This article is written by Astitva Kumar, a research associate at ICMCR. The article is the outcome of substantial research and analysis of laws in developed countries against laws in developing countries that have mainstreamed mediation.
Mediation has been championed as not only a tool to help alleviate the pressure of the judiciary but to also help justice penetrate other layers of society due to the fact it is more accessible. Mediation despite being presented as a new tool can find its roots in the history of many countries. And in today’s times, we see modern models of mediation being increasingly used. In this essay, I shall be studying the mediation laws and models of various countries and shall try to come up with suggestions on how developing countries can improve their mediation model
Access to Justice has been a continuing problem in Bangladesh. Thus, they look favorably to other alternate dispute resolution mediums that may help with the various dysfunctions of the country. The Ex-Chief justice of Bangladesh, Mustafa Kamal has described ADR as “a non -formal settlement of legal and judicial disputes as a means of disposing of cases quickly and inexpensively” Initiative was taken by Justice Mustafa Kamal to ensure that reforms occur in the legal system. Such initiatives have been done with the help of the Institute for the Study and Development of Legal Systems (ISDLS) of the USA to make sure that the reforms of the legal system can ensure that the entire system runs smoothly. In January 2000, a Bangladesh legal study group of 5 members was established with the help of Judge Clifford Wallace and under the leadership of Justice Mustafa Kamal. One of the recommendations made by the group was to establish a pilot project on mediation and from that recommendation, pilot projects were founded in the family courts of Bangladesh. Below the various laws in Bangladesh are discussed.
The Code of Civil Procedure (Amendment) Act, 2003
Section 89 A of The Code of Civil Procedure (Amendment) Act, 2003 states that the court may adjourn the hearing and allow for parties to settle their disputes through mediation if they show willingness. They may also send the parties for mediation, where the parties have not been referred to the mediator from the panel as prepared by the district judge in consultation with the president of the District Bar Association. The mediator can be a pleader ( an officer appointed by the Government under the Code of Civil Procedure), a retired judge, or anyone who is trained in the Alternate Dispute Resolution. Section 89-A is “flexible, Informal, Non-binding, confidential, non-adversarial and consensual
The parties have the option to appoint one mediator. A request is made to the pleader and he shall appoint another pleader or retired judge to their case after speaking to the parties. The fees of the mediator are decided by the parties, but if the mediation is conducted by the court then the court shall decide the fees of the procedure. Within 10 days of referring the parties to mediation, the parties must inform the court in writing that they are willing to sit for such procedures. When this does happen, the matter must be disposed of within 60 days unless the time is extended for another 30 days. When the mediation is over, the mediator must write a report and the court will pass an order or a decree.
Due to the massive success of the mediation trial, mediation has been incorporated into the appellate stage as well through Section 89 C through the Code of Civil Procedure (Amendment) Act 2006.
The Family Courts Ordinance, 1985
Section 10 of the Family Courts Ordinance 1985 gives provisions of conciliation between both the parties. But Section 13 allows for some aspects of mediation to penetrate the proceedings as it states that the court must make an effort to make sure the parties do not leave the proceedings bitter. These sections are however not popular in Bangladesh due to the lack of motivation of judges to refer to parties. Due to the adversarial system of judges that we’re unaware of such provisions.
The Village Court Act of 2006 states that any dispute that comes under this Act shall be dealt with by the Village Court. The members of the Village Court consist of the chairman and 5 members which shall be selected by each party and two of the members must be members of the Union Parishad. In the Labour Code 2006, section 210(1) to (19) in Chapter 14 describes the proceedings for ADR. Informal ADR can happen through nonjudicial bodies such as “Madaripur Legal Aid Association (MLAA), Bangladesh Legal Aid and Services Trust (BLAST), Ain O Shalish Kendra (ASK) and Banchte Shekha (BS)”.
The success of Mediation in Bangladesh
Since ADR mechanisms have been put into place, disposing of family court matters has increased by 60%. Under the pilot project in 13 districts from 2000, 2004, 2418 cases were disposed of. Under Section 89 A of the CPC, a total of 12402 cases have been disposed of from 2003-2006.
As many know Cuba is a socialist country. Mediation has been a tradition in Cuban countries since the 1990s but very little research has been conducted about mediation practices in Cuba. But from various studies, It can be concluded that Cuban society cares more about collective interests and social responsibility than the interests of the individual.
A resolution passed for the establishment of mediation services in Cuba by the Cuban Ministry of Justice in 2005 which allowed for the creation of organizations that can provide for services known as Consultores Abogados Internacionales (CONABI). Attorneys can act as mediators and can represent their clients in extrajudicial forums. Decree Law No. 241 of 2006 amendment by Cuban Civil Procedure Law 7/77 allowed for conciliation to be a tool used to settle disputes. Decree-Law No. 250 established the Cuban Court of International Commercial Arbitration (CCICA). The Rules of Mediation for the CCICA in 2007 was established by Resolution No. 13.
Resolution No. 13
The court’s mediation must be requested by the parties and the application must be made in writing to the Secretariat. After the application is made, the court proceeds with an initial mediation session at a time fixed by the court. If the parties do not assign a mediator for themselves then the Court has to assign a mediator depending on the nature of the dispute. Co-mediators are allowed in appropriate cases. The proceedings shall be flexible and shall be aware of the balance of power between the parties. The proceeding shall also pay heed to impartiality, speed, procedural economy, fair, just treatment, and legality.
The mediation is in the hands of the parties and can be terminated if they wish for it to happen. However, the parties are responsible for the agreement which should comply with the applicable forces that are in force during that time. To stick with the spirit of confidentiality, documents that are produced by the parties are returned to them after the proceeding is over. If the parties could not agree then the parties may refer to other forms of ADR or go to the courts for deciding the case. The mediator is required to inform the Secretariat of the conclusion that was arrived at from the mediation proceedings. The court is not allowed to announce the outcome of the mediation to keep matters confidential without permission from the parties.
The mediator shall set the mediation date after discussing it with the parties. The mediator without the permission of the parties is not allowed to divulge any information. If the mediator discovers that there has been any illegal activity going on with regards to the proceedings, he shall be dismissed from facilitating such mediations.
Decree-Law No. 250
The decree and other such resolutions seek to free the Cuban Court of International Commercial Arbitration (CCICA) from political influence by “(1) stating that it is
Bound only by the law, (2) repeatedly affirming that arbitrators and mediators are independent and impartial, and (3) including comparatively extensive codes of ethics for arbitrators and mediators”.
Popular Tribunals and Committees for the Defence of the Revolution (CDR)
Popular tribunals were established based on Soviet Comrades Courts. They were outside the jurisdiction of normal courts. They were established due to the severe problems which had arisen from the revolution and sought to instill a revolution mindset while discouraging anti-social behavior. Sanctions by such courts were mild and not punitive in measures. At first, they took on very mild cases but later on oversaw misdemeanor offenses and juvenile offenses. The court aimed to rehabilitate rather than punish. The judges were usually laid men and the decision-making process encouraged community participation. Due to social and economic changes, and criticism of deep-rooted cultural values such as gender and racial inequality leads to the government-held mass meetings to understand problem areas. In these meetings, a lot of the criticism was directed to the judicial courts. Some of the criticisms were ineffectiveness, inefficiency, and the informal nature of courts. Thus reforms were made to reduce the informal settings of such courts and the flexibility given to them. In 1893, laws were passed to integrate such courts into the formal structure and to hire professional judges.
In modern times Committees for the Defence of the Revolution act as informal redressal centers for conflict. In 1968, anti-social behavior in youth was on the rise and the CDR’s were mobilized to prevent further crime. Now CDR’s are present in every neighborhood to prevent further crime. They mainly focus on preventing crime through many tactics such as neighborhood watches, educating the youth, and reintegrating offenders into society. While their influence declined during the great depression, in Cuba in the 1990s, they are still an extremely effective organization.
Many might see mediation as a new and innovative way to resolve disputes or a ‘social revolution’. But the fact is India has deep roots in mediation. It is a shame we call it an alternative dispute resolution mechanism when it used to be the primary tool to solve disputes. Instances of mediation can be seen in our historic text such as the Mahabharata where Lord Krishna is seen mediating between the Kauravas and Pandavas. It was the British who replaced these justice delivery systems with alien-like laws and courts to establish a uniform code so it would be easier for them to rule us. After our independence, we were left to deal with the devastation of their colonial rule which resulted in a rise of disputes. This resulted in the filing of more cases with institutes of litigation. These disputes continued with the tremendous economic growth of our country due to the liberalization of our economy and globalization. Thus, courts looked towards more efficient mechanisms of resolving disputes that would alleviate the pressure on our judiciary.
Efforts to reintroduce mediation in our traditional justice system started in 1966. Chief Justice A.H. Ahmed invited the Institute for the Study and Development of Legal Systems (ISDLS), the USA to study the backlog cases in civil courts. Section 89 was introduced in the Code of Civil Procedure (Amendment) Act, 1999, and made mediation a mode of settlement of the dispute. This Section was added on the recommendation of the Law Commission of India and the Justice Malimath Committee. In the year of 2005, The Mediation and Conciliation Project Committee was established by Chief Justice R.C. Lahoti was chaired by Justice N. Santosh Hegde. Senior Additional District Judges were given 40 hours of mediation training and started judicial mediation practice. In the same year, a mediation center was established at the Tis Hazari court complex and more mediation centers were established in 2006. In current times, While mediation is governed by certain clauses from various legislation (Such as Section 4 of the Industrial Disputes Act, 1947 and Section 89 of the Code of Civil Procedure, 1908), there is no comprehensive Act that governs the proceedings, apart from established meditation practices.
The Civil Procedure Rules (CPR) which govern civil litigation states ADR as a collective description of methods of resolving disputes otherwise than through the normal trial process. The Centre for Effective Dispute Resolution (CEDR) defines ADR as ‘A body of dispute resolution techniques which avoid the inflexibility of litigation and arbitration, and focus instead on enabling the parties to achieve a better or similar result, with the minimum of direct and indirect cost’. Mediation has been used to resolve disputes for decades. It was the Woolf reforms enacted in 1999 aimed at making civil litigation quicker that brought mediation to the forefront. After the reforms were enacted, parties needed to consider ADR when the dispute happens and during the dispute. If one does not, they will be liable to pay a portion of or all of the opponent’s legal costs. Thus, mediation is very common in the UK.
Domestic Mediation laws
The CPR is the main source of law with regards to civil litigation and all parties are required to abide by its rules when adjudicating any dispute. The law expressly states that parties must try and settle the dispute without the interference of the court. The CPR also allows for cross-border mediation. Such proceedings are governed under the EU Mediation Directive (2008/52/EC). These directives usually apply to civil and commercial cross-border disputes. The principles of the directive were enacted into English law through the Civil Procedure Amendment Rules 2011 and the Cross-Border Mediation (EU Directive) Regulations 2011 (SI 2011/1133). The CPR 2011 Amendment addresses settlement arising from mediation settlement.
Incentives to Mediate
There are many mechanisms in place in the UK which encourage mediation. Under CPR 1.4(2)(e), courts are required to actively encourage parties to use ADR mechanisms if the court feels that it is necessary. The CPR pre-action protocols also require parties to consider ADR or they might have to incur an increase in their legal fees. Under CPR 44.2, the court has the power to decide what costs are payable by the party. One of the elements to consider when deciding the amount is the conduct of the party and not going into mediation may affect the amount payable.
However, mediation is still a voluntary proceeding and parties cannot be forced into them.
The USA model of mediation can be traced back to dispute resolution methods used in native American Society. The concept of mediation backed by the court was introduced after the English rule. Mediation becomes more popular with the increase in the disputes of labor. Mediation was referred to, to avoid the workers going on strike and to make sure that the workers and managers come to an amicable solution instead of a complete breakdown of a relationship. Attempts at the legislation resorting to mediation date back to the 1970s and 1980s.
Mediation has become common in the USA legal system and is used as a tool to lessen the burden of the judiciary.
Domestic Mediation Laws
In the USA, while there are no laws that govern mediation the American Bar Association and the American Arbitration Association provide for the standards for which mediation should be held. Many states have separate laws which govern mediation. There have been attempts to make a uniform code for mediation such as the Alternative Dispute Resolution Act.
Suggestion and Conclusion
After doing a thorough reading of a case study of all the nations, the author feels the number one suggestion that should be given to developing countries is that there should be an initiative to mediate. This can be done by putting a duty on the judges instead of giving them an option. It is clear in countries such as Bangladesh, Cuba, and India where there are many pending cases and parties are scared of approaching courts, a more informal setting of mediation would benefit them greatly. After a culture of mediation has been initiated through Judges and other legal stakeholders, the government can start putting a duty on the parties to seek mediation and enforce it through the risk of incurring fines. When implementing the western model of mediation, we should be careful to take care of the cultural and legal differences in the country so that the model does not fail. For example, America has more of a litigation culture so they do not have any strict sanctions for failure of mediation. We should make sure that just because a certain model works perfectly in another country, it should not be blindly applied in another country. For example in India, due to our problems with corruption, it may be better to have stricter guidelines with establishing who the mediator is.
- History, Mediation History, https://delhicourts.nic.in/dmc/history.htm (last visited Sep 14, 2021).
- Donald Lambert & Nicole Finlayson, Mediation in United Kingdom Lexology (2019), https://www.lexology.com/library/detail.aspx?g=02ee5416-79ba-484b-bd62-eb26318d330b
- Christopher Razo, Deionna Ferguson & Rodney L Lewis, Mediation in USA Lexology (2019), https://www.lexology.com/library/detail.aspx?g=1afc5951-1db6-4f91-8e3b-500022484dbd
- Bjarni Freyr Borgarsson, The Implementation and Impact of Restorative Justice Programmes in Albania and Cuba, (2015).
- Rolando Anillo-Badia, ARBITRATION AND MEDIATION: IMPARTIAL FORUMS TO RESOLVE INTERNATIONAL COMMERCIAL DISPUTES IN CUBA, Association For The Study Of Cuban Economy (2010).
- The Code of Civil Procedure, 1908(as amended in 2003 by Act 8 of 2003) Explanation-I, Section 89-A.
- The Daily Star, (2007) April, 29, p-2
- Mohammad Saidul Islam, Efficiency and effectiveness of alternative dispute resolution schemes towards the promotion of access to justice in Bangladesh, 8 IIUC Studies 95–112 (2014).