The procedure of mediation and arbitration as a method of dispute resolution was included in Articles 89A and 89B of the Code of Civil Procedure of 1908. Section 89A provides that in the case of civil actions, except those brought under Artha Rin Adalat Ain, 2003, after filing the written statement of the opposing party, the court adjourning the hearing shall itself settle the dispute or refer it to the competent legal aid officer or to the presidents of the parties or to the disputing parties or to a dispute mediator. prepared by the district judge in consultation with the president of the district bar association competent to resolve the case through mediation. The prerequisite for acting as a mediator is that he may be a lawyer or a retired judge or persons with expertise in the dispute resolution mechanism or any other person that the parties deem appropriate for the settlement of the dispute, but if a person holds a profitable position in the service of the Republic, This will be considered a forfeiture as mediator of the panel. If a litigant has participated in the action of one of the parties, he or she will also be disqualified as a mediator of the panel. The parties concerned, their leader and the mediator are free if the parties have mutually agreed to determine the procedure to be followed for the sale by mediation and also to determine the fees of the mediator, and in this respect the court will not give instructions and if the court itself mediates, will determine the procedure, which must be carried out by itself, and are not entitled to a fee. Land law depends entirely on the document. For the out-of-court resolution of land disputes, the mediator must have adequate knowledge and expertise with respect to land-related documents. In rural areas, there is a lack of competent and experienced mediators. Since there is no training for mediators to develop their knowledge and skills, the lack of experienced mediators is one of the biggest challenges of alternative dispute resolution in resolving legal disputes. The formal justice sector is supposed to be sufficient to deliver justice to citizens, but studies suggest that this goal has not been achieved and that the poor have limited access to this formal justice system.
The problems that cause inefficiency are of two types: structural problems and challenges related to socio-cultural factors. The excessive backlog of cases is a structural problem that most affects access to justice in Bangladesh. The formal justice system is under pressure due to a backlog of more than 3.7 million cases (DhakaTribune, July 16, 2020). The lack of manpower in the system is another major problem. A total of 1397 judges for a country of more than 160 million people is totally insufficient (The Daily Star, 9 September 2017). Ineffective law enforcement agencies is another structural drawback that impedes justice. (ii) No specific procedure: if the court itself intervenes in mediation, the court determines the procedure to be followed, and if the mediation procedure is conducted by the legal aid officer or the chairperson or mediators of the commission, they are free to determine the procedure. However, there is no explicit policy, provision or procedure to complete the mediation process. Recommendations to address administrative challenges: Traditional shalish as an informal method of alternative dispute resolution has always played a crucial role in resolving all types of conflicts, including land disputes in rural Bangladesh. It is very efficient and has adjuvant public services as a method of resolving land disputes, especially in rural Bangladesh. Shalish in rural Bangladesh is influenced by money and muscle, and in particular by local political leaders and powerful village staff, and sometimes arbitrarily imposes solutions on reluctant parties (Khair, 2004). As a result, the shalish is gradually losing credibility as an effective alternative to dispute resolution among the people of rural Bangladesh.
Increasing the credibility of the parties to the dispute in rural Bangladesh is one of the greatest challenges of alternative dispute resolution. Equal access to justice for all, and in particular as set out in SDG 16, is recognized by all as an essential element of a stable and prosperous society. In Bangladesh, the potential for innovation is enormous, but major obstacles remain. We believe that access to justice will improve significantly in the coming years as civil society in Bangladesh comes together and pushes for substantial change and continued monitoring of results. The world is watching! Another important area is to encourage people to take action by making them aware of their legal rights and empowering them to seek a solution when faced with a legal problem. We find that about half of people do nothing to resolve their legal dispute simply because they do not believe the system will help them. BILA`s vision is to ensure access to justice for all in a formal justice system through research, education, training and development. with a particular concern to sensitize parties to disputes and litigants on the effective implementation of alternative dispute resolution [ADR] in Bangladesh. Power imbalances between parties to the conflict are the result of discriminatory norms in society, where there is an imbalance of power between the parties; One of the biggest challenges of alternative dispute resolution is how to work well. Even if the imbalance is not due to discriminatory social norms, the ADR system cannot provide legal and procedural protection to weaker parties.
Parties that have money and muscle power can push the weakest to accept an unfair result. Although it appears that the agreement is consensual, it is under duress. The land process system in Bangladesh is so costly, painful, destructive, complex and inadequate that sometimes justice seekers are victims of injustice. To alleviate suffering, people, especially in rural Bangladesh, have always preferred alternative dispute resolution procedures outside the formal justice system. As a fast, cost-effective, flexible and confidential way to resolve land disputes, ADR is very popular with people in rural Bangladesh. It is a means of settlement where no one is defeated because it always maintains a win-win situation. The attached or formal alternative dispute resolution was included in the Bangladesh land dispute in 2003 by inserting sections 89A, 89B and 89C into the Code of Civil Procedure as a voluntary means of settling civil claims, and will be made mandatory in 2012. Informal alternative dispute resolution has been practised on this subcontinent since time immemorial and plays an important role in ensuring justice among the country`s marginalized.