Mandatory Pre-litigation Mediation in Civil Disputes

As an emerging and prevalent trend, mandatory pre-litigation mediation has been introduced in many parts of the world including the USA, Italy, Australia, Germany, France and Norway. Following the trend and as a solution to case backlog, Bangladesh has recently adopted mandatory pre-suit mediation for some selected civil suits. This article will examine the justification for adopting this mechanism for selected civil suits in Bangladesh, addressing the yet unresolved question whether it should be extended to all other categories of civil litigation, either initially or in the future.

Mandatory pre-litigation mediation (MPM) is a legal requirement that the parties to a dispute must undertake to settle their issue in a setting with a neutral third-party mediator before initiating court proceedings. This concept is quite similar to that of ‘Pre-action Protocol’ in Australia and ‘Pre-action Obligation’ in England and Wales, where the parties should consider whether ADR could facilitate the resolution of their dispute prior to formal legal proceedings. In Bangladesh, the parties are required to first apply to the concerned Government Legal Aid Office for the settlement of their dispute before proceeding to the court. A judicial Officer designated as a ‘Legal Aid Officer’ or a ‘Special Mediator’, typically a retired judge, serves as a third-party mediator in this process. If the mediation succeeds, the settlement attains the status of a court decree. If mediation fails, only then the parties are allowed to file a suit in court demonstrating that mediation was attempted but unsuccessful. Bangladesh has made this model of mediation applicable to some selected categories of civil suits including ‘Suit for Partition’, ‘Pre-emption under State Acquisition and Tenancy Act’ and ‘Pre-emption under Non-agricultural Tenancy Act’.

Indeed, mandatory pre-litigation mediation resolves the disputes permanently, even before going to the court. In doing so, it acts as a filtering flask, preventing unusual influx of litigation and reducing case backlog. It is a quick and cost-effective means of dispute resolution. Furthermore, mediation prior to litigation preserves the relationship between disputants, increasing the likelihood of an amicable resolution.

Countries such as Italy have notably benefited from this mechanism. Italy has developed its own model, but it does not include all types of civil litigations within its scope. This is because mandatory pre-litigation mediation is not a ‘one-size-fits-all’ solution and certain categories of civil disputes are better suited for pre-litigation mediation due to their specific features.

Similarly, in Australia, only the Federal Court under Civil Dispute Resolution Act 2011, requires the parties to take some ‘genuine steps’ to resolve their issues before initiating court proceedings. In France too, mediation is mandatory before litigation only in cases involving small claims and neighborhood disputes. Given the unique characteristics of different types of civil litigation and following the examples of Italy, Australia and France, Bangladesh has wisely limited its application to some selected categories of civil suits, as an initial test case, rather than extending it to all sorts of civil litigations.

Categories of civil suits involving complicated questions of title and legal rights, are less amenable to mediation. Therefore, bringing all civil disputes, irrespective of their characteristics, under the ambit of mandatory pre-litigation mediation at the initial stage would not have been an appropriate approach.

The partition and the pre-emption suits have been rightly selected due to its mediation-friendly feature, as disputants are most often family members or close relatives. If the partition disputes can be resolved before litigation, relationship will be potentially preserved, paving the way for an amicable resolution. In an adversarial legal system like Bangladesh, litigation frequently damages relationships, which in turn hinders the possibility of amicable settlement.

Mandatory pre-litigation mediation seeks to compel an effort to resolve disputes through mediation. While the attempt is obligatory, settlement remains completely voluntary. It may at best temporarily suspend access to the courts (not justice), as disputants are not compelled to reach an agreement. Therefore, mandatory mediation, mandated before initiating court proceedings in Bangladesh, is fully aligned with the constitution and international instruments, as it does not obstruct right to access to justice, provided that specific time constraints are adhered to.

The Italian model of mandatory pre-litigation mediation has also proven effective in combating case-overloads. Italy introduced a form of mandatory mediation in 2010 and re-visited it in 2013 incorporating inputs from other stakeholders to make it more compatible with its legal, cultural and constitutional context. After a decade of trial and error, Italy has included some other categories of civil litigation in the mandatory pre-litigation mediation ambit under the Cartabia Reform of 2023. Similarly, Bangladesh should now proceed through the phases of experimentation and trials. After a reasonable period of testing, Bangladesh should engage all relevant stakeholders to assess the effectiveness or shortcomings of the MPM and then decide whether it should extend the mechanism to other categories of civil disputes to make it more effective, compatible with its own people and jurisdiction.

In conclusion, Bangladesh has correctly adopted mandatory pre-litigation mediation for selected civil suits. After an extensive experimentation and revision of the model, it may be extended to other categories of civil litigation subject to its demonstrated effectiveness and success in reducing case backlog.

The writer is Judge, Bangladesh Judicial Service, and currently studying at the University of Sydney, Australia.