APPLICATION OF ALTERNATIVE DISPUTE RESOLUTION IN THE CIVIL AND CRIMINAL JUSTICE SYSTEM IN BANGLADESH

-M. M. ENAM ELAHI 

ABSTRACT This research is prepared on “Application of Alternative Dispute Resolution in the Civil and Criminal Justice System in Bangladesh: Challenges and Issues”. Realizing the importance of the introducing alternative dispute resolution in civil and criminal justice system: Bangladesh perspective has been undertaken to provide objective data, information and taking appropriate measures to improve the present condition. It is mainly based on literature review. Alternative Dispute Resolution (ADR), which refers to the process of dispute resolution, denotes the idea of making the system of delivering justice friendly to the disputed parties and ensuring quick resolution of the cases. This study empirically investigates the definition and development of the concept of ADR in Bangladesh. It includes an attempt to explain the ADR in Civi and Criminal Cases in Bangladesh including the advantages and disadvantages of ADR to complete the research. I have tried my best to find out the necessary steps to introduce ADR in civil and criminal justice delivery system. In conclusion we agreed that to ensure justice for all ADR mechanism can be practiced as mandatory in civil and criminal cases as it does not hamper human rights. But to get the full benefit of this mechanism, it must be free from any kind of bias edness. In this connection recommends are given fruitful suggestions which will help to introduce alternative dispute resolution in civi and criminal justice system in Bangladesh. 

CHAPTER 1 RESEARCH DESIGN 1.1 Introduction Conflict or dispute is a natural and inevitable part of all human social relationships. Conflict occurs at all levels of society – from interpersonal, family, tribes to national and international levels. In other words, conflict is ubiquitous. By conflict or dispute, woman conflict of interests between two or more parties about resources, differences of opinion within the group, power, prestige and others. Parties in conflict/disputes believe they have incompatible goals and here the desire to gain advantage over, win over, injure, or defeat one another. Sometimes the "A" in ADR is defined as "appropriate" rather than "alternative" as a way of indicating that ADR relates to finding the most fitting way to resolve disputes. Sometimes there is no "A" used and simply the phrase "dispute resolution" is potentially considered. Whichever way the acronym is spelled out - alternative, appropriate, or just dispute resolution - the concept of ADR is based on expanding the tools available for resolving disputes. Man lives in a society. With a view to lead a harmonious life in the society, human being undertakes their social interaction, through the different forms of social process-co-operation, competition and conflict. Conflict creates Suits cases. Unlike the suits and trial cases, Alternative Dispute Resolution (ADR) includes processes that are out of court proceedings. Due to fact that pendency of court cases and suits have gone through roofs, ADR has gained paramount significance in almost every civilized dispensation. ADR is generally classified into at least four types-negotiation, mediation, conciliation and arbitration. The System for resolving dispute alternatively did not evolve in a day or even in a country rather it has been developed in different times, places, and forms of the need of people. The provisions of Alternative resolution exist at 450B.C. in the Twelve Tables adopted by the Romans. According to the rules of Twelve Tables the judges applied their reasonable discretionary power with respect to the settlement of stipulations arising from the contracts. Due to the increased amount of workload in the various courts all around the world, people are turning towards an easy and cheap system, which would resolve their dispute i.e. towards ADR. Sometimes at the disposal of the judge and sometimes due to some contractual agreement, people do turn their backs onto the courts and move in direction of the ADR system. 1.2 Title of this research This is a legal research. This research is titled by "Application of Alternative Dispute Resolution in the Civil and Criminal Justice System in Bangladesh: Challenges and Issues''. 1.3 Statement of research problem The fundamental and constitutional right of a person to get natural justice. The justice seekers of Bangladesh are frequently harassed in the area of courts and the procedure of trial is so far complicated. Many times people are busy to file the case for harassing. In giving decree the court faced many problems in Bangladesh and the noticeable inability of the existing legal system to resolve them. The people are corrupted who are engaged to give justice. The courts are overloaded. To reduce the rate of harassment and refusing justice, I prepare this research paper and recommend the way of solutions. The ADR is one of the ways to reduce the rate of harassment and refusing justice. In this research, I am trying to the application of ADR in civil and criminal justice system and its challenges and solutions. At present the scope of ADR in criminal cases is very limited. The introduction of ADR in criminal cases is essential for ensuring proper justice in Bangladesh. Lack of scope of ADR in criminal cases is nowadays a crucial problem. By introducing ADR in criminal cases disputes will resolve as early as possible as well as enhance the satisfaction of the parties. Considering the context of ADR practices in Bangladesh elaborated so far, two issues worth to be highlighted in this regard. Firstly, whether we need any separate law to incorporate ADR in criminal cases and secondly, whether we are prepared enough to introduce such new laws, even if it has some necessity in our current context. To highlight the first point, at present compounding of minor criminal offences is permitted under the Code of Criminal Procedure 1898 (CrPC). Compounding of offences means to settle offences mutually by the alleged victim and the accused (along with their friends and relatives) before entering into the formal court procedure. 1.4 Aim and objectives of the study All types of Courts in Bangladesh are burdened with litigants. These problems have been arisen due to the defects of adversarial system. The main objective of this study is to analyze the significant role of ADR system in Civil and Criminal Justice Administration for the speedy disposal of cases. Also to recognize the concept of ADR in procedural law for Civil and Criminal matters. This also focuses on the advantages and disadvantages of ADR System and the development of ADR method in Criminal Justice System. This research also tries to find out the challenges to introduce ADR process in Civil and Criminal Justice Administration and its solution. 1.5 Research Questions In this research, the research questions are- 1. What are the issues existing in Judicial system of Bangladesh which are barriers to ensure natural justice? 2. What are the Challenges to apply Alternative Dispute Resolution in justice system and the solutions of it’s? 3. How Alternative Dispute Resolution will help to remove the barriers to ensure justice? 1.6 Hypothesis of this research If we consider the scenario of our judicial system, various barriers come into face. For example: pendency of cases, corrupted people, adversarial court system which are barriers to ensure natural justice. Alternative Dispute Resolution denotes the idea of making the system of delivering justice friendly to the disputed parties and ensuring quick resolution of the cases. There are different types of challenges to apply ADR in justice system, for example , it is necessary to Change law and introduce provision regarding ADR, Increasing knowledge to the concern etc. 1.7 Research Methodology This is a legal research. This research is Descriptive and suggestive in nature. This study is based on both primary and secondary data collected from law reports, text-books, journals, Newspaper, websites. The collected data have been processed and prepared in the present form in order to make the study more informative, analytical and useful for the users. 1.8 Limitation of this study Although this research was carefully prepared, I am still aware of its limitations and shortcomings. First, because of the time limit, this research was conducted shortly. The journals and books about the research were not available in perspective of Bangladesh. No prior research was available on this topic. To collect reliable data, I need to go to various scholars but time was not supported to me. However, I am trying my level best to reach my aim in this research considering my knowledge about this research. 1.9 Conclusion Alternative Dispute Resolution (ADR), which refers to the process of dispute resolution, denotes the idea of making the system of delivering justice friendly to the disputed parties and ensuring quick resolution of the cases. For its simplicity the popularity of this system is increasing day by day in this respect ADR can make them harassment free. Most of the statutory laws including the main procedural law for civil and criminal matters follow this system. The ADR System should be developed more and more in other main Statutes. In ADR system, available option for resolving disputes between the victims. This research explores theoretical concerns to ADR in Civil and Criminal Justice System. Law is the command of the sovereign. It controls the working of public policies, it regulates the working of each and every known organization, it provides statutes for the lubricated and friction-less working of the state departments, it codifies the way and the dignified path to the resolution of personal matters as well. However people consider law as an object of scorn and fear, the try to shun courts, they would rather live with their problems instead of moving to any said court for seeking justice. CHAPTER 2 LITERATURE REVIEW

2.1 Introduction In any state, access to justice is considered a most coveted aspiration and is regarded as vital component of human rights because injustice anywhere is a threat to justice everywhere. Every man born with some human rights, some of them have been guaranteed in the chapter of fundamental rights in the constitutions of the most of the countries of the world. Bangladesh constitution guarantees to every citizen equality before law and ensures the right to enjoy the protection of law and to be treated in accordance with law.

2.2 Literature Review To complete this research I need to take help from different sources. Different website, books and journals were read by me. Some of them Md. Atickus Samad, A Text Book on ADR & Legal Aid, National Law Publications, First edition,2013, Dr. A. Jamila Chowdhury, ADR Theories and Practices, London College of Legal Studies (South), First edition, 2013, Halim Md. Abdul, The Legal System of Bangladesh, Dhaka, CCB Foundation, 2009, Dr. Sarkar Akkas Ali, Law of Criminal Procedure, Ankur Prakashani, Dhaka, 2006, Dr. S.C. Tripathi, Alternative Dispute Resolution System (ADR), Central Law Publications, Allahabad, First edition, 2012, Akhtaruzzaman Md, Conflict Resolution: Introducing ADR in Criminal Justice Administration in Bangladesh, Journal of 10th Human Rights Summer School (ELCOP), 2009. Kumar Anoop, Article on Applicability of ADR in Criminal Cases, Lucknow, 2011. Section 345 of CrPC provides a list of offences those are punishable under the Penal Code but are also compoundable by the parties. Two different types of compounding are suggested in CrPC under two different lists. The first one suggests offences like uttering words with deliberate intent to wound the religious feelings of any person, causing hurt on provocation, wrongful detainment or confinement, and forced labor etc. as compoundable with the intent of the aggrieved person. Most of the offences included in the first list are minor offences punishable with maximum one year imprisonment and/or fine. The second set of compoundable offences includes more grievous offences like rioting with deadly weapon, voluntarily causing grievous hurt, act endangering the personal safety of others, and assault or criminal force to women with intent to outrage her modesty. Punishment for these offences varies from two to seven years along with fine. ……….DR. Jamila A Chowdhury. Criminal justice is the system of practices and institutions of governments directed a top holding social control, deterring and mitigating crime or sanctioning those who violate laws with criminal penalties and rehabilitation efforts. There are arguments both for and against with regard to ADR in criminal justice system. Because the criminal justice system emphasizes the role of the state in resolving offences to ensure peace and to protect the life and property of its subjects. State can never compromise. However, it should be noted that many offences do not fall under the category of crimes affecting the state, but affecting only a particular individual or a group of individuals, ADR can be more effective there…………….Mr.Gulfam Mahua 'ADR' is the method by which legal conflicts and disputes are resolved privately and other than through litigation in the public courts, usually through one of two forms : mediation or arbitration.So, from the above discussion it can be said that Alternative Dispute Resolution refers to the means of settling disputes without going through legal procedures. Through ADR settlement of disputes can be done in many formal and informal ways but here ADR emphasis is mainly on the settlement of disputes by local community initiatives. …………...Hilmond Investments v CIBC 1996 135 DLR 4th 471 (ONT Court of Appeal) 887574

In civil suits we find compromises actually encouraged as a more satisfactory method of settling disputes between individuals, such mechanism of compromise seems immoral in criminal cases. This is because crimes are against the state and the “State” can never compromise.……Dr. Islam Touhid Posted on February 5, 2013 The increased interest in the application of ADR processes to the criminal justice system was borne from a general satisfaction with traditional adversarial methods of dispute resolution. ……………Lewis Melissa and Mc Crimmon Les At ALRAESA Conference 4-8 September, 2005 2.3 Conclusion Alternative Dispute Resolution (ADR) has attracted a great deal of attention as a method of reducing both the financial and emotional costs of litigation. It appears that simply moving cases from the courts, and away from the adversarial process, allows some cases to be resolved quicker and to the greater satisfaction of the parties. CHAPTER 3 THE DEFINITION, DEVELOPMENT AND FRAMEWORK OF THE CONCEPT OF ADR IN BANGLADESH

3.1 Introduction The judicial system of Bangladesh is adversarial in nature. In giving decree the court faced many problems in Bangladesh and the noticeable inability of the existing legal system to resolve them, an initiative was taken in 1999 by Justice Mr. Mustafa Kamal to initiate reforms in the legal system. Bangladesh Legal Study Group was formed under the leadership of Justice Mustafa Kamal. The others members of the BLSG were Justice Mr. K. M. Hasan (then the senior most judge of the High Court Division, later the Chief justice of Bangladesh),Justice Mr. Anwar-ul-haque (then Joint Secretary, Ministry of Law justice and Parliamentary Affairs, later elevated as a justice of High Court Division),Prof. Dr. M. Shah Alam (then a member of the law commission) and Barrister Shafique Ahmed (then President of the Supreme Court Bar Association). In its report the BLSG identified lack of accountability, absence of discipline and Fragmentation in the litigation process and the absence of resourceful alternatives to full trials as the most pressing problems. One of the recommendations made in the report was to initiate immediately a Pilot project on mediation, a non-mandatory consensual dispute resolution system, in the family Courts in Dhaka, the Capital and to expand it to other courts. The reason for inclusion of the Family Court in the Pilot project was that it did not involve any new legislation. The Family Courts Ordinance, 1985 itself provides for conciliation whereas inclusion of other courts at that stage needed legislation or amendment of the Civil Procedure Code,1908. This Ordinance deals with the divorce, restitution of conjugal rights, dower, maintenance and custody of children. The Ordinance empowers the trial judge to effect reconciliation between the parties both before and after trial. It is mentioned that all assistance judges of lower court, lowest tier of subordinate judiciary are ex officio Family Courts Judge. In the Pilot project, statistics show that the total realization of the money through execution of decrees in family suits disposed of by trial is far below the total realization of money in disputes settled through mediation. The paramount success of the ADR, Courts are changing the mental attitude of the judges, lawyers, litigants and general public who were doubtful about ADR. In a workshop on 31st Oct, 2002, Justice Mr. K. M. Hasan considering the prospects of ADR in Bangladesh remark, “The success of Mediation in the Family Court is not the end. We look forward to the day when introduction of ADR mechanism in other courts, like Commercial Courts will be achieved”. The experience of the Family Courts has provided a strong foundation upon which an environment to introduce ADR in any types cases has been established. 3.2 Definition ADR ADR is the abbreviation of Alternative Dispute Resolution. When the disputes between the parties are resolved through means which are alternative to formal litigation, this is called Alternative Dispute Resolution. The term Alternative Dispute Resolution includes, in narrow sense, only those processes in which the decision finally arrived at is with the consent of the parties. In wider sense, ADR includes arbitration also along with negotiation, mediation and conciliation. In Bangladesh perspective ADR means a process of dispute settlement outside the formal judicial system where the parties represent themselves personally or through their representatives and try to resolve the dispute through a process of mutual compromise. In the words of Justice Mostofa Kamal “ADR is a non-formal settlement of legal and judicial disputes as a means of disposing of cases quickly and inexpensively. It is not a panacea for all evils but an alternative route to a speedier and less expensive mode of settlement of disputes. It is a voluntary and co-operative way out of the impasses”. 3.3 Characteristics of ADR ADR operates without formal representation. ADR program applied the doctrine of Equity. ADR system includes more direct participation by the disputants in the process. Give opportunity for communication between the disputants. Neutral case evaluation system. ADR includes early neutral evaluation. Make scope for family group conference. Exist neutral fact –finding process. An organizational ombudsman works within the institution to look into complaints independently and impartially. It’s beneficial. It keeps concentration not to the past but only to the future. ADR processes are swift and cheap.

3.4 Modes of Alternative Dispute Resolution Different modes of alternative processes are practicing in our country and worldwide.

Arbitration Arbitration is an adjudicatory dispute resolution process in which one or more arbitrators issues a judgment on the merits (which may be binding or non-binding) after an expedited, adversarial hearing, in which each party has the opportunity to present proofs and arguments. In other words, arbitration is a private process by which the parties to a dispute submit their differences to the judgment of an impartial person or group appointed by mutual consent or statutory provision. Arbitration is procedurally less formal than court adjudication; procedural rules and substantive law may be set by the parties. Arbitration is different from mediation because the neutral arbitrator has the authority to make a decision about the dispute. The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. Compared to traditional trials, arbitration can usually be completed more quickly and is less formal. For example, often the parties do not have to follow state or federal rules of evidence and, in some cases; the arbitrator is hot required to apply the governing law. After the hearing, the arbitrator issues an award. Some awards simply announce the decision and others give reasons. The arbitration process may be either binding or non-binding. When arbitration is binding, the decision is final, can be enforced by a court, and can only be appealed on very narrow grounds. When arbitration is non-binding, the arbitrator’s award is advisory and can be final only if accepted by the parties.

Negotiation Negotiation is the most common form of dispute resolution. Negotiation is face to face discussion between the parties with a view to reaching an amicable settlement. It is the process by which the parties voluntarily seek a mutually acceptable agreement to resolve their common dispute. Compared with process involving third parties, generally negotiation allows the disputant themselves to control the process and the solution. In other word, negotiation system creates a structure to encourage and facilitate direct settlement between parties to a dispute, without the intervention of a third party. The disputing parties may be represented by attorneys in negotiation. Negotiation is different from mediation in that there is no neutral third party or individual to assist the parties to negotiate. However sometime a third party involves a negotiation and when third parties is involved, he usually breaks the ice and bring the parties to the negotiation table and that withdraws from the negotiation process. This feature also makes it different from mediation and arbitration.

Conciliation Conciliation is a type of mediation whereby the disputing parties use a neutral third party called conciliator who meets with the parties separately in an attempt to resolve their differences. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties’ needs, takes feelings into account and reframes representations. In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator, instead a conciliator meets with the parties separately “caucusing”. Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award. Mediation and conciliation systems are very similar in that they interject a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Mediators and conciliators may simply facilitate communication, or may help direct and structure a settlement, but they do not have the authority to decide or rule on a settlement. Arbitration systems authorize a third party to decide how a dispute should be resolved.

Mediation Mediation is a process that employs a neutral or impartial person or persons to facilitate negotiation between the parties to a dispute in an effort to reach a mutually accepted resolution. Mediation is a process close in its premises to negotiation. Mediation is an assisted and facilitated negotiation carried out by a third party. The mediators, who are hired, appointed, or volunteer to help in managing the process, should have no direct interest in the conflict and its outcome, and no power to render a decision. They have control over the process, but not over its outcome. Power is vested in the parties, who have control over the outcome: they are the architects of the solution. The mediator’s role is multiple: To help the parties think in new and innovative ways, To avoid the pitfalls of adopting rigid positions instead of looking after their interests, To smooth discussions when there is animosity between the parties that renders the discussions futile, and in general to steer the process away from negative outcomes and possible breakdown towards joint gains. 3.5 History of application of ADR in Civil law The most notable ADR within the formal justice system is the one introduced to ordinary civil courts in 2003 by the amendment of Code of Civil Procedure (CPC), 1908. Though previously ADR was in practice in some special civil courts, sections 89A and 89B was inserted by this amendment to incorporate the systems of mediation and arbitration of civil disputes that lie before the court. This amendment gives option to the court to mediate between parties or refer the dispute to the pleader or the parties themselves (where no pleaders have been engaged) or to the mediator from the panel to be prepared by the District Judges. In 2006, the CPC was further amended to insert section discussing the provision of conducting ADR (mediation) during appeal. Despite the effort, the scheme did not actually work well; there was an option for the court to decide whether the dispute should be referred for mediation. Thereby, there is an exigent need for further amendments which would make ADR mandatory. In 2012 the CPC was again amended to replace the word ‘may’ with ‘shall’ in section 89A and 89C to make mediation mandatory in both pre-trial and appellate stage in every civil litigation and sections 89D and 89E were newly added. Section 89D provides special provision for mediation when the contesting parties to a suit or of an appeal applied for mediation thereof started before the amendment of 2012. Section 89E provides for application and commencement of the provisions of section 89A and 89C in the following words- ‘the provision of section 89A or 89C shall be applied to such area, and commenced on such date as the government may by notification in the official Gazette, fix’. But government has not yet issued any Gazette notification fixing the date and specifying the area for its application. As a result, ADR has not been started yet in the ordinary civil courts of Bangladesh after an era of introducing the provisions in the CPC. 3.6 Present legal framework regarding ADR in civil law ADR indicates those processes of dispute resolution which have been enumerated in the statutes and conducted either by the court or by the third person upon the reference of the court. ADR processes in the formal &quasi-form always are conducted by the following Statutes of Bangladesh. 3.6.1 Formal ADR

a. The Code of Civil Procedure (Amendment) Act, 2003: Mediation and arbitration have been inserted in section 89A and 89B of the Code of Civil Procedure, for all civil suits except suits under the Artha Rin Adalat Ain, 2003, through the Code of Civil Procedure (Amendment) Act, 2003. Section 89A stipulates that at any stage, after filing the written statement, if all the contesting parties are present in person or by their pleaders apply to the court showing their willingness to settle the dispute through mediation, the court may, adjourning the hearing, mediate in order to settle the dispute or refer the dispute to the engaged pleaders of the parties or parties, where no pleader has been engaged or refer to the mediator from the panel as prepared by the district judge in consultation with the president of the District Bar Association. The mediator of the panel may be a pleader or retired judge or person known to be trained in the art of dispute resolution or such other person or persons as may be deemed to be appropriate for this purpose but any person holding office of profits in the service of the republic shall not be qualified for being mediator of the panel. It is also stipulated that a mediator shall not act as mediator between the parties if he has been engaged by either of the parties as a pleader in any suit. Mediation has been defined under section 89A as flexible, Informal, Non-binding, confidential, non-adversarial and consensual dispute resolution in which the mediator shall facilitate compromise of the dispute without direction or dictating the terms of such compromise. It is the discretionary power of the court that after the filing of the written statement, it may either mediate or refer the dispute to the pleaders or the parties or the mediator for settlement. Thus, unlike the USA where pre-trial mediation is compulsory but the judicial mediation in civil suits in Bangladesh is consensual and voluntary. So the provisions regarding mediation remained mostly unpracticed for making it voluntary for the judges to take step for mediation, lack of motivation of the concerned judges, ignorance of the parties and unwillingness of the lawyers. When reference under s/s is made to the pleaders of the parties, they shall in consultation with the clients appoint another pleader or a retired judge or a mediator from the panel or any other person whom they seem to be suitable. Here the parties have the option to appoint more than one mediator. The procedure of mediation and the fees of the mediator shall be determined by the parties and pleaders, not by the court. But when the mediation is conducted by the court then the procedure of mediation will be determined by the court and no fee will be charged from the parties. A time-frame has been set out for speedy disposal of mediation. Within 10 days from the reference, the parties shall inform in writing to the court that whether they have agreed to settle the dispute through mediation or not and within 60 days from the day on which the court is so informed the mediation shall be completed unless the time is further extended for 30 days for the joined application of the parties. The mediator shall submit a report regarding the result of the mediation proceeding. If any settlement is possible, an agreement incorporating the terms of settlement shall be reduced to writing signed by the parties, pleaders and mediator and the court shall pass an order or a decree following the report of the mediator. Where the court itself mediates the dispute, it shall also pass an order or decree in the similar manner. And the court shall issue a certificate directing refund of the court fees paid by the parties. And no appeal or revision shall lie against the order or decree passed by the court on the basis of settlement through mediation. Where compromise is not possible, the court shall proceed with the hearing of the suit from the stage at which the suit stood before the decision to mediate. Where the court itself tried to settle the dispute through mediation and failed, in that instance, the suit will be heard by another competent court. This rule is inserted to avoid the biasness of the judges. On the other hand, failure to settle the dispute shall not limit the option of the parties regarding withdrawal, adjustment and compromise of the suit under Order23 0f the C.P.C 1908. This provision has made open other methods of alternative settlement. It is always open for the parties to withdraw the suit for arbitration either they have taken the help of mediation or not. Section 89B provides that if the parties, at any stage of the proceeding, are willing to settle the dispute through arbitration may apply before the court for the withdrawal of the suit and refer to the arbitrator and it will be settled by the arbitrator in accordance with the Arbitration Act, 2001. Following the massive success of mediation at the trial stage, the mediation proceeding has been incorporated at the appellate stage by section 89C of the Code of Civil Procedure through the Code of Civil Procedure (Amendment) Act, 2006. For mediation in appellate stage the procedure described in section 89A will be followed.

b. The Family Courts Ordinance, 1985 The most important provisions have been inserted in the Family Courts Ordinance 1985 for the conciliation between the parties at pre-trial stage and trial stage of suits concerning divorce, dower, and maintenance, restitution of conjugal life and custody of children. A attempt to settle the dispute through alternative process is compulsory for the judges. Section 10 says after the filing of the written statement, the court shall examine the plaint, written statement and the documents filed by the parties and if it deems fit, hear the parties. It shall ascertain points at issue and attempt to reach a compromise between the parties. If no compromise or conciliation is possible at this pre-trial stage, the court shall proceed for the trial of the dispute. Section 13 provides that again the Family Court, after the close of all evidences but before the pronouncement of the judgment, shall make an effort to effect compromise or reconciliation between the parties. These good provisions on mediation have been inserted in family matters just to preserve the relationship and peace between the parties. These healthy provisions on mediation remained unpracticed since the enactment of the Ordinance due to lack of motivation of the concerned judges and due to using the adversarial system the judges presiding over Family Courts were completely ignorant about mediation. To activate ADR provisions in the Family Court a pilot project was taken in 2000 in the Family Courts of Dhaka. Following the massive success of these courts it was extended to all the Family Courts in Bangladesh and different forms of ADR have been introduced by amending many laws of the country. In mediation in Family Courts the parties can directly participate in the settlement process and they are allowed to voice their position in joint session because settlement opportunities are discussed privately. The parties are helped to realize the result of the suit if they proceed with the litigation. The most positive result of it is to provide opportunities to the women, who are unwilling to expose themselves to public eye going to the court, to directly participate in the dispute resolution process and voice her grievance without being condemned by critical eyes because all the activities performed on mediation in family courts are quite confidential.

c. Artha Rin Adalat Ain, 2003 Under sections 21 and 22 of the ArthaRinAdalatAin2003, two modes of the ADR, settlement conference and arbitration, have been introduced in the commercial dispute. Section 21 defines the Settlement Conference as a conference comprising the parties, their lawyers and their representatives and presided over by the judge of the Artha Rin Adalat for disposing of the suit in an informal, non-binding, confidential and non-adversarial manner on the basis of mutual cooperation and understanding of all concerned.” Section 21 deals with the details procedure of the Settlement Conference and section 22 provides for the arbitration of the commercial dispute. After the filing of written statement the court may, keeping pending all subsequent proceeding refer the suit to the lawyers of the parties or where no lawyers have been engaged, to the parties themselves. But where the parties agree to try and settle the dispute through arbitration, the court is bound to refer the dispute for arbitration. Inserting the ADR system in commercial dispute certainly improves the investment in this field. 3.6.2 Quasi-formal ADR Where the application, jurisdictions and modes of ADR are regulated by statute but conducted by a non-judicial body that is Quasi-formal ADR. Quasi-formal ADR mechanisms in different legislations of Bangladesh are - The Muslim Family Laws Ordinance, 1961 To make the divorce effective the husband after pronouncement of talaq shall send a notice as soon as possible to the chairman and a copy of it will also be sent to the wife. From the date of receiving the notice of talaq within 30 days the chairman shall constitute an arbitration council which shall take all necessary steps for reconciliation between the parties. A talaq will not be effective until the expiration of ninety days from the day on which the notice was delivered to the chairman or if the wife is pregnant after the pregnancy ends, whichever period is longer. In what form either Ahsanor Hasanor Bidaatform, the talaq is pronounced it will be deemed as a single talaq in ahsanform, so husband can revoke the talaq anytime either expressly or impliedly I.e. to kiss her or consummate with her or touch her etc. or after ninety days by remarry if it is not for third time. The failure of husband to give notice to the chairman is deemed to be revocation of talaq. In Abdul procedure of courts.

The Arbitration Act, 2001 The Arbitration Act, 2001 is applicable in respect of recognition and enforcement of foreign arbitral awards and in relation to a dispute arising out of the arbitration agreement entered into before or after the enforcement of the Act. Under the Arbitration Act 2001, arbitration is mandatory if any dispute falls within the ambit of the Act or if any civil suit, at any stage of it, is withdrawn on the application of the parties for arbitration then it will be settled in accordance with the Arbitration Act, 2001. The Village Court Act, 2006 If any dispute either civil or criminal comes within the ambit of The Village Court Act 2006, it shall be dealt with by the Village Court consisting of five members including the chairman who will preside over the Village Court and each party shall select two members of which one must be a member of Union parishad. The procedures enumerated in the Evidence Act, the C.P.C and the Cr.P.C shall not be applicable in village court and no party has right to engage any lawyer in proceeding of such court.

The Labour Code, 2006 Chapter 14, section 210(1) to (19) describes the procedures of mediation, conciliation and arbitration. The key to success of ADR in Bangladesh lies in the manner of its introduction. ADR is no longer an unheard of concept of dispute resolution among judges, litigants and lawyers of Bangladesh. The Family Courts all over Bangladesh are actively engaged in ADR. The pilot family courts are only exclusively engaged in mediation, but other Assistant Judges, who received training in mediation, are also mediating apart from trying cases. The mediation output of all the Assistant Judges, taken together, is something to be proud of. The Ministry of Law only needs to collect maintain and update all relevant statistics in this regard. To make ADR more effective, extensive, and pro-active, coordination is needed among different agencies.

3.7 History of Criminal Justice System in Bangladesh The phrase Criminal Justice System refers to the system of State and Local Public Agencies that deal with the crime problem. Proper dispensation of Criminal Justice System is no doubt sine qua none for a healthy secured society. The present criminal justice system of Bangladesh owes its origin mainly to 200years British rule in Indian Sub-Continent; tough it has been gradually developed as a continuous historical process through Hindu and Mughal administration. There are at least five periods by passing which our present administration of justice has been developed. In Hindu Period, the King was considered as the King’s Court, Chief Justice Court, and Village Council etc. In Muslim period, the criminal justice system was administered through three consecutive sub-periods that was period of Turkish Muslims(1100A.D-1206), the Sultanate of Delhi (1206A.D.-1526) and the Mughal Empire(1526A.D.-1857A.D.).The theory of Muslims was based on Quran and their religious book. Somuzat, Diwan-e-Mazalim, SardeJehan’s Court, Adalat Nazim Subha, Adalat Qazi-e- Subha, Faujder Court etc. The modernization of ancient criminal justice system took place by the interference of the East India Company. The administration of justice was regulated by several Charters and Act. Gradually, Supreme Court and High Court were established. In the last era of British India there were Courts of Session, Presidency Magistrate,1st Class, 2nd Class and 3rd Class Magistrate which was established by the Code of Criminal Procedure, 1898. Bangladesh has adopted this Criminal Justice System. The judicial procedure is regulated by the Code of 1898 and the Act of 1860 has defined the crimes and prescribed the punishment. This system is considered as the staircase of Criminal Justice System of Bangladesh. 3.7.1 Nature of Criminal Justice System Followings are the nature and features of the Criminal Justice System of Bangladesh- Criminal Justice System is adversarial in nature meaning that the whole process is a contest between two parties one of whom is State and the other is accused of crime. The judge acts as an umpire between parties. A person accused of a crime is presumed to be innocent until the prosecution proves his guilt. Guilt of the accused must be proved beyond any reasonable doubt. This is the criminal standard of proof. In criminal proceeding, the basic rule is that the prosecution bears the legal burden of proving every fact in issue. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. Criminal Justice System consists in the punishment of wrongs. Normally in a criminal justice, the injured person claims no right, but accuses the defendant of wrong. In Criminal Justice System, there is no retrospective operation of Criminal law. Retrospective means looking backwards having reference to a state of things existing before the Act in question. It is a settled principle that criminal laws have no retrospective operation in the eye of law. Constitution of Bangladesh also ensures that no person shall be convicted to any offence which is not in force at the time of the commission of the act. It is a general rule that Penal enactments are to be interpreted strictly and not extended beyond their clear meaning. A penal Statute must be construed according to its plain, natural and grammatical meaning. Special criminal law prevails over the general criminal law. There are almost five agencies in a criminal justice system. These are: 1. Law Enforcing Bodies, 2. The Prosecutors, 3. The Defense Counsel, 4. Adjudicating Authorities and, 5. Correctional Services personnel.

3.7.2 Causes of delay in disposal of Criminal Cases Article 35(3) of the Code of Criminal Procedure, 1989 ensures the right to speedy justice as fundamental rights. But due to some unavoidable circumstances, it is impossible to ensure the right of speedy disposal of cases. From the analysis of the disposal procedure of cases, the following causes of delay can be remarked- Absence of completion of trial of criminal cases within time. Inadequate number of judges. Nonattendance of witness at trial. Absence of skilled and experienced regular prosecution. Absence of exclusive criminal courts of session. Absence of regular inspection of the subordinate session court by the Session judges or Supreme Court. 3.8 Present legal framework of ADR in Criminal Cases in Bangladesh The term Alternative Dispute Resolution is often used to describe a wide variety of dispute resolution mechanism that are short of, or alternative to, full scale court process. In short, it means to resolve any dispute between the parties outside the court. Bangladesh has introduced this system in the Civil Justice System. ADR has not been yet widely introduced in criminal justice system. Section 345 of the Code of Criminal Procedure enacts provision for compromise between the adversary parties to a little extent. Besides this Gram Adalat Ain, 2006 and Birodh Mimangsha (Paura Elaka) Board Ain, 2004 deals to dispose of some petty criminal offences by compromise. The Criminal Court has no other alternatives but to acquit the offenders if compromise petition is submitted in case of compoundable offences. The opportunity of ADR in criminal cases should be increased by widening the scope of Section 345 of Cr.P.C. It is needed to widen the ambit of compoundable offences may have the adverse effect on the public peace and tranquility. The success of the ADR will ensure the peace in society. Compounding means compromise or amicable settlement. Generally, a criminal act in which a person agrees not to report the occurrence of a crime or not to prosecute a criminal offender in exchange for money or other consideration is called compounding offences. One the other hand, it can be said that compoundable offences are those which can be compromised by the parties to the dispute. The permission of the Court is not necessary. Note that the aggrieved party or the victim may compound an offence. Not even the public prosecutor has the power to compound an offence. Offences which may lawfully be compounded are mentioned in section 345 of the Cr.P.C. An offence created by a Special Law is not compoundable. The Court cannot allow compounding of an offence which is not compoundable under Section 345. Compoundable offence may be of two types: (a) Compounding with the permission of the Court;(b) Compounding without the permission of the court. Section 345 (1) provides the list of offences which can be compounded without the permission of court,. Section 345 (2) provides the list of offences which can be compounded only with the permission of the Court. Penal Code, 1860 covers wide range of offences, defining the offences and the provisions of punishment. Whereas the Code of Criminal Procedure prescribes the procedure to try the offences compoundable can also be compromised outside the court. Main object of compounding to maintain peace in the society. But all kinds of offences are not compoundable, basically in case of heinous offences. Except the offences mentioned in the column of section 345 of the Code of Criminal Procedure cannot be compounded, such as murder, rape, kidnapping, dacoity, smuggling, abduction etc. 3.8.1 Types of ADR in Criminal Cases ADR in criminal cases may be of two types- a. Compounding Offence. b. Plea Bargaining.

3.9 General Rule of Compounding of Offences a. Compounding of Abetment of Offences When any offence is compoundable under section 345 of Cr.P.C, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner.

b. Person Competent to Compound When the person who would otherwise be competent to compound an offence under section 345 of Cr.P.C is (under the age of eighteen years or is) an idiot or a lunatic, any person competent to contract on his behalf may (with the permission of the Court) compound such offence.

c. No Composition in Some Case When the accused has been sent for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is sent or the case may be, before which the appeal is to be heard.

d. Direction of High Court Division to Compound Cases The High Court Division acting in the exercise of its power of revision under section 439(and a court of session so acting under section 439A) may allow any person to compound any offence which he is competent to compound under section 345 of Cr.P.C.

e. Acquittal The composition of an offence under section 345 of Cr.P.C shall have the effect of an acquittal of the accused (with whom the offence has been compounded). f. No Compounding except Section 345 No offence shall be compounded except as provided by section 345 of Cr.P.C. 3.10 Guiding Principles in Compromise of Criminal Cases No compromise can be made before charge sheet is submitted. Following points should be kept in mind while compromising an offence: a. The compromise proceeding should be guided by legal process and no legal provisions shall be hampered by compromise. b. Patience hearing should be given to both the parties. c. Conciliator should not impose any decision over the parties. d. Extra benefit should not be given to any parties. e. No one should be declared guilty or convicted in conciliation proceeding. f. Equality should be ensured in case of male and female. g. Deed of compromise should be in written form. h. Copy of the deed of Compromise should be provided both the parties. 3.11 When Compounding Possible? At any stage of Criminal Proceeding the parties may take initiative to submit deed of compromise and even in appellate stage it can be submit before the Court. The order is discharge of the accused when the deed is filed before framing of charge whereas the accused is to be acquitted if the compromised deed is submitted after framing of charge whereas the accused is to be acquitted if the compromised deed is submitted after framing of charge. Before pronouncement of judgment compromise deed can be filed. The Pakistan Supreme Court permits submission of deed of compromise after serving the conviction and acquit the accused in appellate stage. But when the lower Courts record is called for under section 435 of the Code of Criminal Procedure, Magistrate cannot permit the parties to submit compromise deed. 3.12Necessary Steps to Introduce ADR in Criminal Justice Delivery System The opportunity of ADR in Criminal Cases can be increased by enlarging the scope of Section 345 of the Code of Criminal Procedure carefully. It would eliminate the various malpractices now resorted to be the parties to put an end to criminal proceedings pending in the Courts in which a non-compoundable offence has, in fact, been compounded out of court. In Criminal Jurisdiction, thousands of cases filed under section 138 of the Negotiable Instrument Act, 1881 which are not compoundable. But in this case, ADR system may be very much effective and the Complainants will be benefited. A considerable number of cases filed under section 385 of the Penal Code are pending in the Courts of Session for years together. These types of cases are suitable for compromise through Court if necessary amendment be made in the procedural laws. ADR system can also be introduced to confirm juvenile justice under the Children Act, 1974. This system can also be effective for the trial of environmental cases under the Environmental laws. To preserve Human Rights it is necessary to introduce ADR system in Criminal Justice delivery system.In the case of Md. Joynal and others. Rustam Ali and others, Supreme Court encourages compromise in criminal cases. Establishment of ADR training institute and allocation of fund is another requirement for introducing ADR in Criminal Justice. For the success of this system, mass awareness should be built. 3.13 Conclusion Bangladesh’s court system is unresponsive to the needs of the poor, and its traditional village dispute resolution institutions are biased against the interests of women. Based on a 1995 national customer needs survey, USAID-Bangladesh defined local participation and increased access to justice as a strategic objective, and improved ADR as an intermediate result. Finally, we can conclude that if we introduce ADR in our country we can lessen the case between of our Court and people we have more aware to justice administration system. Then the confidence of the people our law and justice would increase. Alternative Dispute Resolution (ADR) is used when there is any conflict between two groups regarding a specific situation. When the two parties are not able to come to any solution, then they go for ADR. Only ADR processes have the potential to reduce significantly the costs and delays associated with traditional court proceedings. This system has already been introduced in Civil Litigation System. To introduce this system in Criminal Justice System like Code of Civil Procedure, Code of Criminal Procedure should be amended. ADR can be introduced in Code of Criminal Procedure by enlarging the scope of section 345 and inserting a new section and empower the Criminal courts to dispose of criminal cases through ADR. Critics believe that ADR encourages compromise. Compromise can be good way to settle some dispute but it is not appropriate for others. Though there exist criticism, it’s still helping the common people in getting the judiciary service cheaply. Also the judiciary system is getting speed as it is facing less petty case of charge. CHAPTER 4 DISCUSSION ON GOALS AND POSSIBLE USES OF ADR 4.1 Introduction International arbitration is about settling disputes between businesses, occasionally between businesses and States or State entities. International arbitration itself is a business, possibly too much so. Arbitration is often about money. Many claim that mediation is a more cost effective and time efficient process than arbitration to resolve international disputes. Since one would assume that companies will choose the fastest and cheapest way to resolve their disputes, it should therefore follow that the number of mediations should grow more than the number of arbitration cases in resolving international commercial disputes. Our paper tests this very nature of idea and lets out whether international mediation is useful to corporations, whether it is growing as the international resolution method of choice, and considers the reasons behind that growth. ADR systems may be designed to meet a wide variety of different goals. Some of these goals are directly related to improving the administration of justice and the settlement of particular disputes. Some, however, are related to other development objectives, such as economic restructuring, or the management of tensions and conflicts in communities. For instance, developing an efficient, consensual way to resolve land disputes may be critical to an AID mission not because of its commitment to strengthening the rule of law, but because land disputes threaten the social and economic stability of the country. Likewise, efficient dispute resolution procedures may be critical to economic development objectives where court Delays or corruption inhibit foreign investment and economic restructuring. 4.1.1 Within the context of rule of law initiatives, ADR programs can a. Support and complement court reform b. By-pass ineffective and discredited courts c. Increase popular satisfaction with dispute resolution. d. Increase access to justice for disadvantaged groups. e. Reduce delay in the resolution of disputes. f. Reduce the cost of resolving disputes. g. In the context of other development objectives, ADR programs can: h. Increase civic engagement and create public processes to facilitate economic restructuring and other social change i. Help reduce the level of tension and conflict in a community j. Manage disputes and conflicts that may directly impair development initiatives Experience suggests that ADR programs can have a positive impact on each of these development objectives, although the extent of the impact is very much dependent on other conditions within the country and the fit of the design and implementation of the program with the development objectives. 4.2 Merits of the ADR The following section will vividly discuss the merits of the Alternate Dispute Resolution System. a. It saves a lot of time by allowing the parties to resolve their differences/ disputes/ issues in a short period of time as compared to the excessive stint taken by the Hon’ble Courts in resolving the very same issues like our very own, where the population is humongous, there are a innumerable sectors from where cases and disputes arise, not all of them can be brought to the court, as only important issues ought to be dealt with there. The saying, “justice delayed is justice denied” can be sacked through this system. The unnecessary burden upon the courts can be removed and hence elongation can be avoided. Moreover these processes can commence at any point of time, unlike anticipating the stipulation of dates as and when pleased by the court. b. It saves a lot of money that is disbursed on lawyers and other miscellaneous expenses that one has to undergo in the process of litigation The most elementary benefit of the ADR system is saving costs, giving control to the disputants and thus avoiding the vicious litigation process. Such process (like ADR) results in substantial savings of court fees, lawyer’s incentives, and other costs because they do not include time consuming and expensive discovery that is quite prevalent in different courts. Other such elaborate practices are also deemed redundant. c. It puts the parties in control by giving them opportunities to discuss their case by giving them a forum to put forth their own views and thereby giving them a chance to put themselves on a clean slate The parties have the opportunity to air their own views and ideas directly in the presence of the other party. There is no mind games involved because the victimized party addresses the opposite party/ parties directly. This process thus provides a catharsis for the mindset of parties that can endanger a willingness to resolve differences between them in courts. Moreover since they are heard in the presence of a neutral authority figure, the parties often feel that they have had “their day in the court.” d. Access to justice is much easier and much faster in case of ADR, because it allows people, who cannot afford fees or cannot afford to lose time, to acquire a remedy without getting into the sweat breaking system of the court People solving their disputes through the ADR have the benefit of solving their own cases themselves, and hence are representing themselves per se. Generally court litigation can be very difficult for the per se litigant, who is unable to navigate himself through the court proceedings and trial. With the downturn in the economy, studies show that fewer parties are represented by the counsel, and that lack of representation negatively impacts the per se litigant’s case. Thus is this manner access to justice is much faster and more number of people are encouraged to solve the issue through ADR mechanism. e. It focuses on the issues that are important to the people instead of just stressing upon the legal rights and obligations Resolutions through these systems are brief and brisk. Avoiding the unnecessary litigated outcomes, the parties involved can just acquire the result they want and are comfortable with. The 3rd party involved efficiently handles this plan. i.e. (mediator, arbitrator, conciliator etc.) they identify and frame the relevant interests and issues of the parties, help them to access the quantity of risk, suggest relevant options and hence lead them to a particular and appropriate solution. This is accomplished by meeting with the parties separately and hence suggesting to them the issues upon which they have to focus rather than just going by the rules stated in the black words on a white paper. f. It leads to more flexible remedies than in court, i.e. the people make agreements that the court cannot order or enforce upon There must be certain cases where the arbitration is required by contract. The parties to the same can initiate proceedings to suit their needs, such as location of arbitration, scope of discovery and the number of arbitrators involved. Once the process is started, a party seeking more streamlined and less expensive process will be better to achieve than in courts. The parties can also schedule the hearing time. This can even take place in any time as decided by the parties. Since one of this type can be can be conducted more quickly, and less expensively, there is less emotional burden on the individuals involved than proceedings in a stressful trial. It keeps the disputes that are private as the same. There is no public announcement of the arbitration/ mediation/ conciliation or any of the ADR processes for that matter. The case is held in a confidential manner by keeping the private matters as private. Full secrecy is maintained. While mediation can take place in the formal court system, arbitration can be administered on a secretive basis. Here the parties involved and the arbitrator or the mediator is invited who can solve the case within four walls of the said arbitration/ mediation room. They are moreover barred from disclosing any information. g. It produces good results by reducing stress upon the people and satisfying them by giving them the desired results and by preserving good relationships between them The process of litigation that is traditionally followed can be stressful and personally excruciating. At the end of the litigated process the parties are generally not in good terms with each other, and are unable to start any relationship afresh. However, in case of the resolution of disputes through alternative means, other than litigation, the parties maintain cordial, business and personal relations with each other. The reason of the aforementioned fact is that the parties are given a rightful chance to express themselves and are suggested remedies consequently, they both agree to the same by reaching to a common conclusion. They negotiate amongst themselves or the 3rd party helps them by suggesting remedies. There are no winners or losers here. The 3rd party has no authority to impose any advice or remedy atop the parties. The said resolutions are solely voluntary and on the sole discretion of the parties. Here the parties retain their options. h. ADR provides finality In courts, during the proceedings, the parties generally have a chance to appeal the decision of the judge or the verdict of a jury. In contrast to this, the grounds for court review of an award received through arbitration are very much limited. There is lesser chance for the award of arbitration to be challenged. It is final and binding on the parties thereof. 4.3 Demerits of the ADR Time to flip the coin as we go through the demerits of the said system. The following section of the paper will discuss the demerits of the ADR system- a. Compatibility in this blistering era of disputes Alternative dispute resolution system may not be suitable for each and every dispute. Agreed that cases do pile up in the Hon’ble Courts of law all around the world, but the judge cannot always refer a case to arbitration/ mediation/ conciliation. Some cases are to be dealt in the court of law; there is no other ‘informal’ means of solving the said cases. Many a times, one of the parties is not comfortable with the idea of ‘alternative’ means of resolutions being used to tackle their issues so they prefer appearing in the court of law. b. Wastage of time/ money if the case is not resolved A recent survey done by a prominent law database website suggests that nearly 90% of the cases, which are dealt through the ADR system, are solved but the remainder, i.e. the remaining ten percent, of the cases go unresolved, the parties to the unresolved cases have no choice but to file a law suit thereby wasting same, sometimes more, amount of time and money in the proceedings of the legal system. c. The possibility of bias The possibility of bias, though negligible, or a conflict of interest or at least the appearance of impropriety, may arise if a neutral in ADR gets a good deal of repeat business from the same institution. d. Compromisation of Confidentiality Prima facie, confidentiality of the proceedings seems to be a boon for such a dispute, however, in practice, it might prove to be a double edged weapon, as it might lead to certain difficulties and obstructions. In the proceedings confidential it may be difficult for the parties to use the award or any other part of the arbitration in later proceedings. In many a cases, it is necessary to disclose the time/ date and place of the said arbitration proceedings to the third parties and or patent officers and thereby compromising the confidentiality of the system. e. Limited Judicial Review Another everlasting problem faced by parties taking recourse to the ADR system is the power of limited or negligible Judicial Review An arbitral award is final and binding on the parties and excluded to appeal to the courts in connection with it. The court review of arbitral awards is quite limited. f. Informal, more opportunity of abuse of power Though very uncommon, power abuse sometimes is something to worry about in case of Alternative Dispute Resolution systems. Since the mediator/ arbitrator/ conciliator does not have to follow any formal code of prescribed text, he sometimes goes out of the way to make things good or sometimes even worse for the parties to the dispute. Though not into practice, abuse of power due to lack of formality sometimes gets to crack the bone of the whole system. g. Lack of power to establish legal precedents The remedies established, or given out to the parties in dispute, in case of ADR cannot be binding on future cases, i.e. the remedy of one case cannot be taken as the guiding stone for another or it, the remedy, cannot be taken as a legal precedent. h. Unfamiliarity with the procedure and Lack of awareness Last but not the least, one of the most glaring difficulties faced by the alternative methods of dispute resolution is that most of the people, be it the patentee or the companies or the attorneys, are unfamiliar with the processes since this is a fairly novel concept. It is the lack of knowledge and awareness with respect to the various methods for dispute resolution that more often than not discourage parties from considering this option seriously. CHAPTER 5 RECOMMENDATION

5.1 Introduction ADR is a methodical process which has many different forms for the settlement of disagreements, or even non-agreements. ADR is taken to mean any process which is alternative to the formal procedures of dispute resolution. It is a generic term covering a collection of disparate procedures, which range from conciliatory processes such as mediation and conciliation to more formalized procedures such as the Executive Tribunal (called the mini-trial in the United States), or early neutral evaluation. ADR can be said to have arrived in the Bangladesh as a kind of optional novelty. It would therefore be particularly unwise to reject ADR procedures and their variations on the grounds that they are foreign to our culture and that they would disrupt the well-established practice of arbitration in Bangladesh. Litigation will remain irreplaceable; but it would be good to moderate its overheating by the appropriate release valve which, at the same time purges it of certain excesses commonly reproached of it 5.2 What does it take for Successful ADR? It is important to realize that not every case is fit for ADR and the parties will need to consider very carefully with their advisers whether the investment of time and money in ADR is going to be well spent. In particular, the following factors seem to be important. First, do the parties genuinely wish to settle? Although it is true to say that the vast majority of disputes settle without ever being decided by a court or arbitrator, some cases will go all the way to a full hearing. Without the desire to settle, there will not be the requisite degree of frankness between each party and the mediator to let settlement proposals be formulated which have a realistic chance of being accepted. Second, much will depend on the personalities who participate in the ADR process. As has been pointed out above, this will be, in part a question of initial selection, in part a question of deciding in advance on the procedures to be followed and the roles to be adopted and finally a question of how the individuals personally perceive and discharge their functions. Lastly, is the dispute of a type that can sensibly go to ADR at all? Disputes that revolve around complex considerations of law or construction of documents would not normally be suitable for ADR, but ADR comes into its own where there are questions of fact in dispute between the parties. 5.3 Clear guidelines of appropriate cases for ADR Despite clear indications that both judges and lawyers lack knowledge and experience with ADR, the many domestic legislation places a duty of judges to direct appropriate cases towards ADR. Lists of the diverse features of disputes have often been drawn up by those practiced in ADR to indicate the unsuitability of the case to the alternative procedures: a. where one party exhibits an unwillingness to settle or compromise b. where there is a need to establish a legal precedent c. where one needs a preliminary injunction d. where the reputation of a party or business is at issue e. where one party wants to deter similar actions f. where a party can get a final result quickly through summary judgment g. where the confidentiality of mediation may cause adverse publicity h. where one party only wishes to obtain free discovery i. Where there are issues of fraud. 5.4 The Evaluation of Alternative Dispute Resolution Making a Case for Settlement Critics often opine that an ADR award is non-binding. This is often considered as a major flaw as it gives the respondent an opportunity to take resort to delaying tactics. It must be emphasized that it is not the role of the ADR forum to make a formal or binding award. While there has been some discussion over whether or not provision can be made for the recovery of wasted costs, which have arisen as a result of a failed ADR. It should be noted that consensus is inherent in ADR. It is open to the parties to enter into an agreement that makes the ADR agreement itself binding. There is no doubt that the litigation and ADR systems have failed the very people they want to serve. The main difficulty in that any hearing which determines the respective rights of the disputants cannot be conducted without the most careful preparation which costs considerable time and money. When consideration is attached to time and money spent in the preparation of pleadings, discovery and inspection of documents, the preparation of witness, appointments of experts and the cost of professional teams as well as the arbitrator and the hearing room, it takes very little imagination to appreciate the inroads into each flow that is imposed upon the parties. It may so happen that the arbitrator himself and/or the lawyers involved are not available to conduct the hearing for some considerable time. It is an admitted fact that there is a just as much delay in litigation as there is in ADR. Parties are turning to ADR in desperation. The hasty use of ADR cannot lead to a settlement. For any successful ADR 4C’s are essential. They are the followings: 5.4.1 Consensus With the consent of the parties only ADR can be adopted. The parties are aware that if the process fails, they are still able to press on either ADR or litigation. It must be admitted that in terms of wasted costs arising from an unsuccessful attempt at ADR, all the prior preparation will be needed for ADR or litigation in any event. If the procedure fails, it after gives the parties chance of thought, will an improved method of settlement subsequently being reached. 5.4.2 Continuity It is definite that at least one party to the dispute will try to maintain a business relationship with the other if at all possible. ADR resolves much of the enmity, either in the course of the hearing; it may very well be possible for a new business arrangement to be created as part of the settlement process. Litigation cannot simply produce such a result, because the respective parties stand becomes polarized, which will definitely lead to a complete breakdown in relations between the parties. 5.4.3 Control Flexibility is inherent in ADR, which allows the parties to exert considerably greater control over the proceedings in order to be able to reach a beneficial decision. 5.4.4 Confidentiality ADR, like litigation enjoys complete confidentially regarding the proceedings. In ADR neither party is exposed to publicity which may affect their credibility or cause trade secrets to be released. ADR proceedings are concluded with potential savings in costs and speed. Besides ADR has two other potential advantages –the first is that litigants participate more actively in this kind of forum. Which an advocate presents their case, the informality of the proceedings makes the parties feeling good. The ADR is far less threatening than either a courtroom proceeding. The second advantage is that where there are a number of litigants against one party, or where there are a number of different disputes which raises the same issues, a similar procedure can be adopted to deal with issues involved or with the parties involved, which will save considerable time. 5.5 Recommendation Delay in disposal of cases become common culture in our court system. Now days it become a factor of injustice, a violator of human rights. People are getting frustrated while they are filing a suit before the court as they are uncertain about when they will see the end of the disputes. But it cannot be ignored that every litigants have right to speedy and fair trial. Alternative dispute resolution mechanism has the potentiality to manage a case without causing delays and financial loss to the parties. In an effort to streamline the life of a case while preserving justice, alternative dispute resolution (ADR) offers an arena for litigation outside of the trial process. We can take the examples of developed countries like UK and USA where due to initiation of ADR mechanism at trial system they are getting success while dispensing justice. So to ensure justice for all ADR mechanism can be practiced as mandatory as it does not hamper human rights. But to get the full benefit of this mechanism, it must be free from any kind of biasedness. To make ADR more effective, extensive and pro-active, co-ordination is needed among different agencies. Following initiatives can be given to apply ADR mechanism in full swing in our legal system: a. Creating awareness about ADR Government intimation Enugu , people society and media should have due and specific programs regarding the awareness of alternative disputes resolution among the much people. b. Spreading the success story of ADR We know that mediation is apart ADR so more we can spread the success story of ADR the better participation of ADR we will be ensure by the common people mitigation of their complexities of every day. c. View ADR as an addition to not a replacement of the litigation system We recommend to the beneficiaries of ADR as apart mediation not to see it as the replacement of formal litigation system. d. Bringing change in court infrastructure Mediation is the alternative system disputes resolution so we have prepared infrastructure setup inside the court to ensure the informal remedy within the umbrella o f ADR . e. Training of the judges When any disputes arises between the parties under the family disputes then it is going to the informal court to this disputes by mediation there to need mediator and also mediator is appointed by various panel such as Judges, Advocates, and Any private person .But there is no enough knowledge those panel about the mediation process so it is necessary to manage the training of the judges . f. Training of the Advocates In family disputes the advocates to do work as mediator our countries advocates have no knowledge about mediation because there is no scope to acquire the knowledge of mediation so to need training of the advocates. g. Compulsory of mediation process In Bangladesh mediation process under ADR is not mandatory to settle the disputes that why no parties can respect the mediation process as a in formal court so taking to need necessary step for the establishment of mediation process as a compulsory before going to the formal court. h. Mediation become as a code In Bangladesh we can acquire knowledge about the mediation various types laws .There is no separate laws of the mediation that why knowledge of mediation is limited so it must need to make statutory laws as a separate including the ADR in due cause mediation is established as a code. i. Including stakeholder in court reforms Introductory reforms the church system government should proper step to the court to the exercise the mediation. j. Involving the Bar Association in ADR Involving the Bar Association in ADR is the better option for the improvement of ADR.If we do so then the abuses,biasness can be reduced. i. Case management should be observed To improve ADR in criminal cases case management should be observed. j. Judges can actively and persistently suggest ADR options Judges are play the presiding role in the court so if they can actively and persistently suggest ADR options people can easily understand the importance of ADR. k. The court can play a vital role by educating If the court can spread the importance of ADR in criminal cases then the perception general people regarding ADR can be improved. l. Reforming Village Court If we introduce the ADR in criminal cases then justice will be ensured. CHAPTER 6 CONCLUSION AND BIBLIOGRAPHY

6.1 Conclusion ADR can be said to have arrived in the Bangladesh as a kind of optional novelty. The idea of resorting to procedures for settling conflicts, disagreements and even “non-agreements” other than through litigation, is progressing rapidly and is imposing itself progressively in the legal spheres and in arbitration circles, in spite of the skepticism with which it was first greeted. ADR now has to be taken into account by lawyers who might previously have found nothing wrong in ignoring it and by judges who might previously have regarded it as nothing to do with them. It would therefore be particularly unwise to reject ADR procedures and their variations on the grounds that they are foreign to our culture and that they would disrupt the well-established practice of arbitration in Bangladesh. Litigation will remain irreplaceable; but it would be good to moderate its overheating by the appropriate release valve which, at the same time purges it of certain excesses commonly reproached of it. Only ADR processes have the potential to reduce significantly the costs and delays associated with traditional court proceedings. This system has already been introduced in Civil Litigation System. To introduce this system in Criminal Justice System like Code of Civil Procedure, Code of Criminal Procedure should be amended. ADR can be introduced in Code of Criminal Procedure by enlarging the scope of section 345 and inserting a new section and empower the Criminal courts to dispose of criminal cases through ADR. Critics believe that ADR encourages compromise. Compromise can be good way to settle some dispute but it is not appropriate for others. Though there exist criticism, its still helping the common people in getting the judiciary service cheaply. Also the judiciary system is getting speed as it is facing less petty case of charge. 6.2 Bibliography Books Chowdhury, Dr.Jamila, ADR Theories and Practices, London College of Legal Studies (South), 1st ed., 2013. Halim, Md. Abdul, The Legal System of Bangladesh, Dhaka, CCB Foundation, 2009. Halim, Md. Abdul, ADR in Bangladesh : Issues and Challenges, 2nd ed. , Dhaka, CCB Foundation, 2011. Aktaruzzaman, Md., Concept and Law of ADR and Legal Aid, 5thed., Dhaka,2013. S.C., Dr. Tripathi, Alternative Dispute Resolution System (ADR), 1st ed., Allahabad, Central Law Publications, 2012. Samad, Md. Atickus, A Text Book on ADR & Legal Aid, 1st ed. , Dhaka, National Law Publications, 2013. Halim, Md. Abdul, Text Book on Code of Criminal Procedure, Dhaka, CCB Foundation, 2014. Akhtaruzzaman, Md, . Interpretation of Statute and general Clauses Act, Dhaka, 2010. Akhtaruzzaman, Md. , Concept and Laws on Alternative Dispute Resolution and Legal Aid, 2nd ed. (Dhaka, Shabdakoli Printers, 2011. Akhtaruzzaman, Md, Concept and Laws on Alternative Dispute Resolution and Legal Aid, 4th ed., Dhaka, Shabdakoli Printers, 2014. Ali Akkas, Dr. Sarkar, Law of Criminal Procedure, Dhaka, Ankur Prakashani, 2006. Huq, Zahirul , Law and Practice of Criminal Procedure, Dhaka, Bangladesh law Book Company, 2013. Rediff, O & A, Meaning of Compounding Offences. Samad , Md. Atickus, A Text Book on ADR & Legal Aid, 1st ed., Dhaka, National Law Publications, 2015. Journal Articles Kumar, Anoop, “Article on Applicability of ADR in Criminal Cases”, Lucknow, 2011. Akhtaruzzaman,Md.,“Conflict Resolution: Introducing ADR in Criminal Justice Administration in Bangladesh”, Journal of 10th Human Rights Summer School (ELCOP), 2009. Hossain, Md. Zakir, “Synopsis Of Criminal Litigation”, The Northern University Journal of Law, Volume-IV, 2013.