Research Monograph on the Practice of ADR [Alternative Dispute Resolution] In Family Court Of Bangladesh

The practice of Alternative Dispute Resolution in the legal system of Bangladesh is quite new in terms of comparison to other countries. His Excellency, Justice Muhammad Mostofa Kamal introduced the ADR [Alternative Dispute Resolution] in Bangladesh. In the Family Court, the ADR is practiced by the regulation of “Family Courts Ordinance, 1985”. The “Artha Rin Adalat Ain”, 2003 and the Article 89(A) & 89(B) of “Civil Procedure Code” are the formal law channel to practice the ADR within the legal system. The Family Court is highly successful to offer the litigants to go through ADR but in the succession stage, it is not highly hopeful or praiseworthy. The Judges are interested to go through ADR or mediation but from the litigants they are not warmly received in the maximum phases because of the popular publicity to arise mass awareness. The Lawyers are in favor of practicing ADR but they are also not spontaneous to go through ADR. 

The qualitative training is not offered for the Lawyers by any organ of the government or from the High Court Division. The Judges are called by JATI for taking training and become encouraged to go through ADR; it is also recommended by the Judges to enrich the training curriculum. The young Judges are comparatively more courageous and proactive to make mediation. A very critical finding of this research is that in Family Court, maximum disputes are prone to non-cooperation; the court finally become bound to make verdict over the monetary security of the female litigant who file the case against his husband. The practice of ADR would be highly successful to make the disputes settled through compromise. To popularize the practice of Court connected mediation the joint effort would to be made by the Govt. authority and by the civilian experts. The media can also make the vibrant role to make the court connected mediation more popular and more effective. In this research, I have tried to find out the current status of the practice of ADR with the articulation of its importance and also the citation of fruitful recommendations.

“The growth of ADR [Alternative Dispute Resolution] has contributed to the beginnings of a revolutionary change in the court’s conception of its role, from that of a passive provider of trials to an active, problem solving case manager, or, as in some courts, to a catalyst in community change and conflict transformation” (Senft & Savage, p. 333, 2003). 

The term "alternative dispute resolution" (ADR) is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes. ADR system generally takes the form of negotiation, conciliation, mediation, or arbitration mechanism.
Provisions for alternative dispute resolution (ADR) have recently been incorporated in The Code of Civil Procedure 1908 by amending act titled The Civil Procedure Code (Amendment) Act 2003. Sections 89A and 89B provides for ‘Mediation’ and ‘Arbitration’ respectively as alternative means of settling disputes within existing civil court system, which bestow upon the judges, the authority and motivation to call upon the litigants utilize them. The above mentioned sections provide that after filling of the written statement to the court, if all the contesting parties or their pleaders are in attendance in the court and are willing to settle their dispute through ADR, the court may adjourn the hearing and mediate in order to settle the dispute or may refer the dispute to the parties or their pleaders, or may refer the dispute to a mediator from the panel prepared by the District Judge.[1](Source- Section “89A Mediation .-(1), The Civil Procedure Code (Amendment) Act 2003.)

This is a departure from the past when the judges had no such authority and did not feel motivated to guide the litigants to resolve disputes out of courts.[2]( Huq, Naima. “ADR: Recent Changes in the Civil Procedure” in The Dhaka University Studies, Part-F Vol. XV (I): 37-58, June 2004). Now judges of the civil courts are empowered to mediate, ask the parties to go for ADR and refer cases to other mediators with the consent of the parties. Certainly this is a turning point for the civil justice system of Bangladesh. Now judges are not only a judge but also a mediator. They give judgment in the court as well as settle or encourage settling dispute outside the court. 

Objectives and scope of the Research: 
The objectives and scope of this research is mainly grounded from the perception of the importance of the ADR system in the legal system of Bangladesh. The court connected ADR is helpful for the litigant people as well as it bring fruits to deliver the justice through compromise or reconciliation. The diversified objectives are depicted to the below: 
To analyze the current status of practicing ADR in Family Court of Bangladesh; 
To make a clear articulation of the vibrant response from the judges, lawyers and the litigant people on behalf of the introduction of ADR in the legal system of Bangladesh; 
To accumulate the statistics of the filing cases, total resolved cases, and particularly aiming to mark the ADR initiation and the number of the resolved cases through ADR; 
To identify the shortcomings of the practice of ADR regarding the reflection generating from the judges, lawyers and litigant people’s perspectives; 
To make a vivid articulation of the fruits or the beneficial outcomes from the practices of ADR regarding the legal status of court-connected mediation; 
To facilitate the court–connected mediation with its academic importance throughout the legal systems of delivering justice resulted from compromise. 
[1] Section “89A Mediation .-(1), The Civil Procedure Code (Amendment) Act 2003.
[2] Huq, Naima. “ADR: Recent Changes in the Civil Procedure” in The Dhaka University Studies, Part-F Vol. XV (I): 37-58, June 2004.