It was a sunny morning; the sun was shining from the sky on the Court Hill of Chittagong, one of the beautiful places in the port city. When we arrived there to meet the District Legal Aid Officer (DLAO), we found the court premises already overcrowded with hundreds of people moving here and there in a restless way. As if none of them had time even to have a look at the beauty of nature. We crossed the crowd and entered into the District Legal Aid (DLA) office. We discovered near about 50 women and men waiting there. ‘Why are they here?’ we asked, ‘mostly for mediation’ replied the DLAO. We just uncovered two reverse sides of the same coin. In the first picture, justice-seekers were moving restlessly without knowing their destination while in the second picture; people seemed to be relatively calm and eager to resolve their disputes in a peaceful way. These two reverse images actually illustrate the beauty and significance of mediation, which has been existed as community based ADR, widely known as Shalish, in Bangladesh society for hundreds of years. Unluckily, the formal justice system in Bangladesh could not use it in full swing.
Yes, there are some laws, which have provisions for ADR, for example, the section 89A and 89B of the Code of Civil Procedure (Amendment) Act, 2003 for all civil suites except the suits under the Artha Rin Adalat Ain 2003, the Family Courts Ordinance 1985 on the issues of divorce, dower, maintenance, restitution of conjugal life and custody of children and the Muslim Family Laws Ordinance 1961 on constitution of arbitration council for reconciliation between husband and wife on the issue of divorce, polygamy or maintenance. The section 345 of the Code of Criminal Procedure 1898 included a list of compoundable petty offences that can be mediated. In addition, the Village Court Act 2006 and the Conciliation of Dispute (Municipal areas) Board Act 2004 can deal with both civil and criminal matters using traditional dispute resolution process. However, the scope for using ADR is still under-utilized and yet to be explored.
In this perspective, the pre-case and post-case mediation services at the District Legal Aid Office has created a new horizon to stop increasing case inflow into courts and divert cases from the courts. An effective use of this opportunity can have a great impact on the ongoing attempt for reduction of case backlog and of course, creating access for common people to a cost effective on time justice, which is on the priority list of the 7th five year plan. The section 21A of the Legal Aid Services Act (LASA) 2000 (amended in 2013) has authorized the DLAOs to resolve disputes through mediation, if the cases are referred to them by any court or tribunal. It has created a great prospect to divert the cases, which are unnecessarily registered in courts. In order to reinforce the provision for ADR, a special section has also been incorporated in the Legal Advice and ADR Rules 2015. According to the section 4 of these rules, DLAOs can now mediate the disputes with the consent of both parties before the case is registered at court.
Following enactment of the above rules, DLA Offices started providing both pre and post case mediation services in some selected districts, especially where it has fulltime officer. It is evident from the statistics that the DLA Office-led mediation service is becoming popular. The annual report of the National Legal Aid Services Organization (NLASO) shows that 290 cases were tried by DLAOs for mediation in 2014, out of which, 58% were successfully resolved. The same report also says that 4.6 million BDT were realized through mediation in 2014. The increase rates in the cases tried for mediation from 2014 to 2015 and 2015 to 2016 were 143% and 270% respectively. Among the cases attempted for mediation, 75% in 2015 and 81% in 2016 were successfully resolved and 6.8 Million BDT and 20.4 Million BDT respectively were realized. Year to year growth rates in money realization through DLAO-led ADR were 48% in 2015 and 200.3% in 2016. Numbers of beneficiaries of ADR services are rapidly increasing. In 2014, a total of 468 received ADR services from DLA office. In 2016, this number reached at 1714. The growth rate in beneficiaries from 2014 to 2016 was estimated to be 266%. Statistics also shows that number of cases attempted for mediation at pre case stage increased at 400% by 1 year. The cases diverted from the courts also increased at 33% from 2015 to 2016.
It is said earlier that Bangladesh judiciaries are overburdened with 3.1 million case backlogs. Despite different initiatives taken by the judiciaries, the trends in case backlog still remains unchallenged. There are multi-dimensional reasons for case backlog. Among them, one prime factor is the increasing gap between case-inflow to and case-outflow from the courts. An analysis shows that the relative frequency of case-inflow is higher than that of case-outflow. For example, the case disposal rate in 2010, 2011, 2012, 2013 and 2015 were 34%, 31%, 29%, 30% and 31% while the numbers of the newly filed for the same years were 38%, 35%, 39%, 34% and 34% respectively. In 2016, the numbers of cases newly registered were 5% higher than that of the cases disposed of. At the end of the year, this gap has added a total of 71,439 new pending cases. As a result, the judiciaries in 2017 started with 31,56,878 pending cases. The pre-case and post-case mediation services by DLA Office can address this gap, if it is used in an effective way. In fact, DLAOs have some exceptional scopes to make their pre and pose case mediation services acceptable to the service-seekers. They are judicial officers. They are well-familiar with the legal process. They are also part of judiciaries. Through the legal aid committees, they are also well-connected with the community levels. All of these can be contributory factors for making DLAO-led mediation services widely suitable.
On the other hand, DLA offices have some challenges to make their ADR services fully functional. Major challenges are insufficient budget, lack of required person-power and infrastructure. As of December 2016, it has full-time DLAOs in only 24 districts. Legal aid activities in other districts are run by the part-time officers, who as Judicial Officers share their time between court and DLA Office. Most of the DLA offices have no process server (Jarikarok) to send notice to the both parties involved in the disputes. In this case, they have to depend on the Nezarat section of either CJM court or district judge court. This dependency gets the process delayed. DLAOs need to be trained in negotiation and facilitation process for conducting mediation session efficiently. We could presume that a majority of their beneficiaries would be women. As a result they also need to be provided the training on gender responsive mediation.
The performance indicator in the 7th five year plan has also emphasized on reduction of case backlog to ensure that ‘the case backlog does not cross 3.3 million thresholds by 2019’. It also emphasized on institutional capacity building of the government legal aid services and fixed a target to settle 25,000 disputes yearly by 2020 through pre and post case mediation services, which will contribute toward reduction of case backlog. To make it happen, the respective stakeholders need to work together to address the existing challenges of DLAO offices. The courts also need to be sensitized enough to divert the cases to DLAOs, which would ultimately reduce the burden on the shoulder of formal justice system.
First published in the Bangladesh Observer on 20 April Pre-case and post-case mediation services at the District Legal Aid Office: A new hope for reducing case backlog