Seven years of ADR: Concerns and challenges ahead
Barrister Md. Abdul Halim
The present law minister stated recently that new amendment of CPC is scheduled for introduction of mandatory ADR provision. He also stated that present provision being optional in nature it may not yield better result in resolving civil disputes. The fact is that the Government has not published any paper on this- What shortcomings are there in the present law? What is the outcome of seven years experience on ADR? What specific amendments will be brought into now and why? The stakeholders are in the dark.Seven years have passed since ADR was introduced in CPC back in 2003. However, no official statistics on the achievement of ADR is available either at the Ministry of Law or in the Supreme Court. Without substantive reports and statistics it is very difficult to predict how successful the new system of ADR has been and what needs to be done further to develop the system. One thing is very clear from the statistics of pending cases that in last seven years situation has not improved at all; rather it has deteriorated as the number of pending cases keeps mounting in a leap frog style. The newly adopted system of ADR has not been kept under review since its inception in 2003. The author visited the Ministry of Law and also the Law Commission with regard to this but both the organizations stated that they do not have any statistics on ADR performance in lower courts. Secondly, some working experience on ADR proceedings in different civil court suggests that there are some important shortcomings in the provisions in section 89A of the CPC which need to be remedied.
First, sub-section 89(1) states that after filing of written statement if all the contesting parties are in attendance in court in person or by their pleaders, the court may by adjourning hearing, mediate. What will happen if both the parties or their pleaders do not attend courts together? Reality is that neither parties nor their lawyers attend the court together; if the lawyer of the plaintiff attends, lawyer of the defendant does not attend and the courts have no other option but to give date one after another. This problem is complemented by another problem. Suppose lawyers of the both the sides appear and the court makes an order for appearing before a mediator for settlement or asks themselves to mediate and report the court, the parties or party does not attend mediation. What is the consequence? This makes the life of the suit lengthier only. The court has not been given any power to impose any penalty or measure as this is the stage even before first hearing. Thus the present provision adds up only delays in prolongation of suits. In this regard, provisions in Order X should be linked with section 89A to the effect that both the parties or their pleaders must appear before the court at first hearing which would be also considered for mediation hearing and if any of the parties fail to attend, the court may dismiss the suit or proceed exparte as the case may be. These provisions have also been incorporated in the Indian CPC. Without such mandatory measures it is unlikely that lawyers would follow provisions of mediation.
Second, very often lawyers of both the parties attend mediation meetings. The mediator suggests a compromise but one party does not want to compromise. In such a case the mediator has to give a report of disagreement. There is no measure to be taken against the party which unreasonably withdraws from compromise. In such a situation the court should be armed with power to impose fine to the unreasonable defaulting party and this can be done by making a link with rule 6 of Order XIV of the Code of Civil Procedure. Most developed and developing countries have adopted penal measures in this regard. In the UK a party which does not take its duty to consider ADR seriously is likely to be penalized when the court looks to the question of costs (CPR, r. 44.3(4)). Accordingly a winning party may find its recovery of costs reduced by reason of a failure to cooperate in relation to ADR (CPR, r. 3(6)(g)).
Third, to make the provisions of ADR successful the cooperation of lawyers is a must and for this some incentives from the judiciary/state is also necessary. Lawyers willingly do not want to mediate because mediating soon after filing and submitting written statement means that their income will be limited to only two to three dates. To encourage lawyers to be proactive in mediation as well as to develop a culture and environment of ADR in the country, some mechanism needs to be introduced: (i) provision should be made regarding mediator-of-the year (one who has mediated the highest number of suits in a district in the preceding year); (ii) provisions should be made regarding advocate-of-the year (advocate engaged by either of the parties to the suit who has assisted the mediator in arriving at the settlement of highest number of the suit/case in the district); (iii) provisions should be made to provide monthly honorium to the Advocate-of-the year and Mediator-of-the year from the Government fund at the rate of Tk. 2000 per month for a period of next 12 months.
Fourth, sub-section 89A (11) of CPC provides that on settlement of a suit by mediation the court shall issue a certificate directing refund of court fees within 60 days. Although this provision has been made to encourage mediation by the parties, in fact this has been proved meaningless. No allocation is made in the budget of the Government for this purpose and the accounts offices of the Government refuses to refund. Thus to create a congenial atmosphere of ADR the Government should consider allocating budget for this purpose so that court fees may be returned effectively and without any hassle on mediation. At the same time, necessary provision for return of court fees must be inserted in the Court Fees Act, 1870 as has been done in India also.
Fifth, 99% judgments in both lower courts and Supreme Courts come up with usual order- “there will be no order as to cost”. If no cost order is imposed it is unlikely that filing of false cases will be stopped. The worldwide recognized rule is that the losing party will bear the cost of winning party and that cost must commensurate with the cost of litigation, lawyers fees, court fees and other expenses on date basis. If this cost order jurisprudence can be streamlined and developed in Bangladesh, a big number of false cases could be thrown out automatically.
The movement of ADR seems to be on full swing in Bangladesh including under fiscal laws but the mechanism seems to have been introduced without effective nuts and bolts. If the present Law Ministry like his predecessor makes mandatory provision of ADR without proper study and keeping safeguards as in neighbouring countries, it is highly likely that the attempts will be fruitless. It is hoped that the Ministry will consider the views of all stake holders, experiences of India and then bring necessary amendments.
The writer is an Advocate of the Supreme Court of Bangladesh.