ADR and the perception of lawyers

Most observers would possibly agree that despite various efforts by Parliament - as evident from laws providing for the use of alternative dispute resolution (ADR) -- the rate of the use of ADR in Bangladesh is quite low. In some laws, there is even a monetary incentive for settling disputes by resorting to ADR than a full-blown legal battle in the court. For example, if a case for the recovery of a loan owed to a bank or non-bank financial institution is resolved through ADR, the court fee paid by the plaintiff is refunded. However, the sweetener does not seem to work as only few money loan cases are resolved through the ADR mechanism.

In Bangladesh, where the backlog of cases is an issue and more importantly, the time taken in the settlement of a legal dispute is quite high, this under-use of ADR is a cause of concern. There have been quite a few hypotheses about the less than potential use of ADR in the country. One hypothesis is that the lukewarm response of lawyers is responsible for not using ADR. An example supporting this argument may be the Law Commission's Report No. 104 submitted on October 5, 2010. This report argues that the disinclination of the lawyers to resort to ADR mechanism is one of the principal reasons for the under-utilisation of ADR in this country. Although the report of the Commission does not specify this, it is not difficult to imagine why some lawyers are not interested in the settlement of disputes through ADR. The apparent reason for being cold to using ADR may be the apprehension about the prospective loss of earning. However, it is argued that such an apprehension may be misplaced or exaggerated.

ADR does not necessarily mean a dispute resolution without the engagement of lawyers. Indeed, more often than not, mediators, conciliators and arbitrators would be the persons skilled in the knowledge of law. Again, a more expeditious settlement of disputes through ADR may be a win-win situation, not only for the disputing parties, but also for their lawyers. Thus, it is probable that if ADR is used more extensively, the society would be one in which people would feel more empowered to seek legal remedies for vindicating their grievances.

This would be particularly true when we would consider the population figure and high concentration of land-related legal disputes - both civil and criminal. And the challenge for our legal system is to address the long delay in settling court cases, not so much in reducing the number of cases. Another indirect off-shoot which may translate into a gain for lawyers (and also for the society) is that if the people can have more confidence in the expeditious legal remedies, there would be a trend of being more conscious about legal rights and duties, documentation, and legalisation which should mean more work for lawyers. This should not be a net loss for the society either, as it should be a more right-conscious and accountable society. Some may argue that too much legalisation would lead to a friction-prone society, where petty matters would end up before the court and thus, should not be encouraged. And the court should be able to stem cases without merit.

In countries where ADR is used more extensively, there is no evidence that the lawyers have gone out of work or their earning has diminished. However, it will be simplistic to assume that it is only the use of ADR that has created more work or better earning for lawyers. It may be that people in those countries have already been litigious and the use of ADR is the outcome of that. Having said this, the relatively more frequent reliance on ADR does not seem to have played any direct negative impact on the professional income of lawyers.

Lawyers are among the most significant stakeholders of ADR, and if they do not have confidence in this mechanism, it is difficult to get the system functioning well. Thus, if the government wants to promote ADR in the country, they have to engage with lawyers and have in a meaningful way.

Dr Md. Rizwanul Islam is an Associate Professor at Department of Law, North South University. The views expressed

are the author's alone. [email protected]

Correction

 The first two sentences of the fourth paragraph of the article titled 'ADR and the perception of lawyers', published in the March 18, 2018 issue of the FE (on Page-6), should actually read as: "As I have argued elsewhere that, contrary to the conventional wisdom, in Bangladesh, there is not too many but rather too few cases (http://www.theindependentbd. com/arcprint/ details/64060/2016-10-16). This would be particularly true when we would consider the population figure and high concentration of land-related legal disputes - both civil and criminal. And the challenge for our legal system is to address the long delay in settling court cases, not so much in stemming the number of cases."

And the last paragraph of the same article should actually read as: "Lawyers are among the most significant stakeholders of ADR, and if they do not have confidence in this mechanism, it is difficult to get the system to be functioning well. Thus, if the government wants to promote ADR in this country, they have to engage with lawyers and have to do a better job in selling ADR to them. Mere altruism may not be enough to persuade many lawyers about the merits of resorting to ADR."