|Distinguished personalities of the legal fraternity took part in the Panel discussion on ADR|
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.
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.
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:
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.
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.
- 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.