https://dailyasianage.com/news/320217/mediation-solving-bangladeshs-property-dispute-backlogs
By. Dr. Richard L. Benkin, International Ambassador, Bangladesh International Mediation Society
In 2023, I sat with police officials just outside a major Bangladeshi city in the hopes of resolving a serious property dispute. An associate of mine had come to me on behalf of a relative whose business had been seized by two former employees. The business had been successful, successful enough that the owner decided to open a second location. While the initial location was stable, the new one needed continuous management and oversight to make sure it provided customers with the same level of quality and service as the first. So, the owner asked two employees to manage the first location while he devoted his time to bringing the new place up to standards. This is not unusual and is rather standard business practice globally.
But this common business practice soon ran into trouble when the two employees announced that they had taken possession of the business and prevented its legitimate owner from entering the premises. The owner tried to talk to them and resolve the matter, but they rebuffed him no matter what he proposed. Only after that did he go to my associate who came to me for help; which is why we were meeting with police officials. My associate’s relative simply wanted a just resolution to the matter so he could go on with his life and business operations. It also must be said that the police officials, and everyone we met at the station, were gracious, knowledgeable, and they tried to help. Unfortunately, however, the police can do only so much when the law or its implementation hinders effective resolution.
The police official was sympathetic and acknowledged that the problem existed for any lawful owner whose property had been illicitly seized; but again suggested we convince the two parties to resolve the matter. I pointed out, however, that I had been involved in countless negotiations over the years, and it was clear that the miscreants had zero incentive to negotiate. As things stood, they were able to seize the property and maintain control over it unmolested. Meanwhile, they enjoyed its fruits and neither the police nor the rightful owner could do anything about it. Why in the world, I asked, would they have any reason to compromise their advantaged position and negotiate with their former employer? The police official could but smile and nod.
All of us seemed frustrated, so I asked the official if there were other legal means available to the rightful owner, and he said we could go through the courts. But when I asked how long that process takes, he replied, “twenty or thirty years.” Well, that tore it. “If ever the phrase ‘justice delayed is denied’ applied anywhere, it’s here, I said. “These miscreants are in complete possession of the business and its assets, which they can use as they please; while my friend can’t even enter the premises that he built up through his own hard work and personal investment. By the time the courts rule—even if in my friend’s favor—the miscreants would have had the benefits and profits of 20 years or more and could strip the business of any valuable or useful assets before they turn over a mere shell of it.” But, as is so often the case, the problem itself suggested its solution; and that solution is mediation or alternative dispute resolution.
The Bangladeshi legal system, like those in the United States or anywhere throughout the world, has any number of serious priorities that it has to handle on a daily basis: crimes that impact the people’s safety and quality of life; national security matters; official conduct and the maintenance of law and order. Yet, as is also the case globally, the system is clogged with large numbers of backlogged cases, most having to do with matters tangential at best to those critical issues facing both lay people and legal professionals. In Bangladesh, one of those case areas is property disputes, most often hard property like someone’s home, or property like my friend’s business. These are serious legal matters that often leave people homeless or nullify the benefits of a citizen’s hard work and initiative; but these are backlogs caused in part by a peculiarity of Bangladeshi law that thwarts the operation of justice.
I have been involved with many legal systems globally and have yet to find one that allows someone to commit a crime—such as this illegal seizure of assets, or violent home invasion—and even rewards them for it; except for Bangladesh, that is. This sort of illegal seizure characterizes a lot of cases I have been involved with in Bangladesh, most of which see people being evicted violently from their homes. In fact, just days before the police meetings above, I was involved with a case in the Rajshahi District in which people were forcibly thrown out of their home without any legal means to avoid being homeless. The police official with whom we met recognized the victim’s plight but could not recover his family home. The government official responsible for land disputes in the area responded similarly. I thanked them for their sympathy but said that it did not solve my friend and his family’s homelessness.
In jurisdictions throughout the world, if someone wants to challenge someone’s lawful right to a property, the government provides a legal process by which that can be done. The people and government show their faith in the legal system and its ability to administer justice by adhering to the legal requirements for challenging and adjudicating lawful property rights. No matter how strongly challengers feel their cases are, they do not press it by seizing the property in question and with sufficient violence evicting the current owner. If they do, they become the lawbreakers and are subject to arrest for their crimes. Unfortunately, those extrajudicial and violent property seizures without any legal consequence occur regularly in Bangladesh. Perhaps the land grabbers have reason to believe that the law will protect them or at least not challenge their criminal action, or their extralegal possession of the property in question. Or perhaps they are frustrated by the fact that the legal system will, as that police official told me, take a full generation to resolve their claim. Whichever it is, it is a problem; but a problem with a solution that legal professionals worldwide are using more and more frequently: alternative dispute resolution.
Over many years, I have been part of efforts that resolved dozens, if not hundreds, of complex and high dollar cases through mediation. There were times when we worked through and resolved dozens of cases in a single morning. Most of these cases had been laying open for years, leaving both plaintiff and defendant in a legal netherworld that thwarted their ability to move on in their lives and operations. Companies suffered millions of dollars in losses, and stock prices were negatively impacted by millions more in unknown liabilities. Individuals were prevented from pursuing their professional development and continued to depend on assistance to pay for their medical services and basic needs. Meanwhile, the situation contributed to rising medical costs and increased, long term use of opioids. If mediation was able to resolve these problems, it has the ability to help Bangladesh resolve this one; and in doing so, let the parties move on under the auspices of legal action, increase pubic confidence in the legal system, reduce violence and extrajudicial evictions; and ends a system by which the law, even if inadvertently, enables and ratifies lawbreaking.
Moving property disputes to compulsory mediation also removes them from the same basket as crime and national security, thereby letting the system focus on those priorities. It is emblematic of an advanced nation that rests on the rule of law. Exactly how to accomplish this is best left to legal minds here in Bangladesh who are far more knowledgeable than I am; especially my colleagues in the Bangladesh International Mediation Society. They already are accomplished at alternate dispute resolution and are training more and more attorneys in this skill.
Putting an end to this legal anomaly for property disputes—most likely a vestige of pre-1971 practice—will be another step in lifting the people and nation of Bangladesh, all under the stewardship of this Bangladeshi government and its leader, Prime Minister Sheikh Hasina.
Dr. Richard L. Benkin is an American scholar and geopolitical analyst.