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Alternative Dispute Resolution


Alternative Dispute Resolution (ADR) Family Courts Ordinance 1985 provides for settlement of family disputes at the pre-trial hearing of the suit at the initiative of the court by compromise or reconciliation between the parties, and also to take such initiative again after the conclusion of trial and before the delivery of judgment for the purpose of restoration of domestic peace and family atmosphere by taking recourse to ADR methods. These provisions remained dead letters in the statute book till adoption in the year 2000 of a pilot project by the Government with the cooperation of a U.S Agency to settle family disputes in selected Family Courts by negotiation, mediation or arbitration. Some lawyers and judges of such courts were trained to apply alternative dispute resolution methods to settle pending family court suits. Encouraging results having been obtained from the selected family courts the ADR method has been extended to some such other courts.

Imbued by the results of the application of alternative dispute resolution methods in the family court cases provisions of sections 89A and 89B have been inserted in the civil procedure code by the Code of Civil Procedure (Amendment) Act 2003 for settlement of civil suits, except suits for recovery of debts due to the financial institutions pending in the loan courts, through mediation and arbitration.

Provision of newly added section 89A of the Code empowers the Civil Court after filing of written statement in the suit, if all the contesting parties are in attendance in the Court in person or by their respective pleader, to mediate or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or to the party or parties where pleader or pleaders have been engaged or to a mediator from the panel prepared by the District Judge in consultation with the president of the local bar association by adjourning the hearing of the suit for settlement through mediation. When the reference is made to the pleaders of the parties, they shall with the consent of their clients appoint a neutral pleader, retired judge, or a mediator from the panel of names prepared by the District Judge or any other suitable person for settlement. Within 10 days from the date of reference for mediation the parties shall inform the Court as to whether they have agreed to such settlement, and within 60 days from the day on which the Court is so informed the mediation shall be concluded unless Court extends the period for further 30 days. The mediator shall submit a report to the Court about the result of the mediation proceedings, and if the result is compromise of the dispute or disputes in the suit the terms of such compromise shall be reduced into writing in the form of an agreement to be signed by the parties and attested by the mediator and pleaders, and then the Court to pass an order or decree on the basis of the same. If the mediation fails unless the mediation is by the Court itself, the suit shall proceed with the hearing from the stage at which mediation commenced, as if there had been decision for mediation. If the Court itself was the mediator then on the failure of mediation ather Court having jurisdiction in the matter shall proceed with further hearing of the suit.

The proceedings of such mediation shall be confidential and any communication etc made or conversation etc held therein shall be deemed privileged, and shall t be referred to and admissible in evidence in any subsequent hearing of the same suit or any other proceeding. No appeal or revision against any order or decree passed by the Court in pursuance of such settlement shall lie. When a suit is settled or compromised by mediation the Court shall order refund of the court fees to the parties.

Similarly, provision of section 89B of the Code empowers the Civil Court to allow withdrawal of the suit on the application of the parties for reference of the dispute or disputes to arbitration. Such an application shall be deemed to be an arbitration agreement under section 9 of the Arbitration Act 2001. If arbitration takes place or arbitration fails then the parties shall be entitled to re-institute the suit withdrawn earlier. By the Code of Civil Procedure (Amendment) Act 2006 section 89C has been inserted in the Code providing for similar mediation in appeals also.

In chapter V of the re-enacted Loan Court Act 2003 provisions have been made for Alternative Dispute Resolution through settlement conference and mediation. Section 21 of the said Act provides that settlement conference shall be called by the presiding Judge of the Loan Court after filing of written statement by the defendant in the suit for recovery of loan with interest, filed by a financial institution to be attended by the parties, their lawyers and representatives after staying all further proceedings of that suit. Settlement conference shall be held in camera and if any settlement is reached in such conference between the parties an agreement incorporating the terms of settlement shall have to be signed by the parties and attested by the lawyers and representatives present and an order or decree shall be passed by the Court on the basis of the same. If settlement could be reached in such a conference there, unless the presiding Judge of that Court has been transferred in the meantime, the suit shall be transferred to ather Court having jurisdiction in the matter to be proceeded with from the stage at which settlement conference commenced as if there had been proceeding for holding settlement conference. Section 22 of the said Act provides that if order for holding a settlement conference is made after filing of written statement by the defendant in the suit then the Court may suo motu or shall at the instance of the parties send the suit to a neutral lawyer, retired Judge or retired officer of a Bank or financial institution or to any other suitable person appointed as mediator for settlement after staying all further proceedings of the suit. Mediation proceedings shall be held in camera. After mediation the mediator shall submit a report to the Court about the mediation proceeding. If any settlement is reached between the parties in such proceeding an agreement incorporating the terms of settlement shall have to be signed by the parties and attested by the mediator and lawyers and an order or decree shall be passed by the Court on the basis of the same. If settlement is reached between the parties in such mediation proceeding the hearing of the suit shall commence from the stage at which mediation started as if proceeding for such mediation had ever taken place. The proceedings of such mediation shall be confidential and any communication made or conversation etc held therein shall be deemed privileged and shall neither be referred to r admissible in evidence in subsequent proceeding of that suit or in any other proceeding. No appeal or revision against any order passed by the Court on the basis of such agreement between the parties shall lie before any higher Court. When the suit is so compromised the Court shall order refund of court fees to the parties.

Such conference or proceeding shall be completed within a period of 60 days and on certain grounds within a further period of 30 days from the date of order for such conference or proceeding. Such conference or proceeding shall be represented by an authorized local officer of the financial institution and the Court shall have to intimate the Chief Executive of the financial institution about its order to commence such a conference or proceeding if the claim in the suit exceeds Taka five crores.

Implementation of Court Reform (Assisting Provisions) Act 2004 provides for temporary relaxation or stopping of application of prevailing laws in the Supreme Court or Project District Courts by Government by tification in consultation with the Chief Justice and for temporary relaxation or stopping of application of prevailing Orders, Rules, Regulations etc for implementing Judicial Capacity Building Project for Court Administration, case management, application of information techlogy etc in those courts. That project includes District Courts of Dhaka, Gazipur, Khulna, Comilla and Rangpur. [Kazi Ebadul Hoque]