There are definite advantages of mediation over arbitration and litigation as a dispute resolution tool, especially in the wake of the Covid-19 pandemic, which has created an unprecedented challenge in the economic life of Bangladesh.
The fact remains that the issues of preference for mediation as against arbitration and litigation are effective means of resolving disputes arising out of business contracts.
Mediation, at this difficult time, can help resolve commercial disputes in the most pragmatic, expeditious and cost-effective manner. It should be preferred as a dispute resolution tool before resorting to a lengthy arbitration procedure or a judicial process given the colossal backlog of pending cases in the courts of Bangladesh.
Mediation should be promoted as a dispute resolution mechanism in the country. There are advantages of mediation over arbitration and formal court procedure. Unless a party is absolutely adamant, it is possible to resolve any business dispute through mediation.
Experts stressed the need for resorting to mediation as the most successful tool of Alternative Dispute Resolution (ADR) to handle commercial disputes and arrive at amicable settlements by the disputant parties within a minimum span of time. They preferred mediation to arbitration and litigation with a view to arriving at a consensual settlement of dispute.
It has been proved that mediation can help the garments and textile sectors as well as the small scale industries (SMEs) to a great extent in settling business disputes. In India, mediation is now becoming part and parcel of the judiciary.
It is a reality that many business disputes were resolved through mediation during the COVID-19 period which remained unresolved for five to seven years. As such, mediation is the only pragmatic method for quick and least expensive resolution of business disputes.
Mediation, being the most flexible method of business dispute resolution, must be adhered to before resorting to the rigid procedure of arbitration and the time-consuming, structured judicial proceedings. There are methodical and less expensive procedures of mediation which can play a vital role in resolving disputes before opting for arbitration or adjudication.
There should be more awareness campaigns by the Bangladesh International Arbitration Centre (BIAC) with a view to motivating stakeholders to use mediation at the first instance to solve disputes between the parties. Laws relating to adjudication and arbitration also involve a kind of expert proceedings, but mediation takes place between the parties through a third party facilitator which reduces use of unnecessary time.
In fact, mediation is the most effective match between the parties to resolve issues in commercial contracts. The country's business leaders, lawyers, mediators and exponents of ADR need to come forward and join BIAC's efforts in quick and cost-effective dispensation of business disputes for the greater interest of the country.
There is, of course, a need for fostering ADR through institutional framework in order to settle commercial disputes more efficiently in a cost-effective and expeditious manner.
ADR mechanism should be integrated into court proceedings with a view to help quick dispensation of justice given the huge backlog of cases pending in all courts across the country.
For the sake of good governance in the realm of dispute resolution, resorting to institutional ADR mechanism is a must, which provides specific rules and is open for public viewing. Institutions like BIAC can always change rules to cater to the need of the users, especially during a Covid-19 situation where propensity of non-performance of contractual obligations has been on the rise.
The institutional arbitration is most suitable in the context of international business disputes, which can be held in many places having set rules and procedures, established format and expert arbitrators. Institutional ADR can bring adversarial parties together and do away with their reluctance to resolve disputes amicably.
BIAC's Rules of Arbitration and Mediation can help all concerned to arrive at a mutually acceptable agreement either by arbitration or by mediation, during the ongoing Covid-19 scenario where existing contracts are being frustrated by non-performance on flimsy grounds. Taking the advantages of institutional arbitration with no uncertainty in set rules and having prescribed cost-effectiveness, Bangladesh can well step up to the modern world's dispute resolution mechanism.
Disposal of suits and litigation through ADR is bound to enhance the quality of social justice and thereby contribute to promotion of harmony and peace in society, both of which are pre-conditions for meaningful development in social, cultural economic and other spheres.
In fact, mediation, conciliation/ reconciliation, arbitration and other forms of ADR are important vehicles for promoting social harmony. On the other hand, it is an alternative route for reaching a speedier and less-expensive mode to settle disputes.
However, there was no implementation of these provisions until a special pilot project was taken on 'Mediation as a measure of ADR' in June, 2000. Under that project, three assistant judge's courts of Dhaka were specified as exclusive Family Courts for the purpose of mediation.
At that time, a circular was issued from the High Court Division of the Supreme Court providing credit of two trials for one successful mediation in a family dispute and the credit of one trial for two unsuccessful mediations. This circular inspired the Family Court judges to give more efforts to mediation in Family Court cases, and also achieve success in dispute resolution.
It may be mentioned here that success in realisation of dowry money and amicable, peaceful and quick settlement of disputes through mediation in the Family Courts inspired the government and the policymakers as well to widen the scope of ADR through other legislation.
Accordingly, ADR mechanism was introduced for the first time in general civil litigation in 2003 by the Code of Civil Procedure and by the Artha Rin Adalat Ain. In this context, the BIAC deserves appreciation for making substantial progress in popularising the concept of ADR among various stakeholders including the government, banks and financial institutions, corporate houses, lawyers and even law students.
Teaching and promoting the ADR at undergraduate and university level is important because it will promote a culture where litigation would not be preferred or promoted and will also change the mindset of the people.
If a dispute can be settled through ADR outside the court before it turns into a case, waste of valuable time and money can be prevented. In the circumstances, the country should hasten the process of popularising the ADR system without any delay. There is a need for collaboration through arbitration-mediation where both parties are equally benefited.
Such effort should get prime importance in view of the fact that ADR process can be of great help in strengthening the legal framework, which, in turn, can certainly bring about changes so that people can get justice speedily.