Mediation in criminal cases

Five years ago, the backlog of mediation in Bangladesh covering civil, commercial, banking, family and labour matters stood at about three million cases. Arbitration had become expensive, time-consuming and somewhat elitist; mediation, although embedded in the Code of Civil Procedure since 2003 and mandatory since 2012, was used rarely outside some family matters. The backlog today is nearing five million, of which around four million are pending before the lower judiciary and the tribunals. On a conservative estimate, around 55 per cent are criminal matters, and many of them are compoundable offences,  cases that could have been disposed of at the earliest stage either through mediation or under the Probation of Offenders Ordinance, instead of consigning a first-time offender to a short term in prison at public expense, where the most common outcome is that they emerge as hardened criminal.

The structural problem is sharper still. A single criminal incident routinely generates five or six proceedings: trial, appeal, revision, leave to appeal before the Appellate Division, the appeal itself if leave is granted, and review. The other party will, almost as a matter of course, file a counter-case, and that counter-case repeats the same six stages. Family disputes are worse: alongside a suit for dower and maintenance, parties typically file under the Dowry Prohibition Act 2018, the Domestic Violence Act 2010 and the Nari-o-Shishu Nirjatan Domon Ain 2000, perhaps with a counter-suit for restitution of conjugal rights, each generating its own cascade of cases. Settling the underlying suit at the outset can prevent the multiplication entirely.

Compoundable does not mean mediatable in every case; settings involving domestic violence, gross power imbalance, or repeat offending demand careful triage, with the Legal Aid Officer empowered to decline referral and route the matter back to formal prosecution. Without these safeguards, mediation risks becoming an instrument of pressure rather than of justice.

Mediation in criminal cases is not new in Bangladesh. Section 345(1) of the Code of Criminal Procedure 1898 (CrPC) has, for over a century, listed 24 offences compoundable by the parties themselves, with a further 45 compoundable with the court’s permission under section 345(2). In 2025, the interim government, by an Ordinance (later turned into an Act), inserted section 345(8) into the CrPC, making it possible to compound cases where both parties agree. The court may now facilitate the compounding between the parties directly or refer the matter to the Legal Aid Officer, to the parties’ advocates, or to the parties themselves where no advocate has been engaged. The Legal Aid Act was also amended in 2025 to bring mediation expressly within its remit and add further criminal offences to its referral schedule, and the Legal Aid Rules now provide for both pre-case and post-filing mediation.

These reforms align Bangladesh with the broader regional trajectory. India, which inherited the same Code of 1898, retains a near-identical framework in section 359 of the Bharatiya Nagarik Suraksha Sanhita 2023, and goes further under section 19(5) of the Legal Services Authorities Act 1987. Consequently, the Lok Adalat may compound any offence compoundable under any law, and the Supreme Court in Gian Singh v State of Punjab has affirmed the High Court’s inherent power under section 482 to quash even non-compoundable proceedings where the parties have settled and continued prosecution would serve no useful purpose. Singapore under the Community Mediation Centres Act 1997 has provided that the police may refer non-arrestable offences and magistrates may refer minor criminal complaints for mediation.

The case for criminal mediation is not merely one of docket management. Compoundable offences are private wrongs against an identified victim: hurt, criminal trespass, defamation, mischief to property, breach of trust between known parties. Trial and punishment in such cases vindicate the abstract authority of the State while leaving the underlying relationship between the parties unresolved and the victim, very often, uncompensated in any meaningful sense. Mediation reverses the priorities. It restores agency to the victim, who participates in shaping the outcome rather than being reduced to a witness; it offers the offender a path to acknowledgement and restitution short of incarceration; and where the parties must continue to share a village, market, or family, it preserves what a conviction would tear apart. The international evidence on restorative justice points consistently in the same direction: higher victim satisfaction, lower recidivism among first-time and minor offenders, and meaningful reductions in cost per disposal.

In Bangladesh, with the support of the Bangladesh Legal Services Trust (BLAST), I have run brainstorming sessions with judges, lawyers and retired police officers in Rangpur, Cox’s Bazar, Jashore, and Sunamganj. The Sunamganj sessions alone surfaced more than 6,000 compoundable cases that could be resolved through mediation. Moreover, during COVID-19, I established virtual hearings in Bangladesh and used the same facilities to train lawyers remotely as mediators in civil and commercial work. The same model can be turned to criminal mediation, but, in my opinion, three conditions must be met.

The first is trained mediators: in every district visited, the want of them was the binding constraint. Criminal mediation calls for a distinct skillset: managing power asymmetries, screening for coercion, recognising when a matter has slipped beyond what is properly mediatable. A national accreditation framework with a separate criminal-mediation certification would professionalise the work and protect its credibility. The second is venue: physical premises in which mediations can actually be conducted, ideally co-located with the lower courts and Legal Aid offices, similar to the Singapore model. The third is safeguards. Compoundable does not mean mediatable in every case; settings involving domestic violence, gross power imbalance, or repeat offending demand careful triage, with the Legal Aid Officer empowered to decline referral and route the matter back to formal prosecution. Without these safeguards, mediation risks becoming an instrument of pressure rather than of justice.

Two further reforms may be considered. The schedule of mediatable offences should be widened to include the less serious common offences (for example, petty drug matters and minor smuggling,) that swell the lower-court rolls without engaging any serious public interest in prosecution. And the whole scheme should be localised, so that access to justice is delivered at the disputing parties’ doorstep rather than at the end of a long procedural pilgrimage. If both are done, and the implementation conditions above are met, mediation will not merely contain the backlog, it will begin to drain it, and Bangladesh will have built, almost without anyone noticing, one of the more sophisticated criminal-mediation regimes in the region.

The writer is former Judge of the Appellate Division of the Supreme Court of Bangladesh.