Name: Sumaya Aktar
I'D: 181-26-1167
What is ADR or Mediation in Bangladesh?
Alternative Dispute Resolution (ADR) is an alternative route to a quicker and cheaper method of settling disputes in which a neutral third party helps the disputing parties reach a resolution. Mediation is one of the major forms of ADR, the other two being arbitration and conciliation. Section 89A of Code of Civil Procedure is the main provision of mediation in Bangladesh.
Mediation in Bangladesh is a procedure in which the conflicting parties attempt, with the assistance of a neutral third party (the Mediator), to reach a settlement of their disputed issues through negotiation.
In mediation, unlike in court where a judge makes the decisions, you select how to settle the disagreement and are not required to accept a conclusion with which you are unsatisfied.
Mediation offers an encouraging and private environment. The mediator will listen to all perspectives, speaking with the parties individually and when necessary, with all the opposing parties in the same room.
Mediation can aid in the preservation of relationships. A dispute that is resolved by an antagonistic court battle can strain the relationship between the parties. However, mediation helps you focus on effective communication in order to create solutions that work for everyone. Hence, mediation in Bangladesh are especially encouraged for disputes in partnership, family law, property neighbours, businesses, etc.
Another instrumental benefit of mediation in Bangladesh is confidentiality. Since mediation is an attempt to resolve their disputes through facilitated negotiation, all discussions between the parties (whether with one another or privately with the mediator) will be “without prejudice.” “Without prejudice” means that any information resulting from mediation sessions must be viewed as both confidential and non-binding by all parties. Non-compellable indicates that neither party will raise such material in any legal procedure.
Step by Step Procedure of Mediation
Appointment of a Mediator:
The first step in commencing mediation in Bangladesh is to appoint a mediator, which will be determined by both parties. Mediator’s goal is to assist the parties in obtaining their own most constructive and equitable agreement. The Mediator has an obligation to work equally on behalf of each party, cannot provide individual legal advice to any party, and will not engage in therapy during the mediation. The respective clients and mediator will negotiate and define the fees and procedure to be followed in order to reach a settlement through mediation.
Costs of Mediation:
Consequently, the cost of hiring the mediator will be covered by both parties.
Mediation Sessions:
It is understood that most mediation sessions will involve both parties in joint sessions with the Mediator, but separate meetings may be held between the Mediator and the parties individually before and during the mediation. If the Mediator requests a separate meeting with one party during a mediation session, he or she will also have a separate meeting with the other party.
Time Frame:
If the court itself refers mediation to the parties, then under section 89A, sub-section (1), the parties shall inform the Court in writing of the mediator they have appointed within ten days from the date of reference. If the parties fail to appoint a mediator during this period, the Court shall, within seven days, appoint a mediator and the mediation under this section shall be concluded within sixty (60) days from the day the Court is so informed unless the Court of its own motion or upon a joint request of the parties, extends the time for a further period of 30 days.
In the case on non-court referred mediation in Bangladesh, if the parties have not already fixed the duration of mediation process in their mediation agreement, the parties themselves can determine the time frame within which they desire to conclude the mediation. The suggested timeline may range from 30 days to 90 days, depending on the complications of the issue at hand.
Settlement Agreement or Court Decree
When a consensus is established, the parties may request the Mediator’s or one of their attorneys’ assistance in drafting a document that both the parties and mediator will sign to record and finalize the agreement. This official document will be known as the parties’ settlement agreement and will be legally binding.