MEDIATION UNDER THE CODE OF CIVIL PROCEDURE, 1908: LEGAL AND INSTITUTIONAL REFORMS

Abstract

Dispute Resolution is a notion that prevails in every society, and every society practices various forms of dispute resolution techniques to resolve their disputes. Amongst many of these dispute resolution techniques used in Bangladesh, this thesis highlights the Alternative Dispute Resolution (ADR) technique suggested under Section 89A of the Code of Civil Procedure, 1908, popularly known as court-connected mediation. It maps the present situation of case backlog under trial and the practice of court-connected mediation in Bangladesh. Through literature review, it investigates the history of origin and potentials of practicing mediation in civil courts of Bangladesh compared to the success of ADR mechanism practiced in other developed and developing countries in the world. Later, within the purview of Social Institution Dysfunction Theory, this research analyses the reasons behind its dysfunctional state and the possible way out to develop this mechanism for making it more functional. In order to investigate this fact, the research has conducted empirical studies following both qualitative and quantitative methods to apply a socio-legal analytical approach. The findings as regards the efficiency of mediation in civil courts are drawn from court registry data of all the civil courts of Dhaka Judgeship both inside the metropolitan area and outside the metropolitan area. Then it explores individual case files through content analysis to identify the actual functionality and underlying causes of delay at different stages of civil litigation. Further, an extensive questionnaire survey and expert interview, including judges, District Legal Aid Officers, lawyer and litigants, are undertaken. The research also considers responses from court support staff and stakeholders' responses outside the court, including the Assistant Commissioner (land) sub-registrars, to take a complete view of underlying reasons for ineffective mediation under Social Institution Dysfunction Theory. The knowledge and experience are collected from all those respondents through structured, semi-structured and unstructured questionnaire in order to explore the impact of the role of various legal professionals and beneficiaries on the performance of mediation. In this survey, the stakeholders revealed the prospects and actual benefits of mediation for resolving civil litigations, the underlying problems, and possible ways to outsource their attitudes and prevailing professional culture. For example, the judges stated that being overburdened with the trial, they require to allocate only a minimal time to conduct mediation. The lawyers and litigants are reluctant to be involved with this process. The lawyers responded that they fear losing their professional reputation and income and therefore less interested. The litigants also revealed their ignorance and lack of support for settling the suit through mediation. Similarly, the stakeholders outside the courts stated how the civil litigations originated from ‘Assistant Commissioner (land) office’ and ‘Sub-registry office’ activities and expressed the usefulness of mediation for settling those disputes. In conclusion, the thesis implicates that if mediation has to play a more efficacious role in civil courts, greater emphasis on its legal and institutional reforms is imperative. It makes several recommendations for the more effective use of mediation, including the promotion of compulsory mediation practice, making the mediation financially rewarding for lawyers, the establishment of exclusive mediation courts, strengthening the panel of expert mediator through training and accreditation, and awareness of prospective litigants about benefits of using mediation. This thesis contributes to the existing knowledge on reducing case backlog in the civil courts of Bangladesh. All its findings and recommendations would result in broader access to justice to the litigants in general.