Why Bangladesh needs Alternative Dispute Resolution

ADR could bolster a legal system struggling with delays, costs, and excessive caseloads, argues Tansim Noor

The term ADR means “Alternative Dispute Resolution”, which are methods used to resolve conflicts that do not rely on court proceedings. These can involve arbitration, mediation, negotiation, and a number of other avenues.

ADR is growing in significance worldwide. But despite elements traceable as far back as the Family Courts Ordinance of 1985 and the milestone adoption of the Arbitration Act of 2001, people in Bangladesh do not properly comprehend the idea of ADR.

But why is ADR necessary?

To begin with, ADR is the cost-friendly option as it is associated with lower legal fees. Since parties avoid court litigation, a huge sum of money is saved. Usually, parties going for ADR fully settle their issues, so there is no chance of appeal, hence tamping down on escalating costs.

ADR services like mediation, arbitration, and negotiation are very time-friendly compared to litigation since a settlement can be reached quickly. Because ADR also has a smaller number of procedural delays, and these methods also provide flexibility.

ADR maintains confidentiality and privacy, providing protection to secret and sensitive information of the parties. For example, if a large business implements ADR like arbitration, their trade secrets will be protected as a result, and both their corporate and personal reputations are safeguarded.

Unlike the hectic procedure of court litigation, ADR services also provide a more relaxed environment for the parties that ensures emotional well-being. Moreover, when a party goes through court litigation, the ruling of the court can be damaging for one party; however, ADR is focused on a win-win situation for both parties when resolving a dispute, causing minimal damage to both parties and saving their reputation in the long run.

ADR also reduces the excess number of cases that go for litigation, which reduces the courts’ caseloads.

Despite these benefits, only a few businesses, certain legal professionals, and a handful of institutions know about ADR in Bangladesh. This means that when they run into conflict, they run to court litigation.

Despite formal acknowledgement of ADR in Bangladesh via the Arbitration Act 2001 and the Code of Civil Procedure (Amendment) Act 2003, it still lacks institutional promotion. Bangladeshis do not know about any well-established ADR centres, which restricts the implementation of ADR services like arbitration and mediation. Few initiatives are taken to establish or expand such centres. The Bangladesh International Arbitration Centre (BIAC) established in 2011 is not known to many and remains underutilised.

Another issue is that the litigators of Bangladesh do not communicate with clients about ADR. This is because a lot of the lawyers themselves do not know about the advantages of ADR or do not fully understand the potential of it or do not talk about it openly due to lack of incentives.

As they do not know much about ADR, they are also less likely to trust it, worrying that their complaints will not be taken seriously.

A further issue is that the provisions in the Arbitration Act 2001 and the Code of Civil Procedure (Amendment) Act 2003 lack appropriate enforcement, as there is no proper body in Bangladesh that maintains proper regulations of ADR services, decreasing the efficiency of such services and leading towards persistent delays.

But this does not mean that ADR could not become a central part of conflict resolution in Bangladesh. It just needs the right promotion.

Firstly, a method should be used to promote ADR through the courts. A system similar to the pre-action protocol followed by the UK can be instituted for this purpose.

In the UK, before commencing litigation, both parties have to follow the pre-action protocol. During this process, courts highly recommend ADR, like arbitration. If a party skips ADR unnecessarily, they get penalised by the court later. If something similar is introduced in Bangladesh it will help make the concept more familiar to the public, allow them to see its benefits, and increase their trust in the process.

The Bangladesh Bar Council can also counter the lack of awareness about ADR. They can create a training certification programme for lawyers on the topic and integrate it into bar examinations. Lawyers in training can have ADR added to their LLB programme, which has already been done in many parts of India. Performance-based fees can also be introduced regarding ADR so lawyers overcome any stigma against it.

The ADR enforcement issue can be handled through a strong regulatory body. This body can not only set and develop rules and regulations it can also ensure and improve transparency in the process.

Countries that utilise ADR as a key system can also collaborate and develop strategies together by putting together a platform that promotes ADR services and allows specialists to share their experiences. This could be highly beneficial for growth in international commerce and business, which often prefers ADR services due to global enforceability and it being both time and cost-friendly.

Finally, the application of ADR in Bangladesh also upholds the Constitution. The preamble to the Constitution says that Bangladesh believes in the rule of law and access to justice for all its citizens. In addition, Article 27 ensures equality before the law and Article 35 notes trials and punishments. The implementation of ADR would also push forward these fundamental principles of ensuring and safeguarding justice.

Currently, around 4.2 million lawsuits are pending in Bangladesh’s courts. This puts substantial pressure on the legal system. Justice is not served in a timely manner. And, as William Gladstone said: “Justice delayed is justice denied.”

Like Bangladesh, Italy was also facing a massive backlog of 5.4 million pending cases in 2010-2011. In response, the government made mediation mandatory through a decree in 2010. Despite some initial resistance, the policy has had some success, with thousands of cases being resolved through mediation since March 2011. There has also been positive outcomes in Canada since it implemented ADR throughout the 1980s and 1990s following the Hryniak v Mauldin case that acknowledged new adjudication methods. Bangladesh does not have to go as far as making ADR mandatory outright, but it could prove a useful support for the existing legal system.

Introducing ADR to a broader audience in Bangladesh may not be as smooth a process as we hope. There will, inevitably, be stumbling blocks. But that does not mean that it is not worth doing. As Kenneth Cloke, founder of Mediation Beyond Borders International, says: no new world is created without disorder. Bangladesh’s legal system has gone through many growing pains over the past 50 years. Now it is time to heal by properly integrating innovative approaches like ADR and securing our future.

CITATIONS

Legal Information Institute. Alternative dispute resolution. Cornell Law School. March 2025

Matteucci, Giovanni. Mandatory Mediation, the Italian Experience, a Case Study—2025. Beijing Law Review. 16 (1). March 2025

De Palo, Giuseppe and Keller, Lauren R. The Italian Mediation Explosion: Lessons in Realpolitik. Negotiation Journal. 28 (2). 181-199. 2012.

[Tansim Noor is an associate arbitrator and accredited civil and commercial mediator who is pursuing a barrister training course at the University of London]