A Critical analysis on ADR process

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Abstract 

This Article presents a "

A Critical analysis on ADR process under the Code of Civil Procedure 1908" 

Alternative Dispute Resolution(ADR) is known to be an instrument for easy and speedy access to justice throughout the world. It is cost effective and reduces backlog of pending cases in courts. Given the growing dissatisfaction of people with both the process and outcome of litigation, Alternative Dispute Resolution is increasingly being recognized as one of the instrumentalities to facilitate access to justice with a win-win feeling. ADR include a number of strategies including Negotiation, Mediation, Conciliation, and Arbitration. ADR is now an indispensablepart of functioning legal systems of many countries both developed and developing. Given the existing bleak scenario of justice delivery system and recent movement of legal reforms for increasing access to justice through ADR around the world, Bangladesh has initiated legislative scheme toward pre-trial mediation in order to make formal justice system more accessible and fair. Further, the practice of ADR has now been institutionalized in Bangladesh in many areas of dispute settlement such as family disputes, civil disputes, criminal disputes, labour disputes, and commercial disputes. This paper attempts to provide a comprehensive idea about the ADR process in Bangladesh under the Code Of Civil Procedure-1908. 

Introduction 

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) Channel, 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. 

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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. 

Definition of ADR 

Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. 

Alternative dispute resolution (ADR) refers to the different ways people can resolve disputes without a trial. Common ADR processes include mediation, arbitration, and neutral evaluation. These processes are generally confidential, less formal, and less stressful than traditional court proceedings 

The term "alternative dispute resolution" arose from Frank Sander's paper, "Varieties of Dispute Processing". 

Traditional arbitration involved heads of trade guilds or other dominant authorities settling disputes. The modern innovation was to have commercial vendors of arbitrators, often ones with little or no social or political dominance over the parties. The advantage was that such persons are much more readily available. The disadvantage is that it does not involve the community of the parties. When wool contract arbitration was conducted by senior guild officials, the arbitrator combined a seasoned expert on the subject matter with a socially dominant individual whose patronage, goodwill and opinion were important. 

Provisions of Law 

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According to the Code of Civil Procedure-1908 

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Section 89(A), Section 89(B), Section 89(C) discusses about the ADR process 

And Section 89(D), Section 89(E) discusses about the special provisions regarding ADR and commencement ofthe process. 

Detailed Provision 

Section 89A [Mediation] 

1) Except in a suit under the [Artha Rin Adalat Ain, 2003 (Act No. 8 of 2003)], 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 4[to the concerned Legal Aid Officer appointed under the Legal Aid Act, 2000 (Act No. 6 of 2000), or] 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. 

(2) When the reference under sub-section (1) is made through the pleaders, the pleaders shall, by their mutual agreement in consultation with their respective clients, appoint another pleader, not engaged by the parties in the suit, or a retired judge, or a mediator from the panel as may be prepared by the District Judge under sub-section (10), or any other person whom they may seem to be suitable, to act as a mediator for settlement: Provided that, nothing in this sub-section shall be deemed to prohibit appointment of more than one person to act as mediator: 

Provided further that, a person holding an office of profit in the service of the Republic shall not be eligible for appointment as mediator. 

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[(3) While referring a dispute or disputes in the suit for mediation under sub-section (1), it shall be for the pleaders, their respective clients and the mediator to mutually agree on and determine the fees and the procedure to be followed for the purpose of settlement through mediation; and when the Court [ or Legal Aid Officer] shall mediate, it shall determine the procedure to be followed, and shall not charge any fee for mediation: 

Provided that if the pleaders, their respective clients and the mediator fail to determine the fees, the Court shall fix the fees and the fees so fixed shall be binding upon the parties.] 

[(4) Within ten days from the date of reference under sub-section (1), 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 as mentioned in sub-section (10) and the mediation under this section shall be concluded within 60 (sixty) days from the day on which the Court is so informed, [or the dispute or disputes are referred to Legal Aid Officer, or a mediator is appointed by the Court], as the case may be, 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.] 

(5) The [ Legal Aid Officer or mediator, as the case may be,] shall, without violating the confidentiality of the parties to the mediation proceedings, submit to the court a report of result of the mediation proceedings; and if the result is of compromise of the dispute or disputes in the suit, the terms of such compromise shall be reduced into writing in the form of an agreement, bearing signatures or left thumb impressions of the parties as executants, and signatures of the pleaders, if any, and the [ Legal Aid Officer or mediator, as the case may be,] as witnesses; and the Court shall, within seven days from receiving the said report, pass an order or a decree in accordance with relevant provisions of Order XXIII of the Code.] 

(6) When the Court itself mediates, it shall [prepare a report and pass an order in the manner] to that as stated in sub-section (5). 

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(7) When the mediation fails to produce any compromise, the Court shall, subject to the provision of sub-section (9), proceed with hearing of the suit from the stage at which the suit stood before the decision to mediate or reference for mediation under sub-section (1), and in accordance with provisions of the Code in a manner as if there had been no decision to mediate or reference for mediation as aforesaid. 

(8) The proceedings of mediation under this section shall be 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. 

(9) 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. 

(10) For the purposes of this section, the District Judge shall, in consultation with the President of the District Bar Association, prepare a panel of mediators (to be updated from time to time) consisting of pleaders, 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, and shall inform all the Civil Courts under his administrative jurisdiction about the panel: 

Provided that, a mediator under this sub-section, shall not 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. 

(11) Notwithstanding anything contained in the Court-fees Act, 1870 (Act No. VII of 1870), where a dispute or disputes in a suit are settled on compromise under this 

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section, the Court shall issue a certificate directing refund of the court fees paid by the parties in respect of the plaint or written statement; and the parties shall be entitled to such refund within 60 (sixty) days of the issuance of the certificate. 

(12) No appeal or revision shall lie against any order or decree passed by the Court in pursuance of settlement between the parties under this section. 

(13) Nothing in this section shall be deemed to otherwise limit the option of the parties regarding withdrawal, adjustment and compromise of the suit under Order XXIII of the Code. 

Explanation-(1) "Mediation" under this section 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. 

(2) "Compromise" under this section shall include also compromise in part of the disputes in the suit. 

[89C.(1) 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, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties. 

[(2) In mediation under sub-section (1), the provisions of section 89A shall be followed with necessary changes (mutatis mutandis) as may be expedient.] 

Section-89B [Arbitration] 

(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 

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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). 

Section-89C [ Mediation in Appeal] 

(1) 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, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties. 

[(2) In mediation under sub-section (1), the provisions of section 89A shall be followed with necessary changes (mutatis mutandis) as may be expedient.]] 

(1) 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, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties. 

[(2) In mediation under sub-section (1), the provisions of section 89A shall be followed with necessary changes (mutatis mutandis) as may be expedient.]] 

Section-89D [Special provisions for mediation] 

[89D. The Contesting parties to a suit or of an appeal, pending in any Court before the commencement of the Code of Civil Procedure (Amendment) Act, 2012, may by filing an application stating their willingness to settle the dispute through mediation, such suit or appeal shall be disposed of in accordance with the provision of section 89A or 89C. 

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Section-89E [Application and commencement of the provisions of sections 89A and 89C] 

(1) The provision of section 89A or 89C shall be, applied to such area, and commenced on such date, as the government may, by notification in the official Gazette, fix. 

(2) Where any mediation process for settlement of dispute in respect of any suit or appeal is pending under section 89A or 89C before the commencement of the Code of Civil Procedure (Amendment) Act, 2012, such mediation shall continue as if the provision of section 89A or 89C were not amended by the Code of Civil Procedure (Amendment) Act, 2012.] 

Detailed Procedure 

Sallent Feature of ADR Mechanism in the Code of Civil Procedure, 1908 

Mediation under this Act has been defined as flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes without directing the terms of such compromise (Explanation 1, section 89A). 

It includes all civil suits except a suit under Artha Rin Adalat Ain (Section 89A). Mediation under section 89A is elective and not mandatory upon the parties. 

• According to section 89A, the court may mediate the dispute/s, or refer the dispute/s 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), or any other person whom the parties may deem to be suitable. However, it is provided that a person holding an office of profit in the service of the Republic shall not be eligible for appointment as mediator. 

The District Judge shall, in consultation with the President of the District Bar Association, prepare a panel of mediators (to be updated from time to time) consisting of pleaders, 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 

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purpose, and shall inform all the Civil Courts under his administrative jurisdiction about the parties, if he had ever been engaged by either of the parties as a pleader in any suit in any Court. 

Within 10 days from the reference by the court to mediate, the parties shall inform the court that they have agreed to settle the dispute through mediation. From the date of information the mediation will be concluded within 60 days, unless the period is extended upon prayer of the parties. Terms of compromise shall bereduced to writing and signed. 

As per section 89A, the court may act as a mediator and pass an order or decree if a compromise is reached between the parties. 

After the mediation is complete, the mediator shall submit a written. report to the court. If a compromise were reached it shall be reduced in writing and signed by the parties and the pleaders and mediator. Then the court shall pass a decree (under Order xxiii of the CPC, 1908) or an Order accordingly [section 89A (5)]. 

No appeal or revision shall lie against any such order/decree passed by the court in pursuance of settlement between the parties [Section 89A (12)]. 

Discussion on ADR Mechanism in the Code of Civil Procedure, 1908 

ADR mechanism in the Code of Civil Procedure, 1908 has been introduced to give the litigant people an opportunity to resolve their dispute through mediation or arbitration. The legislature also had an intention behind this law to respond to the need for quick resolution of a huge pile of cases in civil courts. The provisions of ADR have been included in section 89A, 89B of the CPC through the Code of Civil Procedure (Amendment) Act 2003 and a further section 89C was inserted in the CPC through another amendment, namely the Code of Civil Procedure (Amendment) Act 2006. Section 89A (mediation) and 89B (arbitration) discuss the provisions of ADR at the pre-trial stage; section 89C discusses the provision of conducting ADR (mediation) during appeal. Section 89A also elaborates the procedure of conducting ADR. 

Nature of ADR in CPC 

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Among the various available alternatives including mediation, conciliation early neutral evaluation, arbitration and med-arb etc, two types of ADR are included as an alternative dispute resolution process in the CPC, namely: 

1) Mediation; and 

2) Arbitration. 

Mediation under the CPC 

1) Definition of mediation under the CPC 

A brief definition of mediation has been provided in section 89A of the CPC. It states that mediation is a flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which a third party mediator shall facilitate a compromise to parties disputes. The compromise for a full or part of a dispute can be facilitated through mediation. However, a mediator shall not direct or dictate the terms of such compromise. 

Procedure of mediation under the CPC 

Unlike mediation in the family courts, CPC does not provide an option for mediation at the pre-judgment stage. However, in addition to mediation in the pre-trial stage, CPC also provides an option for mediation in the appellate stage. Thus, under the CPC, mediation can be conducted at the following two states: 

(1) Mediation in the pre-trial stage; and Mediation in the appellate stage. 

While the procedure of mediation in the pre-trial stage is delineated in (ii) section 89A of the CPC, the procedure of mediation in the appellate stage is incorporated in section 89C of the CPC. The procedure to conduct mediation under section 89A includes the initiation of mediation, appointment of mediators, fees for mediators, time frame to conduct the mediation, and consequences of the success and/or failure of mediation initiatives. 

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Mediation in the pre-trial stage 

The nature of mediation under the CPC is in the pre-trial stage and the process of mediation begins under the CPC when any party or both parties mutually apply to a civil court judge to resolve their dispute. Section 89A inscribes four different modes through which mediation may be conducted under the CPC. These are: 

Mediation by the judge himself 

After receiving the application from the parties themselves or through their pleaders, respective judges may decide to adjourn the hearing to conduct mediation on his/her own initiative (s. 89A (1)]. 

Mediation by a mediator selected by the pleaders of the parties 

After receiving the application from the parties themselves or through their pleaders, a judge shall refer the issue to the pleaders of the parties and ask them to undertake the process necessary to settle the dispute. Once pleaders are assigned, they consult with their respective parties and based on their mutual consent, a mediator is appointed. A mediator appointed through this process can be any pleader who was not engaged in the suit by any of the parties, a retired judge, any mediator from the panel of mediators prepared under sub-section 10 of section 89A of the CPC, or any other suitable person. A person holding an office of profit in the service of the Republic shall not be eligible for appointment as mediator (s. 89A(2)]. 

Mediation by a mediator selected by the parties 

If no pleader or pleaders have been engaged by the parties, after receiving an a parties regarding their desire to resolve dispute through mediation, a judge application from the ahall ask parties to settle their dispute through mediation No further qualification is mentioned in the CPC when parties were asked to appoint their own mediator (s. 89A(1)]. 

Mediation by a mediator referred by the judge from the panel of mediators After receiving application from the parties or their pleaders, concerned judges may refer 

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the case to a mediator listed in the panel of mediators prepared under sub-section 10 of section 89A of the CPC. However, any person listed in the panel shall not act as a mediator between the parties, if he had ever been engaged by either of the parties as pleader in any suit in any Court (s. 89A(10)]. 

Appointment of panel mediators 

Section 89A(10) defines who can and may be appointed as a panel mediator and who can and who cannot be appointed as panel mediator to conduct mediation on civil cases filed under the CPC. 

As specified in section 89A(10), the District Judge in every district shall prepare a panel of mediators for that district after consultation with the President of the District Bar Association. This panel shall consist of pleaders, retired judges, persons known to be trained in the art of dispute resolution, and any other person deemed appropriate for this purpose. The District Judge shall inform all the Civil Courts under his administrative jurisdiction about the panel and update the panel from time-to-time. However, any persons holding an office of profit in the service of the Republic shall not be included in the mediation panel constituted under the CPC. 

Fees of a mediator 

Since mediation under the CPC is a flexible and informal process, it has not determined any fixed remuneration for mediation and mediators' fee is fixed through mutual agreement between the parties, their pleaders and the mediator him/herself (s. 89A(3)]. However, if judges act as mediators, they do not charge a fee (89A(3)]. 

Time-frame to conduct mediation 

Within ten days from the date when a judge refers a case for mediation, the parties shall inform the Court in writing whether they have agreed to try to settle the disputes by mediation and whom they have appointed as mediator. If parties fail to do so within ten days, the reference for mediation is cancelled and the suit proceeds for hearing by the Court. 

If the parties inform the Court within ten days about their agreement to try to settle the dispute(s) through mediation and whom they have appointed as mediator, the 

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mediation shall be concluded with 60 days from the day on which the Court is informed. However, the Court may extend the time for a period of not more than 30 days. The court may do so upon a joint petition of the parties, or of its own accord (Section 894(4)). 

Mediation in the appellate stage 

Mediation under the CPC can be conducted in the pre-trial stage and also at the stage of appeal. According to section 89C of CPC, an appellate court may mediate in an appeal or may refer the appeal for mediation in order to settle the dispute(s) through mediation. 

Such provision applies, if the appeal is an appeal from original decree under Order XLI, and is between the same parties who contested in the original suit or between parties who have been submitted for the original contesting parties. For conducting mediation at the appellate stage, the appellate court shall, as far as possible, follow the provisions of mediation as contained in section 89A with necessary changes (mutatis mutandis) as appropriate (s. 89C(2) 

Arbitration under the CPC a) Definition of arbitration in CPC 

Since section 89B(1) of the provides the mandate of Arbitration Act 2001 in resolving disputes thorough arbitration under the CPC, the definition of arbitration given in the Arbitration Act 2001 also applies to CPC. The Arbitration Act 2001 defines arbitration as a process whether or not it is administered by a permanent institution for arbitration. Thus, under the CPC, arbitration can be conducted by any individual lawyer or any other person appointed by the parties to conduct arbitration following the Arbitration Act 2001. 

b) Procedure of arbitration CPC 

The procedure of arbitration is delineated in section 89B of the CPC. According to section 89B(1) of the CPC, parties to a dispute at any stage of the proceeding may apply to the Court for withdrawal of their suit on ground that they will refer their dispute to arbitration. After getting such application, the Court shall allow the application and permit the suit to be withdrawn and refer it to arbitration. Once withdrawn for arbitration, the dispute(s) shall be settled in accordance with the relevant provisions of the Arbitration Act 2001 (Act No. 1 of 2001). Once parties make 

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an application under the CPC to withdraw their cases and refer it to arbitration, they do not need to make a separate agreement to refer their dispute to arbitration, as required under section 9 of the Arbitration Act 2001 (S. 89B(2)). However, for any reason, if the arbitration proceeding does not take place or if an arbitral award is not given, the parties shall be entitled to re- institute the suit that was withdrawn earlier [(Proviso to section 89B(1)]. 

Consequence of mediation under CPC 

There are different consequences of mediation conducted under the CPC depending on whether a mediation effort is successful or unsuccessful to attain a compromise agreement between parties. Consequences of mediation listed under section 89A of CPC are as follows: 

Evaluation and outcomes 

Once the mediation process is over either through a successful settlement or not, the mediator submits a report of the result of mediation proceedings to the concerned court through pleaders. While submitting such report, a mediator shall maintain the confidentiality of the parties. If a dispute is settled through mediation and therefore the report is a settlement agreement, the terms of such compromise shall be reduced into writing in the form of an agreement. 

The parties shall sign or put impression of their left thumb on such report and the pleaders and the mediator sign as witnesses. After receiving a report on compromise agreement, the Court shall pass an order or a decree in accordance with relevant provisions of Order XXII of the CPC (Section 89A(5)]. When the Court itself mediates, it shall make a report and pass an order or a decree in similar manner (Section 89A(6)]. 

a) Refund of court fees 

Notwithstanding anything contained in the Court Fees Act, 1870 (Act No. VII of 1870), when a dispute is settled through mediation in the pre-trial stage, 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 be entitled to get such refund within 60 days of the issuance of the certificate (Section 89A(11)]. 

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b) No appeal 

No appeal or revision shall be made against any order or decree passed by the Court based on the settlement agreement made by the parties under the provisions for mediation in the CPC (Section 89A(12)]. This provision is helpful to reduce the backlog of cases in civil courts due to excessive. number of appeals against lower court decisions. Therefore, a proper judicial review is required by concerned judges before passing any order or decree based on compromise agreements between parties. 

c) Failed mediation results cases to resume 

If a mediation initiative fails, the case shall resume from the state at which it was referred for mediation. Thereafter, the case shall continue following the provisions of the CPC, as if there was no referral for mediation (Section 89A (7)1- 

Discontinuation of the case under the same judge, if mediation fails 

When a mediation initiative led by the Court itself fails to resolve the dispute(s), the same judge, who leads to the mediation, cannot continue to preside the court for further trial of the same case. In such a case, the suit shall be heard by another court of competent jurisdiction (Section 89A(9)]. However, under the CPC, it does not have any restriction on hearing of a suit in the same court before and after mediation, if the presiding judge before and after mediation is different. 

Achievement of this provision in three years after enactment 

The success in the family court encouraged the authorities to enact a provision of ADR for the civil courts. Finally the provision of ADR was incorporated in the Code of Civil Procedure in July, 2003. After the enactment of this Act in 1 July 2003, 12,402 civil cases are disposed of in three years till 30th June, 2006. In 2013, total 4283 cases were disposed through ADR. 

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In the above table it is shown division wise comparative picture of disposed of cases through mediation. 156 That figure is not impressive enough to say that ADR is successfully running in the civil courts. Because by analyzing this figure it can be said that even one dispute is not settled through ADR in a month in the civil courts. 

Problems of mediation under the CPC and Remedies 

To find out the problems of the provisions of ADR, a comprehensive field study has been operated as a part of the writer's research157. The main objective of this research was to find out the causes of non-success of ADR in the civil courts. From the data and opinion of the respondents a lot of causes for non-success of ADR in the civil courts have been identified. Among those the important causes are 

a) Poor Knowledge about the Provisions of ADR 

It has been observed that, a large number of people do not know about the provision of ADR. Some people have no idea about ADR. Even some judges and also a large number of advocates do not know about it. Though the laws relating to ADR was incorporated in Civil Procedure Code in the year of 2003 but still most of the litigants do not know about the provision. So the ignorance of people is the main cause for unsuccessful ADR. 

b) Not Giving the Idea by the Advocates or by their Clerks 

The Advocates usually think that ADR is not a suitable alternative of litigation and almost all of them think that ADR may affect negatively upon their income. So, they 

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do not feel interest to settle their cases through ADR at the same time they also do not encourage the litigant people to take the opportunity of ADR. Sometimes they give adverse idea about it. For that reason majority of people think that not giving the idea about ADR by the concern Advocates and Advocates clerks is another important reason for non-success of ADR. 

c) Tendency to Harass the Other Party 

Harassment in court is a common phenomenon continuing from the existence of the court. It is one of the characteristics of adversarial system of trial. When a man file a suit either civil or criminal he possess natural tendency to give punishment to other party. So initially he does not want to sit for settling his matter amicably. He wants to harass the other party. So, the people do not take the advantage of ADR for the tendency to harass the other party. 

d) Courts Role is not Sufficient Enough to Guide the Parties 

Though the judges ought to take the most interventionist role to promote ADR but it has been found that the majority of judges did not used to encourage the parties to take the advantages of ADR. Majority of judges think that if they insist the litigant people to compromise his case the sanctity of a judge might be pared down and people might perceive the judges as their friends. So they do not show interest to sensitize people about ADR. 

e) The Weak Party of the Case Always Tries to Hang the Case 

The weak party of a case always try to hang the case. In many cases if the weak party somehow possess the suit lands he tries to hang the case and does not want to sit for compromise. 

Complexity of Suits 

Some people's cases are pending in the court for long time. Though they were involved in one case initially, but subsequently that one case turned into many cases. Now the main case become so complex that it is not possible to settle in one or two sitting and in the ADR sitting it is difficult for all the contesting parties to attend. So to settle the cases finally become impossible. 

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g) Lack of Confidence upon the new System of Trial 

As sufficient awareness build up programme was not taken after the enactment of the laws on mediation, the common litigant people do not have any idea about the new law. So when he was advised to take the opportunity to settle his case through ADR, for the lack of confidence upon the new system of trial, he said no. 

h) Lack of Publicity 

Neither the Government nor the Supreme Court launched any programme to promote the new laws on ADR. The government also not allocated any fund to any judgeship to initiate such programme after the enactment of the law. So, there remain a lot of gap in building awareness to the common people. This lacking of publicity becomes a vital issue in non-practicing ADR in the court. 

1) Business Like Mentality of Lawyers and Their Clerks 

Though theoretically the advocates are the friends of the litigants and they should always support them and should give them good advice. But practically they posses business like mentality and they give advantage to their profit over the interest of the litigants. So such business like mentality resists the litigant people to take the advantage of compromising their cases by ADR. 

اJ)Ego Problem among the Litigants 

A dispute is not only a disagreement between the parties but also sometimes a matter of prestige between two families, two races, two groups or may be between two villages. Sometimes a very simple problem turns into very big prestigious issue and when a dispute turned into a prestige matter then the parties do not want to settle that matter amicably on compromise though the matter is so little or so simple. For that reason ego problem among the litigant people is a significant cause for the failure of mediation proceeding. 

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k) Influence of a Third Party 

In mediation process sometimes both the parties agree in a particular point but when a third party involves into the matter the mediation process is interrupted and the parties to the suit do not want to compromise the matter in the changed situation. The parties sometimes fully agreed to settle their matter but when they go to their house, hearing unfavourable criticism from the third party, they become unwilling to settle their case. As a result, the mediation processes end in a failure. 

1) Fascination to a Court Decree 

Many people usually want a courts degree. They think order from mediation is not as powerful as a courts degree. They do not have any idea that when the cases are settled amicably the condition of the settlement is written down and on the basis of the conditions the court give a decree and the written document made a part of the decree. Having no knowledge about this matter the litigant people who have a fascination upon the courts decree do not want to amicably settle their cases. 

m) Involvement of "Touts' 

In every court compound a large number of touts always try to influence the litigant people to do as per their advice. By doing so, they earn money exploiting the poor, distress, ignorant and unaware litigant people. If a case settles through mediation, then those touts get no profit. So the touts never suggest any litigant to take the advantage to settle his case through ADR. If any litigant wants to take such advantage, the touts give adverse idea. This way the touts hinder the process of ADR. 

n) Lack of Experience and Training of Mediators 

It is worth mentioning, that experience and training in conducting mediation is a key factor for success of mediation proceeding. An experienced mediator will do much better than the mediator who did not receive any experience or training. But after the enactment of the laws on ADR the government did not arrange any training programme on mediation technique among the judges and advocates. So when they sit for mediation sometimes for the lack of experience and training they cannot reach any settlement. 

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o) The Fees of the Mediators are not Fixed 

In the laws on mediation the fees of the mediators has not been made fixed. For that, it is upon the parties and their Advocates to fix the fees of Mediators. But the parties and their advocates do not fix reasonable fees for the Mediator. As a result the Mediator does not feel interested providing sufficient time in settling the dispute. 

Pl Mediator's Panel in every Judgeship is not Active 

Majority of people do not know whether a panel of mediators existed in the Judgeship or not. In many district the District Judge made a panel but he does not update the panel time to time. It indicates that the mediator panel of every judgeship is not active. 

Suggestions to Mitigate the Problems of ADR in CPC 

In the following discussion plenty of suggestions have been proposed and if the suggestions are implemented properly, ADR will find a great success in the civil court 

1) Awareness of the Litigants should be Build Up 

It is observed that majority of litigants do not know about the provisions of ADR. But they all want to sit together for settlement. Such tendency gives the impression that if it is possible to introduce the ADR system properly and if sufficient awareness build up programmes can be taken the ADR will achieve a great success. To build awareness the following programme should be taken 

a) Sufficient budget for publicity about ADR should be allocated the government. 

b) A committee for awareness build up should be formed consisting sitting/retired judges, advocates, local leaders, NGO officials and prominent persons of the society should be formed. 

c) Several awareness build up programmes like seminars, symposium, workshops should be arranged by the committee. 

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d) At the time of filing suits the parties to the suit should be provided sufficient information about ADR. 

e) A separate cell for providing information should be set up in every Judgeship. 

f) Different types of billboard, poster and handbill should be circulated among the litigants and also among the general people. 

g) The idea of ADR, the new system of trial, should be circulated among the general people by Radio and TV programme, film show and also by some rally and road play. 

h) Sensitivity about ADR should be generated among the litigants and among the common people as well. 

2) Effective Participation of Advocates should be Ensured 

The advocates are the key persons in implementing ADR initiatives. Without involving the advocates and without proper representation of them 

it is not possible to institutionalize ADR. To ensure the advocates' role the following steps are needed to be taken. 

a) In every case a minimum fees of advocates should be fixed so that in case of disposal through mediation the engaged advocate can get that fees. 

b) The advocates whose cases are disposed of through ADR in a large number he should be honoured and praised. Some monetary profit 

from government also should be kept for him. c) Those advocates should be certified and he should be called for training and should be provided tour in different places in the country and abroad. 

d) Interest of advocates to the ADR system should be created by involving them in panel of the mediators 

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e) The advocate's name should be publicly broadcasted so that the litigant people get interest to go to those advocates. 

3) Enough Time for Mediator should be Allocated 

The Judges and the advocates are very busy in courts. Though they sit for mediation with some cases but they cannot give enough effort for lack of sufficient time. So there should develop such system where a mediator will get enough time to mediate a matter. 

4) Separate Establishment for Mediators should be Established 

In the courts there is no establishment for the advocate mediators. Though they can use the advocate's bar building but it is always very crowded. Some mediation process ends unsolved even without a sitting. So if it becomes possible to set up a separate establishment for mediators that will be very helpful for mediation process. 

5) Adequate Training for the Mediators should be Provided 

It is needless to say that adequate training is essential for the mediators to make the ADR procedure successful. Here it is discussed some suggestions of training which a mediator should have: 

a) The mediators should be provided with the training on essential legal matters what are frequently needed so that in mediation sitting they can explain the litigant parties the legal position of their claims. 

b) The mediators should also be provided sufficient psychological training so that they can comprehend the psychology of the parties. 

c) Sufficient training on mediation technique also should be provided to the mediators. 

d) A mediator should have sufficient knowledge on social values and social problems. So training on those matters also should be provided to them. 

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e) Technique of convincing the people and behaviour management is an important quality what a mediator should have. f) Concept on ADR theory and ADR models of different countries 

around the world are vital things to be learnt by the mediators. g) Finally, the mediators should have sufficient knowledge about the changing trends of social values of our country and around the world. 

6) At the Initial Stage of a Bult ADR should be Made Compulsory In the law on mediation the provision of ADR was kept optional. In 2012, the government amended the law of ADR and made the ADR provision compulsory. But this latest provision of section 89A and 89C is not activated. When government by.notification in the official Gazette fix a particular area and date for activation, then it will active (section 89E). 

As the provisions of ADR are optional, it was observed that in a very few cases the parties of the suit are filing application for mediation. As the majority of litigants do not know about the provisions and their advocates also do not give suggestion to take the opportunity, so the scope of ADR remains unseen to the parties. If the ADR can be made compulsory the litigants will be able to familiarise with the provisions and a significant outcome will be achieved in disposing of cases. 

7) A Full Time Mediator should be Appointed in Every Judgeship 

It is observed that both the judges and the advocates cannot spend enough time to mediate the cases. But in mediation the mediator should give adequate concentration to the matter. So a full time mediator will be a good option. If it appoints a fulltime mediator the programme of ADR will get pace. In an approximate calculation it is found that a fulltime mediator can provide five times better output than a fulltime judge in disposing the pending cases. So, it is necessary to create a post of mediator in every judgeship. He/she should be a working Judge or may be a retired Judge or an advocate of at least 10 years working experience. 

If the suggestions are considered, the ADR system will get pace in settling dispute amicably through ADR among the litigant people. At the same time the backlog of cases will also reduce in a large number. 

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Concluding Remarks 

Bangladesh judiciary is deadlocked in a vicious circle of delays and backlogs. According to a report of the Law Commission, till 31st December of 2014 there are more than 2.6 million cases are pending in district courts. Present rate of disposal of cases and accumulation of backlogs is alarming for justice, rule of law and economic development of the country. In spite of best effort and full utilization of manpower, it is not easy to combat with such alarming backlog situation without taking recourse to Alternative Dispute Resolution (ADR). In such circumstances, ADR system has been introduced within the formal justice system to minimize inordinate delays and to reduce undue litigation costs. In Bangladesh we find practices of ADR in three different forums i.e. formal (e.g. Family Court), Quasi-formal (e.g. Village Court) and informal (e.g. village shalish). At present, a number of statutes in Bangladesh have implemented a judicial practice of ADR through mediation, conciliation and arbitration. 

The most notable ADR within the formal justice system is the one introduced to ordinary civil courts in 2003 by the amendment of Code of Civil Procedure (CPC), 1908. Though previously ADR was in practice in some special civil courts, sections 89A and 89B was inserted by this amendment to incorporate the systems of mediation and arbitration of civil disputes that lie before the court. This amendment gives option to the court to mediate between parties or refer the dispute to the pleader or the parties themselves (where no pleaders have been engaged) or to the mediator from the panel to be prepared by the District Judges. In 2006, the CPC was 

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further amended to insert section discussing the provision of conducting ADR (mediation) during appeal. Despite the effort, the scheme did not actually work well; there was an option for the court to decide whether the dispute should be referred for mediation. Thereby, there is an exigent need for further amendments which would make ADR mandatory. 

In 2012 the CPC was again amended to replace the word ‘may’ with ‘shall’ in section 89A and 89C to make mediation mandatory in both pre-trial and appellate stage in every civil litigation and sections 89D and 89E were newly added. Section 89D provides special provision for mediation when the contesting parties to a suit or of an appeal applied for mediation thereof started before the amendment of 2012. Section 89E provides for application and commencement of the provisions of section 89A and 89C in the following words- ‘the provision of section 89A or 89C shall be applied to such area, and commenced on such date as the government may by notification in the official Gazette, fix’. But government has not yet issued any Gazette notification fixing the date and specifying the area for its application. As a result, ADR has not been started yet in the ordinary civil courts of Bangladesh after an era of introducing the provisions in the CPC. 

Mediation under the CPC is a flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which a third party mediator shall facilitate a compromise to parties’ disputes. After the appointment of mediator by the parties or by the court, mediation work must be completed within 60+30 days from the date of appointment of mediator. The court shall pass 

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decree/order according to the terms of compromise within 7 days from the date of getting report of the mediator. If mediation attempt undertaken by the court fails, the same Judge shall not hear the suit subsequently. 

Introduction of compulsory mediation system in the ordinary civil courts is obviously a positive step not only to reduce huge number of pending cases but it has also a healthy impact on the society and social relations of the litigants. Now we are waiting for government’s initiative to start full-fledged ADR in the ordinary civil courts of Bangladesh. At last, the famous words of Abraham Lincon emphasizing deep significance of ADR may be recalled. He said- “Discourage litigation; persuade your neighbors to compromise, whenever you can; point out to them the nominal winner is often a real loser, in fees, expenses, and waste of time.” 

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