Publish : 08 Dec 2021, 12:46 AMUpdate : 07 Dec 2021, 07:47 PM
Mediation, the process of resolving a disagreement outside of court via negotiation and compromise between interested parties in the presence and with the aid of a mediator, is now largely considered as the most successful alternative to court-based conflict resolution on a global scale.
For decades, mediation was prominent in Bangladesh. In terms of the formal litigation system, mediation and other forms of Alternative Dispute Resolution were formally recognized in 2003 and again in 2006. Even having legislative recognition, parties did not use mediation as frequently as the government anticipated, owing mostly to several significant intrinsic faults.
To ensure that parties opt to resolve their issues through mediation in these situations, a guideline has been issued under which courts must now compulsorily set a date for a mediation hearing as a formal stage of adjudication.
According to recent instructions issued by the Bangladesh Supreme Court's Reforms Committee, judges have been directed to adjourn a civil litigation following the filing of a written statement and setting a date for beginning the mediation process between the parties. The courts are required to highlight the benefits of mediation, which include the following: Privacy and confidentiality, time saving and ease of process, refund of court fees, cost savings, and permanent resolution of disputes.
Parties would be obliged to prepare for, attend, and engage in the mediation process, albeit they would not be compelled to do so. The stated characteristics should include the fact that if a suit is unsuccessful in resolving the issue through mediation, the matter is not required to be addressed through mediation. They may reintroduce the suit from the previous stage if it becomes clear that the parties will be unable to achieve an agreement through mediation.
Besides the benefits of mediation, the notice also provided a general guideline on the course of action where the parties agree to resolve issues via mediation. It has been enumerated in the notice that the court itself can move to mediate between the parties or can determine a date for parties to initiate mediation process between them after a short recess.
Mediation's effectiveness is due to its approach of bringing both parties together and establishing a "win-win" scenario, as well as the secrecy of the discussions and documents given throughout the mediation process. This implies that any conversation or papers submitted during mediation will be treated as confidential and will not be admissible as evidence.
As a result, no side has to be an unequivocal winner or loser in mediation. While one party may be entitled to a remedy under the law, it may be advantageous for him to reduce his claims in exchange for a more expeditious delivery of the remedy, avoidance of legal expenses, and a reprieve from the overall tedium of litigation.
Not surprisingly, the need for obligatory mediation was assessed given the huge number of ongoing cases in the country. While the Code of Civil Procedure recognizes mediation as a distinct procedure, parties and lawyers appeared to ignore it. They appeared to have used litigation throughout the years to settle a mediation disagreement.
As a consequence of the courts being overwhelmed with cases and parties uninformed of the cascading effects of litigation, they were caught in an unending convoluted litigation procedure. Mass judicial nominations alone will not be sufficient. To address this issue, the Supreme Court of Bangladesh recently recommended making mediation a necessary step in the litigation process in order to expedite the resolution of a legal dispute.
Shweata Mishra and Jannatul Shraeat Disha are lawyers of MCLaw Services, being the Head of the Chambers and Research Associate of MCLaw Services respectively.
Compromise and negotiate
Mediation, the process of resolving a disagreement outside of court via negotiation and compromise between interested parties in the presence and with the aid of a mediator, is now largely considered as the most successful alternative to court-based conflict resolution on a global scale.
For decades, mediation was prominent in Bangladesh. In terms of the formal litigation system, mediation and other forms of Alternative Dispute Resolution were formally recognized in 2003 and again in 2006. Even having legislative recognition, parties did not use mediation as frequently as the government anticipated, owing mostly to several significant intrinsic faults.
To ensure that parties opt to resolve their issues through mediation in these situations, a guideline has been issued under which courts must now compulsorily set a date for a mediation hearing as a formal stage of adjudication.
According to recent instructions issued by the Bangladesh Supreme Court's Reforms Committee, judges have been directed to adjourn a civil litigation following the filing of a written statement and setting a date for beginning the mediation process between the parties. The courts are required to highlight the benefits of mediation, which include the following: Privacy and confidentiality, time saving and ease of process, refund of court fees, cost savings, and permanent resolution of disputes.
Parties would be obliged to prepare for, attend, and engage in the mediation process, albeit they would not be compelled to do so. The stated characteristics should include the fact that if a suit is unsuccessful in resolving the issue through mediation, the matter is not required to be addressed through mediation. They may reintroduce the suit from the previous stage if it becomes clear that the parties will be unable to achieve an agreement through mediation.
Besides the benefits of mediation, the notice also provided a general guideline on the course of action where the parties agree to resolve issues via mediation. It has been enumerated in the notice that the court itself can move to mediate between the parties or can determine a date for parties to initiate mediation process between them after a short recess.
Mediation's effectiveness is due to its approach of bringing both parties together and establishing a "win-win" scenario, as well as the secrecy of the discussions and documents given throughout the mediation process. This implies that any conversation or papers submitted during mediation will be treated as confidential and will not be admissible as evidence.
As a result, no side has to be an unequivocal winner or loser in mediation. While one party may be entitled to a remedy under the law, it may be advantageous for him to reduce his claims in exchange for a more expeditious delivery of the remedy, avoidance of legal expenses, and a reprieve from the overall tedium of litigation.
Not surprisingly, the need for obligatory mediation was assessed given the huge number of ongoing cases in the country. While the Code of Civil Procedure recognizes mediation as a distinct procedure, parties and lawyers appeared to ignore it. They appeared to have used litigation throughout the years to settle a mediation disagreement.
As a consequence of the courts being overwhelmed with cases and parties uninformed of the cascading effects of litigation, they were caught in an unending convoluted litigation procedure. Mass judicial nominations alone will not be sufficient. To address this issue, the Supreme Court of Bangladesh recently recommended making mediation a necessary step in the litigation process in order to expedite the resolution of a legal dispute.
Shweata Mishra and Jannatul Shraeat Disha are lawyers of MCLaw Services, being the Head of the Chambers and Research Associate of MCLaw Services respectively.
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