ADR to clear backlog of cases

Courts in Bangladesh are overburdened with millions of cases. With the population rising and moral degradation increasing in society, the number of cases is also rising sharply at the geometrical rate (i.e. 1, 2, 4, 8, 16 etc), though the disposal of cases is progressing at the normal mathematical rate (i.e. 1, 2, 3, 4, 5 etc.). With the number of litigations against government and semi-government entities increasing substantially, the backlog of cases is increasing day by day. The shortage of judges and resources is making the matters worse. Raising the number of judges involves a higher volume of expenditure. On the other hand, public and private universities are not producing enough and competent law graduates to meet the challenge.
According to statistics as of 2010, around 750,000 cases were remaining pending with the courts of judicial magistrates. The Supreme Court sources said about 500,000 cases, both civil and criminal, were remaining pending with the Appellate Division and at least 300,000 other cases, including writ petitions, were pending with the High Court Division. The number has sharply risen since then. It is now estimated that around 3.0 million cases are currently pending with different courts in the country. A document of Bangladesh International Arbitration Centre (BIAC) presented at a seminar recently gave a horrifying picture of civil suits' pendency in the country. According to that document, over 77 per cent of civil cases were remaining pending with the Appellate Division and 27 per cent with the High Court Division. In addition, 66 per cent of civil suits were pending with courts at the district and divisional levels. However, the exact number of commercial suits or criminal cases was not given in that document.
The Law, Justice and Parliamentary Affairs Ministry said over half a decade ago that it would take at least 86 years to dispose of over one million cases pending with the courts in Bangladesh, if no new cases were lodged. That forecast was made many years ago and surely the backlog of cases has risen sharply since then. Thus it can now safely be said that it will take at least 100 years to clear the existing logjam, if no new cases are lodged. Can a country prosper and go forward smoothly with such a backlog of cases?
Newer cases are being filed regularly leading to a quantum leap in their total number. In such a situation the judicial system may collapse and the people may be led to take the law in their own hand, unless the proper remedial measures are taken immediately by the government. Litigants have their legitimate right to get justice. Thus, pro-activeness of the parties involved and prompt and complete compliance with court orders are absolutely necessary to dispose of litigations. Alongside this system the government must take effective steps and initiatives to use other dispute resolution methods widely.
ALTERNATIVE DISPUTE RESOLUTION (ADR): ADR is a process where parties in contention come to a compromise or settle their dispute without going to court.  The main forms of ADR are: arbitration, mediation, conciliation, negotiation, court-annexed ADR, early neutral evaluation, expert determination, mini-trial, neutral listener agreement, last offer or baseball arbitration, settlement conference etc. The first four are the main forms of ADR.  Others are not widely used or internationally recognised that much.   
Arbitration is the most formal method of ADR used to settle disputes without going to court. It is the reference of a dispute or difference between not less than two persons or organisations for reaching an amicable solution after hearing both sides in a judicial manner by a person or persons (arbitrators) other than a court. The most defining characteristics of the ADR are: consent of the parties, non-governmental decision makers, final and binding award. The decisions of the arbitrators are binding on the parties. The concept, form and provision of the arbitration are well-recognised by the domestic laws as well as by the international laws.
When it comes to mediation, a neutral person (the mediator) helps the parties reach a compromise.  The job of the mediator is to consult each party and see what the common grounds are between them. The mediator, in fact, acts as a facilitator. He does not offer an option. His task is to attempt to persuade each party to focus on their real interests.
Conciliation is similar to mediation where a third party helps the bickering parties to resolve their dispute. However, the conciliator plays a more active role in the process. A conciliator listens to the parties and then sets forth a possible settlement. If the proposal is not acceptable, the conciliator may offer another proposal.  Like, mediation, conciliation is not legally binding on the parties.
Negotiation is the simplest form of ADR.  Where two or more people have a dispute, they can negotiate a solution themselves. If the parties in a dispute cannot settle it themselves, they may turn to lawyers who will negotiate on their behalf. Even when negotiation fails at the early stage of a dispute and the court proceedings start, lawyers will usually continue to negotiate on their client's behalf.  Many cases, due to negotiations, are getting settled outside the court.
THE ADVANTAGES OF THE ADR: There are many advantages of ADR. Those advantages include: Firstly, settling disputes through ADR is relatively quicker and speedier than using the court system.  Secondly, a specialist or an expert from within a particular trade, industry or profession is able to suggest a reasonable and practical solution which will be acceptable to the parties involved. A judge is unlikely to have that particular specialist or expert knowledge other than the law. Thirdly, the ADR is conducted in private where public and media are restricted.  This will enable the parties to avoid unwanted publicity from the media.  Fourthly, all forms of ADR are far cheaper than taking cases to court.  Fifthly, each and every case resolved though the ADR saves the government or public money. Sixthly, every case resolved through ADR stops the courts being overburdened with cases. Seventhly, there is greater flexibility in the ADR than in the court proceedings.
However, there are some disadvantages also of ADR.  These are: the possible unequal bargaining power in some cases, lack of legal expertise, no system of setting/keeping precedents, the risk of enforceability and a court action may still be required when the ADR process is exhausted. However, the clear and distinct advantages of ADR outweigh the disadvantages. The most important advantage of ADR is that it produces a 'win-win' result or solution.
THE PROVISION OF ADR IN BANGLADESH: Most countries of the world have adopted the ADR mechanism and achieved tremendous success in reducing the case backlog and increasing access to justice for the poor and vulnerable section of people. More than 90 per cent civil and commercial disputes in some developed countries are settled through ADR. The concept of ADR was first inserted in Section 10(3) and Section 13(1) of the Family Court Ordinance of 1985. But there was no implementation of these provisions until the special pilot project "Mediation as a measure of ADR" was undertaken in June, 2000 but on a limited scale. Thus, the ADR mechanism was practically introduced for the first time for general civil litigations under the Civil Procedure Code (Amendment) Act 2003 and the Artha Rin Adalat Ain 2003 with effect from July 1, 2003 and May 1, 2003 respectively. Besides, Bangladesh's successive governments promulgated the Arbitration Act 2001, Bangladesh Labour Law 2006 and Dispute Conciliation Board 1985 in an attempt to bolster the ADR.
The above legislative developments appear to be slow and inadequate to a great extent and done on a piecemeal basis. For example, the Artha Rin Adalat Ain 2003 has a provision for a mediation meeting under the chairmanship of a judge of Artha Rin Adalat (Financial Loan Court). But the provision is flawed as the bank or lender alone has the option to accept or reject a decision. It appears to be one-way traffic in the name of ADR. Furthermore, while the slow, expensive and lengthy process of the formal legal system discourages an aggrieved woman not to go to court, the informal arbitration system offers a scope of speedy and inexpensive outside-court settlement of disputes. But arbitration often is not fair to women. Because of the shortcoming, litigants and lawyers are often found reluctant to take the recourse to ADR, though in today's world it is an accepted and acclaimed way of reducing the number and costs of suits. Many developed and developing countries have gained tremendous success in reducing the case backlog by adopting ADR. But Bangladesh appears to be miles behind.
Inordinate delays in dispensation of justice are mainly causing the backlog.  Some proceedings, especially in land-related cases, are so lengthy that litigants are often found skeptical of getting their litigations disposed of during their life time. The overwhelming backlog of cases in Bangladesh has caused serious legal and social problems. The government must take initiatives to use the ADR system for bringing down the backlog to a tolerable level.
The following recommendations are made to reduce the case backlog through ADR and thus enhance harmony in the society:
1. The government should set up a high-powered commission comprising impartial legal experts (preferably retired judges) to scrutinise the existing legal provisions introduced for promoting ADR with a view to identifying the loopholes and recommending legal provisions for revolutionising the outside-court settlement of disputes.
2. The said commission should be given the necessary power so that they can draw up an effective plan of action to make the ADR system a success.
3. All cases may not be suitable for the ADR. Whichever case is suitable for it must be resolved through ADR. Going to court must be the last resort in such cases.
4. It is not enough to enact any legislation in a bid to modernise the ADR system. The government, the Bar and the Bench must be committed to developing a culture for dispute resolution through ADR.  They must be aware of what ADR can do, especially when the courts are heavily overburdened with millions of cases.  
5.  A specialised and dedicated arbitration bench manned by a skilled judge or judges may be set up in the High Court for the purpose of dealing with international arbitration matters more effectively and professionally. Such an arrangement would command respect from the international business community and create confidence of the parties involved in the judicial system in the country.
6. Sufficient resources should be allocated in the national budget so that adequate ADR institutions can be built and proper training imparted to the lawyers, judges and stakeholders on ADR. At the same time, proper publicity should be made to sensitise everyone about the advantages of ADR.
Barrister Nazir Ahmed is a legal expert and columnist. He is a fellow (FCIArb) of the Chartered Institutes of Arbitrators (CIArb). ahmedlaw2002@yaho.co.uk