—Tanjina Akter Riya—

Marcus Tullius Cicero said, “The more laws, the less justice.” Everyone should understand that the law is not always sufficient to provide justice, and it is not the only method of reaching it. When the law has difficulty providing fairness and equality, step into action to “fill the gap.” The balanced method is the alternative dispute resolution (ADR) to provide easy access to the judicial system. But, in modern times, a less expensive and more effective method for digitising and expediting the ADR process has been developed. Pro bono services for the marginalised people in Bangladesh may particularly be transformed by extending access to justice through online dispute resolution (ODR).

The legal system in Bangladesh is struggling, case backlogs remain a source of concern, reducing the judicial system’s efficacy and leaving millions of people waiting for justice. Over 42 lakh cases are pending in courts across the country, with civil cases comprising approximately 50 percent of the backlog despite regulatory measures and technological advancement. The average case resolution length is 9.5 years, restricting underprivileged populations’ access to justice. The high expense of civil suits in court, including court and lawyer costs, has led to financial instability for many families. Additionally, delays and lengthy legal battles have contributed to increased poverty in the country.

Since it is difficult to efficiently provide legal help at no charge due to overloaded courts and insufficient resources, people from underdeveloped areas and those with low incomes look for local non-governmental organisations or union parishads to seek pro bono legal counsel. These organisations offer informal conflict resolution, making it even more challenging.

However, colonial-era laws, notably the Evidence Act, 1872 and the Code of Civil Procedure, 1908, still serve as the basis of the nation’s legal system, which significantly delays the settlement of cases. Even though the amendment of 2012 mandated ADR in civil litigation, the backlog has not been reduced much. Although new amendments in 2015 provided district legal aid officers (DLAOs) the ability to arbitrate disputes, the general efficacy of the system continues to be challenged due to its dependency on traditional in-person proceedings.

Building on these challenges, despite having an Arbitration Act (2001), Bangladesh does not explicitly recognise digital arbitration or online dispute resolution (ODR). The law prioritises traditional, in-person conflict settlement, limiting the use of technology in court. To properly include ODR, the legal framework must be revised to include digital contracts, virtual hearings, and improved data security. Without these necessary improvements, ODR would struggle to achieve recognition and benefit the legal system of Bangladesh.

The adoption of electronic arrangements is an important aspect of this development. ADR has to transform its approach to accommodate the rising number of legal transactions conducted online throughout and outside the country. The COVID pandemic got us to shut down the courts in Bangladesh for months and taught a lesson that our country is dependent on outdated in-person methods. The government responded by passing the Usage of Information and Technology in Court Ordinance, 2020, which allowed for emergency virtual court hearings. These initiatives, however, were only temporary and did not result in a long-term ODR platform.

Given this precedent, the approach would provide a faster, cheaper, and simpler alternative for underprivileged populations that struggle to traverse the present judicial system. Why not implement a long-term digital dispute resolution system if courts can operate online in an emergency?

Several countries have effectively used ODR to modernise their legal systems and improve access to justice. For example, the Civil Resolution Tribunal (CRT), a government-approved ODR platform in Canada, was established in British Columbia in 2016. This began by addressing condominium (strata) issues, before expanding into minor demands and other civil disputes. The CRT allows anyone, particularly those who cannot afford legal assistance, to settle disputes without physically appearing in court since it provides 24-hour internet access. Self-represented litigants have profited immensely from this system, which offers a more convenient and cost-effective settlement process.

Similarly, the US Equal Employment Opportunity Commission (EEOC) employed ODR to resolve employment discrimination claims by incorporating remote options into its mediation programme. Pro bono mediators assisted parties in reaching a significant number of agreements. Because of the initiative’s remote nature, more people who would have been unable to get mediation services owing to financial or geographic restrictions were able to do so without incurring additional costs.

At the same time, the Rechtwijzer justice platform of the Netherlands aids people resolve divorce and landlord-tenant problems using an easy-to-use digital system. Similarly, the Sama platform in India provides a fully working ODR framework for resolving a wide range of issues.

Given these global initiatives, ODR can reduce case backlogs in Bangladesh. Through enhanced access to pro bono services and modernising the legal system, Bangladesh has a unique opportunity to take advantage of it and reform its legal framework after learning from the worldwide initiatives. By using a digital dispute resolution system, marginalised people may settle issues from the comfort of their own homes rather than dealing with challenging legal processes. Women, members of low-income groups, rural and marginalised communities would particularly benefit from this, as they regularly face significant barriers when seeking to access the traditional judicial system.

Now is the time to take the initiative for the country in the post-uprising era. Will Bangladesh shift to a more effective, equitable, and accessible judicial system?

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Tanjina Akter Riya is research fellow at Global Institute of Law, Oxford, UK.