ADR under CPC : Does it works?

Justice AFM Abdur Rahman :
The legislature at their wisdom, in the year 2003, inserted five new sections in the Code of Civil Procedure 1908, being 89A to 89E, with an aim to allow the litigants to attempt a disposal of their suits or appeals through Alternative Dispute Resolution (ADR) Chanel, especially by way of ‘Mediation’ or ‘Arbitration’, either keeping the suit and the appeal pending in the court, in case of mediation or withdrawing the suit in case of Arbitration.

The reason behind is to relieve the courts from the huge and unprecedented backlog of cases in the civil courts at the first instance and in the court of District Judge and High Court Division at the appeal and revision stage, which compelled the incumbent government to ponder over the matter and to bring about appropriate amendment in the year 2012, not only in the Code of Civil Procedure 1908, but also in other statutes, for using this mechanisms of ADR in order to relive the litigating public from waiting years together to see the fate of their cause.

The aim and object of the amendment is noble. But if it does work, then why there is no reduction of the unprecedented backlog of cases within these long eighteen years in these courts?

Before we could enter into the challenges of implementation of these noble provisions, let us have an examination of the provisions of inserted section 89A to 89E in the Code of Civil Procedure 1908.

The new provision of sub section (10) of Section 89A requires the District Judge to maintain a Panel of mediator, to be empaneled upon consultation with the President of the District Bar Association, who shall be either a pleader, retired judges, persons known to be trained in the art of dispute resolution, and such other person or persons, except persons holding office of profit in the service of the Republic, as may be deemed appropriate for the purpose.

But unfortunately it is unknown whether the learned District Judges in the mufassil level maintains such a panel of mediator by inclusion of willing pleaders, retired Judges and other competent persons.

The subsection (1) of Section 89A provides that 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 “shall”, 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 (1) concerned Legal Aid Officer appointed under the Legal Aid Act, 2000 (Act No. 6 of 2000), or to the (2) engaged pleaders of the parties, or to the (3) party or parties, where no pleader or pleaders have been engaged, or to (4) a mediator from the panel as may be prepared by the District Judge under sub-section (10), for undertaking efforts for settlement of the dispute of the parties through mediation.

One will notice that the legislature has used the word “Shall” meaning thereby that the attempt to go for mediation is mandatory and no court shall proceed with the suit without observing this mandatory provision. This has not been an option to the parties, rather it is a compulsion to attempt for ADR and the court shall adjourn the suit for that purpose just after filling the written statement by the contesting parties and the suit shall remain adjourned till the mediation process comes to an end. The court on its own instance shall pass the order of adjournment observing the provision.

‘Mediation’ has been defined in the explanation appended to section 89A as shall mean flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or dictating the terms of such compromise, which shall include also compromise in part of the disputes in the suit.

The role of the mediator shall be no more than a facilitator and he can not impose any dictation of his own or make any direction to the parties to abide by the decision he could make upon assessment of the dispute. He will just get the parties unite to talking term and facilitate the discussion by the parties upon the dispute in order to resolve the same amicably by themselves.

The prospective mediator may be (1) the legal aid officer, or (2) any pleader appointed by the pleaders of the parties (3) the parties in person by themselves, or (4) the paneled mediators, as empaneled by the District Judge. The presiding judge may himself also act as mediator, if he so desires. But a person holding an office of profit in the service of the Republic shall not be eligible for appointment as mediator. A pleader is barred to act as a mediator between the parties, if he had ever been engaged by either of the parties as a pleader in any suit in any Court.

It has been especially provided that When the reference for mediation is made through the pleaders of both the parties, the pleaders shall, by their mutual agreement in consultation with their respective clients, appoint another pleader, not engaged by the parties in the suit, to act as mediator. For the said purpose the pleaders may also select a retired judge, or a mediator from the panel as may be prepared by the District Judge under sub-section (10) of section 89A, or any other person whom they may seem to be suitable, to act as a mediator for settlement.

Within ten days from the date of reference under sub-section (1) to the pleaders, the parties shall inform the Court in writing whom they have appointed as mediator, and if the parties fail to appoint the mediator during this time, the Court shall, within seven days, appoint a mediator from the panel maintained by the District Judge.

The function of the mediator shall be commenced with the issue of fixation of fees of the mediator in consultation with both the parties amicably. If the fees can not be ascertained amicably, the parties may approach the court on the issue and the resolution made by the court on the issue shall be binding on the parties. The fees has to be paid prior to commencement of the mediation proceedings and the same is not refundable, irrespective of the fate of the mediation. If the mediation is done by the legal aid officer or the presiding judge himself no fees for such function is chargeable.

The procedure to be followed in mediation is important one and the mediator, be he is the presiding judge of the court, the legal aid officer or any empaneled mediator, shall in consultation with the parties and their pleaders, determine the procedure of the mediation.

The mediation as referred to the mediator shall be concluded within 60 (sixty) days from the day on which the Court is informed as to appointment of the mediator, or the court has referred the dispute or disputes to Legal Aid Officer, or a mediator is appointed by the Court, as the case may be. The Court of its own motion or upon a joint prayer of the parties may extends the time for concluding the mediation for a further period of not exceeding 30 (thirty) days. The mediation must be concluded within this period.

After the conclusion of the mediation, the mediator or the Legal Aid Officer acting as mediator, shall as soon as possible submit to the court a report of result of the mediation proceedings.

The mediator is duty bound, to strictly preserve the confidentiality of the parties to the mediation proceedings. The proceedings of mediation shall be treated as confidential and any communication made, evidence adduced, admission, statement or comment made and conversation held between the parties, their pleaders, representatives Legal Aid Officer and the mediator, shall be deemed privileged and shall not be referred to and admissible in evidence in any subsequent hearing of the same suit or any other proceeding.

If the result of the mediation is concluded in compromise of the dispute or disputes in the suit, the terms of such compromise, shall be reduce in writing by the mediator in the form of an agreement. The said agreement shall be affixed with signatures or left thumb impressions of the parties as executants. The pleaders, if any, and the  Legal Aid Officer or the mediator, shall sign the agreement as witnesses.

The mediator shall submit a report along with the compromise agreement in the Court. Thereafter within seven days from receiving the said report, the court shall pass an order or a decree in accordance with relevant provisions of Order XXIII of the Code and the suit shall be treated as disposed of through compromise.

No appeal or revision shall lie against any order or decree passed by the Court in pursuance of settlement between the parties under section 89A of the code.

When the presiding judge of the court Court itself acts as mediator, it shall prepare a report and pass an order in the aforesaid manner and conclude the suit in the same manner.

A fruitful ADR of the cause will entitled the parties to refund of the court fees amounts they have paid in the suit, either with the plaint or with the written statement and the counter claim. The Court shall issue a certificate directing refund of the court fees paid by the parties in respect of the plaint or written statement. The parties shall within 60 (sixty) days of the issuance of the certificate must take the refund from the treasury of the government.

When the mediation fails to produce any compromise, the Court shall proceed with hearing of the suit from the stage at which the suit stood before the decision to mediate under sub-section (1) of section 89A of the code, in accordance with provisions of the Code in a manner as if there had been no decision to mediate or reference for mediation was made as aforesaid.

The failure of mediation attempt by the presiding judge himself shall lead the suit to be transferred from the court which initiated the ADR. It has been provided that when a mediation initiative led by the Court itself fails to resolve the dispute or disputes in the suit, the same court shall not hear the suit, if the Court continues to be presided by the same judge who led the mediation initiative; and in that instance, the suit shall be heard by another court of competent jurisdiction. The court at this stage shall send the case records to the District Judge who shall sent the same to the appropriate court of similar jurisdiction.

So far the pending appeals are concerned the mediation is made applicable through the provisions of section 89C of the code. The provision of section 89C(2) provides that the procedure provided in section 89A of the code shall be followed in the case of pending appeals with necessary changes (mutatis mutandis) as may be expedient. Accordingly an Appellate Court shall mediate in an appeal or refer the appeal for mediation in order to settle the dispute or disputes in that appeal, if the appeal is an appeal from original decree under Order XLI of the code, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties.

These two sections empowered a court of Its instance and an Appellate court to take initiative to use ADR mechanism of mediation to relieve it from the Burdon of cases.

Further the provisions of section 89B of the code attempts to use ADR mechanism of Arbitration by allowing the parties of a pending suit or Appeal to withdraw the suit or Appeal with a permission to proceed for disposal of the selfsame cause through Arbitration. But both the parties have to be in consensus about the disposal of their cause through Arbitration and only in that case the court shall allow the suit to be withdrawn for the purpose of sending the same to Arbitration
This is the provision of section 89B(1) of the code which provides that 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.

The Arbitration Act 2001 shall be the guiding statute under which the arbitral tribunal shall be constituted and the dispute or disputes, thereafter, shall be settled in accordance with the provisions of Arbitration Act 2001 (Act No. 1 of 2001) so far as may be applicable.

But, 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.

The provision of subsection (2) of section 89B further provides that an application under sub-section (1) shall be deemed to be an arbitration agreement under section 9 of the Arbitration, 2001 (Act No. 1 of 2001).]

Challenges of the new provisions:

The prime challenge against implementation of ADR is the non availability of trained ADR personnel, especially mediator. Mediation is techniques oriented system as the mediators duty is only to impress the parties to make amicable settlement of the dispute without imposing any decision of the mediator. The mediator cannot bind the parties to enter into any settlement. The work of the mediator is to overcome any stalemate in communication in between the parties and to impress the parties to reach an amicable settlement, upon apprising the merit and demerits of the claim of the respective parties.

The senior pleaders of the mufassil Bar not only unwilling to act as mediator, but also they are devoid of any skill of the techniques of mediation. This situation is acute not only in the district level, but also to some extent in the metropolitan cities.

Some of the junior Advocates now appears to have taken so-called training from some profit seeker institution, which used to certify some of the learned junior Advocates as ‘Accredited Mediator’ without properly trained them in ADR techniques. Unless a good number of trained ADR personnel comes to the profession, the non-availability of trained experts shall hamper the implementation of ADR under CPC in Bangladesh.

The next of the challenges against the implementation of ADR under CPC in Bangladesh is the mind set of the pleaders of the parties. For the reasons best known to them, the pleaders are less interested in using any of the mechanism of ADR and interested in traditional system of disposal of suits.

Last but not the least the provisions of section 89A-89E of the code are itself confusing on many issues. One of such issue is non availability of provisions for imposing fine upon a party who intentionally withdraws from mediation with ill motive. The provision of subsection (7) of Section 89A provides that if the mediation process is not successful, the suit shall again run from the stage it stood before referring to mediation. This has given an oppertunity to the party who is in default and as such does not agree to mediation and withdraws from mediation without any reasonable cause. In such case the mediator has no other options but to report to the court of failure of mediation. This process causes unnecessary delay of the suit. There should be a provision to impose fine or penalty upon the party who intentionally withdraws from mediation.

The other difficulties lies in fixation of fees of the mediator and choosing venue for the sitting of mediation conference. Nothing has been provided in the law as to these issues. The time frame of sixty plus thirty days barrier is another hurdle, as in a difficult case this time frame is not adequate, yet no flexibility has been rendered in the hands of the judge to extend time beyond prescribed thirty days.

Prospective reforms:

Bangladesh Bar council is required to be tasked with the responsibility to run training program in each of the Bar Association throughout the country to made up junior Advocated to act as mediator. At the same time extensive motivational campaign is required to run in each Bar Association with an aim to change the mindset of the learned pleaders attracting them to initiate ADR other than the traditional system of adjudication. The litigating parties are to be motivated toward use of the mediation or Arbitration process for which motivational campaign is required to run nationally through electronic and print media. Even the presiding officer of the court may impress the parties before him for use ADR mechanism instead of traditional adjudication system, focusing on cost and time effect of the system.

The District Judges are to be vigilante over his subordinate courts to see for himself wheather the appropriate steps are being taken by these courts as per the provisions of section 89A-89E of the code.

The authorized ADR institutions, like BIAC (Bangladesh International Arbitration Center), BDIMS (Bangladesh International Mediation Society), BIArb (Bangladesh Institute of Arbitration), BIMAC (Bangladesh International Mediation & Arbitration Center) and other reputed institution may be motivated to run extensive ADR training program among the learned Advocates at a reasonable price and accordingly a number of trained ADR personnel could be produced every year in order to fill in the gaps of trained ADR personnel.

It can undoubtedly be said that mediation is still a developing concept as an Alternate Dispute Resolution mechanism in Bangladesh. Unless appropriate steps are being taken the benefit of the provision of section 89A-89E of the code shall not reach the litigating public and the insertion of these beneficial provisions will remain as fruitless effort of the Government with consequence of non-reduction of backlog cases in the courts.

Writer: Former Justice of Bangladesh Supreme Court.