Centre for Public Policy Research in association with HK legal organised a panel discussion on ‘Taking ADR to the Common Man’ at Indian Law Institute, New Delhi at 2:30 p.m. ADR or Alternative Dispute Resolutions are out of court settlements aimed at settling disputes in an amicable manner. The discussions on ADR included exploring the viability of making ADR accessible to the common man and what are the challenges on the way.
|Distinguished personalities of the legal fraternity took part in the Panel discussion on ADR
The panelists included eminent personalities from the legal fraternity like Justice P K Balasubramanyam, Chairman, E-committee, Supreme Court, Justice Madan B Lokur, Judge High Court of Delhi, Justice Manmohan Sarin, Lokayukta of Delhi, Advocate Krishnan Venugopal, Senior Advocate Supreme Court, Advocate Ramanand Mudkur, Managing Partner, Mundkur Associates, a Bangalore based law firm. The program started with an address note by Adv. Prasanth V J.
The topic, ‘Taking ADR to the Common Man’, was introduced by Justice P K Balasubramayam. He opined that the concept of ADR is something new to the country. With the advent of British system the earlier system of Panchayats has faded where the disputes had been settled amicably. Docket explosion being another reason, adding judicial officers remained a cry in wilderness. This led to the birth of the concept of ADR.
Lok Adalats were held regularly under the act where the disputes settled are usually of the motor accident claims etc which are usually of punitive nature were settled and some success was achieved. Conciliation had also been undertaken, but mainly to resolve matrimonial issues. The arbitration and conciliation act was introduced in the meantime and elaborate provisions regarding conciliation were also included which remained just to the book. The 1940 Act bred more litigation rather than putting end to the dispute. Hence it is difficult to say how far we have been successful since it can be said that, if there is no settlement or award worth the litigation process and time and cost involved in it one can as well go for litigation. He also said “if need be tighten up the process of arbitration and keep the spirit in which it is and also to be invoked.”
He felt that Section 89 of Code of civil procedure was confusing, not precise and also not clear. Court settled mediation and conciliation were discussed where he felt that the concepts of Pre litigation conciliation and mediation are very popular in the country. As suggested by him in another conference, he said, that a proviso could be added to section 9 of the Code of Civil Procedure. If a party refuses to go for methods of ADR, the court cannot compel the parties since; referring a dispute to a third party is only when both the parties consent to it. Hence he stressed on the importance of consensus of the parties.
He suggested that lawyers could be trained through the Munsif Courts and given rights and powers to settle a dispute. The lawyers should be those with a qualification of 3 yrs of practice in the court. “Give a status to that body and send this to the local areas or to the Gram Panchayats” he added.
Reponding to the notion that, if we persuade the people to settle out of courts, the profession will suffer , he suggested another view; the more cases get settled, the more people will come to court. This will be possible when ADR works full-fledged. Now due to the huge pressure on the courts, cases are not settled and the people do not wish to come to the courts. There is a need for a better social harmony and lawyers will be doing a better duty of their profession.
Honourable Justice Manmohan Sarin expressed his views on the topic ‘Mediation to the Poor’. He commenced his talk with the need to adopt ADR and in what manner. The Honourable advocate also said that the this matter cannot be any longer an issue to debate. It was expected out of the new Arbitration and Conciliation Act of 1996 based on UNCITRAL Model, would give a boost to arbitration but it is left only for people who can afford to it. Referring to the most famous ONGC v. Saw Pipes case he suggested in evolving a system which is inexpensive and capable of resolving a conflict where “the little man is to his satisfaction”. Considering our legal system, a broader picture has to be looked at; meaning not only the conflict resolution but the effort that has to be made make it cost effective. We need to put a cap on the costs. He said, “No single pill for all ailments”.
He also focused on the concept of mediation. Mediation is a process of dispute resolution. We need to know as to what is it all about and who can mediate. He said that a mediator needs immense training. One has to learn the techniques and skills. The essence of mediation lies in ending the conflict and maintaining relations. Short time strives should be stopped. He suggested to look for out of the box solutions rather than conventional ones.
He divided the qualities of a mediator as 3 P’s and 3 I’s
- The 3 P’s are:
- The 3 I’s are:
There is no express opinion of its failure but a detailed analysis of failed mediation reveals the lack of time spent on the dispute. He illustrated the mediation in Nepal where they involved 5 NGOs who trained the mediators and sent them to the community. This method, though not very successful, could settle 2837 cases, 595 still pending. Such a method of mediation is known to be community based mediation. A model which came to his mind was to start training the panel advocates of the Court and also the officers involved in the police.
He said that Delhi Legal Services or the State Legal Services can set up a rural mediation committee including the NGOs also in the process which will have trained social workers to look after few 20 to 30 villages. He feels institutionalised training is required. Delhi Mediation Centre is planned to be set up with a training period of 6mnths. He said “Mediation is an idea whose time has come.”
Justice Madan B Lokur threw light on the topic “India’s Experiments with Lok Adalats”. Accoridng to him,“Capitalising the frustration of the litigants” is why lakhs of cases have been settled by Lok Adalat’s. The philosophy behind Lok Adalats was not litigation fatigue but speedy, expeditious and cheap justice. He questioned if this philosophy was lost as there is no success in all these areas. Hence, he suggested the NGOs to look at these issues though there is no uniformity as to the success or failure of this method. He also gave a thought to the huge settlements made per Lok Adalat. The quality of cases is not mentioned. There is no mention as to the amount spent on these settlements nor is there a way to measure the quality of these cases. The question posed by him was whether these cases in Lok Adalats are worth the expenditure.
Hence there is an immense need to boost the confidence of both litigants and non litigants. The only way out is awareness to the people who need such a method and who cannot stand litigation for too long a time. He concluded his views by emphasising on the need to look at Gram Nyayalays, their working and development strategies. He also mentioned the need for an empirical study.
Advocate Krishnan Venugopal spoke on the topic “Fashioning ADR mechanisms to the poor”. He said “If you are poor, you simply do not get justice 99 % of the times.” He added to the points made by Justice Lokur that he feels that we do not have resources to solve our legal problems.
He clarified that Gram Nyayalays are not the same as that of Lok Adalats. Lok adalats have not worked on the way they were expected since settlement is not usually a best option. To get away with such a notion there needs to be a popular participation which does not mean the poor will be also included in the discussions but discussions are to be held and the result have to be shared with the poor to impart such knowledge about these different and better methods of justice dispensing systems. There is an immense need to put in place an ADR system keeping in mind the urban and rural poor.
Advocate Ramanand Mudkur put forth his ideas regarding the topic, “Reviewing motivations for enhancing ADR access to the poor”. He said that though most of the clients do not belong to common man, there is always a need to look at the group using ADR and why are they using it. The resulting lessons have to be taken to the people not using ADR.
A settlement has to be arrived under the shadow of litigation but according to him the shadow of law is fading fast and the rule of law is going away. In the absence of the enforceability, the very purpose of the settlement is lost. Hence there should be something which will make it binding. Thus its implementation is possible only if it is enforceable in nature.
The next session was the Q & A session which had a few interactive discussions on the following questions and issues:
- Community Based ADR has its own draw backs. What do we opt for- Community Based ADR or court based ADR?
Answer: Having the involvement of any mechanisms, ADR systems are the offshoots.
The lawyer suggests their clients to get rid of the arbitration clause in the agreement thinking that it will be of some trouble to the parties to the dispute. Due to this state of affairs regarding this concept among the lawyer community, has made the panel realise the need to think out of box. They specified that thinking out of box does not in any way mean mediation and conciliation, they are not known to be out of box, but are mere words which take shape. So, gram nyayalays and gram panchayats are taken to light. He wanted the whole legal community to look at a panchayat setup with informal people sitting which is purely conciliation where the maximum punishment is fine. He said “there are ways outside arbitration conciliation and mediation”.
- How can this concept be taken to the rural community?
Answer:Advocate Mudkur’s view: It need not be taken as a justice system. Benefits are decent enough to take it to poor. “Judiciary is the place through which we can renew faith in the government. It is not putting a band aid on an imputation” he said.
- Despite negative media publicity, there was a suggestion as to the efficacy of using the media, share documentaries, use of films and advertisements in state governments.
Centre for Public Policy Research had also conducted a National Essay Competition on ‘Taking ADR to the common man’. The panel discussion was followed by an award ceremony in which the winners of the competition were declared.This was followed by vote of thanks by Advocate Hari Shankar.