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Mediation: Lawyering in the post-Covid World

July 24, 2022 Shahariar Sadat Director, Academic and Legal Empowerment

Looking back in history one can see that the idea of state and citizenry is very modern in comparison to the duration of human existence on we earth. In primitive societies, people used to be dependent on each other for most things in life. People were naturally compelled to be cohesive and interdependent. The idea of the welfare of the collective was preferred over the welfare of the singular. As a consequence, the justice-seeking behavior evolved informally and disputes were resolved through social mechanisms which upheld mutual values.

However, societal progression into more urban living has promoted an individualistic lifestyle. People no longer live in joint families but in microstructures. Individualism is the core of modern life. Interdependence is no longer the cornerstone of society. Consequently, courts emerged as the formal mechanism for dispute resolution which dictates who wins and who loses. Such a strictly formal process of dispute resolution mechanism has led to the creation of a very adversarial culture of litigation in many countries of the world including Bangladesh.

In a modern complex society, it is accepted that people are to seek justice in the courts of law for resolving their disputes. It is the duty of the state to create and govern the courts of law as a forum for seeking justice and dispute resolution for its citizens. Our this understanding about the justice-seeking behavior of people is clearly myopic. It is too court centric and reflects a strict top-down approach.

Having a quick look at the legal landscape of Bangladesh it is clearly noticeable how the formal court system and the people have a disconnect between them. Complete disregard to the justice-seeking behavior of the people with a top-down approach has led to the culmination of a legal system that offers mostly court-centric dispute resolution mechanisms.

According to the Justice Audit conducted by GIZ 58 percent of respondents expressed them to resolve disputes locally through an informal dispute resolution mechanism compared to 9% who are willing to resort to a formal mechanism. The audit has also pointed out important justice-seeking behavior of the people. They are more like to seek justice to resolve disputes if the mechanism is available within 3 kilometers of their home.

Our legal education bears the hallmark of the colonial era. It’s still very much procedure-centric and lawyers are being trained to develop acumen for adversarial litigation. Years after years this archaic legal education has created lawyers who may have skills to navigate through the labyrinth of the legal system and its bureaucracy but did not contribute to addressing the true justice needs of the people. It is plausible to say that the formal legal system has failed the vast majority of people of this country. The number of pending cases are as high as 4 million, which is a testimony of this failure.

There had been positive initiatives taken to speed up the process of disposal of cases but they seems to be piecemeal. It seems that there is an understanding and urges about the need for change but the efforts have not been taken in a holistic manner.

While the agenda of ADR has been brought to the forefront of reform of the overall legal system, it has not gained momentum to the extent that it has captured the imagination of the people. The idea of ADR is still very much limited to Arbitration and Mediation is the distant second as the preferred mechanism of dispute resolution. Moreover, the idea of ADR (arbitration and mediation) as an informal method of dispute resolution is also limited in the urban space where lawyers dominate the legal system who are keen on advising the client to resort to litigation.

The covid 19 pandemic has thrown the overall dispute resolution mechanism through the formal judiciary in a disarray. This has not been unique to Bangladesh only. It has happened to legal systems across the globe with very few exceptions. Like many other aspects of the state-citizen relationship, the formal justice mechanisms have faced severe challenges as there was little or no preparation for a pandemic of this magnitude. During this unprecedented time, state machinery had to scale back to the minimum, and many people (especially women and children) had been left without recourse to seek redressal.

Mediation has emerged as the best solution for resolving a range of disputes including commercial and family. It is to be noted that the process of mediation is totally voluntary and the role of the mediator is simply to manage the process so that the parties to the dispute can have a mutually agreed solution. In carrying out the duties and responsibilities of a mediator, he/she must demonstrate the highest level of integrity, independence and impartiality. Ideally a standard mediation can be conducted in a short time with appropriate degree of preparation taken beforehand.

While the access to the formal courts had been the real challenge during the pandemic many people resorted to on line dispute resolution process and also in person at the local level. It is now imperative to cease the moment and stress on the mediation at the heart of the overall dispute resolution reform agenda.

It will be very much timely step to include mediation training in the legal education so that lawyers of the future have the right set of skills and knowledge for advising their clients on mediation and help them throughout the process. Internationally reputed trainers can be invited to train our lawyers and other  stakeholders on mediation. Creating positive public awareness and mindset is important to create a mediation friendly legal infrastructure for modern futuristic lawyering.

Disclaimer: All views and opinions expressed in this blog are those of the authors based on their analysis of empirical findings and do not represent the position of any affiliated organisations.

This blog was originally published on the Bangladesh International Arbitration Centre (BIAC), the 11th-anniversary publication.

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