Bangladesh has had a long tradition of community-based alternative dispute resolution (ADR) system, widely known as shalish. Numerous studies show that the ADR is a very effective tool in delivering justice due to “settlement within the locality, being easily approachable, and lesser cost” (UNDP).
Unfortunately our formal justice system has not utilised the scope of ADR in full swing.
Both the Village Court Act 2006 and the Conciliation of Dispute (municipal areas) Board Act 2004 have incorporated the spirit of the mediation process to deal with both civil and criminal matters. However, the scope to use ADR in the criminal justice system is still very limited.
In this context, the initiation of ADR services at the District Legal Aid (DLA) offices through the section 21A of the Legal Aid Services Act (LASA) 2000 (amended in 2013) has created new hope.
Alternative dispute resolution
It has made the ADR system an essential part of the government legal aid. The District Legal Aid Officers (DLAO) now can settle disputes through mediation, if the cases are referred to them by any court or tribunal.
The government has also enacted the Legal Advice and ADR Rules 2015, which delegates the power to DLAOs to mediate disputes with the consent of both parties.
In 2014, attempts for mediation were made in 290 cases, of which 58% were resolved and Tk4.6 million were realised. In 2015 and 2016, the numbers of cases attempted for mediation were 705 and 2,609 respectively.
Year-wise, net growth rates for the last two years have been 143% and 270% respectively. Among the cases attempted for mediation, 75% in 2015 and 81% in 2016 were successfully resolved, and Tk6.8m and Tk20.4m respectively were realised.
Year-to-year growth rates in money realisation were 48% in 2015 and 200.3% in 2016. Growth rate in beneficiaries of ADR services from 2014 to 2016 is 266%. Following an enactment of Legal Advice and ADR Rules 2015, DLAO started pre-case and post-case mediation. Statistics shows that pre-case mediation services are becoming very popular (400% increased by 1 year), and the cases diverted from the courts for mediation are also increasing (33% increased from 2015 to 2016).
The above statistics demonstrate how an institutional framework enables people to use alternative ways, which have been existed as social capital, to resolve their disputes. In fact, inclusion of ADR system in the government legal aid structure creates multi-dimensional opportunities.
Bangladesh judiciaries are overburdened with 3.1 million case backlogs, which are increasing (1.5% in 2016) every year. The existing rate in case backlogs is associated with the ongoing gap between the newly filed cases and the total number of cases disposed in the given year (5% in 2016).
Bangladesh judiciaries are overburdened with 3.1 million case backlogs, which are increasing every year
Closing the gap
This gap cannot be addressed without having an efficient mechanism for diversion in place. The pre-case and post-case mediation services by DLA office can be that tool, if it is utilised at full blast.
DLAOs are judicial officers. They are well-conversant with legal procedures. Therefore, the justice seekers would feel comfort with the DLAO-led mediation. Alternatively, DLAOs are part of judicial administrative structure. Thus, judges would also feel comfort to refer the compoundable cases to DLAOs for mediation.
This linkage will also facilitate an effective follow-up process for the referred cases. The legal aid committees at different levels, if they are fully activated, can also play vital roles in promoting the DLAO-led mediation. However, these opportunities cannot fully be utilised unless CrPC is amended and the existing scope of compoundable cases is extended.
NLASO also has some other challenges to implement this rule. It is under-resourced in terms of person-power, budget, and infrastructure. As of December 2016, only 24 districts have full-time DLAOs.
Legal aid activities in other districts are run by the designated judicial officers, who disproportionately share their time between DLA offices and court. DLA offices are not well-equipped with required support staff and logistics.
For mediation, sending notice to both parties is mandatory. But most of the DLA offices have no jarikarok (process server). As a result, they are dependent on the nezarat section of either CJM court or the district judge court. This dependency gets the process delayed.
Mediation process also requires special skills, particularly in negotiation and facilitation. It also requires an understanding of gender perspectives to make sure that female justice-seekers are comfortable in terms of time, place, process, language, and privacy. In this respect, training for DLAOs on mediation and gender will increase the quality of the services and customer satisfactions.
The role of NGOs
NGOs have a long experience in ADR. They have already created some resources on participatory and gender-responsive mediation. Since the government-NGO partnership worked well in health and education sectors, NLASO may think of replicating similar partnerships in the legal aid sector.
By nature, mediation focuses on conflict resolution while the mainstream courts focus on the disposal of cases. Disposal of a case does not necessarily mean the end of dispute. In some cases, it may create new dispute, resulting in filling new cases. A successful mediation directly contributes towards the restoration of mutual relationship, peace, and social solidarity.
The 7th five-year-plan very rightly considers inclusion of ADR in DLAO as part of judicial reform. To ensure easy and affordable access to justice, it also emphasised on building institutional capacity of NLASO and fixed a target to settle disputes under ADR (at least 25,000 yearly by 2020).
It is clear that implementation of ADR by DLA offices would contribute to achieving the plan’s target, and fulfilling the commitment in the SDGs for ensuring access to justice for all. But it requires unbroken collective efforts by the all stake-holders who are active in the justice sector.
Munir Uddin Shamim is working on a bilateral technical project on justice reform as National Project Coordinator.