Alternative Dispute Resolution: A strategic solution to Bangladesh’s judicial backlog

The judicial system in Bangladesh is currently facing a substantial backlog of cases, which is impeding the timely delivery of justice. As of September 2024, a total of approximately 4,443,510 cases remain pending across the country's courts. This includes 28,901 cases pending in the Appellate Division, 577,280 cases before the High Court Division, and 3,837,329 cases in the lower courts. Over the past 15 years, the backlog has steadily increased, doubling in size, leading to significant delays, escalating legal costs, and considerable distress for litigants in need of timely resolutions.

A major factor behind this backlog is the severe shortage of judges. With only seven Justices in the Appellate Division, 89 in the High Court Division, and approximately 1,800 lower court judges serving a population of around 170 million, the judiciary is severely under-resourced. Legal experts estimate that at least 5,000 additional judges are needed to effectively manage the caseload and alleviate delays.

The success of ADR methods depends heavily on the mindset of the parties involved. A shift from an adversarial, litigious approach to one that prioritises cooperation and resolution can significantly improve the outcomes of dispute resolution processes. Parties willing to compromise, understand, and collaborate are more likely to achieve quicker and more satisfactory results.

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In response to these challenges, Alternative Dispute Resolution (ADR) mechanisms — such as mediation, negotiation, and arbitration — have emerged as vital solutions. These processes offer efficient, confidential, and flexible methods for resolving disputes, providing faster and more accessible justice without the need for prolonged court proceedings. However, the success of ADR largely depends on the mindset of the parties involved.

As a legal practitioner specialising in corporate matters, I have encountered numerous challenges in resolving disputes through negotiation. Many cases have been delayed or remain unresolved due to a lack of cooperation and a positive mindset from the parties involved. This highlights the urgent need for fostering a mindset focused on collaboration and problem-solving, which is key to achieving effective and timely resolutions. Addressing this issue is crucial to facilitating dispute resolution and ensuring that conflicts are resolved constructively.

 Understanding mediation, negotiation, and arbitration

• Mediation: Mediation is a voluntary process where a neutral third party, known as the mediator, helps disputing parties reach a mutually agreeable resolution. The mediator does not impose a decision but facilitates communication and helps clarify issues.

• Negotiation: Negotiation is an informal, direct dialogue between the parties involved, aiming to find a mutually acceptable solution without third-party involvement. This process emphasises collaboration and problem-solving.

• Arbitration: Arbitration is a more formal process where the parties agree to submit their dispute to one or more impartial arbitrators, who render a binding decision. It is typically less formal than court proceedings and can be tailored to suit the specific needs of the parties.

The role of mindset in effective dispute resolution

The success of ADR methods depends heavily on the mindset of the parties involved. A shift from an adversarial, litigious approach to one that prioritises cooperation and resolution can significantly improve the outcomes of dispute resolution processes. Parties willing to compromise, understand, and collaborate are more likely to achieve quicker and more satisfactory results.

This shift in mindset is essential for ADR's success, as it fosters cooperation rather than confrontation. By adopting a resolution-oriented approach, parties can explore mutually beneficial solutions, reducing the strain on the courts and achieving more timely justice.

Encouraging a solution-oriented approach

Legal professionals play a crucial role in guiding clients toward alternative dispute resolution (ADR) solutions. Instead of fostering conflict, lawyers can help clients understand the advantages of compromise and settlement, encouraging them to embrace ADR methods such as mediation, negotiation, and arbitration. These approaches not only lead to more favourable and efficient outcomes but also foster a more collaborative approach to dispute resolution.

In Bangladesh, the Arbitration Act, 2001 provides a legal framework for resolving disputes through arbitration, highlighting the country's commitment to promoting ADR as a viable option for conflict resolution. The law facilitates arbitration as a means of settling disputes outside the traditional court system, ensuring that cases are resolved more swiftly and with less burden on the judiciary. Additionally, Bangladesh's courts actively encourage parties to seek amicable settlements before resorting to litigation, further promoting ADR methods.

For this mindset shift to be sustainable, a broader cultural change is needed. Legal institutions, corporate legal departments, and government initiatives should champion the advantages of ADR and the psychology behind effective dispute resolution. Raising awareness of ADR's benefits can encourage its integration into more sectors, thereby reducing the strain on the judiciary while fostering a more harmonious and efficient legal environment.

 International success stories of ADR

 Several countries have successfully implemented ADR frameworks to resolve disputes more efficiently, offering valuable lessons for Bangladesh in addressing its judicial backlog.

• United Kingdom: The UK actively promotes Alternative Dispute Resolution (ADR), particularly in commercial and family matters, through renowned institutions such as the London Court of International Arbitration (LCIA), Centre for Effective Dispute Resolution (CEDR), Chartered Institute of Arbitrators (CIArb), ADR ODR International, and others. The Civil Procedure Rules (CPR) encourage parties to pursue mediation before initiating litigation, helping to ease the burden on the courts. UK courts also recognise and enforce mediated and arbitrated settlements, demonstrating a strong legal and institutional commitment to ADR as an effective means of dispute resolution.

• United States: The US has a well-established ADR system, with organisations like the American Arbitration Association (AAA) and Judicial Arbitration and Mediation Services (JAMS) providing arbitration and mediation services. ADR is integrated into court procedures, with many courts requiring efforts to resolve disputes through ADR methods before litigation. The Federal Arbitration Act supports the enforceability of arbitration awards, and the rise of online dispute resolution (ODR) platforms offers modern, remote solutions.

• Switzerland: Known for its neutrality and stability, Switzerland is a leading venue for international arbitration, with the Swiss Chambers' Arbitration Institution (SCAI) administering cases under the Swiss Rules of International Arbitration. Swiss courts rarely intervene in arbitral awards, reinforcing the reliability of the arbitration process, especially for complex commercial and sports-related disputes.

• Singapore: A global leader in ADR, Singapore excels in arbitration through the Singapore International Arbitration Centre (SIAC). The country's robust legal framework, including the UNCITRAL Model Law, supports minimal judicial intervention and the enforceability of arbitral awards. Singapore's ADR ecosystem also includes the Singapore Mediation Centre (SMC), and the Singapore Convention on Mediation facilitates international enforcement of mediated agreements, enhancing its global ADR reputation.

• Dubai: The Dubai International Financial Centre (DIFC) Courts use both arbitration and mediation to handle complex commercial disputes, reducing the burden on the judiciary. Additionally, the Ismaili Conciliation and Arbitration Boards (CAB) offer a culturally sensitive method for resolving family disputes, blending mediation and conciliation based on Islamic principles to promote family unity and fair settlements.

These global practices provide valuable insights that Bangladesh can adapt to develop a more efficient and accessible ADR system, potentially easing the burden on its judiciary and fostering more amicable dispute resolutions across various sectors.

Conclusion

The judicial backlog in Bangladesh's courts is a critical issue that requires immediate attention. ADR mechanisms present a viable solution to address this challenge, but for them to be effective, a shift in mindset is essential. Moving from a confrontational approach to one that values cooperation, flexibility, and fairness can lead to more practical and timely resolutions. This shift is crucial not only for individual disputes but for the judicial system as a whole.

Integrating ADR into Bangladesh's legal framework is not just a feasible solution but a strategic necessity. By promoting ADR and fostering a solution-oriented mindset among litigants, legal professionals, and the judiciary, Bangladesh can make significant progress in alleviating its judicial backlog. This will ensure that justice is delivered more efficiently and equitably. With a collective commitment from the public and the legal community, Bangladesh can build a more efficient and effective system of justice, benefiting future generations.

Sabina Yesmin is an  Advocate of the Supreme Court of Bangladesh. She is also the Head of Legal at Dhaka Stock Exchange PLC. She is a certified Mediator, Negotiator, and Associate Arbitrator.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.