01.

INTRODUCTION Now I discuss the concept of access to justice, its comparative advantages, benefits, necessity in spite of its being inconsistent with rule of law theory. However, I will concentrate on the need of ADR in the context of Bangladesh, its introduction in Bangladesh recently in the field on civil law and finally challenges of ADR ahead.

02. WHAT IS ADR The term alternative dispute resolution is often used to describe a wide variety of dispute resolution mechanisms, when disputes between parties are resolved through means which are alternative to formal litigation, this is called ADR. The term ADR is misleading in a sense that it is not always alternative to formal litigation and very often it is a part of litigation particularly for those ADR processes which are court connected. The term ADR as Appropriate Dispute Resolution rather than Alternative Dispute Resolution Definition of ADR = a) ADR is not a solution of all evil but all alternative rules to a speedier and less expensive mode of settlement of dispute. It is voluntary and cooperative way out of the imposes. b) Alternative Dispute Resolution is a non-formal settlement of legal and judicial dispute as a means of disposing of case quickly and in inexpensively.

03. ADR in Bangladesh A) Introduction of ADR in Bangladesh: Now I will deals with the history of ADR process in different legislations in Bangladesh. Apart from introducing ADR mechanism in some special legislation, ADR mechanism has been introduced for the first time in 2003 by way of the Code of Civil Procedure Act 2003 (Act No. iv of 2003) which was enacted on the 27th February, 2003 and given effect to from the 1st July, 2003. This Act created three new sections designed for ADR mechanism in all civil suits. This is where the attention of most of the judges, lawyers, researchers, academic people and the government would be drawn because of the fact the working out with these provisions will have bearing impact on the reduction of highest number of pending civil cases throughout the country. Every effort should be given both by the Supreme Court and the Government so that the new system can be made a successful vehicle of reduction of cases, access to justice to poor and easy and speedy justice delivery. More than half of total number of civil litigation in Bangladesh deals with land dispute.

B) Necessity of ADR in Bangladesh: The essentiality of ADR may be viewed from three different perspectives: 1. Interest of the state. a) Reduce burden of the court b) Reduce work load of the judges c) Reducing backlog of the pending cases. 2. Interest of the stakeholders (judge, advocate, mediators and litigants) a) Respite litigant from unbearable delay. b) Cost effective for litigant. c) Prevent feeling of enmity. d) Less cumbersome, easy and accessible to the poor population. 3. Public perception. a) ADR provides a balance in dispute resolution by reducing pending cases and as a result people can perceive the judiciary and legal system as a forum of justice in true sense.

C) Access to justice and Constitution of Bangladesh: The ADR process must be viewed from the perspective of access to justice of any legal system. The Constitution of Bangladesh guarantees justice to all. All Bangladeshi citizens are guaranteed equal rights of life and personal liberty,

C.1. ADR under different laws of Bangladesh

C.1.a. Introduction of Civil Procedure: Taking into account of the success and achievement of the mediation in the Pilot Family Court project initiated in 2000-2001, the government the day was committed to bring necessary changes into the Code of Civil Procedure so that alternative dispute resolution mechanism may be introduced into the field of general civil litigation. The Code of Civil Procedure Act, 2003 was enacted on the 27th February, 2003 & given effect to from the 1st July, 2003.

C.1.b. Two types of ADR in CPC: There are two types of ADR (alternative dispute resolution) in civil litigation: a. Mediation under section 89A; b. Arbitration under section 89B. C.1.B.A. Mediation: In the light of section 89A of the Civil Procedure, mediation is a system of flexible, informal, non-binding, confidential, non-adversarial & consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or directing the terms of such compromise. C.1.B.B. Arbitration: In the light of section 89 B (1) of the Civil Procedure, arbitration is a process shall apply at any stage of the proceeding by the parties to a suit, apply to the Court for withdrawal of the suit on ground that they still refer the dispute of disputes in the suit to arbitration for settlement, the Court shall allow the application and permit the suit to be withdrawn for shall be settled in accordance with Salish Ain, 2001 so far as may be applicable. If, for any reason, the arbitration proceeding referred to above do not take place or an arbitral award is not given, the parties shall be entitled to re-institute the suit permitted to be withdrawn. Modus of Mediation: Envisages as many as three ways of pre-trial mediation:i) The judge himself may conduct mediation to settle the dispute in the suit. ii) The judge may refer the dispute to the parties or to the lawyers of the parties for mediation. The judge may refer the dispute to a mediator from the panel of mediators for mediation. Any of these modes of mediation may be proposed by the judge himself or by the Application if the parties. Mediation by the judge himself: i) When the court itself mediates, it shall make a report of mediation. If the result of mediation is of compromise of the dispute on the suit, the terms of such compromise shall be writing in the form an agreement, bearing signature of the both parties and signature of the pleaders and the mediator ( judge himself ) and the court shall pass an order or a decree ( consent or compromise decree ). Sub-section 6

ii) If the mediation fails, the court shall proceed with the hearing of the suit from the stage at which the suit stood before the decision to mediate. Sub-section 7

iii) The proceedings of mediation shall be privileged. They are confidential and any communication made, evidence adduced, admission, statement or comment made and conversation held between the parties, their pleaders, representatives and the mediator, shall not be referred to and admissible in evidence in any subsequent hearing of the same suit or any other proceeding. Sub-section 8 iv) When a mediation initiative led by the court itself fails to, resolve the dispute, the same court (judge) shall not hear the suit. Sub-section 9 v) If mediation succeeds followed by a consent decree, on appeal or revision shall lie against any order or decree passed by the court. Sub-section 12

B) Mediation by Parties themselves or by a Mediator: i) if either at the initiation of the judge or on the application by the parties, the court refers the dispute for mediation to the parties or their pleaders for settlement through mediation, the parties must inform the court in writing in ten days that they have agreed to settle the dispute by mediation. ii) If they do not inform the court within ten days as mention above, reference for mediation shall stand cancelled and the suit shall be proceeded with for hearing by the court. iii) If the parties inform the court about their agreement to settle the dispute by mediation and appointment of mediator, the mediation shall be concluded within 60 days from the day on which the court is so informed, unless the court of its own motion extends the time for a further period of not exceeding 30 days. iv) If a dispute is settled on compromise, the court shall issue a certificate directing refund of the court fees paid by the parties and the parties shall be entitled to such refund within 60 days of the issuance of the certificate. v) If the mediation fails, the court shall proceed with the hearing of the suit from the stage at which suit stood before the decision to mediate and in a manner as if there had been no decision to mediate.

Mediation in Appeal In the light of section 89C of the Code of Civil Procedure provides that, an Appellate Court may mediate in an appeal or refer the appeal for mediation in order to settle the dispute or disputes in that appeal, if the appeal is an appeal from original decree and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties.

C.2. ADR under Artharin Adalat Ain,2003 This chapter is established by the introduction, modes of ADR in Artharin Adalat Ain, nature of ADR, evaluation and outcome and last one recent recommendation of the law commission. C.2.B.Modes of ADR in Artharin Adalat Ain: The Act provides for single mode of ADR and this is mediation as defined and described in section 22 of the Act. Unlike before the adoption of the process of mediation is compulsory after submission of written statement. once the written statement is submitted, the court must send the suit to appointed lawyer or to the parties to settle the suit matter by way of mediation. C.2.C.Nature of ADR: The process of ADR adopted in the Act by way of mediation is court-annexed ADR mechanism both pre-trial and post-trial. C.2.D.Evaluation and Outcome: With regard to outcome and achievement the author could not find any statistics from the judiciary of from the Ministry6 of Law. However, former Chief Justice Mustafa Kamal stated back in 2004: In Money Loan Recovery cases, the Loan Courts have disposed of 13,157 cases from the 1st May, 2003 to 31st July, 2004 and have realized Taka 996 crores and 5 lakhs from the defendants and handed over the same to the plaintiffs who are principally banks and financial institutions. The realization is 10 times higher than the realization by execution cases over the last 10 years.