The history of mediation in Bangladesh can be traced back to two diverse viewpoints: (a) an informal and quasi-formal form of mediation, called shalish (a village-based court system) and (b) formal court-connected mediation under statutory requirements.
Court-connected mediations were introduced in Bangladesh with the incorporation of mediation provisions in specific legislation, such as the Arbitration Act, 1940; Family Law Ordinance, 1961; Industrial Relations Ordinance, 1969; Muslim Family Courts Ordinance, 1985, and others. Later, mediation was introduced as part of a general civil dispute resolution process under the Code of Civil Procedure, 2003 and Money Loan Recovery Act, 2003.
Given the immense daily pressure and incredible workload of the courts in processing the thousands of pending cases, the institutionalization of mediation is key for improving access to justice in Bangladesh, most importantly for women. In the adversarial court system within a paternalistic society, women litigants are at a key disadvantage, especially in light of the stigma attached to those who are perceived as involved with the courts. In this context, mediation may be best suited and acceptable as a process that may better protect and preserve women’s rights in Bangladesh, especially those in underserved communities.
Compelling reasons that suggest why mediation is a must for women in Bangladesh:
- There is strong societal prejudice against women, who are perceived as involved in litigation and fighting for their rights (family honor is stained if an individual, especially a woman, is involved in a court case or arrested, even under false charges).
- Regarding family matters, very few women attempt to assert their rights within the judicial system, since formal procedures are lengthy, costly and complex – there is a widely held belief that turning to the courts for justice will only increase suffering.
- There is a lack of gender sensitization among court officials, police officers, probation officers and lawyers.
- While mediation processes have been incorporated through amendments to several statutes, detailed rules are yet to be formulated. A lack of resources and trained mediators are further obstacles to institutionalizing mediation in Bangladesh. Most importantly, an institution needs to be established to oversee the legal framework for mediation and its further development.
By Judges Mohammad Halim and Farjana Yesmin, Senior Fellows-Bangladesh, Weinstein International Foundation