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This article was written by Satarupa Sarkar, a student of Amity Law School, Noida.
Chaos and conflict are a part and parcel of life as a whole. How we manage or handle such conflicts and chaotic situations are what matters the most. Negotiation is one of the most used techniques for resolving conflicts and disputes. It has been in existence for over a thousand years. Alternative Dispute Resolution (ADR) refers to a variety of streamlined resolution techniques designed to resolve issues in controversy more efficiently when the normal negotiation process fails. Alternative Dispute Resolution (ADR) is an alternative to the Formal Legal System. It is an alternative to Litigation. In modern times, the existing judicial system finds it difficult to cope with the ever increasing burden of civil litigation. Not many in India can afford litigation due to the usual delays in the process of justice and huge expenses. This makes people look down upon the judicial process. Most people do not prefer taking recourse to and try to stay away from anything that is remotely related to litigation. This scenario is not only related to India. Almost all countries all over the globe have been facing similar situations.
During the early 1980s, a strong demand for ADR in the corporate world gained momentum and serious efforts were made to grow and find more efficient and effective alternates to litigation. Thereafter, society had witnessed an explosion in the number of private use of arbitration and mediation as ADR was introduced and adopted in the community.
The ADR procedures consist of negotiation, conciliation, mediation, arbitration and an array of hybrid procedures, including mediation and last offer arbitration(MEDOLA), mini-trial, med-arb and neutral evaluation. ADR techniques are extra judicial in character. They can be used in almost all matters which are capable of being resolved, under law, by an agreement between the parties. However, it is to be kept in mind that ADR is not intended to replace altogether the traditional means of resolving disputes by means of litigation. It offers only alternative options to litigation. ADR may not be apt for every dispute even in other areas; even if appropriate, it cannot be invoked unless both parties to a dispute are genuinely interested in a settlement.
ADR system in India
There is a long and old tradition in India of the encouragement of dispute resolution outside the formal legal system. Disputes were quite obviously decided by the intervention of elders or assemblies of learned men and other such bodies. Nyaya Panchayats at the grass root level were there even before the advent of the British system of justice. However, with the advent of the British Raj, these traditional institutions of dispute settlement somehow started withering and the formal legal system introduced by the British began to rule on the basis of the concept of omissions of rule of law and the supremacy of law.
It was only after Independence, the fact that the formal legal system will not be in a position to bear the entire burden and the system requires drastic changes. The mounting arrears in the courts, inordinate delays in the administration of justice and expenses of litigation have gradually undermined the people’s faith in the system. Today, therefore, the issue is to examine and choose a right formal legal system, such as Alternative Dispute Resolution procedures and to organise the same on more scientific lines.
NEED FOR ADR
On account of arrears of pending cases and experience litigations compel to search for alternative means. The present days crumbling administration of justice is also a factor which makes alternative dispute resolution acceptable. At present, there are over 2.5 crore cases pending in various courts all over the country. In a democracy, this situation may lead to the failure of the administration of justice. Justice delayed is justice denied, this legal maxim speaks for itself in the context of clogging the judicial system. The judicial system today lacks judicial officers, staff and proper infrastructure to deal with the backlog cases which is being stretched for years and decades without reaching a final decision. Such situations call for ADR to step in where the justice system fails.
Thus to sum it up we can say that ADR is needed to counter the following situations:
Arrears of pending cases
As stated earlier a load of pending cases is way too much for the present justice delivery system to handle. This makes the justice system sluggish and technically dead. Overpopulation and modern complications of human life make the judicial system prone to collapse in future if there are no alternative and effective means to be adopted. This is why ADR steps in to efficiently resolve disputes harmoniously.
The practice of seeking adjournments is prevalent specifically in our country. It is a true fact that unwarranted adjournment makes the life of litigation, it is, however, being prolonged than being extended due to repeated adjournments granted.
Sluggish Government Machinery
It is to be noted that the ‘State’ is the major litigant because in most of the litigations the State is an essential party. It has been seen that the Government machinery specifically the Judiciary is not well equipped. A number of vacant posts of judges are lying vacant on account of the governmental heedlessness. Lack of required infrastructure is further aggravating the course of litigation. On account of overpopulation and a tremendous increase in commercial activities, it is quite natural that the number of litigations also increase resulting in a massive backlog of cases.
Concentration of Litigation
The concentration of cases on a particular advocate badly affects his/her functioning and he/she finds himself/herself in such a demanding position that he/she is expected to make an effective presentation of the case. To avoid such problems, it is most desirable to pursue alternative resolution in the form of ADR.
TECHNIQUES OF ADR
The various techniques of ADR as follows:
In counselling mechanism, the counsellor makes a suggestion regarding remedial measures pertaining to future loss/gain. Since time immemorial this is one of the simplest forms of ADR which may be used by an individual expert and counsellor’s firm dealing with the subject concerned.
Conciliation is the process where the third party assists the parties to resolve their dispute by agreement. A conciliator may do this by expressing an opinion about the merits of the dispute to help the parties to reach a settlement. Conciliation is a compromise settlement with the assistance of a Conciliator.
It is to be noted that conciliation is the best inexpensive, informal and autonomous method of resolution.
Arbitration is an alternative way to resolve the dispute through court litigation. Arbitration is a recognised private legal procedure used to resolve disputes between two or more parties. Arbitration proceedings are administered and managed by a knowledgeable, independent, and impartial third party. The parties to a dispute present their pleadings, evidence and arguments to the Arbitrator who decides the case and resolves the dispute.
Mediation is a process or resolving disputes with the aid of an independent third person that assists the parties in dispute to reach a negotiated resolution. Mediation is the acceptable intervention into a dispute of a third party who has no authority to make a decision.
LEGAL RECOGNITION OF ADR SYSTEM IN INDIA
The Indian parliament enacted the Arbitration and Conciliation Act in 1996, making elaborate provisions for conciliation of disputes arising out of a legal relationship, whether contractual or not. The Act provided for the commencement of conciliation proceedings, appointment of conciliators and assistance of suitable institution for the purpose of recommending the names of the conciliators or even appointment of the conciliators by such institution, submission of statements to the conciliator and the role of conciliator in assisting the parties in negotiating settlement of disputes between the parties. In 1999, the Indian Parliament passed the CPC Amendment Act of 1999 inserting Sec.89 in the Code of Civil Procedure 1908, providing for reference of cases pending in the Courts to ADR which included mediation. The Amendment was brought into force with effect from 1st July 2002.
With the global acceptance of the Alternative Dispute Resolution Methods, the Code of Civil Procedure, 1908 in India, introduced the ADR procedures which include arbitration, conciliation, mediation, judicial settlement and settlement through Lok Adalat. The arbitration is more or less adversarial and the arbitrator is required to give an award which is like a court giving a judgement. The judicial settlement has not been aggressively pursued
because the judges are not left with enough time from the routine work. The Lok Adalat has proved to be successful in a few types of cases such as motor accident cases. Now that law has made ADR methods a part of our legal system it is necessary that while exercising judicial control a judge at the earliest stage decides if a case is having an element of settlement which can be further explored by referring the case, inter alia, to mediation. Therefore before referring a case to mediation, a judicial mind must decide whether it is capable of being resolved through any of the ADR mechanisms.
EVOLUTION OF MEDIATION IN INDIA
The first elaborate training for mediators was conducted in Ahmedabad in the year 2000 by American trainers sent by Institute for the Study and Development of Legal Systems (ISDLS). On 27th July 2002, the Chief Justice of India, formally inaugurated the Ahmedabad Mediation Centre, reportedly the first lawyer-managed mediation centre in India. The Chief Justice of India called a meeting of the Chief Justices of all the High Courts of the Indian States in November 2002 at New Delhi to impress upon them the importance of mediation and the need to implement Sec. 89 of Civil Procedure Code. Institute for Arbitration Mediation Legal Education and Development (AMLEAD) and the Gujarat Law Society introduced, in January 2003, a thirty-two hours Certificate Course. The Chennai Mediation Centre was inaugurated on 9th April 2005 and it started functioning in the premises of the Madras High Court. This became the first Court-Annexed Mediation centre in India. MCPC has been taking the lead in evolving policy matters relating to the mediation. The committee has decided that 40 hours training and 10 actual mediation was essential for a mediator. The committee was sanctioned a grant-in-aid by the department of Legal Affairs for undertaking mediation training programme, referral judges training programme, awareness programme and training of trainers programme. With the above grant-in-aid, the committee has conducted till March 2010, 52 awareness programmes/ referral judges training programmes and 52 Mediation training programmes in various parts of the country. About 869 persons have undergone 40 hours training. The committee is in the process of finalising a National Mediation Programme. Efforts are also made to institutionalise its functions and to convert it as the apex body of all the training programmes in the country. The Law Commission prepared consultation papers on Mediation and Case Management and framed and circulated model Rules. The Supreme Court approved the model rules and directed every High Court to frame them. The Law Commission of India organised an International conference on Case Management, Conciliation and Mediation at New Delhi on 3rd and 4th May 2003, which was a great success. Delhi District Courts invited ISDLS to train their Judges as mediators and help in establishing court-annexed mediation centre. Delhi High Court started its own lawyers managed mediation and conciliation centre. Karnataka High Court also started a court-annexed mediation and conciliation centre and trained their mediators with the help of ISDLS. Mandatory mediation through courts has now a legal sanction. Court-Annexed Mediation and Conciliation Centres are now established at several courts in India and the courts have started referring cases to such centres. In Court-Annexed Mediation the mediation services are provided by the court as a part and parcel of the same judicial system as against Court-Referred Mediation, wherein the court merely refers the matter to a mediator. One feature of court-annexed mediation is that the judges, lawyers and litigants become participants therein, thereby giving them a feeling that negotiated settlement is achieved by all the three participants in the justice delivery system. When a judge refers a case to the court-annexed mediation service, keeping overall supervision on the process, no one feels that the system abandons the case. The Judge refers the case to a mediator within the system. The same lawyers who appear in a case retain their briefs and continue to represent their clients before the mediators within the same set-up. The litigants are given an opportunity to play their own participatory role in the resolution of disputes. This also creates public acceptance for the process as the same time-tested court system, which has acquired public confidence because of integrity and impartiality, retains its control and provides an additional service. In court-annexed mediation, the court is the central institution for resolution of disputes. Where ADR procedures are overseen by the court, at least in those cases which are referred through courts, the effort of dispensing justice can become well-coordinated. ADR services, under the control, guidance and supervision of the court would have more authenticity and smooth acceptance. It would ensure the feeling that mediation is complementary and not competitive with the court system. The system will get a positive and willing support from the judges who will accept mediators as an integral part of the system. If the reference to mediation is made by the judge to the court annexed mediation services, the mediation process will become more expeditious and harmonised. It will also facilitate the movement of the case between the court and the mediator faster and purposeful. Again, it will facilitate reference of some issues to mediation leaving others for trial in appropriate cases. Court annexed mediation will give a feeling that court’s own interest in reducing its caseload to a manageable level is furthered by mediation and therefore reference to mediation will be a willing reference. Court annexed mediation will thus provide an additional tool to the same system providing continuity to the process, and above all, the court will remain a central institution for the system. This will also establish a public-private partnership between the court and the community. A popular feeling that the court works hand-in-hand with mediation facility will produce satisfactory and faster settlements.
SUGGESTIONS BY THE LAW COMMISSION OF INDIA
India now has the wholehearted legislative approval for beneficial law reforms contained in the Code of Civil Procedure, 1908, The Arbitration and Conciliation Act, 1996 and the Legal Services Authorities Act, 1987. It is, therefore, necessary to provide guidelines and promote the reforms extensively by utilising the provisions made in the last-mentioned Act.
- The provisions made in the Arbitration and Conciliation Act, 1996 regarding the process of conciliation are required to be made applicable to mediation also because there is no real difference between the two. The High Courts can frame rules under Section 89 (2) (d) read with Section 122 of the Code of Civil Procedure to make mediation procedures effective immediately.
- In order to establish ADR as a viable alternative, it is crucial to provide education about benefits of the process to the community, the members of the Bar and the Courts. It will be necessary to familiarise the potential consumers of mediation services with the nature of the process, the ways mediation can benefit them and ways it differs from arbitration and trial. Equally important is to promote and encourage the managerial qualities of a judge. Coordinated efforts will have to be promptly started to effectively use the ADR provisions incorporated in the Code of Civil Procedure, 1908.
- Brochures explaining the availability of mediation and other ADR methods must be published and handed over to the plaintiffs at the time of filing of the suits and to the defendants along with the summons of the suit. Directions to the Principal Judges of all courts in any acceptable modes are required to be issued to all the courts in their jurisdictions to assign the cases to specific courts and keep the track thereof from the beginning and enforce the case management techniques.
- To achieve the success in reforms’ implementation, pilot projects in some selected cities can be introduced so as to utilise the experience later in other courts. A few courts can be selected to follow mediation and case management procedures on experimental basis and judges who are allotted such work can be specially selected on the basis of their aptitude and they can be specially trained for the assignments.
- Cases for the reference to mediation can be categorised initially to include cases having minimum discovery requirements and maximum settlement elements, such as cases relating to money recovery, loan default, family disputes, etc.
- A panel of mediators should be immediately formed and for the purpose, programmes for imparting basic training and orientation to the intending mediators should be organised. Community leaders, experienced and respected businessmen, retired judges, experts in different fields, retired bureaucrats and lawyers can be persuaded to serve as mediators. Bar Councils, Bar Associations and Judicial Academies can join hands to organise workshops and conferences on the subjects.
- Retired judges, desiring to act as mediators can be persuaded to consciously address a general concern over the difference between the mindset of a Judge and of a Mediator. Appointment of retired Judges as mediators can inspire great confidence in the mediation process amongst the participants with a familiarisation programme with mediation process to avoid any role confusion.
- International organisations like Asian Development Bank and World Bank, which have large funds for the developmental purposes, should be approached to provide and promote international training facilities, to set up pilot projects and specialised infrastructural facilities for exchange of knowledge and experience and also organise regional conferences and training the trainers programmes. Formation of joint Bench-Bar Committees to implement the reformative provisions of law may prove very useful.
- The courts in which the pilot projects are to work, are to be provided with computers and case tracking facilities and there shall be effective supervision of the pilot projects. Apart from that, in courts, there shall be intensive training imparted about the basic ideas to the persons who are going to be in-charge, so that the case management principles and the schedules and the ADR processes are well-administered.
- State, Municipal Corporations and Government Corporations, who are the largest litigants, should be drawn into the process of Mediation by framing appropriate schemes.
- Till Court annexed mediation programmes and proper infrastructural facilities are established it would be appropriate at least to provide mediation facilities through private reliable mediation centres run by the Bar Associations and/or non-Governmental organisations and appropriate funds or grants can be provided to them. It is advisable to provide such mediation facilities at the doorsteps of the courthouses.
Alternative Dispute Resolution, since its introduction in the Indian Judicial system, has come a long way. Mediation centres all over the country have opened up for fast and effective resolution of disputes. Delhi is one of the cities whose Mediation centre has seen a lot of success stories in the last decade. Delhi has become one of the first cities in India to “effectively” reduce its pendency of cases through mediation. The mediation centres in Delhi’s six district courts have settled over 1 lakh cases in the past ten years and have contributed significantly in bringing down the pendency in city courts. A variety of cases such as matrimonial disputes, property rows, minor criminal cases, civil cases and accident cases, besides old ones and pre-litigation matters, too, have been settled by the six mediation centres.
Apart from Delhi, some other states where mediation is gaining ground are Karnataka, Kerala and Tamil Nadu.
Thus, we can undoubtedly say that ADR as a dispute resolution process has come a long way and is seeing more and more success stories day by day. It is a boon to the Judicial system. It is expected that in the near future mediation and other ADR systems will play a big role in fixing the justice delivery system and making it more efficient by solving the arrears of pending cases which the judiciary is overburdened with at present.