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India and Alternative Dispute Resolution – Justice B.N. Kirpal

(Delivered on April 1st 2000 at Chandigarh at the seminar organised by the Sarin Memorial Legal Aid Foundation and A.I.J.A. on alternate dispute resolution in the new millennium)

My esteemed colleague and brother Justice Variava, Chief Justice Saharya, Chief Justice Sodhi, Mr.Sarin, Mr.Kataria, Mr.Goenka,  our elder,  Justice Kuldip Singh, present and former Judges of the High Court of Punjab & Haryana, Judges of the Delhi High Court, Advocate Generals, Ladies and Gentlemen :

I am indeed delighted to be back in Chandigarh,  a City which I like very much, and to be with you, and to talk on a subject which is of topical interest.  Mr.Sarin just said, that we have talked about Alternative Dispute Resolution because of the clogging up of the Courts.  There are various reasons for the clogging up of the Courts,  but I would like to share with you one small fact which possibly is known, but not known to such an extent and that is the dearth of judicial officers in India.  A recent report indicates,  that the number of judicial officers below the level of the High Court judges in India,  is approximately 11000,  in the whole of India.  The sanctioned strength of High Court Judges is about 650.  In the Supreme Court we have a sanctioned strength of 26.  Over a thousand vacancies are there in the Subordinate Courts, over 150 High Court Judges have yet to be appointed.  If you see this total strength, and compare with the population of the country,  it comes to 1.3 judicial officers for 100,000 people. But for the same number of people in America,  you have got 100 judicial officers,  in U.K. you have 50.  If despite all this,  the judiciary is to be blamed,  I think it is most unfortunate.  The statistics show that,  we are all over burdened,  but all the judicial officers specially the ones at the Subordinate level have risen to the occasion and are disposing-off more than what was due, or what was expected of them.  But nevertheless we are facing the situation where we have clogging of the Courts.

What do we do ?

We now have the concept of Alternative Dispute Resolution.  What exactly do we understand by the expression Alternative Dispute Resolution?  Now in one of the books it says Alternative Dispute Resolution or ADR may be defined as a range of procedures,  that serve as alternatives to litigation,  to the Courts,  for the resolution of disputes,  generally involving the services,  of a neutral and impartial third party called an umpire.  In some definitions,  it excludes not only litigation but all forms of adjudication.  But, I will take it that arbitration would be included within ADR.  Now arbitration we have had since long.  The 1940 Arbitration Act, became more cumbersome and more litigation arose out of arbitration than even in a suit. Thus,  arbitration in India failed because,  it suffered the malady,  which it was meant to cure. It was meant to be a cheap and a speedy remedy,  but had become an expensive and a long drawn out affair.  The advantage which you have in Arbitration,  namely of choosing the Judge who is going to decide your case,  is lost by the fact,  that a matter which would normally take 15 mintues in a Court of law,  takes 2 or 3 days of hearings,  before the Arbitrator.  The reason for this is not far to see.  The reason is that like the lawyers the Arbitrator’s meter keeps on ticking.  It is indeed unfortunate that though we in India,  have the talent and the expertise, to render the best arbitration possible in the whole world,  yet people are shying away from India.  Firstly,  they were shying away from India,  for the reason that dispute resolution would get clogged in Courts,  now they are shying away because dispute resolution has become expensive and long drawn out.  So we have to do something with regard to that.

Now what are the alternatives to arbitration? In the Indian scenario,  one thing which comes to mind and which has been very successful, are the Lok Adalats.  But,  that itself has its limitations.

Under the new Act, sections 61 to 81 of the Arbitration & Conciliation Act,  talk of conciliation.  Mediation or conciliation is a facilitative process,  in which disputing parties engage the assistance of an impartial third party called the Mediator,  who helps them to try to arrive at an agreed resolution of their dispute.  The Mediator has no authority to make any decisions that are binding on them,  but uses certain procedures,  techniques and scales to help them to negotiate an agreed resolution of their dispute,  without adjudication.  The term mediation has tended to be used interchangeably with conciliation,  though mediation has become the preferred term.  Sometime mediation is understood to involve a process in which the Mediator is more pro-active and evaluative than in conciliation,  but sometime the reverse usage is employed.

In some countries other than India,  they have set-up ADRs, which are connected or linked with Local Courts.  We have for instance in the United States,  Alternative Dispute Resolution Act of 1998.  This Act,  which was signed by President Clinton on 15th of October 1998,  requires each Federal District to authorise the use of ADR in all civil cases and to establish its own ADR programme.  The Courts must also adopt rules requiring litigants to consider ADR, and they are given authority to compel parties to use mediation and early neutral evaluation.  The Courts are also given authority to exempt cases or category of cases from using ADR.  This is something which we have to try,  and under our legal services system it can be possible by having conciliation boards which are attached to all the Civil courts in the country.

Now what are the principles of mediation?  The first requirement is, that he has no authority to determine the dispute, he is not an Arbitrator, he is not a Judge,  he is merely a Conciliator, a sort of a broker,  who tries to bring together,  the two parties who are at each other’s throat.  The authority of the Arbitrator is derived from the parties. Similarly, the authority of the Mediator has to be derived from the parties and the party will say alright these are the disputes which you can try and resolve between the parties and these are the parameters within which they have to be resolved.  Then the next requirement is,  that it has to be a consensual resolution;  there can be no force,  which can be imposed on any of the parties.  Next, the Mediator’s primary role is to assist the parties with their negotiations.  The important thing about mediation is,  that there has to be and there is a requirement of an active participation of the parties themselves.  In arbitration you have lawyers,  in the Lok Adalats also,  you have lawyers plus parties,  but in mediation,  of course for getting legal advice parties will have lawyers,  but in mediation,  the Conciliator deals and has to deal directly with the affected parties.  It is the parties who have to reach an agreement,  not the lawyers.  One of the very important aspects of mediation is,  confidentiality.  Now when you are talking about the dispute between the parties, whether it is a property dispute regarding inheritance, matrimonial dispute or whatever,  confidentiality is most important.  It is certain,  that ultimately mediation or conciliation would not succeed if such confidentiality were missing  People would be very wary of revealing their secrets, to a third party,  namely the Arbitrator or the Conciliator without being sure that what they are revealing to him, will in turn be kept secret, will be kept confidential.

One question which normally arises for consideration when ultimately mediation fails,  despite the best efforts,  of the Mediator.  What next ?  It is then recommended that you go in for arbitration.  And can the Conciliator or the Mediator,  who was previously acting as a go-between,  between the parties,  be appointed as an Arbitrator ?   There are two schools of thought with regard to this. One school of thought is that look here he knows all the facts,  he knows everything,  people have talked to him in confidence,  well he is aware of the problem,  he is then the best person to now don a different mantle,  put on a different cap, act as an Arbitrator and give a binding decision. But the preponderance of view in the international community seems to be to the contrary,  and it is felt that when you have been talking to the parties trying to bring about a conciliation, a mediator after all is a human being,  he would have formed certain opinion about the dispute.  He may not have the objectivity as an Arbitrator.  So,  the preponderance of opinion seems to be that in a case of a failed conciliation, failed mediation, the Mediator or the Conciliator ought not to be appointed as an Arbitrator – you must look for arbitration or an Arbitrator somewhere else. These to my mind are very salient features of the new provisions of Sections 61 to 81 of the Act.   It is time we give it a good and a fair trial.  You here in Chandigarh, are establishing a centre for ADR. You have very distinguished legal luminaries available.  You need not have people who are well versed in law alone,  to act as Mediators,  you can have persons from different walks of life;  and as and when this centre is set-up I am quite sure,  you will be able to have on your panel, a large number of persons who will be willing to offer themselves as Mediators, who would have the skills of mediation, and with their persuasive power will be able to bring about settlements between the parties.  Thank you Ladies and Gentlemen for giving me a patient hearing.  Thank you very much.