Rights Advocacy
Strengthening ADR to help poor litigants
This is an undeniable fact that the judiciary of Bangladesh is facing huge backlogs and the delay disposal of cases. The poor litigants are the main sufferer for the delay and excessive expenses in the disposal of cases. So it is the demand of time to take some initiatives for the helpless, poor litigants. In this connection, it can be mentioned that Alternative Dispute Resolution (ADR) is the best process. To perceive the example of Family Court a few Acts were passed and ADR mechanism got legal acknowledgment in Bangladesh. But question arises as, has the government yet able to fulfill the ADR target?
Most importantly effective process of ADR is not recognised in our country. In most of the cases traditional Shalish system govern the process of ADR which is a major form of community based ADR. The pragmatic situation is that people cannot trust the community leadership. Because sometimes biased decisions are given by the community juries. Powerful people interfere in the community based ADR procedures. As a result, common people feel themselves helpless and consequently insecurity and uncertainty is increasing day by day. So time has come to think about ADR differently and how this mechanism can be more effective.
All of the ADR issues are compromising. ADR is a method which is formed in a compromising way with a sacrificing mood. The success of ADR depends upon parties' consensus to compromise besides their faith in the fairness and objectivity of the neutral third-party. So each party has to set up their mind from the beginning that the ADR process is to be concluded or settled in a compromising way with a friendly environment. All the parties have to realise that it is better than the formal litigation. The matter of realisation of the party is depend on 'how and who will offer and make them understand to accept ADR by saying the advantages of ADR'. If they understand that they will be benefited in such affairs as the minimum time with less expenditure, they will accept the offer. Generally a person or disputant party comes to know or is offered to take an ADR in three stages;
1. At the Pre-trial Stage: After filing a case, the Court or Judge examines the plaint, the written statement and documents. Then the Judge or Court may give an offer to the parties to accept an ADR procedure like mediation, conciliation, settlement conference etc. in a compromising way. This offer may be given to the parties by the court of its own motion. Sometimes, one party is offered by opposite party and then finally, court is offered by both the parties mutually to initiate an ADR procedure. See the Section 89A of the Code of Civil Procedure, 1898 or the Section 10 of the Family court ordinance, 1985.
2. At the Trial Stage: At the trial stage, the court may make another effort to effect a compromise or reconciliation between the parties after the close of evidence of all parties. See to the section 13 of Family court ordinance, 1985.
3. At the stage without trial: Any person (either disputant or not) can be informed that there are some ADR methods to resolve the dispute outside the courtroom. Information may be given by Government initiative or by NGO initiative or by any individual weather any dispute is made or not.
In regard of formal ADR, all of the court-annexed ADR is organized by the court or judge himself at the pre-trial stage or at the trial stage. Court may offer the parties to accept ADR procedure or parties may request to the court to organize ADR procedure. On the other hand, in regard of informal ADR, if the parties know at the stage without trial that ADR is more fruitful and beneficiary than formal litigation, they will be mentally set up from the beginning of getting information or pursue other to accept ADR for resolving a dispute. So, the informal ADR is more effective to decrease the backlogs of cases.
We know that ADR methods are informal in nature, but all offers (to the parties) of ADR are not informal. At present it is more important to offer an ADR procedure informally than formally. For these reasons, to create awareness in the society should be increased. For making known this matter to the common people, besides electronic and print media Government should organize workshop among the member and Chairman of the Union Parishad. It will be the effective and vital role. Because, they are directly communicated with the common people. Most of the disputant parties go to them for suggestion before going to the court. If they suggest any or both of the parties not to go to the court, or, if they pursue to take an ADR method, party or parties feel discourage to go to the court. At the same time, Maximum community juries including chairman and member of Union Parishad do not know what ADR is? Person involved in ADR are not so much trained and experienced. In this connection, in my point of view, if ADR Center would be made in every Union Parishad, it would be more effective. We know that already there is an Arbitration Council in every Union Parishad led by the Union Chairman. So it will not be so difficult to make. Government can experiment by doing that in an Upozila. Seven years have already passed after introducing ADR in Bangladesh. So there should be a specialised institution or ADR Center in the capital city to supervise the mechanism all over the country.
It is impossible to make or increase the awareness at every sector of the society by only government initiatives. NGOs and Social welfare Organisation can play their instrumental role here. At the community based ADR any private individual or NGO may offer easily to take the benefit of ADR. Therefore, NGOs and private individual including lawyers can not overtake these social responsibilities.
Final word is that nobody is interested to go to the court to resolve a dispute. In fact, poor people really fear to the court proceedings. Sometimes they are financially unable or, court is so far from the rural area. Notwithstanding they have to go to the court if they are bound as a victim of circumstances, or sometimes they fall under by the broker. So ADR procedure should be applicable not only for the decrease of backlogs of cases and delay disposal of cases but also to protect the indigent from such kind of sufferings. Through this process, we can protect and promote human rights particularly for those who are kept beyond notion of justice only because of their poor economic status.
The writer is a Senior Lecturer, Department of Law & Justice, The Peoples University of Bangladesh.
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