“Gram Nyayalayas” as an ADR method

The Law Commission in its 114^th Report, 1986 suggested the idea of “Gram Nyayalayas”as an alternate method to take justice to the “aam admi” and to reduce the backlog of cases. These “Nyayalayas”(courts) will have jurisdiction to hear and settle cases of the particular “gram”(village). They are alternate in the sense, they don’t follow ordinary procedural rules, parties need not be represented by lawyer’s and most cases would be settled rather than adjudicated.

The commission concluded that the results of Lok Adalats and other previous methods have been mixed. However, the National Advisory Council (NAC) , took up the issue and a Gram Nyayalayas Bill, 2007 was introduced in the Rajya Sabha , on 15^th May , 2007 which was widely criticized . Recently, a modified version of the Bill was also presented in the Rajya Sabha.

The Highlights of the Bill were:

• Each Gram Nyayalaya will have a “Nyayadhikari” who will be having the powers of a first class magistrate , to be selected from a cadre created by Governor and State Government
• These Nyayalayas would deal with ordinary civil cases, those cases were the maximum imprisonment is one year and other compoundable offence.
• Parties can go on appeal from the decisions of the “nyayadhikari” to the senior civil judge or the respective magistrate.

It should be noted that, we had a system of “Gram Nyayalayas” even before independence, where the representatives were elected from the local community. However, this legislation envisages six thousand legally qualified “nyayadhikaris” across the country. Isn’t this legislation creating yet another judicial cadre at a time when eighteen percent of the existing judicial posts are vacant.

Interestingly, the bill also excludes cases involving government servants from the jurisdiction of “gram nyayalyas” thereby making it toothless. There also exists a doubt whether this system is truly “alternative” in its character since bill says that each qualified “nyayadhikari” will be assisted by two other “lay –nyayadhikari” again from a cadre and the parties in this case don’t have the right to choose their mediator’s, unlike other ADR mechanisms.

ADR in the context of development

ADR systems may be designed to meet a wide variety of different goals. Some of these goals are directly related to improving the administration of justice and the settlement of particular disputes. Some, however, are related to other development objectives, such as economic restructuring, or the management of tensions and conflicts in communities. For instance, developing an efficient way to resolve land disputes may be critical to ADR mission not because of its commitment to strengthening the rule of law, but because the reason that, land disputes threaten the social and economic stability of the country. Likewise, efficient dispute resolution procedures may be critical to economic development objectives where court delays or corruption inhibit foreign investment and economic restructuring.

So, within the context of rule of law initiatives, ADR programs can support and complement court reform. It increases popular satisfaction with dispute resolution, increase access to justice for

disadvantaged groups, the system also reduce delay in the resolution of disputes, reduces the cost of resolving disputes.

In the context of other development objectives, ADR programs can:

· Increase civic engagement and create public processes to facilitate economic restructuring and other social change

· Help reduce the level of tension and conflict in a community

· Manage disputes and conflicts that may directly affect development initiatives

Therefore we can say that, ADR programs can have a positive impact on each of these development objectives, although the extent of the impact is very much dependent on other conditions within the country and the fit of the design and implementation of the program with the development objectives.

Efficacy of arbitral proceedings: cost benefit analysis

First of all, cost benefit analysis is a method of evaluating the relative merits of alternative courses of action in order to achieve efficient allocation of resources. It is a way of identifying, portraying and assessing the factors which need to be considered in making rational economic choices. It is not a new technique. In principle, it entails little more than adjusting conventional business profit-and-loss calculations in evaluating alternative courses of action by objective criteria, benefits and constraints.

There are currently nearly 25 million cases pending in Indian courts, some of which have been appealed and argued for more than 20 years. Meanwhile, India spends only .2 percent of its GNP on the judiciary, which is admittedly an artificial benchmark and should be put in the context of the size of India’s economy and the range of judicial functions that the Indian legal system performs. India, though, is not alone in dealing with a hugely cumbersome and overburdened legal system. Backlog and delay plague stemming from myriad factors including misaligned incentive structure among the key players exist in a wide array of legal systems around the world. Nowhere, though, have these problems become more accentuated than in modern-day India. As a result, this has created broad political and economic implications for Indian society that have only increased with the economic boom of the past decade.



‘It depends’ are the two favourite words of each and every lawyer. So the answer to the question whether arbitration is cheaper than litigation can also be given as “it depends”. Generally speaking, efficiency involves issues of both the cost and time and effort. It tends to hold down the amount of time and effort expended on various forms of discovery and motion practice. On the other hand, judges sometimes exercise tight control over the timing and amount of proceedings before them. Where one is confronted with a very litigious opponent, it may be more beneficial to have a judge who will put firm limits on that party than arbitrators who may allow the party to get away with more obstreperous activities.

The subcommittee identified the following major sources of cost (1) complex and unclear pleading practice that often confuses the real substance of the dispute; (2) lawyers' and parties' failure to assess their case thoroughly and dispassionately at an early stage;( 3) clients' and attorneys' unrealistic expectations of success; (4) clients' feelings of alienation from the legal process;( 5) poor and indirect communication between the litigation parties; and (6) attorneys' reluctance to raise the possibility of settlement out of fear of being perceived as weak.

Judicial delay can have tragic effects, underscoring the urgent need for targeted reform. In 2001, a senior citizen who had invested his life’s savings in a non-banking financial company attempted self-immolation after a Delhi court granted yet another postponement of the proceedings for recovery of his savings from the defaulting company. An unofficial survey found that in Chennai alone there are roughly 30,000 cases being resolved through arbitration annually. The rate of litigation is thus being reduced considerably.

Now again, when it comes to question of costs, it is a moot point which is a greater burden—litigation in courts or arbitration. If arbitration is possible by following a procedure which either eliminates or restricts oral hearings, and again if it is possible (as happens in many of the institutes) that it is held not as a part time evening sitting but held continuously for several hours a day until the matter is concluded, then certainly arbitration has great advantages money-wise compared to litigation.

The one question that always arises is that in which matters one should arbitrate and in which one should not. One advantage of arbitration is choosing an expert of ones own choice. At least the client will have the satisfaction that his money is being wisely spent.

One possible group of candidates for ADR is cases with no real disputes. When courts must process cases like uncontested divorces, judges and resources are diverted from contested cases, and the parties must bear the expense of a court proceeding. Perhaps dignitary or symbolic values may properly be satisfied only if a judge officially certifies the termination of a marriage, but these values, it is argued, must be weighed against the equally compelling need to conserve court resources and minimize expenses and inconvenience to litigants.

Because the arbitration process is generally more streamlined than formal litigation, the cost savings compared to a lawsuit can be quite substantial. This does not mean that arbitration cannot become complicated. Some arbitrations get quite complex. Objectives of the parties may change dramatically as disputes are processed. New information becomes available, each party's needs change, and costs are incurred. Delays, frustration, and disappointment raise or lower the stakes. For example, victims of job discrimination frequently start by wanting the job or promotion they were unjustifiably denied but later, stymied by the difficulties in proving discrimination or more aware of the work environment from which they have been excluded, are much more willing to accept a monetary settlement. The substantive scope of a dispute is also not fixed. Some types of dispute pro-cessing narrow the disputes they encounter in order to produce a construction of events that appears manageable. Others expand context and circumstance; they encourage a full rendering of events and exploration of interactions. The identity and number of parties are not fixed when the dispute processing begins. As information about the disputed issues is clarified, a bipolar dispute may become multiple, and parties may change their view about appropriate adversaries or desirable allies.

It’s important to recognize that some arbitration associations charge large fees as a percentage of the dispute in controversy and prepayment of a portion of such fees to the sponsoring association by the complainant may be a requirement before arbitration may be commenced.

Characteristics of general Litigation:-
General litigation is conducted in very formal stages.
Lawyer's notice
Plaint
Designated court
Summons to the defendant
Proof of service of summons
written statement
examination of parties
discovery and proof of documents
framing of issues
examination of witnesses
adjournments
arguments
judgment and decree
Each stage is beset with technical rules of procedure and rules of evidence.



Characteristics of arbitration:-
Arbitration can be as informal as litigation in the court is formal. Most of the procedure can be tailor- made to fit the needs of the parties. By choice the parties are empowered by the relevant sections of the Arbitration and Conciliation Act 1996 to make it a fast track by

simplifying the process of appointing the arbitrator (Sec 11)
simplifying the challenge procedure (Sec 13)
curtailing hearing if an arbitrator is replaced(Sec 15)
curtailing interim measures (Sec 17)
scheduling the hearing (Sec 19)
choosing a convenient place (Sec 20)
choosing the conversant language (Sec 21)
restricting the content of pleadings (Sec 23)
restricting the length of hearings (Sec 24)
adopting default procedures (Sec 25 )
getting expert assistance (Sec 26)
settlement by conciliation during hearing (Sec 30)
avoiding cost by dispensing with reasons (Sec 31)
reducing the time for correction of mistakes (Sec 33)
But all this is possible only if the parties cooperate and they have chosen a good arbitrator.

Comparison of costs and benefits:-

COURT ARBITRATION
Lawyers notice Lawyer's fees Private letter – less cost –nofees Plaint Preparation fees Claim statement at less cost
Court fees @ 1 % of the value Fees to arbitrator about equal amount
Summons Fees for serving notices Postage
Documents Copying fees Cost of photocopying
Witnesses Cost of travel Cost of travel – may be avoided
Lawyer's fees Stipulated May be reduced by personal arguments
Stamp duty Does not arise Rs. 250 maximum




COURT ARBITRATION
Adjudicator No choice - designated Can choose qualified person
Jurisdiction May be disputed Agreed
Place Choice of claimant Choice of both parties
Time of hearing Decision of court Choice of parties
Procedure Strict – C.P.C. applies Informal
Evidence Strict – Evidence Act Informal
Acceptance Appeal and execution - delay No appeal on merits

Arbitration and Mediation: a Preferred Mode for Corporate Dispute Resolution

Corporate, accustomed to our highly litigious culture, generally consider litigation (where backlog of cases is still growing) as the main method for resolving disputes. Moreover, the speed of change in strong national and emerging global markets puts increasing pressure on corporate to resolve disputes quickly, inexpensively, amicably, constructively and creatively, in order to maximize long term interests and to maintain ongoing commercial relationships. In any dispute, if taken to court of law, it not only involves lot of time in settlement, but also trade secrets get leaked out. Business transactions take place between companies of different countries. If a lawsuit is filed in one of the countries, then the question arises as to which law would apply and also whether the domestic court of that country has jurisdiction to settle the dispute. Again, these difficulties of litigation often influence parties to provide for mediation or arbitration of a commercial dispute. An advantage of arbitration and mediation is that its scope is limited only by the creativity of the parties. There is no limit on the nature of the agreement. The parties are free to decide the place they want their dispute to be settled at. A neutral venue could be chosen such that no one is subjected to the local prejudices of judges and jurors in faraway places. Experts can be chosen who will attempt to bring a dispassionate, impartial view to any dispute. However, lately Corporate have been rejecting arbitration and mediation as they have become complicated. It is important to recognize that associations do charge fees for the entire process. Then again, it is a moot point between ADR and litigation for the corporates

Sharia Laws in Mediation- The U.K. move

Its an interesting piece of news to find that the English Courts have regarded the Muslim sharia laws for alternate dispute resolution and other civil disputes. To put it from the words of Lord Phillips, he acknowledges that Sharia laws could govern matrimonial disputes, alternate dispute resolution methods and disputes relating to financial transactions.

Before I move ahead, I would like to say a few words about what exactly is Sharia law.

Sharia law is basically the Islamic law derived from Koran, with a divine sanction. This system is followed in most of the Islamic countries and more and more states claim to have their system derived from Sharia laws. Its application in different countries are varied and have been in controversy as to its practicability and interpretation. However, the secular states do not have much of a good opinion about the Sharia laws which are backed by severe punishments which includes public executions, chopping off hands, stoning of women etc. It goes against the concept of human rights and is concerned to be imposing strict sanctions. Eg. Homosexuality is not tolerated by the system. It is also known to be vulnerable to women and is known to discriminate against women. According to this law a Muslim women if her divorce was governed by the Sharia laws would be allowed to marry again. In Canada a similar proposal to recognize Sharia law was in debate during the period of 2004, but ultimately it was decided not to go ahead with the same. In U.K., the Archbishop of Canterbury initiated the proposal of recognizing religious laws in a secular state, in the month of February, 2008, and a few weeks back on Lord Phillips, said to be the most elder Judge from The House of Lords backed him and recommended for acceptance and recognition of Sharia laws in resolving disputes and apply in cases like Mediation.

However some serious issues do arise due to this since the Sharia laws are said to be vulnerable to women as has been evident from its practise in the Muslim countries. Further the harshest punishment comes from the same law. Though the English judges have said that they intend to sanction through English law, it cannot be said as to how far can this be practicable. Too many laws can confuse people since they may be incompatible to the existing English laws. However a better option would be to moot for the same provided that those beliefs and traditions do not contradict the fundamental principle of equality on which Britain's laws are based.

However, the standing of the government in England that it has no intention to change its position and adopt the Muslim laws while it accepts the idea that Sharia law could govern civil law disputes majority pof which include matrimony and financial transactions.
Lrd Phillips recommendation which follow 5 months after Archbishop of Canterbury Dr. Rowan Williams suggested that Islamic law could govern marital law, financial transactions, and arbitration in disputes.

compulsary mediation for matrimonial disputes...

Conflicts arise in all aspects of our lives and can be resolved in a variety of different ways, both formal and informal. We are all familiar with formal methods of conflict resolution such as those provided by civil and criminal law and we are all practiced in the use of informal techniques such as negotiation and bargaining. Some types of dispute, however, are not easy to resolve satisfactorily through the courts but at the same time seem difficult for people to be able to deal with themselves. The primary aim of mediation is not to reduce congestion of the courts but to repair, with the help of a professional trained in mediation, a breakdown in communication between the parties. Mediation is also aimed at assisting in the resolution of such disputes through a process of skilled and principled intervention. This method is extremely effective in family disputes, especially with children involved and reference to the court is often unnecessary.In many break-ups time needs to elapse before both parties are emotionally ready to put the past behind them. Mediation is a confidential way for you to arrive at fair, long lasting arrangements, thus reducing the pain and trauma associated with separation or divorce.

With the help of an impartial mediator, or pair of mediators, you can safely air your differences and constructively arrive at financial settlements and arrangements for children that you as a couple choose and work out, rather than having judges or lawyers making decisions for you. Mediators do not give legal advice and do not represent individuals, although mediators can be solicitors or other professionals who deal with families. When proposals are reached, a summary is drawn up by the mediator(s) which each of you will take to your own solicitor who will consider whether to turn it into a legally binding agreement, and also take care of any other legal formalities such as the divorce itself.

There is no hard and fast rule as to when be the case suitable for mediation. At an early stage, parties may be ready for a settlement process because they may not be too wedded to their positions and their relationship may not be too fractured by the litigation process. At a later stage, parties also may be ready to participate in a settlement process because discovery is mostly done, issues have been narrowed through motions to dismiss or summary judgement motions, and parties feel more knowledgeable about the likely court outcome and litigation courts. Mediation can reduce misunderstanding and bitterness and save unnecessary legal costs. It is not a substitute for legal advice and clients are encouraged to consult solicitors when necessary.

Family mediation includes the mediation of the disputes in actions for divorce, separation, annulment, establishment of paternity, probate and estate disputes, child custody or visitation, or child or spousal support. It may help the parties reach an agreement and resolve all types of family related issues. Family mediation is not, however, a therapy. It is intended for and may be of help to, any person having a conflict with a spouse, a companion, a child, a parent, or with any other family member. Family mediation helps the parties resolve their own differences on their own terms allowing them to strengthen their ability to communicate, reach solutions adapted to their unique personal circumstances, understand and appreciate the needs of other members of their family, and reach lasting agreements.

A family mediator assists couples to make joint decisions about their separate futures, the children, finance, property and other important matters.

Mediation is prevalent today in the United States and in foreign countries, including Canada and England. In some states, only two percent of filed cases are resolved by adjudication. Many cases are sent to mediation, and approximately seventy percent settle at the mediation conference. Most of the remaining thirty percent settle before trial, often as the result of the process begun in mediation. For example, the number of reported mediated cases in Florida increased from 34,000 in 1989 to almost 50,000 in 1991. This movement toward mediation reflects a relatively long-term trend in Florida's judicial system.

Mediation is especially helpful in family disputes because of the unique nature of family law. Family matters involve not only the law and facts, but also feelings. An increase in the number of divorces and of children born outside marriage has caused states to seek methods other than litigation to solve family disputes involving child visitation, as well as financial matters. Mediation is one such method.

Mediation is an attractive alternative in family disputes, because it empowers the parties to devise agreements that meet their specific needs. Unlike the adjudicatory process, the emphasis in mediation is placed on establishing a workable solution, rather than on determining who is right or wrong. Decisions are made by the parties, not delegated to a judge. Mediation of divorce disputes began because of increasing court costs, delay, and escalation of conflict caused by dissatisfaction with the traditional method of solving family matters through litigation. To address this dissatisfaction, lawyers and therapists offered to help their clients settle cases in a non-adversarial manner.

The mediation process helps reduce parties' hostility and children's trauma from the divorce process. This is particularly significant when the parties are parents and will remain in contact after the marital relationship ends. The process encourages the parties to work together, isolate the issues, and learn through cooperation. Mediation produces stable agreements that are more likely to inspire long-term compliance by the parties. In addition, even when the parties do not reach agreement during the mediation process, research indicates that family cases often settle prior to trial as a result of issues discussed in mediation.

Many feel that mediation is a particularly appropriate tool in the midst of interfamilial disputes. However, the appropriateness of family mediation in the context of increasing awareness of the prevalence of domestic violence has been a point of contention between those who favour the use of mediation in the family arena and those who contend that mediation can be both unfair and potentially dangerous.

Firstly, many argue that women’s lack of power relative to men in our society makes it a weak option. It is argued that due to the presence of domestic violence even the most skilled mediator will likely be not able to compensate for the disparity of power. Some argue that, in the presence of domestic violence, it is difficult to imagine a batterer coming to a mutually agreeable settlement with his partner and also that he would comply with something which he believes is unfair to him. The reality is that apparently her consent will be under duress. Since mediation is an effort for mutual decision making, presence of domestic violence makes it ill-equipped. Secondly, using mediation where there has been violence is the belief that it places the sufferers at a position where there is a high chance of future violence. The batterer gets the access to a spouse who has been avoiding contact since the separation, leading to harassing her at the mediation. Thirdly, another criticism against mediation in this context is that the mediators will not know be aware of violence and since the agreements not being enforceable and complying, there might not be a total disclosure of facts. Also, at times when the mediators uses forceful agreement tactics, he forgets the past abuse while the processing the future. A thought arises in such a situation that these mediating cases regarding domestic violence will take away violence out of the public eye. When such cases of abuse are sent to mediation, it provides an idea that violence is not a serious issue, it can be negotiated and this in turn reduces the criminal’s answerability and the seriousness of their act.

Analysing the arguments supporting mediation in spite of the presence of domestic violence include an analysis of the weigh of the benefits and harms.

First argument here being the power balance between the parties to mediation. In case of presence of domestic violence, balance of power between the parties is never possible. However, the mediators are trained to balance the power between the parties. In the field of International mediation, mediation is the preferred method for disputes where there are large differences of power.There is also a problem of detection of such cases unsuitable for mediation. Another problem would include the absence of review and complaint mechanisms. Finally, and perhaps most importantly, there is evidence to support the argument that mediation in cases of domestic violence can actually have an impact on lessening the incidents of abuse because the mediation process promotes cooperation, it can be utilized as a tool to help break the cycle of violence.

Other arguments include the fact that mediators, unlike judges, can customize the process; that mediation, unlike the adversarial system, provides a model of future interaction; that mediation can address issues the court typically would not include; and the general advantages of mediation, such as it being more efficient and less expensive than the adversarial process.
All of the problems highlighted above are magnified when mediation is mandatory (for example, court-ordered) instead of voluntary. Coercion and compulsion seriously weaken the integrity of the mediation process.

In general, family mediation is valued as an alternative method of resolving family disputes as it has the advantage of promoting methods of friendly settlement and reducing the economic and social costs of separation and divorce for families, the state and for society. For family mediation to be successful, however, the main principles of mediation must be respected, in particular the independence and impartiality of the mediator and the confidentiality of the process, for the conduct of which training is required.

Equality of the sexes must be guaranteed in family mediation as in family justice systems in general. Individual rights must not be sacrificed to cost-effectiveness or the trend towards alternative conflict resolution methods. Neither sex should be disadvantaged in family mediation because of power imbalances: be it because one party has suffered abuse, is unable to fully present its points of view (e.g. because of drug/alcohol dependency or mental health issues), or is emotionally or financially at a disadvantage (e.g. because one party has looked after the children and not worked outside the home). When patently unfair agreements are reached during family mediation resulting from these power imbalances, they must not be endorsed by the mediator or approved by a judge.

It is essential to ensure that mediation does not lead to an agreement satisfying the wishes of one party where that party dominates the other in any way whatsoever.

Viewing the number of benefits mediation provides over the adversary system, it would be rational to use mediation as a compulsory method of dispute resolution. Hence with a proper planning and training, mediation is to be made compulsory in matrimonial disputes.

Arbitral Institutions

I came across and Article in Economic Times (dated August 2nd) which gives an insight of the present situation existing in Arbitration in India giving emphasis on Institutional Arbitration. The column limits the discussion to commercial arbitration but emphasizes the need for institutionalizing Arbitration and making India a point of destination for ADR's. It also identifies the problems associated with the litigation process in India and also the delay in Arbitral proceedings...

We can extend this idea to making ADR workable to the common people by having an institutionalized setup . Similarly the suggestion of having a different piece of legislation for domestic arbitration and international arbitration (treated together as per the present law) works fine as both needs differential treatment. Giving scope for having ADR institutes in various places within the country will be a noteworthy step for achieving the goals of ADR ie. speedy,appropriate dispute resolution leading to a litigation free state.

http://economictimes.indiatimes.com/Opinion/Guest_Writer/For_a_credible_arbitral_institution/articleshow/3317353.cms