By Uttam Kumar Das, LL.M. (USA), Ph.D. (Law)
Introduction:
The effective access to justice is one of the fundamental conditions for ensuring rule of law in a society.
The narrow definition of access to justice means access to litigation or access to courts of law by a justice seeker. However, in wider context, it contains more than that, i.e., more than access to courts or guaranteeing legal representation. It contains both formal and informal approach of justice-seeking.[1] In the broader meaning of access to justice, it contains the following:
i. Meaningful access or right of every people to seek remedy;
ii. Remedy may be sought either from a formal or informal institutions;
iii. Process of resolution of dispute either from formal or informal mechanisms must be fair, cost effective, accountable and must not take more than reasonable time to disposition;
iv. Remedy given must be adequate and satisfactory in the given circumstances.[2]
Emergence of the Alternative Dispute Resolution (ADR):
From various jurisdictions of laws, it has been evident that formal dispute resolution processes have been taking long time and there are so many procedural steps to follow in getting justice, which are sometime ‘too much,’ contributed by complex procedures and backlogs of cases registered.
The approaches of ADR has been emerged as tools to address the burden and backlog of litigation. It could be at the pre-litigation stages, and within the litigation stages and afterwards as well.
The concept of the ADR has been present in our society for centuries, like salish (which include conciliation, mediation or arbitration) of disputes at community levels. In the context of Bangladesh, this has now been formalized as well, e.g., the framework of the Village Court Act.
Dispute Resolution and ADR:
Disputes are natural and inevitable in human relations. Conflicts may occur at various levels of human-interactions, i.e., interpersonal, social, industrial relations etc.
Given that context, the approaches for disputes resolution may be divide mainly into two board categories: (i) Informal approaches (community initiative), (ii) Formal approaches or legal process.
Position of ADR in dispute resolution process:
Dispute Resolution: (i) Formal approaches (adjudication), and (ii) Informal approaches (community initiatives).
Formal approaches again may include- (i) ADR, to be followed by (ii) Litigation.
Informal approaches contains- (i) Salish/negotiation/mediation/conciliation, may be followed by (ii) Litigation.
In the line of the formal approaches, ADR is followed by litigation and vice versa and end with disposal; again litigation is followed by ADR and vice versa, and disposal.
Challenges with the legal processes:
The legal process of disputes resolution is taken place in the courts of law. In this case, one party resort to the competent legal authority, e.g., court (depending on the subject matter in hand) with an aim to get verdict favourable for him or her. However, this approaches result in a win-loss situation; victory for one party and loss for another after a long-waiting legal processes (presumably after exhaustion of related appeal stages). It has been found in study that for a litigation of civil nature would take on an average almost six years for the first decision.[3]
The challenges in the legal process are summarized as following[4]:
i. Time-consuming and lengthy processes required to follow;
ii. Requires significant amount of spending and often holds disputes, leaves permanent scars in minds of the ‘losing party’ rather than resolving the problem in hand, and it may end in making the disputes endemic and long lasting;
iii. Procedures are very complex and cumbersome;
iv. Win-loss situation and sometimes stimulates further conflicts, while the losing party gets a chance they look for a revenge;
v. Chances of deception in the processes;
vi. One has to depend on lawyers from beginning to end of the processes;
vii. In many jurisdictions, formal legal process may be politically motivated, corrupt, biased to particular section of the society and finally not accessible by the poor (marginalized and vulnerable sections of population).
Effectiveness of ADR[5]:
Given the challenges and setbacks in the formal litigation processes, ADR has been emerged and viewed as an alternate and rainbow of hope. The significance of ADR can be categorized in following three levels for serving the: (i) Interest of the state, (ii) Interests of the stakeholders concerned (i.e., judges, lawyers, mediators, litigants, litigants etc.), (iii) Public perceptions.
ADR process has been able to find its place through the drawbacks and challenges remained within the formal litigation-systems. It (ADR) promotes and supports not only legal objectives, but also development objectives of a society, like economic and social objectives, by facilitating resolution of disputes the approached as impeding progress of the society. Advantages of ADR as following:
i. Win-win outcome
ii. Cost effective or no cost facility
iii. Takes reasonably minimum time
iv. Less complicated; free from technicalities as required in the formal litigation processes
v. Indigenous style
vi. Promotes social bindings
vii. Reduces work-load of the judiciary
viii. Generates reconciliation among disputants- i.e., parties are fee to discuss their differences of opinion without any fear or disclosure of facts before any court of law
ix. Positive outcomes help to build confidence in the community or society concerned
x. Positive outcomes encourage others to resolve disputes in their community concerned.
Relevance of ADR in labour disputes
The backlog of cases in the formal justice system has been one of the challenges for delivering and ensuring justice in Bangladesh. There has been reported number of about three million pending cases (in the formal justice systems). The number of pending cases in the labour courts is about 16,000 (as of 2016).
The government has already attempted to introduce ADR in the mainstream judiciary- through adoption of the Arbitration Act, 2001; amendment in the Civil Procedure Code [incorporation of Section 89(a)] etc. ADR has been introduced in the family courts, and in matters involving money suits and taxes etc. Though the outcomes of those initiatives are yet to be assessed how effective are those functioning, however, introduction is a welcome move indeed.
ADR in existing labour laws
There is no formal inclusion of the Alternative Dispute Resolution (ADR) as such in the existing labour laws of Bangladesh, i.e., the Labour Act, 2006; the Bangladesh Labour (Amendment) Act, 2013; and the Bangladesh Labour Rules, 2015. However, few of the presiding judges in the labour courts, e.g., Chairman, are reportedly encouraging parties involved in litigation, through their counsels, to exhaust the options of ADR- mediation of the disputed matters and report the same to the courts accordingly. These are seemingly welcomes move.
The Bangladesh Labour Act, 2006 (the 2006 Act thereafter), has incorporated provisions for conciliation of industrial disputes (Section 210). Those are mainly administrative process to be carried out by the designated officials from the Department of Labour. Though arbitration is included (in case conciliation is failed), however, there is no elaboration on how to implement the related proceses.
Scope of the ADR for labour disputes
Given the number of pending cases in the labour courts and corresponding challenges, there is a wider-scope to introduce ADR for resolving labour disputes (both involving individual worker and related to a group of workers). This shall include introduction of mediation along with existing conciliation and arbitration. Especially, mediation could be effective for small matters like non-payment of wages, illegal separation from jobs (like dismissal, retrench, and termination etc.).
Under the existing labour laws, the Department of Inspection for Factories and Establishments (DIFE) has mandate to ‘conciliate’ certain matters involving non-payment of wages or back-wages [Section 124(a) of the Labour Act].[6]
However, those mandates are apparently not bringing expected outcomes challenged by inadequacies which include lack of infrastructure and required human resources, inadequate or no training for existing manpower, lack of related procedural guidelines and standard operating procedures (SOP), lack of awareness on the existing systems or confidence towards the systems among the beneficiaries etc.
Also, absence of effective grievance mechanisms at plant-levels contributing to big number of labour disputes.
Way Forward
Every system has its dimensions and standards. The benchmark for an effective dispute resolution system is as following[7]:
· Preventive emphasis
· Range of services and interventions
· Free services
· Voluntarism
· Informality
· Innovation
· Professionalism
· Independence
· Resource support
· Confidence and trust of users.
With an aim to introduce effective ADR systems for labour dispute resolution (which would include mediation, conciliation and arbitration) the approaches have to be multi-dimensional: (i) Required capacity building and training supports for brining effectiveness in existing systems, (ii) Amendment of the related provisions in the laws as required, (iii) Development and introduction of operational guidelines, (iv) Awareness on the available services, (v) Independent evaluation of service-delivery.
According to related practitioners, incorporation of provisions of mediation for labour disputes shall be in place. It shall be under the track of informal process which will include standard training for the mediator-candidate (would-be-mediator), adoption of professional code of conduct, and regulation of activities thereof.
Also, to bring a life to the provision related to arbitration in the labour laws, it requires bit of further explanation through amendment of the law- how to do the same- and likely through to adoption of related Rules.
Good news is that the International Labour Organization (ILO) through its Promoting Social Dialogue and Harmonious Industrial Relations in the Bangladesh Ready Made Garment (SDIR) Project has initiated to contribute to establish a sustainable mechanism for effective conciliation and arbitration of labour disputes in the country. Under the initiatives, a pool of estimated 15 Officials form the Department of Labour will get substantial capacity building supports on conciliation processes. Also, a pool of 15 to 20 independent arbitrators (to include retired judges) will be in place following a process of extensive training, certification, and endorsement through a tripartite processes.
To make the existing systems effective, it is required to look into the ongoing challenges. These include assessment of existing situation, identifying the performance gap, advocating and convincing other of the need for change, prepare a change strategy, implement and monitor the change strategy, and evaluate the new outcomes.[8]
Opinion expressed in the article is author’s own and does not necessarily reflect his official position or affiliation.
Uttam Kumar Das is an Advocate (Lawyer) in the Supreme Court of Bangladesh; however, currently working with the Social Dialogue and Industrial Relations (SDIR) Project of the International Labour Organization (ILO) as a Programme Officer. He has earned a Master of Laws (LL.M.) degree from the University of Minnesota Law School in the USA, another Master of Social Science (MSS) in Industrial Relations from the University of Dhaka, and a Doctor of Philosophy (Ph.D.) in Law from the University of Rajshahi, Bangladesh. Contact: ukdas1971@gmail.com
[1] Md. Abdul Halim, ADR in Bangladesh: Issues and Challenges. Dhaka: CCB Foundation, p. 15.
[2] UNDP, Access to Justice, Practice Note dated 9 March 2004, p. 4.
[3] Bangladesh International Arbitration Centre (BIAC), Quarterly Bulletin, October to December 2016, p. 21.
[4] Halim, ibid, p. 20.
[5] Ibid, p. 21.
[6] However, this provision is under criticisms of the ILO’s Committee of Experts on the Application of Conventions and Recommendations (CEACR).
[7] International Labour Organization and International Training Centre, Labour Dispute System: Guidance for Improved Performance, 2013, p. 30.
[8] Ibid,
*The article has been included in the Souvenir of May Day 2017 published by the Ministry of Labour and Employment, Government of the People’s Republic of Bangladesh; pp. 138-141.
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