A significant portion of the population of Bangladesh is poverty-stricken and fails to access to the costly and lengthy justice system. Community-based mediation is one of a kind alternative dispute resolution process locally developed by some NGOs in Bangladesh by redesigning the traditional shalish. This paper is an attempt to present how community-based mediation, being supplementary to the formal justice system, is providing access to justice in an efficient manner to the impoverished groups.
Bangladesh is one of the least developed countries in the world with approximately 22 million citizens living under the poverty line. Its expensive formal justice system is burdened with about 3.7 million cases in the backlog. In such socio-economic condition, the right of access to justice is hindered for the disadvantaged groups due to, inter alia, complex process, high expense, lengthy procedures, corruption, and backlogs of cases in the court. The situation requires an out-court supplementary justice system. To fill up the vacuum, alternative dispute resolution (ADR) is gradually becoming popular in Bangladesh. Among different types of internationally recognized ADR mechanisms, community-based mediation is a locally developed form of ADR. Mediation, as a mode of dispute settlement, has got widespread acceptability in all over the world because of its flexible, confidential, and cost-efficient nature. Despite some challenges and limitations such non-government organizations (NGO) sponsored mediation process has open the door of justice for the backward communities in Bangladesh.
Mediation, as a mode of dispute settlement, has got widespread acceptability in all over the world because of its flexible, confidential, and cost-efficient nature. It is defined as “a procedure based on the voluntary participation of the parties, in which an intermediary (or multi intermediaries) with no adjudicatory power systematically facilitate(s) communication between the parties with the aim of enabling the parties themselves take responsibilities for resolving their problems.” In simple words, mediation is a dispute settlement process where two disputing parties, with the support of a neutral third party, try to come into a mutual resolution amicably through negotiation. Here the neutral third party is called a mediator and they facilitates the mediation process i.e. they play the role of a referee.
A mediator commences the discussion process and helps the parties to find reasonable solutions remaining neutral and unbiased throughout the whole process. Several modes of mediation are prevalent depending on the role of the mediator in the process. In general, a mediator cannot impose their decision on the disputants i.e. their decision is not binding on the parties but they can step in between the parties with the view to ameliorate the negotiation and to reach a mutually consensual agreement. Agreement for mediation, pre-mediation preparation and formalities, discussion and framing issues, clarifying the interests, finding of best possible solutions, evaluating the probable options for resolution, mutual agreement and follow up are the steps of a standard mediation process followed by the mediators of developed countries. However, the process of mediation varies depending on the mediator’s outlining and planning.
The history of formal and quasi-formal mediation is not so long as that of informal mediation in Bangladesh. In Bangladesh, mediation was introduced in 1985 through the Family Court Ordinance to settle the family-related disputes outside of the courts. However, the provisions of mediation in family matters were barely applied till 2000 when the erstwhile Chief Justice took initiative to promote mediation through pilot courts. Consequently, optional provision for mediation was asserted in section 89A of the Code of Civil Procedures through an amendment in 2003 and it has been made mandatory by another amendment in 2012. In the meantime, the provision of mediation has been incorporated in several legislations and such progress has accelerated the use of mediation in civil matters.
The usage of informal mediation is quite ancient in the rural areas of Bangladesh in the form of shalish. Customarily, shalish has been the prime mechanism of settling disputes in the rustic localities of the country. In traditional practice, elders and elites of the villages conduct shalish in resolving the disputes among inhabitants of a locality where concerning parties are present and the shalish members assist the disputants to reach a mutual agreement. Once the villagers had strong faith in the justice system because of its time and cost efficiency, and easy accessibility. However, biasness, corruption, and political interference annihilated the credibility of shalish. The system has been criticized often for its barbarous and ignominious punishments. In the last few decades, Non-government organizations (NGOs) have redesigned the shalish process and turned it into a community-based mediation mechanism, which is popularly known as NGO shalish. Such NGO-based shalish i.e. community-based mediation is more effective, transparent, and well organized than the traditional shalish.
The idea of community-based mediation is not completely new in Bangladesh. It is a modified, institutionalized, and refurbished version of the traditional village shalish system with a more systematic mechanism. Madaripur Legal Aid Association (MLAA), a non-profit organization established in 1978 with an aim to provide legal aid, reshaped the shalish model and initiated community-based mediation, popularly known as Madaripur Model of mediation, with the view to ensure access to justice for the disadvantage groups in 1983. MLAA implemented the project by forming a mediation committee at the local level; providing training on mediation, law and, human rights to the committee members; utilizing the experience, problem-solving skill, and knowledge of local influential persons through their pro bono service in the mediation committee; arranging mediation sessions in the localities where committee members tried to resolve the local disputes; creating social pressure for the implementation of the mediation agreement. MLAA operates its services in Madaripur, Shariatpur, and Gopalgonj districts. It has mediation committees at the village and union level, and supervisory teams at the upazilla level. Strong monitoring of the mediation processes ensures a fair, standard, and trouble-free justice system for local disputes. Such a cost-effective mediation has not only made sure the access to justice for the underprivileged groups but also helped to reduce the backlog of cases in the formal courts. It is noteworthy to mention that all the mediation committee members provide service voluntarily.
MLAA has settled more than 50,000 disputes and their success rate is approximately 80 percent. Such achievement of MLAA has encouraged several other NGOs to follow the same path as its outcome quite better than providing legal assistance for litigation when the aim is to ensure access to justice. At present, besides MLAA, a number of NGOs are providing community-based mediation service, procedures might vary slightly, under various titles in different regions of Bangladesh.
Generally, after the recording of the complaint, enlisted mediators send notice to the respondent mentioning the details of the complaint and invites him to attend the mediation session in order to resolve the dispute on a particular date and time at a specific place. The plaintiff and mediation committee are also invited correspondingly. The respondents are given second or third chances via a notice to resolve the dispute through mediation in a case where they do not respond on first notice. It is also stated in the notice that if the respondent does not respond even after receiving the final notice, the NGO will file a case in the court on behalf of the complainant. Usually, respondents contact the nearest office of the NGO after getting the notice and all the parties attend the mediation sessions following the procedures. If the parties are succeeded to reach a mutual resolution, mediators write down the agreement and execute it by maintaining formalities.
The major difference between shalish and community-based mediation is that the feature of win-lose outcome in arbitration is prevalent in shalish and it imposes the decision on the parties whereas community-based mediation focuses more on a win-win result and let the parties decide the end-result themselves. Therefore, disputants prefer community-based mediation because of its comparatively more egalitarian feature.
In the last few decades, several NGOs have started community-based mediation services at the root level in addition to their legal aid projects. At present, Bangladesh Rural Advancement Committee (BRAC), Bangladesh Legal Aid and Services Trust (BLAST), Ain-o-Shalish Kendro (ASK), Bachte Sekha, Nagorik Uddyog are the leading NGOs who are conducting community-based mediation in their own model without altering the basic concept developed by pioneer Madaripur Legal Aid Association (MLAA). BLAST has resolved more than 15,000 disputes all over the country since 2003 and it provides mediation service to the slum dwellers of Dhaka through Gopibagh Legal Aid Clinic project. Ain o Shalish Kendra is providing mediation service since 2002 through their three legal clinics situated in Dhaka and they basically mediate family and child related matters. ASK is also working with BRAC in the Legal Aid Project (LAP) where mediation service is provided at the village level in civil matters. MLAA mediates around 800 disputes every year and they have extended their service in 11 more districts. Although these services of different NGOs are not recognized by any statute, such initiates are playing a commendable role in reducing the backlog of cases in the formal courts as well as ensuring access to justice to the common people.
One of the major barriers for the impoverished groups to access to justice is the high cost to run a suit in the formal court. In the socio-economic perspective of Bangladesh, pleader’s remuneration, court fees, travel cost, and other miscellaneous expenditure makes the formal justice system quite expensive and burdensome for the underprivileged people. On the contrary, cost effectiveness is one of the prime features of community-based mediation. In most of the cases NGOs do not take any fees for mediation and legal assistance in the process. Moreover, it also saves transportation costs as mediation sessions usually take place in the locality of the disputants.
Formal courts are already burdened with backlogs of cases and justice seekers wait for years to get justice. Such a situation increases mental stress, frustration and financial loss of the litigants, and eventually discourages filing a suit in the court. Community-based mediation delivers justice quicker as well as contributes to reducing the caseloads of the courts. In practice, several sessions are required to settle a dispute through community-based mediation which takes weeks or months, depending on availability of parties and mediators.
Formal court procedures in Bangladesh are complex and rigid. Justice seekers struggle to understand the procedure and largely depend on the lawyers to get justice. On the other hand, community-based mediation functions with simple procedures and more participatory. Literacy is not a barrier to understand the mediation process. Hence, it lets the parties resolve their own disputes and have control over their own fate.
The community-based mediation process is structured in a way by the NGOs so that accountability and transparency are ensured. Moreover, the whole process is documented and parties voluntarily take decision and the mediation committee has no decision making or imposing power. Therefore, there is the least possibility of corruption or biasness in community-based mediation.
The traditional shalish used to be male dominated and gender biased. And due to social stigma in rural areas, women hesitated to go into the formal court to seek justice. As a result, women remained silenced to the injustices that happened to them. In such situation, community-based mediation has given them the opportunity to raise their voice and access to justice in a confidential manner. NGOs are also providing legal advice to them and the presence of women mediators is also emphasized. Therefore, women from disadvantaged groups prefer community-based mediation because of the comfortableness of the process and easy access.
The outcome of the formal justice system and traditional shalish is a win-lose situation i.e. at the end of the process on party wins the case and another loses. It grows a bitter relation and rivalry between the parties and in some cases, it disrupts harmony in the society when both parties are from same locality. On the contrary, the outcome of mediation is a win-win situation as both parties reach a mutual agreement which secures relations between the parties. As a result, the co-existence of the two parties protects the harmony in the society and keeps the peaceful environment in the locality.
As the inhabitants of the locality get the chance to observe the mediation process or they can get the experience of being a disputant party or mediation, they get the firsthand knowledge of legal rights and remedies. Moreover, NGOs are also providing training to the local; mediation committee which gives them the opportunity to know not only about mediation but also about law and human rights. Consequently, these people become aware of their legal rights especially women are most benefited from the knowledge as they used to remain silent to the injustices due to the shortage of legal knowledge about their rights.
Community-based mediation has become quite popular at the root level because of its benefits and easy access to justice. However, the biggest challenge is that the mutual agreement of resolution is not legally binding on the parties. Though NGOs take proper steps of documentation of the process and the parties voluntarily reach the agreement and signatures are also taken, such agreement is not enforceable under any law. It is a barrier to the effectiveness of community-based mediation. As per the annual report of MLAA, 85 percent agreements made parties abides by and are getting full remedy and 10 percent agreements made parties are not abides by. Another challenge is maintaining the standard of the mediation process. At present, several NGOs are providing the mediation service but there is no national level coordinating body and raising problem due to non-coordination. Further, the training curriculum is not uniform for all the NGOs. Therefore, there is room for doubt about maintaining the same standard of the mediation process.
If the challenges of community-based mediation are resolved, it can be an effective manner to ensure access to justice for the impoverished groups of the society. The following are the probable solutions to the challenges. Firstly, the main challenge will be resolved if the mediated agreement can be made legally enforceable. The government may create a legal mechanism to make the mediated agreement legally binding on the parties. It would eventually enhance the efficacy and effectiveness of community-based mediation as the parties would be obliged by law to abide by the agreement. Secondly, a national level body should be established to monitor and co-ordinate the mediation service of different NGOs. Such initiative would ensure transparency and minimum standard of mediations under different NGOs. Moreover, it would prevent the overlapping of jurisdiction on the same dispute. Thirdly, A uniform training curriculum should be prepared in order to maintain the standard of mediation and to assure the equal capacity of the mediators under different NGOs.
Community-based mediation is a ray of hope for the justice seekers who are not able to access to the formal justice system due to expensive, lengthy, strenuous procedures. And it is more pro-women, transparent, neutral, formalized, and effective than traditional shalish. In this process, the parties voluntarily come to an agreement and there is more chance of the execution of the agreement. However, community-based mediation has a way to go in order to ensure access to justice to all the disadvantaged groups. Funding is a big issue in the expansion and sustainability of the process. And importantly, it has to be remembered that community-based mediation is not the alternative or replacement of the formal justice system, rather it supplements to the mainstream court system. Government and NGOs have to take an integrated approach to reach the service of community-based mediation to every corner of the country with a view to make it a supplementary pathway to justice for the impoverished groups.
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