ARTICLES

1. Conciliation and Mediation
2. Courts and Alternatives
3. Successful mediation in Matrimonial Disputes
- Part I
4. Successful mediation in Matrimonial Disputes - Part II
5. Introducing A.D.R. in Bangladesh

1. Conciliation and Mediation

Justice Dr. M. K.  Sharma,
Judge,
High Court of Delhi

Conciliation and mediation are recognised as two important and effective modes of alternative  dispute resolution system.   These are considered as effective and meaningful alternatives to litigation through courts for resolution of disputes through the guidance and assistance of a neutral and impartial third party.

          This method of resolving dispute through mediation and negotiation is, however, not foreign in our country.   Village Panchayats and Nyaya Panchayats have been functioning in the villages and many disputes at the village level have been settled through conciliation and mediation in these Panchayats for a very long time.  But such remedy through Panchayat was sought for more as convenience as they are more easily approachable than the Courts which are located far away from the villages.

          However, with the passage of time there has been overcrowding in numbers of litigation.    There has also been delay in disposal of litigation for various reasons like shortage of judges and judicial officers, shortage of infrastructure and increase in population.   Better understanding and awareness of their rights by the general public has also led to filing of more cases in the courts.   Accordingly, it was thought that as there is a heavy traffic in the main thoroughfare, a bye pass is to be opened to ease the pressure in the main  thoroughfare  and consequently the device of alternative dispute resolution system like conciliation and mediation has been carved out.    This form or process is settlement geared and is also definitely cost saving.   It also helps the parties to adopt a problem solving approach to find out a “win  win” outcome.    When a dispute is resolved through this process, there is no winner or loser for the parties agree to the solution whereas in a litigation there is always a loser and even  the winner of the litigation goes back home at times feeling fully exhausted physically, mentally and also financially.

           Under the Code of Civil Procedure, 1908 express provisions are contained in the form of Order XXXII A, Rule 3 whereunder a duty is cast upon the courts to make efforts for settlement in suits relating to matters concerning a family.   Similarly, under Order XXXVII Rule 5B, a duty is cast upon the court in a suit against the government or a public officer to assist in arriving at a settlement.

          However, an elaborate codified recognition has been given to the two concepts   only with the enactment of the Arbitration and Conciliation Act, 1996.   In the said Act, a separate chapter is devoted to the concept of conciliation.   Of late, even in civil litigation provisions have been made for getting the disputes resolved through the process of arbitration, mediation, conciliation or Lok Adalats, if the court is of the opinion that the case could be settled through one of the said modes.   The said procedure is generally adopted after completion of the process of admission/denial of the documents as at that stage when issues are framed in the suit, the court becomes aware of the actual issues involved in the suit.   It is, however, interesting to note that under the provisions of section 89 Code of Civil Procedure, 1908 the court is given the power and jurisdiction to refer the dispute/litigation to an arbitrator without even existence of an arbitration clause.   Therefore, there is probably a grey area which is required to be settled through an appropriate pronouncement as to whether or not consent of the parties would be necessary for such reference, which would probably give rise to an arbitration agreement.

          However, it is not my intention to probe indepth to the concept of arbitration and user of the same as a tool of alternative dispute resolution system, as the same was discussed at length in the morning session.  I would, therefore, restrict myself to the topic kept aside for the afternoon session, that is, the concept and idea of conciliation and mediation pitted against litigation.    The concept of conciliation has now been given a statutory recognition under the Arbitration and Conciliation Act, 1996.  But it is not very clear as to whether the two concepts of conciliation and mediation would have different connotation or they would refer to the same mode.   According to most of the authorities they are overlapping.   But the expression conciliation is not defined in the Act.  It only states that conciliation could take place not only in contractual and commercial disputes but also in all disputes arising out of legal relationship.   This expression `conciliation’ is defined by the International Labour Organisation which is adopted by the Advisory, Conciliation and Arbitration Service which reads as follows:-

“The practice by which the services of a neutral third party are used in a dispute as a means of helping the disputing parties to reduce the extent of their difference and to arrive at an amicable settlement or agreed solution.   It is a process of orderly or rational discussion under the guidance of the conciliator.”

           The difference between conciliation and mediation has also been outlined by the same authority as follows:-

 “Mediation may be regarded as a half way house between conciliation and arbitration.     The role of the conciliator is to assist the parties to reach their own negotiated settlement and he may make suggestions as appropriate.   The mediator proceeds by way of conciliation but in addition is prepared and expected to make his own formal proposals or recommendations which may be accepted.”

       In India, however, mediation does not have any statutory recognition and existence and, therefore, would not be bound and restricted to any rules and statutory restrictions and limitations, unless it is accepted that both the expressions are overlapping.

          A conciliation proceeding could be initiated in India when one of the parties to the dispute arising out of legal relationship invites the other parties to get the dispute resolved through conciliation and the said request is accepted by the other party.     If, however, the other party rejects the invitation for settlement through conciliation, no such proceeding would get initiated.  Even if no response is sent within thirty days to the invitation, it would be deemed that the said request is rejected.

          The number of conciliator generally appointed for a conciliation proceeding is one unless the parties agree and give mutual consent to have more conciliators than one.    A statement of their respective cases is to be submitted by the parties to the conciliator in order to enable the conciliator to understand the case of the parties and to form an opinion.  He can call for additional statement of facts and informations in order to enable him to give his suggestion to the parties.   Parties are also entitled to suggest terms of settlement which would be discussed by the parties wherein suggestions could be given by the conciliator on such terms for their observations but the conciliator cannot impose a settlement as conceived by him on the parties.   In case the parties arrive at a settlement during the discussion and the proceeding, a settlement agreement is drawn up which would have the same effect and status as an arbitral award on agreed terms as envisaged under section 30 of the Act.   The same thereafter could be enforced as a decree.

          Conciliation proceeding could be of two types - facilitative conciliation and evaluative conciliation.    In facilitative conciliation, the conciliator avoids opinion and judgments and he merely assists the parties to clarify their communications, interest and priorities.   On the other hand, in evaluative conciliation, the conciliator expresses his opinion on the merit of the issues so as to enable the parties to approach settlement.   His opinion is a third party view on the merit but such opinion would not be conclusive and binding.

          A conciliator must be seen as an independent and impartial person and he must enjoy confidence of both the parties.  The parties should be able to repose trust and confidence on him so as to enable them to share their secrets and their thinking process with the conciliator with the belief that the same should not be divulged to other party without specific instructions in that regard.   Therefore, a conciliator is bound by rules of confidentiality and not by the strict rules of the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872.

          A party desiring to avail of the remedy could take resort to the said procedure during pre-litigation and even during the pendency of litigation.  If the effort fails, the parties can always come back to litigation.      However, during the pendency of a conciliation proceeding a party is not entitled to pursue a litigation.    

          A large number of disputes arise in the commercial areas, matrimonial matters and labour and employment areas.   These disputes are being resolved by resorting to litigation.   However, in these areas conciliation and mediation could play an effective role in bringing about a solution as they involve emotional angle and strong feelings in the disputing parties, which are best settled by conciliation.

          I have dealt with the provisions and the procedure of conciliation at length in order to pinpoint that there is no conflict between a litigation and a conciliation and mediation proceeding.   They are complimentary to each other, like a bye pass.  Choice is of the parties to choose one but one has a choice to come back to the main thoroughfare also, when so intended.   Besides, when a reference is made by the court under section 89 Code of Civil Procedure,1908 to a conciliator or a mediator, not only the court retains the supervisory jurisdiction over the matter but the lawyers and the litigants continue to be participants therein.    It is with the active support of all the three participants along with an additional player, namely, the mediator or conciliator, that a negotiated mutual settlement is arrived at.  Therefore, the system of alternative dispute resolution through mediation and conciliation may not and should not be seen as competitive to litigation in court.  

           I  would wish to end up my speech by quoting Mr. Fali S. Nariman, who has said in a message that was published in the Handbook on Arbitration, as follows :-

        “ A mediator or conciliator must lead parties into the gray shaded areas of a problem where a variable range of outcomes becomes available to achieve a mediated consensual resolution.   It is the skill with which this “grey  area” is negotiated that the success of Part III of the Act will  depend.

         Lawyers must advise their clients to use Part III more often - they must educate and explain clients on the benefits of conciliation.”                         

           2. Courts and Alternatives

Justice S.B. Sinha,
Judge,
Supreme Court of India

The adversarial system, which is one of the great legacies of the British rule in India, has worked reasonably well for centuries. However, in view the docket explosion, the faith and confidence in the Judiciary has undergone substantial erosion.  The functioning of the system is also being questioned in different quarters having regard to the procedural wrangles, enormous costs and inordinate delay involved in it.

Justice delivery system in India is bursting at the seams and may collapse unless immediate remedial measures are adopted not only by the judiciary but also by the legislature and the executive. The reasons for the present situation are not far to seek.  Firstly, there is a qualitative and quantitative change in the nature of litigation.  Not only have new and diverse areas of litigation have cropped up, there is also immense increase in the quantum of litigation leading to what is often called "docket explosion".  Secondly, litigation against the State and the State-like entities has grown substantially, and prompt and complete compliance by the State of the orders by way of writs, etc., would be absolutely necessary for bringing the litigation to a conclusion.  Thirdly, despite an increase in the number of courts and tribunals all over the country not only in the traditional areas of civil and criminal litigation but also in other fields like consumer protection, service matters, etc., no solution for early resolution of dispute has been found out.  But theincrease in the number of courts and tribunals is not enough to deal with the increase in litigation by geometrical proportions.  Often we find that not only there is no proportionate growth in the number of courts and judges, but even the existing vacancies remain vacant for a long time for one reason or the other.

Under the International Covenant on Civil and Political Rights, 1966 which is an optional protocol to Universal Declaration of Human Rights, 1948, every country shall have to ensure that a citizen shall have an effective remedy for enforcing his rights or freedoms.  This is not a new concept.  Since the ages, the Civilization has recognized the right of every person to seek redressal in a Judicial Tribunal.  The legal maxim ubi jus ibi remedium is not an empty promise.  This principle is well adumbrated in Sec. 9 of the Code of Civil Procedure, 1908.  Unless the Civil Court's jurisdiction is explicitly or by necessary implication is ousted, all rights can be enforced in a Civil Court.   Disputes do arise among people in relation to their personal life, family life, community life, economic life and political life.  In a democratic society, people should be free to have access to adjudicative processes in Courts or other Tribunals.  In a vast country like India with varying cultures and firm economic stratification, all sorts of disputes are brought before the Civil Courts.  Number of cases have increased so fast that the entire adjudicative system and /or justice delivery system is over burdened.

Indeed, a leading weekly magazine puts the total number of pending cases in our Courts at 24 million.   With an average time to settle each case being put as 20 years, we require 324 years to clear the legal backlog.  Is it a cause for despair?  Should we ignore this huge backlog and still adhere to traditional adjudicative process in the Civil Courts? 

Recourse to alternative dispute resolution mechanism has been thought of because courts are over-burdened. The said system emanates from dissatisfaction of many people with the way in which disputes are traditionally resolved resulting in criticism of the Courts, the legal profession and sometimes lead to a sense of alienation from the whole legal system.

Its emergence is one of the most significant movements, both  in terms of judicial reforms as well as conflict management.  It has become a global necessity.  Its utility is now unquestionable.

The mechanism to settle the dispute by reference to a third person had been in practice in ancient India, where in ancient India when people needed their disputes  resolved by arbitrator or tribunal not established by the King. People used to get their disputes resolved by arbitrators or tribunals not established by the King.  Yajnavalkya and Narda stated that Village Councils (Kulani), Corporation (Sreni) and Assemblies (Gorth/Puga) used to decide law suits.  These institutions have been described as arbitral tribunals which have a status of Panchayat in modern India.

In the Panchayat system the word Panch (arbitrator) and Panchayat (arbitration) are as old as Indian history.  Panchayats in village, Panchayats of caste, Panchayats of creeds etc. had  played important role and exercised considerable influence in many racial and caste questions.

The need of the day is to explore the possibility of creating a dispute resolving machinery other than the court.

Emphasis must be laid to the need of establishing a culture of amicable solution of disputes whether at a post-litigation or pre-litigation stage.

The philosophy of ADR is to motivate people to resolve their disputes amicably and for this purpose it is necessary to examine ADR's main trends and underlying objectives.

   One of the motivations of ADR is the principle of "Cooperative problem solving" which bring within its fold theories and strategies of negotiation, including in particular problem - solving theories of negotiation.

Another benefit of ADR is reduction of costs apart from avoidance of delay in litigation.  In short, it allows the parties greater control over resolving the issues between them, encourage problem solving approaches and provides for more effective settlements covering substance and nuance.  It also tends to enhance cooperation and preservation of relationship.

The experience abroad shows that it has found increasing favour in many countries and particularly in U.S.A.

Let me take up the role of the Court in ADR movement like the United Kingdom, in many matters like Commercial suits, directions may be introduced with reference to relevant rules, e.g., practice directions, specimen documents and check list in the light of paragraphs 72/A1 0 72/A-30 of the Supreme Court Practice introduced in March 1990 by Hobhouse J.

In United Kingdom alternative dispute resolution has more recently come to form an integral part of the Commercial Courts' own procedure.  By a Practice Statement issued on 10th December, 1993, Crasswell J stated that in future cases, the Commercial Court would invite the parties to consider possible additional methods of resolving their dispute, and would retain a list of bodies offering conciliation and arbitration services.  This would be emphasised where the amount at stake was relatively small in relation to the likely costs of a full trial.

The role of ADR under the 1993 practice note was extended by a further Practice Notes issued on 24th January 1995, which is concerned with the length and cost of civil litigation, and sets out check list of questions to be answered and lodged with the Court not later than two months before the date of hearing.  Some of the said questions are as follows:

10.    Have you or counsel discussed with our client(s) the possibility of attempting to resolve this dispute (or particular issues) by alternative dispute resolution (ADR)?

11.   Might some form of ADR procedure assist to resolve or narrow the issues in this case?

12.   Have you or your client(s) explored with the other parties the possibility of resolving this dispute (or particular issues) by ADR?

It is necessary to make reforms in Court organisation and Court procedures. ADR should be employed by the Courts and legal practitioners as frequently as possible.

In Texas, courts may order parties to undertake non-binding ADR procedures such as Arbitration, Mediation, Settlement Conference, Settlement Weeks, Ministerials, Summary jury trials and Early neutral evaluation.

Courts can also direct parties to refer a case to be dealt with by way of arbitration by a third party, whose finding is initially non-binding.  Such practices are prevalent in United States of America, Australia and some other countries.  It is known as Court Annexed Arbitration.

Similarly court annexed mediation process may also be taken recourse to and is regarded as complementary rather than alternative to litigation.

Conciliation has been extended by courts in family matters including children's issues, which may cover also financial, and property issues.

In U.S.A. Judicial settlement conferences and settlement weeks have resulted in a high success rates.

Courts also appoint 'Neutral Expert Fact Finding' to provide evidence before the court which may then be tested in courts.

With a view to evaluate the strength and weakness of the respective cases of the parties, disputes are referred to third-party lawyer within 160 days of the commencement of litigation.   The system is known as Early Neutral Evaluation.

In some of the federal states of U.S.A., legislation has been passed to provide for private judging (also known as 'Rent a Judge') such as Texas, California, New York, Ohio and Oregon.

High-low contract is a procedure where the parties may agree that if the finding on an issue by adjudication is decided against a party the amount of damages, etc., shall be within the parameters of the financial award.

Multi-Door Courthouse system which has been developed in U.S.A., if followed, could offer the prospect of greater access to justice and more economical and faster resolution of disputes.

Professor Frank E.A. Sander who was the author of the said system identified two important questions:

1        What are the significant characteristics of various alternative dispute resolution mechanisms (such as adjudication by courts, arbitration, mediation, negotiation, and various blends of these and other devices)?

2        How can these characteristics be utilised so that, given the variety of disputes that presently arise, we can begin to develop some rational criteria for allocating various types of disputes to different dispute resolution processes?" Upon analysing various factors of the comparing systems the learned Professor recommended.

         ".... A flexible and diverse panoply of dispute resolution processes, with particular types of cases being assigned to differing processes(or combinations of processes), according to some of the criteria previously mentioned.  Conceivably such allocation might be accomplished for a particular class of cases at the outset by the legislature, that in effect is what was done by the Massachusetts legislature for malpractice cases.  Alternatively, one might envision by the year 2000 not simply a court house but a Dispute Resolution Centre where the grievant would first be channeled through a screening clerk who would then direct him to the process (or sequence of processes) most appropriate to his type of case."

The theory of Professor Sander has been tested in different States of United States of America such as Columbia, New Jersey, Houston and Philadelphia and a number of American cities or countries now offer multi-door programme.

The programmes enable a member of the public to contact the court in person or by telephone, with a complaint or dispute.  A preliminary analysis will then be made of the case in order to be able to recommend which dispute resolution process is most suitable to resolve it.  Various criteria will be applied including, for example, the kind of issues involved, what kind of compensation is likely to be awarded if successful, whether witnesses or other evidence will be needed, whether rights need to be protected and what services are available.  The inquiring party is then advised about the processes that might be most appropriate to the case and is given relevant referral details, which may be to departments within the court, or may perhaps be to outside agencies.

Making ADR Compulsory in India

The legislative policy in India is to cast a duty upon the court to make efforts and to assist the parties in arriving at a settlement in litigation by or against the Government or public officers in their official capacity, litigation relating to matters concerning the family such as suits/proceedings for matrimonial relief, guardian and custody, maintenance,adoption, succession etc..

The mechanism of conciliation has also been introduced for settling industrial disputes under Industrial Disputes Act, 1947 and by the Arbitration and Conciliation Act, 1996.  However, in order to appreciate and find out whether ADR methods can substitute the formal method of settlement of disputes within the framework of formal procedures conceived in the Code of Civil Procedure and other enactments, the Government asked the Law Commission to look into the matter.  Justice Malimath Committee was also
appointed to study the subject. 

A Recommendation of Law Commission

 The Law Commission in its 129th Report examined at length the nature of litigation in urban areas and highlighted the staggering pendency of cases in various courts of urban areas.  It was pointed out that as on 31st December 1984, 2,48,845 cases were pending in Sessions courts, 77,41,459 cases in Magisterial courts, 29,22,293 cases in Civil courts of original jurisdiction and 10,91,760 cases on the appellate side. Special attention was given in the Report to house rent/ possession litigation in urban areas and as an alternative to the present method of disposal of disputes under the Rent Acts, four distinct modes were considered.  They are:

i          Establishment of Nagar Nyayalaya with a professional Judge and two lay Judges on lines similar to Gram Nyayalaya and having comparable powers, authority, jurisdiction and procedure;

ii         Hearing of cases in Rent Courts by a Bench Judges, minimum two in number, with no appeal but only a revision on questions of law to the district court;

iii         Setting up a Neighbourhood Justice Centres involving people in the vicinity of the premises in the resolution of dispute; and

iv        Conciliation court system, which is now working with full vigour in Himachal Pradesh.

Malimath Committee's Recommendations

The Malimath Committee while making a study on ‘Alternative Modes and Forums for Dispute Resolution' endorsed the recommendations made in the 124th and 129th Report of the Law Commission to the effect that the lacuna in the law as it stands today, arising out of the want of power in the courts to compel the parties to a private litigation to resort to arbitration or mediation, requires to be filled up by necessary amendment being carried out.  The Committee stated that the conferment of such power on courts would go a long way resulting in reducing not only the burden of trial courts but also of the Revisional and appellate courts, since there would be considerable divergence of work at the base level and the inflow of work from trial courts to the Revisional and appellate courts would thereby diminish.

Having regard to the absolute necessity to evolve an alternative mechanism, Parliament enacted three Acts: (1) Legal Services Authorities Act, 1987 which has been amended by Legal Services Authorities (Amendment) Act, 2002; (2) Arbitration and Conciliation Act, 1996; and (3) The Code of Civil Procedure (Amendment) Act, 1999.

The concept of resolution of dispute through arbitration, mediation, conciliation and negotiation was institutionalized by Legal Services Authority Act.  The said Act provides for holding Lok Adalats where disputes are pending in courts of law.  It also provides for
settlement of disputes at pre-litigation stage.

The Legal Services Authority (Amendment) Act, 2002 provides for a radical change.

As regards disputes between the consumers and the statutory bodies or public corporations providing public utilities, dispute at the pre-litigation stage may be referred to a permanent Lok Adalat comprising of a judicial officer and experts in the field. The permanent Lok Adalat would try to arrive at a conciliatory settlement but if does not succeed, they may adopt an adjudicatory role.  No appeal lies from such judgment, which became an executable decree.

Arbitration is an old concept, which had been prevailing in India even before coming of East India Company.  The Code of Civil Procedure, 1859 permitted reference to arbitration without intervention of the court.   The Code of Civil Procedure, 1882 also contained similar provisions. Although at one point of time Civil Procedure Code, 1908 contained similar provisions but in the meantime the Arbitration Act, 1899 was enacted which extended to only presidency towns. When Arbitration Act, 1940 came into being, the Code of Civil Procedure was amended.

The 1940 Act did not lead to a desired result.  Thereafter the Arbitration and Conciliation Act 1996 came into being.  The 1996 Act ushered in a wholly new set up for resolution of dispute through arbitration and conciliation by implementing the two basic aims of mechanism of party autonomy and mechanism of judicial intervention.  Part III of the 1996 Act provides for resolution of disputes through conciliation. 

Parliament had however felt that the Legal Services Authority Act, 1987 or Arbitration and Conciliation Act, 1996 would not be enough to confer power upon the courts to take recourse to ADR mechanism and with that end in view, the Civil Procedure Code was amended in the year 1999 incorporating the recommendations made by the Malimath Committee, which came into effect from 1. 7. 2002.  Sections 26, 27, 32, 60, 95, 96, 100-A, 115 and 148 were amended and Section 89 was inserted.  Likewise, various orders in the first schedule to Civil Procedure Code were also amended and Rules 1-A, 1-B and 1-C of order X were inserted.  We are, at this moment, only concerned with the provisions relating to alternative disputes resolution.

Section 89 lays down that where it appears to the Court that there exists an element of settlement, which may be acceptable to the parties; the Court shall formulate the terms of settlement and give time to the parties for their comments.  On receiving the response from the parties, the Court may formulate the possible settlement and refer to either (i) arbitration (ii) conciliation (iii) Judicial Settlement including the settlement through Lok Adalat or (iv) Mediation.  As per sub-section (2) of Section 89 as amended when a dispute is referred to arbitration and conciliation, the provisions of Arbitration and Conciliation Act, 1996 shall apply.  When the Court refers the dispute to Lok Adalat for settlement by an Institution or person, the Legal Services Authorities Act, 1987 alone shall apply.  It is only in the case of mediation that the Court itself shall effect compromise and shall follow such procedure as may be prescribed by Rules made by the High Court under Section 122 read with Section 130 of the Code of Civil Procedure.

Rules 1-A, 1-B and 1-C of Order X deal with different situations.  These provisions are applicable where at the first hearing of the suit the Court ascertains from each party or the counsel whether the parties admit or deny the allegations of fact as are made in the plaint or the written statement.  After referring to the admissions and denials, the Court shall direct the parties to the suit to opt for either mode of the ADR as specified in Section 89 (1) i.e. Arbitration and Conciliation, Lok Adalat or Mediation.

As noticed above, the method of Arbitration, judicial settlement, mediation etc., are now made compulsory and even the procedure before such authorities is now determined by the Parliamentary enactment or the Rules made by High Court.

The Courts in India at all levels are required to actively encourage the ADR movement and use those methods extensively. 

We must take the Alternate Dispute Resolution mechanism beyond the cities. The Gram Nyayalayas as contemplated by the Law Commission should process 60 to 70 percent of rural litigation leaving the regular courts in districts and sub-divisions to  devote their   time to complex civil and criminal matters.  With a participatory, flexible machinery available at the village level where non-adversarial, settlement-oriented procedures are employed, the rural people will have a fair, quick and inexpensive system of dispute
settlement. 

ADR mechanism should ensure that not more than 15% of the cases go for final adjudication. This is the trend in the legal systems of developed countries where the most of the cases are resolved by alternate dispute resolution mechanisms like conciliation, mediation and arbitration.  Pre-trial conciliation accounts for the disposal of a large number of cases. 

It is necessary to evolve ADR processes which may be found necessary keeping in view the changing scenario in the economic and industrial policies in India.

It has also to be borne in mind that in India many people are not aware of their rights and/or do not intend to enforce the same.  The non-governmental organisation and the legal aid committees should make all endeavors to make people aware of their rights and get them enforced.

If a complainant approaches any organisation propagating ADR, it is possible to have quick justice through mediation or conciliation. 

Let the adversary system and ADR system not confront with each other.  But they may act collectively so as to confront the necessary evil, namely, litigation in general and mounting arrears of cases in particular.  This is necessary in order to revive the erosion in the faith of the judiciary and the judicial system itself.

The slogan of the day should be ‘mediate' and do not ‘litigate'.

 1

3. Successful Mediation in Matrimonial Disputes

Approaches, Resources, Strategies & Management*

Justice Manju Goel,
Judge,
High Court of Delhi

Part – I

Introduction

            Family and matrimonial mediation is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by bringing the participant's to voluntary agreement. Mediation is the very basis of every society to maintain harmony in the social fabric. In the context of matrimonial dispute the mediators are often performing the role of counsellors and conciliators and in this paper the terms are used as interchangeable terms. Even before mediation was talked about for solution of disputes in courts for reducing the pendency of cases in courts, mediation for matrimonial disputes were in existence. Initially such counsellors were benevolent elders and were available to the parties right in the families. Elders or others who commanded respect from disputing parties became the mediators. It may be mentioned that the project of the Tata Institute of Social Sciences to run a counselling centre at Bombay was infact a fore–runner of the family courts in Bombay. The counselling centre has merged into the family court system and is looked upon as a model system for a family court. Section 9 of the Family Courts Act, 1984, Section 89 and Order XXXII-A of the Code of Civil Procedure, 1908 make it obligatory for the court to give a fair chance to a conciliated or negotiated settlement before adjudication is embarked upon. Section 23 of the Hindu Marriage Act, 1955 focuses on judge's role in attempting a reconciliation.

Peculiarity of matrimonial mediation

            Mediation in the context of matrimonial dispute is different in its form and content from that in the context of commercial and property disputes. The matrimonial disputes are distinct from other types of disputes on account of presence of certain factors which are not obtained in other disputes. These factors are motivation, sentiments, social compulsions, personal liabilities and responsibilities of the parties, the views of the two parties regarding life in general and to the institution of marriage in particular, the security for the future life, so on and so forth. Talking in terms of the mediation for matrimonial disputes one must remember that the factors that weigh the decisions of the parties are not controlled simply by rational factors. Very often irrational and emotional factors also have dominant roles in creation of the dispute as well as in their settlement. In the context of matrimonial disputes the mediator cannot merely concentrate on the monetary or mundane aspects and overlook the emotional aspect. In fact he is concerned with happiness of the parties which is more a matter of sentiment than of reason. Further his/her objective is to discover a solution with no damage or minimum damage to the parties. He cannot simply go a between the two sides telling him how the other party may take suggestions for a solution. The mediator has to prepare the two parties to look for a solution. Very often the parties more than looking for a solution look for their ways and means to wreck vengeance on the other party. The mediator here has to mould himself or herself into a counsellor and a conciliator to lead the parties for an amicably acceptable solution that brings about lasting peace. The mediator may have to give advice to the two parties and may also have to coax them in order to make them see acceptability of a proposed solution. The proposal for the solution may come from either party or the mediator himself. The job of the mediator would be to continuously bridge the gaps in the proposals to arrive at consensus.

            Mediation can be done simultaneously with exploring possibilities of a legal action on the civil or the criminal jurisdiction. It is a voluntary process and most people are attracted to the option of mediation because

(1) it promotes the interest of the entire family including those of the children
(2) it reduces economic and  emotional cost associated with the resolution of the family disputes.

Since it is a voluntary process sometimes the mediator may face a situation where one of the two parties or may be even both parties show disinclination to approach a mediator. Such inhibition has to be won over by the mediator by assuring the parties that the process apart from being voluntary provides for a participatory settlement of dispute and the parties stand more to gain than to loose by allowing mediation in their dispute. A common experience of family court judges and others who mediate or counsel the disputing couple is that even though the parties formally express their willingness to accept a mediator or counsellor, in fact, keep their reservations. The mediator's duty is to motivate the parties to open up and bring their latent grievances to the fore. One of the skills of the mediator is to increase the ability of the participants to communicate.

In one case as a family court judge when the author invited the parties for an effort for reconciliation as provided by Section 23 of the Hindu Marriage Act 1955, she was faced with an open retaliation by the husband who said that he would be a fool if he participated in any such process which intended to send the wife back to his house by obliterating all her sins which she had committed in the last many years. Under the authority of law, she could tell him that this was a requirement of the law and that she could not bypass the same. Under her command he participated in the process. However, once the parties came face to face in her room counselling started in right earnest and to her great satisfaction the couple ended up reconciling with each other after six years of separation.

The professional mediator not attached to court does not enjoy the power of commanding a party to his presence. Here he must secure the cooperation of the parties by assuring the party that the parties have the freedom to join the mediation but also to terminate it at any time if they feel that the same is not likely to produce any result. Both parties should have the confidence that the mediator was not impose a decision of his own on the couple. Both parties must understand that the mediator was neutral and did not have any kind of interest in any of the two sides. As the proceedings develop from stage to stage the parties must gain the faith that the aim of the mediator or counsellor is not to pass a judgment on the behaviour of one side or the other but to correct a situation which is crying for a solution. The approach of the mediator, in the Indian context,  should be weighed heavily towards reconciliation but both parties should know that the option of divorce was always open.

Resources

The two questions that immediately pose themselves whenever mediation for matrimonial cases come up for discussion are :

(1) where is the mediator or counsellor ?
(2) what is the cost of counselling ?

These questions are important because matrimonial mediation/counselling is necessarily different from mediation or counselling for a business dispute. As mentioned above, a matrimonial dispute involves several factors which are not available in an ordinary commercial dispute. The mediator, therefore, has to be fully equipped  to meet the situations. The inputs that a matrimonial counsellor is required to have includes the knowledge of social customs, knowledge of religious sentiments, an insight into the psychology of the estranged people, the rights and liabilities of the parties in the socio–economic context, so on and on forth. The counsellor, therefore, has to have knowledge as well as sensitivity. It may well have to debated as to whether a true marriage counsellor is born or made. Undoubtedly one who has traits of maturity, wit, humour, creative intelligence and diffusibility (ability to diffuse tension) can be more successful than others in matrimonial mediation. It can be definitely said that although much depends upon the inherent mental make–up of the counsellor there is scope to train a counsellor to learn how to deal the problem with balanced consideration and how to improve his or her skills in this field. Speaking in absolute terms it may not be difficult to find or develop a team of counsellors who can be attached to a matrimonial court or a family court although the country is yet to focus on developing such a cadre in large scale to meet the colossal need of the country. But on relative terms the availability of mediation will depend upon the cost of mediation and on the factor as to who bears the cost and how much the state or the parties are willing to pay. The availability of the counsellor will depend on how many counsellors can be produced at the given resources available for the purpose. In fact, quality service will not be available unless the mediators choose mediation as a career and for that the career needs to be attractive.

The marriage counsellor should not be expected to work without any aid or assistance. It goes without saying that a proper working atmosphere has to be created for the counselling. The counselling cannot be expected to be done in uncomfortable surroundings. Healthy, Hygienic and peaceful surroundings are an absolute necessity for such counselling. Therefore, appropriate infrastructure, staff and other perks have to be provided to the counsellors. Also this is necessary to enhance the  credibility of the institution in the eyes of the beneficiaries. Secondly, the marriage counsellors may very often need the facility of a social investigator or may himself or herself be required to visit the parties to the disputes. A visit to the house of a party and meeting the members of the family in their house may give a clearer picture of the socio–economic conditions of the parties. The counsellor by visiting the family in its own surroundings may also get to know the equations between different members of the family. Very often, the dispute and the solution lies not so much in the relationship between the husband and the wife as in the relationship between the couple and the other members of the family. Thus, the facilities of this nature have to be necessarily provided.

The marriage counsellor may also require the facility or power to seek expert opinion of a physician or a psychologist or even a psychiatrist. Therefore, by legislation, practice or otherwise these facilities will have to be made available to the counsellor.

For mediation to be meaningful the state or the parties must be ready to bear the cost of the facilities required by the mediator. As against these costs what is saved by the parties is the cost of a prolonged trial, including the lawyers' fee,expenses for production of witnesses and other similar factors. Saving for the state will be in terms of judge-jour and in terms of reduction of pendency of cases at all levels.

Strategies and Management

The matrimonial counselling yields better results when attempted before litigation. Pre–litigation counselling is a stage where polarization has yet not taken place. Very often at this stage the allegations against each other are vague. At this stage, the parties are more likely to forgive and forget. At this stage, they are perhaps more hopeful of a solution and, therefore, ready for more sacrifices and adjustments. When the litigation starts the need to be sharp and focused makes the parties to be acute in their allegation and very often these allegations are exaggerated. In order to sound more convincing false stories are woven into the pleadings giving rise to heightened animosity. The exchange of pleadings very often takes the parties to the point of no return. Therefore, by way of strategy every effort should be made before the litigation actually commences. At all the entry points a check, therefore, has to be exercised to prevent more litigation because post–litigation ones. The first signs of matrimonial dispute are litigations for maintenance and complaints to the police. The police has to handle the subject with sensitivity, wisdom and patience. The handling of the matrimonial disputes in the form of offence under Section 498 A of the Indian Penal Code, 1860 have necessarily to be handled differently. The accused in these cases cannot be dealt with like accused in the other offences like theft or decoity or cheating. The accused are not criminals in the traditional sense of the term. If the investigating officer is able to decipher how much of the complaint is true and how much is exaggeration he may play an important role in preventing increase in the litigation. On the other hand, if he wields the same rod, that is given to him for handling other criminals, on the parties to a matrimonial dispute, he may create a tremendous mess. It is here when the parties should be told to be more patient with pursuing their cases without, however, undermining their respective claims. The counselling centre attached to the Crime Against Women Cell in Delhi Police are doing their bit. Although much improvement is possible and much is said about their efficiency their contribution should not be entirely undermined.

Court attached conciliation should become a mandate for all litigations whether under section 125 of the Code of Criminal Procedure, 1973 for maintenance or for divorce. As for present, Magistrates make their own efforts to bring about a settlement in the limited sphere of maintenance. The courts handling criminal cases under Section 498 A make their own efforts for a consolidated settlement. So do the matrimonial courts. In view of the shortage of time in the hands of the judicial officer, a need is always felt that the work of counselling/mediation at different levels be taken over by a professional counsellor or mediator. The basic difference among the police, the judge and the mediator is that the police is trained to frame or prove a charge, a judge is to focus his attention on right or wrong doing but a mediator/ counsellor is to focus on restoration of equilibrium and remain non-judgmental all through. The mediator remains on guard against his temptation to belittle or give lift to one or other party.

Coming to the strategies to be adopted by the counsellor, the following stages can be suggested :-

i.        Probing of facts;
ii.       Identifying the real cause of dispute;
iii.      Exploration of possibilities of reconciliation or divorce;
iv.      Bring the parties to an agreed solution; and
v.       Shaping the solution in the legal formats.

Probing of facts and identification of issue in a matrimonial dispute call for enormous patience. Very often, the pleadings or the first narration of the parties will conceal more than they reveal. Very often the counsellor finds that the parties themselves have not been able to decipher what really is the cause of disharmony. It is only after some active listening by counsellor for long sessions that the real problems actually surface. One example which the author can give from her experience is that of a couple who come to the counsellor narrating all kinds of allegations against each other despite the fact that in the assessment of the counsellor they did not really hate each other. After a couple of sittings it surfaced that the problem was regarding the inhibition of the wife in going to bed with the husband. Still later it turned out that the wife's inhibition was caused by body odour of the husband who worked all day in a factory producing paints. Before marriage as lovers the wife never felt the odour as repulsive but as she came to closer proximity to the man she found it offensive. This realization came only during the counselling sessions and when the fact surfaced the solution became easy. Very often during these interviews when parties are allowed catharsis they themselves come to the terms with themselves and perhaps find it easier to bear with the situation they live in or to understand the approach of the other party. As discussed in the later part of the paper the counsellor may find various reasons for a matrimonial discord. In some event third parties may be involved. There are disputes arising out of too little money or too little accomodation, so on and so forth. Once the counsellor has identified the real issue, i.e., what ails the relationship, the counsellor has to proceed to examine the possible solutions. Is a reconciliation possible ? For arriving at the reconciliation the counsellor has to see if the cause of dispute can be removed. Suppose the discord is because of violent nature of the husband or the wife, the counsellor has to examine whether and how the behaviour of the violent person can be modified. If it is shortage of accomodation causing the problem, can the same be solved ? Or can the third party like, mother–in–law, be separated or made to see her role in correcting the situation. The possibility of the reconciliation has to be fully explored. Sometimes the suggestions for improvement need to be put to trial by actual practice.

If the reconciliation is not possible the counsellor has to explore the possibility of a peaceful separation. Even for separating the couple, counselling has a very major role to play and a discerning counsellor has to notice which disputes are likely to end in a reconciliation and which have to end in a divorce. In case of the latter, the parties have to be prepared for accepting the fate of divorce which is not always easy for till date the parties look at divorce only as the last resort. Very often the disputing parties are looking more on punishing the other side than seeking the relief for themselves. Here comes the role of the counsellor who must them see the real issues and make them understand that it is only in peaceful parting that the solution to the problem lies. Here it is tempting to mention a case of a fellow counsellor who after failing to reconcile the parties settled the matter in favour of divorce. Later on accidentally one day he met the parties walking together as if nothing had happened to their relationship. When asked ‘‘Have you turned to be friends ?’’ the woman smiled and the man replied ‘‘We are always friends’’. Here lies the success of counselling, that is, divorce with minimum or no emotional break down or damage.

The mediator at the same time should inform the parties of all the legal options open. Similarly the mediator must tell the rights and obligations of each party towards the other. If the husband looks for a divorce he should be educated about his
responsibility to maintain the wife and the child. The wife can also be similarly informed as to how much she can expect by way of maintenance and that even if she retains the custody of the child the husband may have rights of visitation. The parties can also be educated about the benefits of entering into a  negotiated settlement rather than an adjudication by the court.

By this stage the mediator must have trained the parties focus on reasonableness. The purpose at this stage is to see that the parties remain as comfortable as possible in their future life. The terms of separation must be worked out without any ambiguity. If necessary, reasonable time may be allowed to give proper thought on the terms of separation. During this period they may consult their well wishers to finalise the terms. This step, of course, is the job of a legal counsel who puts the terms in legal format to obtain the legal seal.

It is important to keep in mind the fact that while mediation is being encouraged for early disposal of civil litigation, in the matrimonial context mediation has to be preferred not because it offers a faster solution  but because it may produce a qualitatively superior solution – a wholesome one or times when a solution in law is not available.

Part - II

Types of Matrimonial Problems - Diagnosis And Management

From the narrations of the parties an assessment of the nature of the dispute between the parties can be gauged. However a mediator or a counsellor has to go deeper into the problem to diagnose the real factor which ails the relationship. He is likely to find that the real factor or the cause is one or the other of the types mentioned below.

Type – i

Very often which is looked upon as an act of cruelty may be a perception of an egoist person. When the ego or the sense of respect is hurt, the reaction of different people may be different. The reaction may be in the form of physical violence. At certain other times it may take the form of criticism or looking for faults where none exists. Criticizing the marriage gifts may sometime be a reaction to some behaviour offending the ego of the husband or his mother. The marriage counsellor, therefore, after some sittings has to decipher whether the real questions is actually a greed for more dowry, a critical behaviour of a man or woman, or a reaction to the ego or pride of a person being hurt. The commonest problems arises out of conflicts of such ego where for every small thing each of the two partners to a marriage finds faults with the other partner. There are no real issues yet a constant threat to peace. It may not be proper to categorise the parties as victimizer & victimized. The mediator must develop a clear picture of notional profiles of the parties which will help him involve the parties into a dialogue which will lead to discovery of a common ground.

Type – ii

Behavioural discover like violence or addiction or abusive language or total lack of care displayed by one party is also a cause of matrimonial discord. These are character traits and are deeply embedded in a person. Since these traits have
become the nature of a person, these will have their impact in the relationship between the husband and wife. Once these traits cross a particular level of severity a problem in the peace in the matrimonial home may arise. In such cases the addictive persons may be treated for behaviour modification either by the mediator or by some professional.

Type – iii

Very closely related are certain psychological problems. Common examples are suspicious nature, a desire to protect or guide in smallest of situations or in minutest details. Some people have the tendency of correcting the other partner all the time giving rise to constant frictions. Suspicious may be genuine or may be pathological. Pathological suspicious do not have rational basis but the suspecter presents the stories in so cogent a manner that it becomes difficult to disbelieve. If the suspicious are of pathological nature the cases can be referred to specialists. Generally suspicious nature is the symptom of paranoia/paranoid schizophrenia.

Type – iv

Next group of cases can be said to be situational in which rather than behaviour or nature or the ego of the person being involved, it is the situation in which the parties find themselves which give rise to conflict. For example, financial situation in which the needs far exceed income. Often with the limited means the husband or the wife is trying to maintain a person outside the marriage which causes resentment to the other partner. Similarly matrimonial problems can arise on account of severe shortage of accommodation, which in the present day cities is a very scarce commodity. Lack of accommodation creates lack of privacy as well as lack of freedom. This lack of privacy and lack of freedom also can get translated into reaction which may look like a cruel behaviour or other behavioural abnormality. Financial difficulties may lead to very serious problems. Wife may frequently boast about her parentage targeting the incapability of the husband. Husband and/or wife may be forced to adopt illegal means to earn more. Husband may force wife to bring cash or kind from her parental home. On the other hand, wife's parent may also have financial difficulty and wife may send money to them stealthily or by ignoring the objections of the husband. Here how to help the disputants depends greatly on the creative intelligence of the
mediator.

Type – v

There are situations in which sacrifice and adjustment demanded of the other partner is higher than in normal circumstances. For example, one party may have to perform night duties or longer hours of work which calls for acceptance of the situation by the other party. Even in military and paramilitary forces husbands may be away for months. In such circumstances unless there is loyalty in each other and total manifest support the  conjugal life may fall into jeopardy. The family and work have to co–exist and both must have their due share of attention. If the balance tilts in favour of work or one partner views it as too much attention to work a matrimonial conflict may arise. The classical example is of Napoleon. Even being the most faithful husband both of his marriages failed.

Type – vi

There are situations where marriage is arranged by two families like a business deal. The two neighbouring land owners settle a deal on land as part of a marriage deal between daughter of one party to the son of the other party. The parties to the marriage are really pawns. How long the marriage will subsist will depend upon how long the treaty or deal between the two land owners will survive. Similar situations arise when two sisters of a family are marries to two brothers or brother and sister of a family are married to sister and brother of another family. If one marriage runs into difficulty for some reason, the other automatically collapses. In these situations, the counsellor may have to look beyond the couple and may have to try to make peace between the others.

Type – vii

The next type is conflict caused by medical reasons like problems caused by mental disorder or mental disease in one of the two parties. Sexual dysfunction is also a common cause of the disorder. Talking of sex being a taboo in this country it is not always easy to find out if the conflict between the husband and wife is caused by sexual dysfunction. Similarly, one of the two partners may have deviant sexual behaviour. To others the problem may appear to be something different because the parties are nor prepared to express their conflict with reference to sex. In such matters people have strange ideas and strange remedies which most often worsen the situation rather than repair it. It is necessary that in such situations cases are referred to specialists. But the tragedy is that the ailing party normally does not admit his shortcoming and his feeling of inferiority manifests in some other ways particularly in dominant aggressive behaviour. Here the skill of the mediator would be great asset in putting the ailing partner in right track.

Type – viii

It will not be improper to mention some typical cases where from the day one the marriage was a mistake. These are cases of total mis-match caused by large intellectual gap between the partners. For example, where a girl research scholar in Anthropology was married to an semi-illiterate truck driver or lady school teacher was married to a police constable. These may appear to be strange marriages but every judicial officer who has handled matrimonial matters have come across such couples.

Conclusion

The first task of the marriage counsellor, as stated above, is to diagnose the problem. Having diagnosed the next step is to decide whether the counsellor or mediator should endeavour to bring about a reconciliation or to attempt a separation. Some of the aforesaid problems pose an immediate solution of separation. However, for the parties, at times, separation may not look to be very easy. Although, the society is increasingly accepting the fact of failure in marriage consequences attached to a divorce call for a lot of attention and cannot be left to themselves. The first thing the counsellor has to do in such situations is to help the parties to arrive at a decision to break the marriage. Sometimes, it may be easy and sometimes it may not be so easy. Having done so, the mediator then has to look to the terms and conditions of the divorce which may include the question of maintenance, custody of children, arrangement regarding property, etc.

Some of the problems may call for intervention of medical experts, namely, the psychologist or a psychiatrist, a sexologist or a physician. These experts may not only help in diagnosing the problem but also in their correction. Similarly, the
problems that arise out of situations call for correction of situations. For such corrections the resources have to be provided by the parties themselves. The mediator then has to assist the parties in looking at the real problem and to work out the solutions. Behavioural disorders call for behaviour modifications and are not unknown to have been achieved by an able counsellor. Same is the case with the problems of constant conflicts on account of egos of one party or the other being hurt or one or the other being too sensitive or touchy.

Since law as well as social obligation of the Judge calls for an earnest attempt being made for reconciliation, initial part of the mediation proceedings must necessarily be devoted to the effort for reconciliation. This calls for patience not only on the part of the mediator but also on the part of the couple. One cannot but accept the fact that the family mediator or a family counsellor cannot be totally unattached as in the case of business mediation. Although, the parties have to arrive at a decision, the mediator cannot be debarred from suggesting a particular solution and even insisting upon it. A sincere mediator should have some degree of freedom to coax the parties, for this kind of assertive approach by a mediator has often been found to succeed. What techniques will be used in each case will depend upon the situation in each individual case and no cut and dried method can be suggested, However, once the problem is diagnosed it may not be difficult to arrive at a solution. Once the diagnosis is made the treatment will automatically follow. May be for the same type of problem two different cases call for two different approaches altogether. The strategy that the marriage counsellor will adopt will be entirely his own depending upon his perception of the problem and his choice of the treatment.

4. Introducing A.D.R. in Bangladesh

Justice Mustafa Kamal
Former Chief Justice
Supreme Court of Bangladesh

WHY A.D.R?

The Vagaries of Civil Litigation

A. D. R. means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the issues of a case are seldom framed following the Code of Civil Procedure, the case takes several years to reach a settlement date and on the date of positive hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none. In the meantime years roll by, presiding judge of a single case is transferred a number of times, witnesses of a single case may be heard by more than one presiding judge, arguments are listened to may be by another presiding judge and judgment may be delivered by a presiding judge who had had no connection with the case ever before. Our legal system has thus been rendered uncaring, non-accountable and formalistic. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades. When they win a case the result is much worse than winning it. When they lose a case they lose not only the subject matter of the dispute, but also a good part of their fortune. If interlocutory matters are dragged up to the appellate or revisional courts, their woos know no bounds and their agonies are prolonged for an indefinite period. Appeals from trial court decrees may reach unto the Appellate Division by which time the parties are thoroughly drenched in misery. When a decree is thus obtained after protracted litigation, it does not end there. Execution proceedings then re-starts a fresh litigation between the parties or even their successors which may take years or decades to come to a conclusion and which may end up with no real or positive benefit to the decree-holder plaintiff. This is the experience of a common litigant in Bangladesh. Added to this inherent and in-built delay and expenses, corruption and often terrorism at almost each stage of litigation is eating into the vitals of the justice delivery system.

Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness. Many conscientious judges and lawyers have done what they could under the circumstances, but their sincerity has been drowned into the general morass of malfunctioning of the court system.

Experience of Developed Countries

All countries, following the common law system, have faced this problem of delay and excessive expenses in the disposal of civil cases at some point or the other in their respective legal history, as also the problem of apathy of judges and lawyers. Developed countries like the U.S.A., Australia and Canada have witnessed a few decades back huge backlog of cases, excessive legal costs and expenses and litigants' misery, as we are witnessing now in our country. 

Lawyers and judges of developed countries did not look upon the Government to solve what was essentially a problem of administration of justice that concerned lawyers and judges themselves. In many areas of these countries, some thirty plus years back, public-spirited judges and lawyers put their heads together and devised a common strategy to solve the problem of huge backlog of cases, delay in the disposal of cases and excessive expenses in litigation.

Their Perception of Adversarial System

What they found was that the adversarial system prevalent in common law countries were no longer adequate to address the growingly complicated technical legal problems of modem-day litigation. The adversarial system creates two mutually contending, exclusive, hostile, competitive, confrontational and uncompromising parties to litigation. This system does not generate a climate of consensus, compromise and co-operation. As litigation progresses it generates conflict after conflict. At the end of litigation one party emerges as the victor and the other party is put to the position of the vanquished. Adversarial litigation does not end in a harmony. It creates more bitterness between the parties that manifests itself in more litigation between them or even their successors. However, judges and lawyers of developed countries found that the alternative is not to do away altogether with the adversarial system. The adversarial system plays a positive role too. It settles through adversarial hearing complicated and disputed questions of fact and law. The law that superior courts lay down to be followed by subordinate courts and tribunals can never be arrived at without following the adversarial procedure. Any court cannot lay down any law by way of compromise, consent or consensus of parties to litigation.

Their Adoption of Consensual System As an Alternative not Substitute

Beyond the territory of complicated questions of fact and law there lies a vast area of litigation where the adversarial system must yield to a consensual type of dispute resolution, even though there are complicated technical legal problems in this vast area as well. The consensual type is essentially a type and a process of dispute resolution that requires judges, lawyers and the litigant public to change their centuries old mind-set and to adjust gradually to play a combined and co-operative role in the resolution of disputes. In an adversarial system a judge has a passive role to play. He/she will take the evidence as it comes, hear the parties and deliver his/her judgment without getting involved in the entire dispute resolution process. In a consensual system the judge, the lawyers, litigants and outside mediator or evaluator are all active parties to the resolution of dispute. It is informal, confidential, speedy and less expensive. It preserves the jurisdiction of the trial court to try the case on merit, if A.D.R. fails.

Their Solution, But What is New About  It

These and other jurisprudential thinking led the judicial and legal thinkers of U.S.A., Australia and Canada to devise two prominent alternative methods of dispute resolution: (1) mediation and (2) non-binding arbitration.

Question may arise, is it anything new? Certainly, it is not entirely new, at least to us. In this sub-continent of ours, mediation by village elders and arbitration by impartial individuals or group of individuals have continued since time immemorial. 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.

Then, what is new about the concept of alternative dispute resolution? Shortly stated, the newness of A.D.R. 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. They will live in a climate of assurance that an alternative method of obtaining justice can be obtained from the formal legal and judicial system itself speedily and with less expense. This, I believe, is a legitimate expectation of the people of Bangladesh from any Court "established by law" under Article 114 of the Constitution. What is available to the benefit of a litigant from a paralegal informal system should legitimately be expected from a court "established by law".

This is the justification of alternative dispute resolution.

Different Forms of A.D.R. and their Application

1) Mediation

The most common type of A.D.R. is mediation. Although the word "conciliation" is also used in A.D.R. terminology, there is virtually no distinction between mediation and conciliation, because mediation includes conciliation. It is generally recognized that when parties come to a stage of litigation when the trial is imminent, alternative dispute resolution is too late a procedure to induce the parties to divert themselves to a different procedure, because by that time the parties had already spent a substantial amount of money, time and energy in the litigation. It is then too late to take an interest in a cost­saving or timesaving procedure. Attitudes had also hardened mutually on both sides. It is desirable that after the defendant/s file their written statements, the presiding judge should read both the plaint and the written statements and call the parties and their lawyers, if any, to impress upon them the desirability of settling their disputes through mediation or non-binding arbitration. If the parties agree the case is adjourned for three months, within which they have to obtain either a settlement or a failure of it from either the mediator or the arbitrator. In the event of failure to settle, the court will proceed to try the case, according to a time-calendar for each case, and the adversarial system will resume.

Court-Directed Mediation Proceedings

Mediation is a completely voluntary and non-binding process of settlement of disputes between parties. It is an informal, flexible, confidential, non-adversarial and consensual procedure in which the Code of Civil Procedure or any law of evidence does not apply. The proceedings are immune from disclosure in any court of law. An impartial, disinterested and neutral person acts as a mediator. Mediation may be 1) Direct or 2) Facilitative. In Direct Mediation, the mediator applies all methods of squeezing into the heads of the parties his/her own idea of a settlement. In Facilitative Mediation the mediator facilitates settlement negotiations, improves communication between the parties, helps the parties to articulate their respective interests and stakes in the litigation and helps each party to understand the interests and stakes of their opponent in the litigation. He/she probes the relative strengths and weaknesses of each party's legal position, identifies areas of agreement and helps to generate options amongst the parties themselves to arrive at a mutually acceptable resolution of their disputes. The lawyers of each party are entitled as of right to take part in the mediation proceedings, but the mediator in an informal and flexible proceeding of this kind, may like to sit alternately with the plaintiff/s or the defendant/s, with or without their lawyers. The parties may disclose many things to the mediator not articulated in the plaint or written statement/s, but the mediator must maintain the confidentiality of these disclosures and tell the other side so much of the disclosures as he/she has been expressly authorized to disclose. He/she must not lean on any side and both sides must have confidence and trust in his/her impartiality and neutrality unto the end, even if there is no settlement. If the decision­ makers of a dispute in respect of payment of legal fees to the parties or in respect of execution of the court's decree are operating from behind using the plaintiff/s or the defendant/s as proxies, the mediator has the right to call and listen them too. At a trial the judge's hands are more restrained. It may so happen that the mediator generates so much of a spirit of compromise between the parties that they even agree to withdraw other civil suits pending against each other in other civil courts or compromise compoundable criminal cases pending against each other in various criminal courts. The final settlement is thus not limited to the prayers in the plaint. In a formal trial, a judge cannot go beyond the prayers in the plaint if the suit is decreed. In court-sponsored mediation the terms of settlement may travel beyond the scope of pleadings. When signed by the parties, their lawyers and the mediator,. the presiding judge will pass a decree in terms of the settlement. If other civil and criminal cases are also compromised in the document of settlement, the parties will have to approach the other courts to pass a compromise decree or compound a compoundable criminal offence. If one party fails to do so, the other party may sue for specific performance of contract or may claim damages for breach of contract, because the written settlement operates as a binding contract between the parties. There is no appeal or revision against a settlement of this nature. Hence if all parties adhere to the terms of settlement several cases are finally disposed of and go out of the pending list. When a court directs mediation, it means facilitative mediation.

Benefits of Mediation

Please pause and ponder over the beneficial effects of _ successful mediation. There is no victor and no vanquished. No party is aggrieved by the outcome, because the settlement is voluntary and is reached after considering the pros and cons of several options generated by the mediator. Both sides are in a win-win situation. There is no bitterness left. There is often a restructuring of relationship. Parties who would not see each other's face may re-establish a working relationship between them after conclusion of a successful mediation. Instead of discord, disharmony and bitter relationship at the end of an adversarial proceeding there is peace, accord and re-established relationship between the parties at the end of a consensual proceedings.

Mediators In Developed Countries

Judges do not conduct mediation or non-binding arbitration. They are meant for trial of a case. But they have the authority to refer any case, or part of a case for any of the A.D.R. mechanisms, preserving their jurisdiction to try the case if A.D.R. fails. When they do so refer, there is no appeal or revision against the order, because that kind of order is passed only when the parties agree with the judge that it should be so done. A.D.R. begins with an agreement, not with a discord. However, the legal climate that prevails in our country is surcharged with a highly adversarial bent of mind that has been fostered throughout centuries. It would be wise to leave the matter whether a case or part of a case should be referred to mediation or arbitration to the discretion of the trial judge, without leaving the matter entirely to the willing consent of both parties. The discretion will not be amenable to appeal or revision. When A.D.R. gains ground, as experience suggests, the consent of both parties would be forthcoming like an avalanche. The judge will hardly have any discretion in the matter.

I have said earlier that it is the combined efforts of lawyers and judges in developed countries for over three or four decades that A.D.R. has come to be accepted as a widely used handmaid of justice. It is the lawyers who convinced the litigant public that if all cases were to be disposed of by trial and trial only, then in all jurisdictions all over the world, backlogs would heap upon backlogs, choking the entire justice delivery system. Because of the pioneering role and involvement of lawyers from the very beginning, it is the lawyers who perform almost 90% of court-directed mediation, non-binding arbitration and early neutral evaluation (of which I shall speak later). Each court maintains a list of senior lawyers who earned their financial security, reputation and standing in the society by practicing in the Bar. They owe it to the Bar and the Bench to repay a part of their debt by giving a bit of their precious time, energy and intellect in the A.D.R. mechanism voluntarily and without payment of any charges or fees. Because a system of rotation is in place, each senior lawyer is required to mediate, arbitrate or make an early neutral evaluation once every three months or six months. A small office is set up at each Bar to maintain and update the list of senior lawyers as approved by the local court, to ascertain if in any court-sponsored mediation, non-binding arbitration or early neutral evaluation any senior lawyer has either been consulted or engaged by either the plaintiff/s or the defendant/s, to request and obtain their consent for their services if they have not been so consulted or engaged and to fix up the date, time and venue of arbitration, non-binding arbitration or early neutral evaluation. A small fee is charged from the plaintiff/s and the defendant/s equally (U.S.$75 each in San Francisco courts) to defray the costs of running this small office. Court-appointed professional mediators perform nearly 5% of this work for a fixed salary paid from the court's budget. Private Mediation Firms, staffed by well-qualified ex-judges and ex-lawyers, approved by the local court, perform the rest for moderately high fees from both sides. Affluent parties with high stakes flock to the private firms.

Suggested Mediation  in Bangladesh

Given the position that in Bangladesh no awareness or movement of senior lawyers of any significance has grown up yet, willing to take up the major load of A.D.R. upon them, it will not be wise, in my view, to start the program with sole dependence upon public-spirited lawyers. It will be prudent, at least at this stage, to keep in the statute a wide option of mediators and arbitrators to avoid the vagary of availability or non-­availability of senior lawyers. Presiding judges of the disputes in question and other available judges of co-equal jurisdiction not in seisin of the disputes in question should be kept as options for the choice of mediator or arbitrator. Senior lawyers as per list maintained and constantly updated by the District Judge should be available for mediation and arbitration free of cost and charges. Private mediation firms, having experienced judges or retired judges and/or qualified non-practicing lawyers on their staff, recommended by the District Judge and approved by the Chief Justice of Bangladesh, may also be included for mediation or non-binding arbitration on payment of equal fees by the parties. Gradually, as the idea spreads and the A.D.R. procedure gains ground, judges may be eliminated from the list altogether. This may take some time, but nothing can be achieved without patience and perseverance. U.S.A., Australia and Canada have not achieved their present position without sustained efforts for three or four decades. 85 to 90 percent of cases filed are now disposed of by A.D.R. method and only 10 to 15 percent cases filed are disposed of by trial now in those countries. But Rome was not built in a day.

Training of Mediators and Arbitrators - A Matter of Continuous Importance

Mediation or arbitration does not come easily to anyone, whatever height he/she attains in legal knowledge and experience. Mediation especially involves the use of a facilitator trained in conflict resolution. The mediator must know the techniques of encouraging the parties to discuss their positions with greater candor and he/she must also know how to foster compromise. Mediation involves a thorough training for a few days. Training literature is available in the Internet and a few trainers in Bangladesh are available as well. The first implementation task will be to train up a large number of trainers in mediation, arbitration and early neutral evaluation. These trainers will then spread out throughout the nook and corner of the country to train up judges, lawyers and other interested persons in the art and science of mediation, arbitration and early neutral evaluation. Without such intensive training, it will be a folly to introduce A.D.R. wholesale in our lower courts. India tried to introduce A.D.R. in 1999 by an amendment to the Code of Civil Procedure, known as the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999). It ended in a fiasco. There was widespread resistance to it by lawyers that forced the Government of India to postpone its implementation. The lesson is that when you introduce any matter of legal reform or innovation, do not try to impose it from above. Do some intensive work at the grassroots level, build up a large following, try the reform on a trial and error basis by setting up pilot courts and then proceed with caution by examining its results. Learn from the pilot courts and the lawyers involved in mediation and other methods what practical problems they are encountering with, adjust and re-adjust your program accordingly, so that what finally emerges is not a foreign model, but an indigenous Bangladeshi model, suited to the legal culture, ethos and traditions of this country. The second implementation task will be to continue the training for all time to come for the new entrants to the Judicial Service through the Judicial Administration Training Institute (JATI). JATI will have to develop a curriculum especially for A.D.R. and also will have to keep and maintain one or more regular instructor on its pay roll to teach the mechanisms of A.D.R. to the trainee-judges. Outsiders interested to pursue a career of mediation and arbitration may also receive instructions and certificate from JATI, on payment of fees and charges, as and when JATI is ready enough to render this service.

2) Non-Binding Arbitration

In the A.D.R. vocabulary, arbitration is preceded by the word 'non-binding' because of two reasons. First, it is necessary to emphasize that it is not arbitration under the respective Arbitration Act of any country. Arbitration Act, 2001 of Bangladesh contains so much of a lengthy procedure and it is so much amenable to interference at various stages by the local court having jurisdiction over it and by both Divisions of the Supreme Court that the total purpose of A.D.R. will be frustrated if the Arbitration Act is made applicable to A.D.R. arbitration. The second reason is that in A.D.R. proceedings the jurisdiction of the trial court to try the case, if A.D.R. fails, is always preserved. A.D.R. is not a substituted method of dispute resolution following a separate statutory procedure, but an alternative, informal and confidential procedure to cut down delay and expenses. An arbitrator's award under A.D.R. procedure is non-binding on both parties. The application of Arbitration Act will take away the trial court's basic jurisdiction to try the case. This will then be a case of abandonment of judicial function in favor of an Arbitrator.

Non-binding arbitration is an adjudicative process in which an arbitrator or a panel of arbitrators issues a non-binding award on the merits of the disputes in question after an expeditious, time-bound and adversarial hearing. Lawyers of each party will face each other in these proceedings as in any other adversarial proceeding. The arbitrator has no role as a mediator. He/she has a passive role to play. He/she will hear the evidence and peruse the oral and documentary evidence, hear arguments of both sides and give his/her award according to his/her best judgment. Each party has the option to reject the award. If both parties accept the award both of them will sign the award or put their thumb impressions on it, as the case may be, and their respective lawyers, if any, and the arbitrator/s will also sign the award before the trial court makes it a decree of the court. Parties have been given the option to reject the award because if the award has not been satisfactory to either or both of them, they have the right to fall back upon the trial court for a decision on merit. Like mediation this is also a confidential proceeding that is immune from disclosure in any court of law. Arbitrators are nominated in the same manner as mediators.

3) Early Neutral Evaluation(ENE)

In the words of Robert A Goodin,

"Early neutral evaluation is a technique used in American litigation to provide early focus to complex commercial litigation, and based on that focus, to provide a basis for sensible case management or offer resolution of the entire case, in the very early stages."

A senior lawyer with expertise and experience in the subject matter of litigation and in case management conducts ENE, when called upon to do so by a trial court. He/she is called the evaluator or neutral Prior to a session lawyers of both sides provide to the evaluator a written brief summarizing the facts, the legal arguments and authorities in support of each party's case as well as the documents considered by each side necessary for the evaluator's understanding of each party's case. The first session is attended by the evaluator, the lawyers of each party, and the principal decision-makers of each party. Suppose a case is instituted for or against a Bank or Insurance Company. Some officers of the Bank or Insurance Company may have been impleaded as defendants but the decision-making lies with the Managing Director or the Board of Directors. In that case the Managing Director or the Board of Directors will be asked by the Evaluator to be present at the first meeting. To achieve maximum effectiveness, it is essential that the actual decision-makers on behalf of each party, i.e., the people who will be ultimately responsible for the payment of legal fees and who have final authority for settlement, be present at the session to observe at firsthand the arguments and the evaluation. Further, to be effective, the session should be held in the first three to six months of the pendency of a case.

At the session, the lawyer of each party makes a concise, but thorough, oral presentation of the parties' position, including the evidentiary support and the citation of legal authorities for that position. The presentations are followed by questions by the evaluator directed not only towards the parties' lawyers, but also the actual decision makers of the parties. At the conclusion of the first session a break is taken and the evaluator retires to prepare an outline of what he/she believes to be the central issues in this case, and what, based on the presentations, he/she believes the likely outcome on each will be. The evaluator also estimates the likely cost in legal fees to each side if the matter is fully litigated. That evaluation is then shared with the parties either at a joint session, or more frequently, in private sessions (called caucuses). The reason why the private caucuses are more often used is that it somewhat allows more candor, more frankness and more practical realization of each party's factual and legal strengths and weaknesses that frequently leads to a mediation offer to the evaluator who then shuttles between "caucus" to "caucus" to help parties come to a settlement based on the evaluation session. 'The entire exercise may take a few days.

If settlement is not possible or the parties do not desire it, the evaluation session becomes the basis for a case management planning effort. ENE almost invariably results in a much better understanding by both parties of what the central and decisive issues in the case are. They can rationally plan a case development process making it less time-consuming and less expensive. The evaluator assists the parties in drawing up a written case management plan.

The proceedings are confidential and not admissible in the litigation itself. The evaluator's evaluation is not transmitted to the trial judge in any fashion. Nearly one-third of the cases filed in the federal courts of U.S.A. are resolved during the ENA stage.

ENE Procedure in Bangladesh

In Bangladesh, I do not recommend the ENE procedure in all kinds of litigations. Money loan recovery cases under the Artha Rin Adalat Ain, applications before District Judges in house building loan recovery matters, special loan recovery applications preferred before the District Judges by the Bangladesh Shilpa Rin Shangstha and Bangladesh Shilpa Bank and cases under the Insolvency Act that are all governed separately by separate and special procedural rules may have an amendment in their respective special legislations containing an option to take recourse to this particular method of A.D.R. The Code of Civil Procedure may be amended so as to include only mediation and non-binding arbitration for application to civil suits generally. ENE and the next method, namely Settlement Conference, will only confuse the general legal practitioners, judges and the average litigants and may generate widespread resistance to these hitherto unknown multiple choices, if all the methods of A.D.R. are included as options in the amendment of the Code of Civil Procedure. The type of cases and applications mentioned above are regulated by special legislations. Special procedures govern these cases and applications. Only a limited number of lawyers deal with these specialized litigations. It will not be difficult for these specialized lawyers to come to terms with ENE and Settlement Conference. Also, in my opinion, mediation or non-binding arbitration will not be an effective method of early and less expensive consensual disposal of such types of cases and applications where policy decisions are involved often on the part of the government, autonomous, semi-autonomous or government-controlled bodies that are often either plaintiffs/applicants or defendants/respondents in such cases and applications.

4) Settlement Conference or Judicial Conference

Settlement Conference or Judicial Conference may be held at any time during the life of a civil case upon request of a party or recommendation of a trial judge. The judge who is assigned to adjudicate the dispute in question is not involved in this method of A.D.R. Another judge of co-equal jurisdiction is requested to involve him/herself in this method. The settlement judge acts as a mediator or facilitator at the Conference, promoting communication among the parties, holding one-on-one sessions with each side, offering an objective assessment of the case and suggesting settlement options. The settlement judge has not the power to enforce settlement and does not communicate any information about the case to the trial judge. If settlement is reached, the parties sign an agreement, thereby avoiding the cost of trial or other litigation. If no settlement is reached, the case proceeds to trial before the previously appointed trial judge.

The success of this process is attributable to two factors. First, the parties get the advantage of utilizing for free judicial experience in evaluating the settlement value of a civil claim and secondly, they have the opportunity to separate their private and confidential negotiations from public ad judicatory trials.

I do not recommend Settlement Conference or Judicial Conference for general use in cases tried under the Code of Civil Procedure. The users of this method will confuse it with "mediation". It may be incorporated by way of amendment as an option in the special legislations covering the type of cases and applications mentioned under the heading "Early Neutral Evaluation" for the same reasons described therein.

Mediation Under The Family Courts Ordinance-1985

The Beginning

When I retired as the Chief Justice of Bangladesh on the I SI January 2000 I was contacted by the American Center at Dhaka to meet Mr. Steve Mayo, an attorney from San Francisco. He told me that he represented a San Francisco based voluntary organization of judges and attorneys called Institute for the Study and Development of Legal Systems, shortly ISDLS, which was then operating in a dozen countries outside U.S.A. to help implement the A.D.R. in harmony with the legal systems prevalent in each country. If Bangladesh is interested, ISDLS can help. As a first step, he suggested, we should form a small Legal Study Group (LSG). I took no time in jumping to the idea and formed an LSG. The LSG comprised of myself, Mr. Justice K.M. Hasan (then the senior most Judge of the High Court Division, later a Judge of the Appellate Division), Professor Dr. Shah Alam (then a member of the Law Commission, now the Chairman of the Faculty of Law, University of Chittagong), Mr. Anwar-ul-Huq (then Joint Secretary, Ministry of Law, Justice and Parliamentary Affairs, later elevated as a Judge, High Court Division) and Barrister Shafiq Ahmed (then President of the Supreme Court Bar Association), with myself as the Chairman. At the invitation of ISDLS we all four visited San Francisco in February, 2000 and obtained a firsthand insight into the working of A.D.R. methods and techniques in all types of courts in that city and also in San Jose. A strong team of judges and attorneys of San Francisco visited Bangladesh in April 2000. The Ministry of Law arranged an assortment of Assistant Judges from all over Bangladesh to meet them and to talk to them. The then Chief Justice and the then Law Minister extended all help and the meeting was held in their presence and in the presence of other senior Judges of the Supreme Court at the Judges' Lounge of the Supreme Court. The American Center provided all the logistics. The ISDLS team explained in great details the mechanism and working of A.D.R. and convinced the participants that Bangladesh should give it a try without shaking up the civil justice delivery system and without amending any law or involving any extra expenditure to the public exchequer. It was found that of all the nearly 2000 statutes prevalent in Bangladesh, it was only the Family Courts Ordinance, 1985 which gave the trial court judge the jurisdiction and authority to "conciliate" between the parties both before and after trial. This statute was therefore considered to be the ideal starting point of A.D.R. in Bangladesh, because it would not involve any change in legislation or any extra public expenditure. Some of the Assistant Judges informed that they had mediated between the parties successfully in many cases following their own individual methods, but others pointed out that they did not feel encouraged to try conciliation between the parties under this statute, because they were entitled to one credit for holding one trial and did not get any credit at all for effecting a compromise decree. Their labour for 3 or 4 days was thereby wasted.

Training and Commencement of First Pilot Courts

ISDLS and the Legal Study Group then took a joint decision to start two or three pilot family courts at Dhaka Judgeship from June 2000. A Project Implementation Committee was formed with Justice K.M. Hasan as Chairman. It was at his instance that the Chief Justice and the Minister of Law were persuaded to make an amendment to the performance measurement of Assistant Judges. They would be given two credits, i.e., credit of holding two trials for performing one successful mediation and one credit, i.e., credit of holding one trial for two unsuccessful mediations. I may mention here in passing that all Assistant Judges are ex-officio judges of Family Courts. The credit would be enjoyed by all of them, whether they would preside over a pilot court or not.

ISDLS then arranged an experienced Mediator of the Ninth Federal Circuit Court of the U.S.A, Mr. William C. Rack, to visit Dhaka and impart training on mediation, both theoretical and practical, to 30 Assistant Judges assembled from all over Bangladesh, some lawyers and NGOs. The American Center, Dhaka and the Ministry of Law provided all cooperation. During the training for 3 days some of the members of the Legal Study Group, including myself, watched from the beginning to the end, what the subject matter of the training was, how it was imparted, what impact it made and how effective the training program was. We selected three Assistant Judges to operate three pilot courts at Dhaka Judgeship. Accordingly 2 pilot courts started functioning from 1 June 2000 and the other from 1 January 2001 at Dhaka Judgeship. Cases had to be transferred to those courts exclusively for mediation, parties were to be notified and during these preparatory days, the pilot courts, without wasting time, conducted trials of cases till sufficient number of cases were ready for mediation with the consent of both parties. It need not be emphasized that nothing would have been possible without the active support of the Chief Justice, Minister of Law and the District Judge of Dhaka and without the outside help of ISDLS and the inside logistic assistance of the American Center.

Continuous Training and Expansion of Pilot Courts

After a gap of two or three months we three, myself, Mr. Justice Anwar-ul-Huq and Mr. A. K. Roy (then Deputy Secretary of the Ministry of Law and now Judge, Women and Children Repression Prevention Court, Sylhet) started touring the divisional headquarters, namely, Chittagong, Rajshahi, Khulna, Barisal and Sylhet imparting training both to Assistant Judges coming from each Division and to the local lawyers on mediation techniques for two or three days on each visit. We also spread out to district headquarters, namely, Comilla and Mymensingh, and imparted the same training to other batches of Assistant Judges and lawyers. Sometimes the training sessions were inaugurated by the Chief Justice of Bangladesh and sometimes by the Minister of Law. Mr. Justice K. M. Hasan made himself available on most of the occasions to apprise the audience of the progress of mediation in the family courts of Bangladesh. Mrs. Mary Ann Peters, Ambassador of the U.S.A to Bangladesh, made an invaluable speech at the opening of the training session at Comilla. After a year or so we started taking one of the Dhaka family pilot court judges to narrate their mediation experiences and achievements and to interact with the trainee participants. Everywhere the trainee participants volunteered immediate participation. Needless to say the Ministry of Law and the American Center were cooperative on each occasion and rendered all administrative and logistic assistance required.

After completion of a training session at a certain place, a Pilot Court was set up in that town or elsewhere within the jurisdiction of the judgeship where the training was held. The District Judges followed the matter through. Now there are 3 pilot courts at Dhaka, 2 at Chittagong and 1 each at Sylhet, Rajshahi, Khulna (not exclusive though), Bogra, Jessore, Rangpur, Kushtia, Comilla, Faridpur, Barisal and Mymensingh. Out of 65 districts, only 14 have pilot courts, but it is our information that not all districts need an exclusively mediation pilot court, because the number of family cases does not justify it. It is also our belief that many districts, where there is a genuine need for an exclusively mediation pilot court, can well be served initially by transferring to those districts some Assistant Judges who have already received training from us. It is however necessary to keep the training process ongoing so that all the districts of Bangladesh are covered by pilot courts. In due course, all districts will have at least one exclusively mediation court and they will no longer be called pilot courts.

Lawyers' Resistance - An Unfounded Apprehension

I have talked to a number of lawyers of all ages all over the country. Contrary to what anti-lawyers believe, lawyers do not like their piled-up cases to rot in their sheresta (chamber) for years and decades together. They admire and desire a quick resolution of disputes and they dispute the proposition that the quicker a case goes out of their sheresta the lesser is their income. On the contrary, the earlier a case goes out of their sheresta by way of final disposal, the more it is replenished by new cases. The more the litigant public comes to know that the legal and judicial system delivers justice speedily and with less expense, the more the public knowledge inspires confidence in the system itself and the more the potential litigant who would not have come near the court premises would flock to the courts for results of a similar nature.

A year after the first family pilot court was started at Dhaka Judgeship I attended a joint meeting of the pilot court judges, lawyers of all courts including pilot family courts, with Mr. Justice Anwar-ul-Huq, the District Judge, Dhaka and the representatives of the American Center. Those lawyers who had engagements in courts besides the family court told me that they had lost their income from the family courts because of early disposal by mediation, but their other earnings from other courts amply made up the loss. By then a group of lawyers had grown up, both male and female, who had built up exclusive practice in family courts, leaving their position as juniors in some senior lawyers' chamber. They told me that hapless women, having received speedy and inexpensive justice through mediation, had brought in other clients for them, similarly situated, and this way they themselves, not being so senior in the profession, had been obliged to engage fresh entrants to the profession to help cope up with new work.

One Senior Assistant Judge who is a family pilot court judge at Dhaka told me that after he received training from Mr. William C. Rack and listened to my words of encouragement, he was unconvinced and pessimistic. He thought those were loud sermons from a high pulpit unsuitable for this country. After his selection as a pilot judge he was further depressed. He thought he was being wasted by placement on a job that had no future and no safe stepping-stone to the next hierarchy. He knew about the adamant nature and uncompromising attitude of the litigants of Bangladesh. Now he keeps on telling me whenever we meet that his apprehensions did not come true. He is so successful with mediation that there is a beeline in his court for mediation after mediation. He derives immense job satisfaction from out of his successful mediations. Whatever be his future career he will go down in the legal history of Bangladesh as one of the pioneer A.D.R. judges. Other pilot judges have told me of their many and varied experiences of innovative mediation exercises, combination of direct and facilitative mediation, novel way of realizing settlement money by installments if not paid on due date etc. Their experiences made me wonder if I knew all about mediation.

Concluding Suggestions

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. The Family Courts all over Bangladesh are actively engaged in A.D.R. The pilot family courts are only exclusively engaged in mediation, but other Assistant Judges, who received training in mediation, are also mediating apart from trying cases. The mediation output of all the Assistant Judges, taken together, is something to be proud of. The Ministry of Law only needs to collect, maintain and update all relevant statistics in this regard.

Before we extend the frontiers of A. D. R. to other types of litigation, I would suggest the following:

1. Amend the Code of Civil Procedure giving 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 backlogs. When 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. It is necessary to define mediation and non-binding arbitration correctly and precisely in the amendment to avoid unnecessary dispute about their nature and character.

2.  Make the presiding judge, a judge of co-equal jurisdiction, lawyers of the local court or a court of adjacent jurisdiction 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/or non-practicing lawyers of not less than 15 years' standing, recommended by the District Judge and approved by the Chief Justice of Bangladesh, as qualified for appointment as mediator or arbitrator. As a matter of practice the presiding judge may not assume that function, but the enabling provision should be there, because in many places a judge of co-equal jurisdiction or a lawyer of stated standing or a private legal firm might not be available. The District Judge will keep a constant eye on A.D.R., provide the Ministry of Law with regular up-ta-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, 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. Before introducing A.D.R. in any other field intensive training of concerned judges, lawyers and the court staff is a must. The training will be on a continuous basis and JATI should have an instructor on its pay roll to impart training on different methods of A.D.R. to different tiers of trainee-judges, including new entrants to the Judicial Service. A batch of trainers should be created to take up this arduous job in all the districts.

4. A. D. R. will have a-smooth transition if it is introduced on a pilot court basis. The performances, results, reactions among pilot court judges, practicing lawyers and the litigants should be carefully monitored and recorded 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. Mediation or non-binding arbitration, in my opinion, may not be a suitable form of A.D.R. in big commercial cases involving heavy amounts, Artha Rin Adalat cases, applications before the District Judges in house building loan cases, Bangladesh Shilpa Rin Shangstha and Bangladesh Shilpa Rin cases and insolvency cases under the Insolvency Act. I have suggested Early Neutral Evaluation or Settlement Conference as the proper result-yielding method of A.D.R. in such cases. I would advise an amendment to the special legislations covering these types of cases enabling trial judges to refer a case or part of a case at any stage of the suit for application of ENE or Settlement Conference, although the ideal time to start this process is after receiving the written statement. I am in favor of adding 'at any stage of the suit or application' to cover the backlogs. Also ENE and Settlement Conference should be suitably defined to avoid any conflicting interpretation of these concepts.

6. The Government 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. In most cases the Government do not make any appearance, because the Government do not find, at any rate for the time being, any interest of the Government involved in the case. Yet 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.

7.         Labor Courts and Small Causes Court are the two areas where mediation should be introduced immediately on a priority basis, amending the two special legislations.

The people of Bangladesh are hungry for justice. It is for us, the legal and judicial community, to respond to this public need in a well thought-out, disciplined and organized manner. Our success will depend upon the way we motivate and dedicate us.

I wish this workshop a resounding success.

For Suggesions, Pl. Email at:
delhimediationcentre@nic.in

Tel. No. : 23961909, 22309085