa Rin cases and insolvency cases under the
Insolvency Act, Artha Rin Adalat cases are such big commercial cases which needed
special concern.

10. How far does the ADR system providing benefit to the litigants in our country? Do
you think it’s enough?
- The people of Bangladesh are hungry for justice. It is the public need to provide
accessible justice to the people in which case ADR can stand as a solution if we can
provide with good management and make it transparent and easier to access.

11. What’s your recommendation regarding ADR system in Bangladesh?

-A D R. will have a-smooth transition if it is introduced on a pilot court basis. The
performances, reactions among pilot court judges, lawyers and the litigants should
be carefully monitored and suitable adjustments in the A. D. R. project should be
made at each stage of extension after an exhaustive study of the experiences gained.

5.2 Present Scenario of ADR:

29
Though ADR system has been in Bangladesh for a long time it has not achieved that much
success yet due to insufficient, unfriendly statutory provisions, and litigants’ trends. Lack of
experienced judges, lawyers in the field of ADR also drawback the success of ADR system.
Despite those negative aspects ADR has some achievements also specially in commercial
matters as well as in the family matters, Petty civil and criminal matters are even today dealt
with the ‘Village Panchayat’ known as ‘Village Court’ nowadays . But much emphasis
should be given to other section of our legal system to bring them effectively under the ADR
system, and thus provide alternative justice to the people, which is less expensive, fast and
easy to access.

Chapter 6

Recommendation Regarding ADR in Bangladesh

30
6.1 Recommendations:

The key to success of A.D.R. in Bangladesh lies in the manner of its introduction. A.D.R. is
no longer an unheard of concept of dispute resolution among judges, litigants and lawyers of
Bangladesh. Before we extend the frontiers of A. D. R. to other types of litigation, I would
suggest the following:

1. To amend the Code of Civil Procedure providing the trial court an enabling and
discretionary power to refer a case or part of a case for only mediation or nonbinding
arbitration at any stage of the suit. Although the proper stage to do so is after receiving the
written statement, I would suggest ‘at any stage of the suit' to cover it.

2. The presiding judge should be made, a judge of co-equal jurisdiction and lawyers of the
local court of more than 10 years' standing, and Private Mediation Firms, adequately staffed
by either experienced ex-judges of not less than 10 years' standing or retired judges and non-
practicing lawyers of not less than 15 years' standing, as qualified for appointment as
mediator or arbitrator.

3. The Ministry of Law shall manage regular up-to-date information about disposal of cases
by mediation by various courts, pending mediations in the courts, comparison in terms of
disposal and realization of money with the rate of disposal and rate of realization of money
prior to mediation, amount realized by execution of decree on a previous 5-year average prior
to mediation etc. and oversee the progress of A.D.R. diligently and constantly.

3. The Ministry of Law should encourage the judges, lawyers and also the litigant regarding
the ADR system.

4. Before introducing A.D.R. in any other field intensive training of concerned judges,
lawyers and the court staff is a must. A batch of trainers should be created to take up this
arduous job in all the districts.

5. A. D. R. will have a smooth transition if it is conducted on a pilot court basis. The

performances, reactions among pilot court judges, practicing lawyers and the litigants should

31
be carefully monitored and recorded and necessary adjustments in the A. D. R. project should
be made at each stage of extension after an exhaustive study of the experiences gained.

6. Mediation or non-binding arbitration, in my opinion, may not be a suitable form of A.D.R.

in big commercial cases, Artha Rin Adalat cases, applications before the District Judges in
house building loan cases, Bangladesh Shilpa Rin cases and insolvency cases under the
Insolvency Act. I would like to suggest Early Neutral Evaluation or Settlement Conference as
the proper result-yielding method of A.D.R. in such cases.

7. The Government of Bangladesh is the major litigant in this country, either as a plaintiff or
as a defendant. Under P.D. No. 142 of 1972, the Government is a necessary party in all title
suits, suits for specific performance of contract and so on. When the parties in dispute
compromise the matter, even without mediation, the option remains for the Government to
challenge the compromise at a belated stage, claiming an interest in the subject matter of
litigation. The Government is thus responsible in many cases to prolong the litigation. To
make the A.D.R. successful, P.D. No. 142 of 1972 should be amended providing that where
in a case covered by p.a. No.142 of 1972, the Government do not enter appearance or after
entering appearance do not file any written statement, or after filing a written statement do
not contest the case, any resolution of the dispute through A.D.R. or otherwise by the other
parties to the dispute would be binding on the Government.35

8. Mediation should be introduced immediately on a priority basis, amending the two special
legislations relating to Labor Courts and Small Causes Court, in Labor Courts and Small
Causes Courts.

The people of Bangladesh are hungry for justice. It is the public need to provide accessible
justice to the people in which case ADR can stand as a solution if we can provide with good
management and make it transparent and easy to access.

35
Kamal, Justice Mustafa (Former Chief Justice of Bangladesh), Keynote Paper presented at a
National Workshop on October, 31, 2002, organized by Ministry of Law, Justice and Parliamentary
Affairs, legal and Judicial Capacity Building Project, BCR 2004, Vol:XXIV, January, pp. 4-14.

32
 Chapter 7
Conclusion

The introduction of built-in ADR mechanism is one welcome step taken in the recent times
by the parliament. Mediation, conciliation, and arbitration are not new phenomenon in our
society but widely used for formal civil process. In the Islamic law of divorce arbitration
method is detected in the Quranic injunctions and this has been incorporated in the Muslim

33
Family Laws Ordinance, 1961 in respect of extra-judicial conciliation. In village society, the
traditional arbitration council, the ‘panchayats’(now salish) is well accepted as resolution of
family, minor civil and criminal disputes 36. These alternative methods are used outside the
formal court system.
This ADR mechanism has generated great expectations and hopes amongst the litigant public
for a more satisfactory, acceptable, cheap and quick resolution of their disputes.
ADR can be used in almost all contentious matters which are capable of being resolved in
litigation or by agreement between the parties. However, ADR mediation may not be
appropriate in respect of every dispute and it cannot be invoked unless the parties are
genuinely interested to dissolve their dispute in this way. The parties in a suit under the
provisions of the Code of Civil Procedure may be less interested in mediation because there
is nothing for either or both of them to gain under the process particularly when ego
sentiment or zeal push the parties to litigation. In Artha Rin suit the defendant is eager to go
through then settlement conference because he might get substantial financial benefit in the
shape of waver of interest and extension of time for payment under the process and that too
under relaxed terms and condition because of the presence of the Artha Rin judge overseeing
the settlement conference. The initiative and personality of the Artha Rin judge would have
definite effect upon the outcome of such settlement conference.
Awareness amongst the litigants about the benefit of the ADR, the development of the culture
of accommodation, conciliation, moderation, of the presiding judge, social movements
towards recognition and acceptability amongst greater mass of litigants through media are the
key factors for the success of ADR in this country.
The built-in ADR mechanism is a significant legislative development in this country as a
compliment to the formal legal system. The lawyers, litigants, and business community need
to develop the culture and attitude of making great use of ADR and popularize the advantage
that it has over the formal legal system.

36
Huq, Dr. Naima; ADR: Recent Changes in the Civil Process, Dhaka University Studies, part F, pp
37-58, Vol.15, June 2004.

34
35