THE Legal Aid Act 2025, which mandates mediation before filing certain types of cases, is a significant reform aimed at alleviating the severe backlog in the justice delivery system. The government鈥檚 rationale is to promote speedy resolution, reduce costs and enhance the effectiveness of legal aid services, citing that a high percentage of disputes can be resolved through mediation. This compulsory mediation has, however, ignited a debate about whether it offers an alternative path to justice or creates a new crisis, especially concerning fundamental rights and the protection of vulnerable groups.
Under the law amended in 2025, mandatory mediation applies to family disputes such as divorce, maintenance and child custody; certain civil cases; dowry cases, specifically under Sections 3 and 4 of the Dowry Prohibition Act; cases under Section 11(c) of the Women and Child Repression (Prevention) Act; ad dishonour of cheque where the amount mentioned in the cheque is less than Tk 500,000.
The government鈥檚 primary motivation is to tackle the immense case backlog, now about 4.3 million cases. The government believes that mediation, as a form of alternative dispute resolution, can amicably resolve a significant portion of such disputes, thereby freeing up court resources. The National Legal Aid Service Organisation estimates that about 90 per cent of disputes can be resolved through mediation, a stark contrast to the years it often takes for court cases. This aligns with Sustainable Development Goal 16: 鈥楢ccess to Justice for All,鈥� by making legal aid more accessible, affordable and people-friendly.
Proponents of compulsory mediation highlight several benefits: case burden reduction, with a quick resolution of amicable cases such as family and cheque dishonour disputes that can significantly reduce the pressure on courts; cost, time and stress reduction as mediation offers a less expensive, faster and less adversarial alternative to traditional litigation; the consolidation of alternative dispute resolution which strengthens the alternative dispute resolution process at a constitutional level; and empirical success where organizations like he Bangladesh Legal Aid Services Trust, Ain O Salish Kendra and BRAC have reported 70鈥�80 per cent success rates in resolving family cases through mediation in their alternative dispute resolution programmes.
This also sets international precedents as many South Asian countries, including India, Nepal, Sri Lanka, and the Philippines have increased the use of mandatory mediation, especially in family and commercial disputes. It can address judicial infrastructure limitations as in Bangladesh, where judges handle an on average 60鈥� 70 cases daily, mediation can provide timely solutions for litigants; and it helps the preservation of right to court as the law allows parties to proceed to court if mediation is unsuccessful, thus, not curtailing the ultimate right to justice.
Despite the benefits mentioned, critics argue that mandatory mediation, especially in certain types of cases, conflicts with the fundamental principles of justice and can lead to adverse outcomes such as restrictions on access to justice (constitutional rights) that Article 27 and 31 of the constitution guarantee every citizen. Mandatory mediation, by imposing a requisite, is seen as a conditional access, potentially hindering this fundamental right. It could entail harm to vulnerable groups (women and children) as this is a major point of contention, especially in dowry or violence against women and children cases. The victims who may have suffered prolonged abuse are forced to mediate with their alleged perpetrators. This can cause re-intimidation, social pressure, emotional distress and further victimisation.
Each district legal aid office has only one legal aid officer, now burdened with all mandatory mediation for thousands of people. Critics argue this is practically and institutionally impossible, leading to inefficiencies and compromising the quality of mediation. Accused individuals in cheque fraud cases may exploit mandatory mediation to delay proceedings, evade payment or destroy evidence by repeatedly feigning willingness to compromise but failing to appear for mediation sessions.
UN Women and CEDAW guidelines explicitly state that survivors of gender-based violence should never be compelled to undergo mediation or alternative dispute resolution. They emphasise swift, safe and survivor-centred access to formal justice. The law is seen as directly contravening these international standards. Many women and vulnerable groups already face significant social hurdles in reporting abuses. Forcing them into mediation with their abusers is perceived as a 鈥榮econd punishment鈥�, humiliating them further through the legal system they sought refuge in. During mediation, victims, especially vulnerable ones, may not have legal representation. This leaves them at a disadvantage, facing a mediator and potentially making uninformed decisions without understanding their rights.
The mediation process lacks formal monitoring and transparency. There is no clear mechanism to ensure fairness or accountability for mediators, leading to concerns about decisions being made without proper oversight or in whose interest they truly serve.
The debate gets down to whether reducing case backlogs justifies potentially compromising fundamental rights and the protection of vulnerable individuals. While mediation can be a valuable tool for amicable dispute resolution in certain civil matters, its mandatory application in criminal cases, particularly violence against women and children, raises serious concerns about access to justice, victim safety and adherence to international human rights standards. Critics argue that true justice requires upholding rights and accountability, which cannot be sacrificed for statistical improvements in case disposal. The call is for mandatory mediation to be either entirely optional or prohibited in cases of violence against women and children, advocating a focus on strengthening judicial capacity and ensuring victim protection rather than pushing for compromises in inherently unequal power dynamics.
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Md Imran Hossain Rumel is an advocate at the Supreme Court.
