Alternative Dispute Resolutions

The grave issue affecting the legal system and the people

noreply@blogger.com (Madhu) — Wed, 11 Nov 2009 09:14:00 +0000

Mending pendency

“Justice Delayed is justice denied“is the oft repeated sentence which itself is delayed and denied both in letter and spirit. The towering Supreme Court, judges, lawmakers, legal luminaries etc have made the topic a routine subject for tea time chats. Pendency is an ever pervading dilemma mutant in the legal system, stultifying the cause of justice. Commissions have had recommended different thing to tackle the ever growing ‘gigantic’ problem as opined by Justice J.B Sinha, pioneer of Lok Adalats in India. However pragmatic the studies are, in reality they have not been enforced or an effective paradigm shift witnessed.

Faith in the legal system is determined by its ability to provide accessible, speedy and cost effective justice to all equally. The people are a mute witness to the court process, often spending their lifetime savings to their unending case. Pendency is a result of the court procedures, lawyer’s tendency to drag cases and other unavoidable reasons. At the end it is the clients who are left to suffer this ignominy. The fact is that for every 1467 Indians, a lawyer is there to take their briefs and for every million Indian population 14 judges help to render justice, however 2.7 crore cases are left pending in the Trial courts alone. Financial experts had opined that the delay is eating up 2 percent of the GDP on an average especially creating a hostile environment for investment. Financial investors investing in India has a “legal risk premium” which is an additional cost involved for investment due to the weak legal system. This arises because of the obstacles affecting enforcement of a claim or a contract especially in matters relating to land acquisition. A 2009 report of the World Bank on Doing Business had ranked India 173rd worldwide in terms of enforceability of contracts. The report listed 56 procedural steps which totaled 1420 days from filing the claim to the enforcement of judgment. In addition to this for enforcing a contract it takes 462 day .Most big aid donors to India believe that badly prepared contract documents and poor enforcement of agreements ground proper utilization of funds. Finance Minister, Mr Pranab Mukherjee himself expressed the dire need to resort to Alternative Dispute Resolution owing to the situation existing and has called upon a Legal framework wherein it can be successfully implemented. According to him “Delays in court rooms lead to corruption in government; lack of investment in vital economic spheres due to uncertain contract enforcement; higher transaction costs and a general inflationary bias. The study estimates indicate that streamlining the judicial system will increase GDP growth rates by 2% per annum! This high payoff surely outweighs the costs of investing in improving the system.”

The recent National Conference on “The National Consultation for strengthening the judiciary towards reducing the Pendency and Delays” provided the perfect platform for a thought on examining and conducting a post mortem on the issues of pendency and arrears. The vision statement contained appreciable changes in the structure of courts. The most far reaching is the concept of ‘Contract judges’ envisaged to decide backlog cases. 15,000 trial judges and 700 high court judges would work in three shifts deciding the legality of contracts etc. The vision is to eliminate the thought of pendency and arrears and securing speedy justice. However whether the contract judges would be able to function within the prescribed ‘procedural’ limits and deliver judgments in a better and faster manner is doubtful. The very concept of ‘contract judges’ goes against the jurisprudential existence of judges in a society, who is considered as an epitome of justice.

The financials involved in the legal system was the topic in the recent Conference at Delhi on “Safeguarding Investment by Litigation process” which also highlighted the need to streamline the judicial process and encourage the ADR System especially by making litigation a last resort and settlement the first resort.

The courts, the commissions and various legal luminaries have failed to identify the crux of the issue of pendency ; the increase in number of litigants. Indeed legal awareness has enabled people to fight for their justice. However it has failed to enlighten citizens of their rights and duties. They fight ‘their’ justice in the courts but fail to accept the ‘real’ justice only to accelerate the strained relationships. Whenever an issue arises, it takes the clout of a dispute the moment an Advocate Legal Notice is been sent to the opposite party. The thought of settling issues do not arise, with a determination to win over others facing the consequences of the court. Often parties enjoy the pleasure when they drag others to the court even if the case is not favorable to them. An ego-less society is hard to envisage, however a culture to settle disputes rather than litigate is not impossible. The fact such dispute resolution systems are been practiced in other countries and was existing in ancient India strengthens the cause of such a system. Alternative Dispute Resolution (ADR) mechanisms like Mediation, Conciliation and Arbitration involve the participation of the parties with a consensual settlement reached. Procedure-less, cost effective and quick are the various advantages attached to such a process. This would go a long way to reduce burden in the existing courts and more importantly provide the desired justice to the people. A ‘vision statement’ reflecting the encouragement of such a process is the perfect solution to the issue of pendency. It is time for the people to take their own initiative to decide their cases rather than depend on a process which causes delay and is unsatisfactory. While India remembers another Legal Services Day on November 9, we are celebrating a moment of celebration through the implementation of age old Gram Nyayalayas which will provide justice to the doorsteps. However it is time that justice is made by the people, of the people and for the people. This can only be done by cultivating a culture of mediation and settling disputes and encouraging ADR Centres to facilitate this noble endeavour.

New courts for commercial disputes and real estate

noreply@blogger.com (D.Dhanuraj) — Fri, 23 Oct 2009 03:01:00 +0000

Central Government plans to come up with courts designated for commercial disputes, according to union law minister. He says any case involving more than Rs 2 crores shall be heard by these designated courts. Union government also plans to have tribunals to hear the cases involving Real Estate business to save the investors and middle class families from the pranks of builders.

Both are exemplary moves by the Government. But i wonder whether the exchequer will be having enough breathing space for all these? the same law minister says, Government is planning to amend the Arbitration and conciliation act of 96 so that India becomes the hub of ADR like Paris and Singapore. What shall be the priority of the Government? I say helping even the private parties to institutionalize ADR systems by amending the law would be of great impact in Indian context.

Court system in India

noreply@blogger.com (D.Dhanuraj) — Tue, 20 Oct 2009 11:47:00 +0000

Bibek Debroy has written a series of articles on law reforms. rich in content and exciting;

http://www.financialexpress.com/news/rules-of-the-lawi/514028/1

http://www.financialexpress.com/news/rules-of-the-lawii/514585/

http://www.financialexpress.com/news/rules-of-the-lawiii/515049/

http://www.financialexpress.com/news/rules-of-the-lawiv/515511/

http://www.financialexpress.com/news/rules-of-the-lawv/516682/

i wonder if ADR systems are introduced as in the case of www.adrcentre.in, what will be the savings in GDP of this country?

Settlement in Land Acquition Cases

noreply@blogger.com (Madhu) — Thu, 24 Sep 2009 10:13:00 +0000

The Need for an effective settlement in land acquisition cases is one of the key areas which the Government has been finding hard. On one hand the emerging need of acquiring private land for public interest purpose on the other hand doing it in a speedy and cost efficient manner. The bottlenecks in law would be made clear once the new Land Acquisition policy comes to the foray. However the burning issue of providing adequate protection and more importantly compensation to the people whose land are acquired assumes importance in a significant way inspite of the larger public interest involved. Most of the land acquisition draws aire from the public for the reason that the government acts as the aggressor repressing the actions of the local community. Indeed politicization and policization are instrumental for such a scenario.

The Government are faced with the challenge of balancing the interest of different sections of the community, especially when one side is a corporate which can bring in big time investment. A few people acts smart especially in cases where their records show less amount than the actual price to avoid stamp duty, which are brought to light while acquiring the land. The government offers amounts in tune with records which would obviously not meet the persons interest or satisfies his wants. At this juncture, both of them normally take the hep of courts, which would get dragged leading to delayed justice or injustice to either of them. It is in such scenarios the government takes the initiative to conduct adalats for settling the disputes. However it is a hard fact that no effective settlement are done because of the inept attitude in handling such issues.

Therefore it is important to have expert and trained mediators for handling such issue who can work out a common platform for settlement balancing the interest of the government and the clients. The success rate would be higher in such cases compared to the existing situation, which generally revolves around the court, with neither parties getting the required wants.

The Government has to take an approach wherein while framing their land acquisition policies in furtherance of settlement of cases amicably. This can reduce the pendency of cases and also save a large amount of public money for the exchequer. The need to encourage Alternative Dispute Resolution is inevitable in this scenario.

ADR Centre in News

noreply@blogger.com (Madhu) — Wed, 19 Aug 2009 06:24:00 +0000

ADR Centre which was launched on 25th July, 2009 is making news attracting atention of the people and the authorities. The Centre is working in full swing with few cases already been settled. There has been many queries from the people who wanted their cases to be settled. With the backing of trained mediators and experts in various fields in addition to a vibrant team, the Centre is confident that they can reach to the masses and support or help them in identifying and providing a settlement option to them. In Justice Krishna Iyers words "ADR Centre shall be the begining of a National Movement for ADR in India". With the support of the people and the others working the field of law, the Centre believes that anything is possible!!!

Common drawbacks

noreply@blogger.com (priyanka) — Tue, 11 Aug 2009 06:53:00 +0000

Alternative Dispute Resolution programs have not fared well in many of the developing

countries. One problem with many community-based systems is that norms controlling dispute resolution can contradict national laws.

In Bangladesh village justice systems often recognize oral divorces despite a 1962 law requiring that all divorces be in writing. A second problem with community systems is that those deciding the cases are often biased against women, poor people, and other underprivileged groups.

Training, outreach, and legal awareness programs can help solve these problems. But these programs cannot solve the larger problem of incentives. In most developing and transition economies the courts are not strong enough to enforce contracts requiring that disputes be submitted for alternative dispute resolution or that the losing party pay the resulting award. Alternative dispute resolution can succeed only if claimants and defendants have incentive to make it work. In Argentina, Colombia, and Peru any firm that fails to arbitrate a dispute after agreeing to do so or refuses to pay an award—quickly becomes known as an unreliable business partner. Thus a firm’s concern about its reputation provides a powerful incentive to participate in alternative dispute resolution and respect the outcome.

Ad hoc and Institutional arbitration

noreply@blogger.com (priyanka) — Sat, 18 Jul 2009 08:55:00 +0000

An ad hoc arbitration is one which is not administered by an institution and therefore, the parties are required to determine all aspects of the arbitration like the number of arbitrators, manner of their appointment, procedure for conducting the arbitration, etc. Provided the parties approach the arbitration in a spirit of cooperation, ad hoc proceedings can be more flexible, cheaper and faster than an administered proceeding. The absence of administrative fees alone makes this a popular choice.

An institutional arbitration on the other hand is one in which a specialized institution with a permanent character intervenes and assumes the functions of aiding and administering the arbitral process, as according to the rules of that institution. It is important to note that these institutions do not arbitrate the dispute, it is the arbitrators who arbitrate, and so the term arbitration institution is inapt and only the rules of the institution apply.

In institutional arbitration, the first issue arising for agreement of the parties is choice of the institution, appropriate for the resolution of disputes, arising out of their contract. Whilst making such choice, there are various factors to be considered i.e. nature & commercial value of the dispute, rules of the institution as these rules differ, past record and reputation of the institution and also that the institutional rules are in tune with the latest developments. It is also alleged that national courts have a tendency to grant enforcement of awards made in institutional arbitration, though doubts have been raised, since international arbitration institutions have the benefit of worldwide recognition and their professional capability adds to the certainty and finality of the proceedings. Courts are more likely to even enforce an award obtained in default of the other party, which they would refuse had it been obtained in ad hoc arbitration, in view of the strict arbitration procedures followed by these institutions.

One of the criticisms of institutional arbitration is that, parties need to comply with the procedural requirements, resulting in unnecessary delays in the arbitration. One may argue that such requirements, in fact, avoid delay. In default of a party in ad hoc arbitration, the other party may seek court involvement to make the defaulting party to initiate or continue the arbitration and this may result in longer delays, than that involved in complying with these procedural requirements, intended to ensure smooth and successful dispute resolution.

In the context of international commercial disputes, one may argue that institutional arbitration is more suitable, even though apparently it is more expensive, time consuming and rigid than ad hoc arbitration, keeping in mind the fact that it provides established & updated arbitration rules, support, supervision & monitoring of the arbitration, review of awards and most importantly, strengthens the credibility of the awards. In conclusion, it is must be said that it is hard to claim that institutional arbitration is superior to ad hoc proceedings or vice versa.

Whose marriage is it anyway?

noreply@blogger.com (D.Dhanuraj) — Tue, 14 Jul 2009 04:50:00 +0000

ADR systems deals with divorce cases in a good number. This story appeared in TOI gives another angle to divorce cases; may be an ADR Centre can settle it better in the circumstances described.

Link

Alternative Dispute Resolution Mechanism in the Budget

noreply@blogger.com (Madhu) — Fri, 10 Jul 2009 09:49:00 +0000

The Indian budget has conveyed the Congressional dimensions of economy drawing both bouquets and brickbats. However it was more of a average budget with a good and much needed emphasis of the rural sectors. Learned Minister Pranab Mukherjee who had mixed his speech with Kautilyas and Aam Admis have also drawn the importance of Alternative Dispute Resolution in the sphere of tax reforms. Transfer Pricing are applicable in inter-state transactions which are generally between parent Companies and their subsidiaries. The provisions in the Income Tax Act (Section 92 ) relating to such transactions are to be at arms-length depending on any of the five methods of Transfer Pricing decided by the Transfer Pricing Officer. Often their arises a conflict in selecting the best method for deciding the Price upon which a commodity shall pass through the parent company to the subsidiary company. This often results in litigations between the assessing officers and taxpayers. The present Finance Act, 2009 envisages an Alternative Dispute Resolution mechanism for settling such issues resulting therein. This is a welcome step from the Government as often it takes years to settle such issues causing loss on the Non-resident companies having a branch here in India. The Transfer Pricing Officer or the Assessing Officer needs to take the guidance of the ADR Commissioners appointed for this purpose. It can also take care of the misuse of Transfer Pricing provisions by such companies provided a safe settlement option is given.

Village Samithis

noreply@blogger.com (Madhu) — Tue, 07 Jul 2009 06:12:00 +0000

Village Samithis have been mooted to provide settlement solutions to the rural areas by Justice Kurian Joseph on behalf of Kerala Legal Service Authority. This would be in addition to the proposed Grama Nyayalayas to be setup by the state government at the lowest level. The Samithis would be consisting of a judicial officer sitting as an Adalat who will hear cases affecting the villages to be settled accordingly. The proposal is a welcome step to the villages which have been largely confined to their local limits foreign to justice delivery mechanisms including Courts. The rural people will find it more approachable and less strenuous once they are established in the local areas wherein they reside.

Arbitration Council in China

noreply@blogger.com (Madhu) — Tue, 07 Jul 2009 06:01:00 +0000

The Chinese Governments have started extending their reforms programme which was a farcry in the early stages of the communist regime. They have progressed at amazing speeds and attained unbeliveable heights at a short period of time largely due to their strong desire and will to bring reforms, added by strict enforcement methods. The latest development in constituting Arbitration Councils to clear of disputes relating to land especially in rural areas are a welcome approach. Often the people are at the recieving side in cases pertianing to cultivation of farmland which is still given as a lease for a period of time (10 years). The Government had brought out significant changes to the same and are making it more transparent and efficient by constituting Arbitration Councils. It is left to the Government to decide how they are going manage it.

conference on maritime arbitration

noreply@blogger.com (priyanka) — Sat, 04 Jul 2009 14:22:00 +0000

Kerala High Court Chief Justice S R Bannurmath addressed the gathering at a national seminar on ' Maritime Arbitration: Techniques and Enforcement' organized by the Indian Council of Arbitration (ICA) and the Kerala Chamber of Commerce and Industry (KCCI).
The following is an excerpt from his speech:
''India was an emerging economy with increase in international commerce. We need to assure that our laws are adapted to the needs of global markets and cross border transactions.'' Stressing the importance of reforms of the Indian Commercial Law, he said '' Our domestic laws cannot provide solutions to problems of international commerce and there was a need for codification and harmonization of uniform rules to provide a neutral legal regime, where parties do not select applicable laws but settle only the most essential terms. Institutional arbitration was an advantageous and appropriate mechanism and it deserves to be accepted. Listing out the advantages, institutional arbitration provides the availability of pre-established rules and procedures, which assure that arbitration, would get off the ground and proceed to conclusions."
Courtesy http://news.chennaivision.com/index.php/2009/06/reform-of-indian-commercial-law-warranted/

Grassroot Initiatives

noreply@blogger.com (Madhu) — Mon, 22 Jun 2009 10:16:00 +0000

The legal system is to facilitate the reach of justice to all levels of the society. But the fact is that it never happens and the demarcation of the haves and have nots is ever increasing inspite of the efforts of the Lok Adalats and the resurgent PILs. The Lok Adalats had a good beginning but a sad running for the reason that the poor people are largely unaware of its existence and further the people who are forced to come before it are left in the lurch because of the indignant officers of justice. In most of the cases they fail to reach a consensus because of the conservationist attitude or the lack of proper understanding of the grassroots. The judges should have an apathetic attitude to the apathy of the people who are in search of justice. In addition to this the Courts are placed quite distant from the areas which negativate any thought to go to the courts inspite of a dispute occurring. Grassroot initiatives like village panchayaths had taken this role but had weeded away. The proposed village samithis of the Legal Service Authorities is a welcoming signal, but needs to get implemented in the right manner. But the problems associated with the Lok Adalats have to be explored and rectified before the services are expanded. Gram Nyayalaya is yet to conceptualize owing to the laxity of the government and the opposition from various circles including lawyers. While the government is still making and exploring new ways and means for penetrating the justice system to the rural areas, they should improve the existing mechanisms and restructure for a more successful solution. But often they are more interested in discussing and holding seminars rather than implement it.

Kiran Bedi's Television Show and ADR

noreply@blogger.com (Nikhil Balan) — Tue, 03 Mar 2009 17:47:00 +0000

India's first woman IPS officer Kiran Bedi is again regularly seen in television, this time not for any of her statements or controversies that once followed her, but for the reality show she hosts which seeks to resolve real life disputes with parties presenting their cases before her. The program titled "Aap Ki Kacheri" aired in Star Plus channel can be termed as a breakthrough firstly becuase it brings the parties embrolied in civil disputes and willing to settle the issues before camera and secondly it is replacing the much popular serial "Kyunki Saas Bhi Kabhi Bahu thi. This program showcases the Raman Magsaysay award winner both as a judge and a cross examiner. The role played by advocates usually in the court room is played by Ms. Bedi in this show and here lies the success of the show. While in real life court rooms the lawyers argue for their clients, cross examine the opposite and instead of settling the issues that could be settled, take the partries to two different poles and make their settlement matter into a legal battle. Another higghlight of this show is that the matters that come before the camera are those that are not filed or pending before any court of law. This could well be example of new voluntary dispute redressal mechanism and could even trigger up such mechanisms around since she herself claims that the cases that are telecast in television are regularly being followed up by NGOs and have changed their minds.

Nyaya Panchayats Bill in pipeline

noreply@blogger.com (Nikhil Balan) — Thu, 19 Feb 2009 20:00:00 +0000

Shri Mani Shankar Aiyar, the Minister of Panchayati Raj informed the Lok Sabha in a written reply that the Draft Nyaya Panchayats Bill had been forwarded to the State Governments/UTs and the Central Ministries concerned for their comments and had been recast based on their comments and circulated to the Central Ministries concerned and State Governments/UTs.

The objective of the proposed Nyaya Panchayat Bill was to provide a sound institutionalized forum at the grassroots level for alternative dispute resolution through mediation and conciliation with community involvement. The Nyaya Panchayats would aim at resolving disputes before they reach the formal justice system without eliminating the right to go to judicial forum in case of disagreement of any party with the outcome of alternative dispute resolution.

The Draft Bill provides for the establishment of Nyaya Panchayats at the level of each Village Panchayat or cluster of Village Panchayats which are proposed to be constituted through the election of the Nyaya Panchas by people residing in the area to which the jurisdiction of the Nyaya Panchayats extends. It provides for the reservation of women, Scheduled Castes and Scheduled Tribes to ensure their representation in the Nyaya Panchayats. The Draft Bill defines the civil, criminal and additional jurisdiction of Nyaya Panchayats.

Discussion on The Gram Nyayalays Bill,. 2008, Kerala Law Academy, Trivandrum, 8th Feb., 2009

noreply@blogger.com (Nikhil Balan) — Sat, 07 Feb 2009 06:09:00 +0000

The Centre for Public Policy Research is organizing a Discussion on "The Gram Nyayalayas Bill, 2008" on 8th February, 2009 at Kerala Law Academy College Campus, Trivandrum at 12:00 noon.

Prof.(Dr.) Madhava Menon, Member, Law Commission of India will be the keynote speaker for the session.

The discussion will primarily look into the various aspects of the newly passed Gram Nyayalayas Bill, 2008 which seeks to introduce village courts all over India and which would be presided over by Judges called the Nyayadhikaris.

All are welcome.

ADR methods becoming popular in developing countries

noreply@blogger.com (Jithin Paul) — Thu, 05 Feb 2009 18:09:00 +0000

Recent reports from various sources prove that developing countries are seriously contemplating the possibility of including ADR methods into their legal reforms , especially for the purpose of reducing backlog of cases. Countries such as Pakistan and Bangladesh are considering the possibility of drafting a separate legislation for the purpose , whereby disputes can be settled at the local level . This blogger community wishes to register its solidarity with such reforms across the globe.

Internships Invited for Alternative Dispute Resolutions

noreply@blogger.com (Nikhil Balan) — Mon, 02 Feb 2009 18:37:00 +0000

Centre for Public Policy Research
39/717 (A), Rahul Vihar, Karakkattu Road, Cochin, Kerala – 682 016
www.cppr.in
Invites Internship
Under the ‘Taking ADR to Common Man’ project initiated by the Centre

About the Internship: Alternate Dispute Resolution mechanisms have been, for a long time mooted as the solution for the backlog of cases in India. However, it is observed that the benefits of these mechanisms are often confined to the rich and powerful. Centre for Public Policy Research through this research internship intends to measure the efficacy of existing ADR methods and to suggest alternatives so to reach out to the common man. This is an academic effort to understand the struggles behind ‘Taking ADR to Common Man’

Eligibility: Graduate students to retired civil servants
Duration: One Month (full time), two months (part time)
Selection: Based on the interview
Selected areas of research for internship

• Success of Lok Adalats in Kerala
• Success of State initiated mediation centres
• A case study on status and success of Kerala Legal service Authority at various levels
• Role of ADRs in Matrimonial cases and property dispute cases.
• Evaluation of commercial arbitration in Kerala.

Please do send your resume to adr@cppr.in. Please do mention subject line as ‘Internship for ADRs’ while sending emails.
For more details contact us at + 91 92497 55468, + 91 484 6469177

Visit: www.cppradr.blogspot.com

3,000 Village Courts to be set up soon, says Union Minister for Law and Justice

noreply@blogger.com (Nikhil Balan) — Thu, 29 Jan 2009 07:22:00 +0000

Based on a report in The Hindu Newspaper

The Union Minister for Law and Justice H.R. Bhardwaj on last Saturday announced that 3,000 gram nyayalayas would start functioning within a month across the country. Speaking at a conference organised by the ASSOCHAM on the “Need for Strengthening Alternate Dispute Resolution in India, this 17th January, Mr. Bhardwaj said he would meet with the Chief Justices of all High Courts and Accountant-Generals on February 2 to bring into force the new arrangement for speedy dispensation of justice at the lower level.

The Union Cabinet also sanctioned Rs. 600 crore for this project covering Indian Villages. Under the policy each Court would be granted Rs. 20 Lakhs. The Centre would fund 50% of the salary of Nyaydhikaris fthe first three years and later on the burden would fall upon the respective States.

An amendment to the 1996 Act is also on the line. This would incorporate resolving civil and commercial disputes using mediation and conciliation mechanisms. This is entirely based on what Singapore Government had done years back and what is today called the Singapore Mediation Center. The Singapore Mediation Center follows a policy where the arbitrator would have to repay the whole fees in case the arbitrator fails to resolve the dispute within a period of 40 days.

The Ministry seems to be in a mood to revamp the whole of the justice delivery mechanism before the elections. However, with the Singapore model being choosen , there are so many questions that would be raised for example the viability of the mechanism in our country since Singapore is a highly trade oriented country and its the commercial disputes which have to be resolved while in India what has to be currently looked into is the common man's problem

Meanwhile Delhi Courts are in a plan to set up an Arbitration Center within a short span of 6 months. It would be run by a trust comprising judges, retired judges and lawyers who would be required to solve the cases within 18 months. While there is already a mediation center working at Delhi Courts, this is for the first time that Arbitration centers are being set up. More to follow about the arbitration center at delhi in the coming posts.

Panel Discussion on Taking Alternative Dispute Resolution to the Common Man" at ILI, New Delhi, 22nd November 2008

noreply@blogger.com (Nikhil Balan) — Wed, 28 Jan 2009 18:25:00 +0000

A couple of weeks back, the blog had brought to your notice about a panel discussion on ‘Taking ADR to the Common Man’ that was organised by The Centre for Public Policy Research in association with HK Legal on 22^nd November, 2008. The detailed report of the discussion is detailed out below for your reference.

The Panel Discussion on taking ADR to the common man was first of its kind with a brilliant line-up of high-profile and eminent speakers, most of them experts in their respective fields, which proved to keep in line with the highest tradition of legal discussions at the Indian Law Institute. The discussions as expected promised a balanced debate since there were proficient speakers on one side and vibrant audience on the other side. The session was conducted at the auditorium of Indian Law Institute, New Delhi and it discussed about exploring the viability of making ADR accessible to the common man and the challenges on the way.

The panellists for the session included eminent personalities from the legal fraternity like

1) Justice P K Balasubramanyam,

Chairman, E-committee, Supreme Court,

2) Justice Madan B Lokur,

Judge High Court of Delhi,

3) Justice Manmohan Sarin,

Lokayukta of Delhi,

4) Advocate Krishnan Venugopal,

Senior Advocate, Supreme Court,

5) Advocate Ramanand Mudkur,

Managing Partner, Mundkur Associates, Bangalore

Adv. Prasanth V.J of the Centre delivered the welcome address and kick started the event while Justice P K Balasubramanyam chaired the session.

Excerpts of the discussion during the session:

Justice P K Balasubramayam introduced the Topic “Taking ADR to the Common Man” to the gathering. He spoke about the concept of Lok Adalats which were held regularly under the Legal Services Authority Act, where the disputes settled are usually of the motor accident claims etc, mostly of punitive nature and where some success was achieved. Though he confined himself to the Lok Adalats, he stressed on the idea of conciliation to be undertaken in settling disputes. The Arbitration and Conciliation Act, 1996 had elaborate provisions regarding conciliation but confining itself to the book. The 1940 Act, existed prior to the 1996 Act, bred more litigation rather than putting end to the dispute. Speaking about the Acts, he concluded that 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. Touching about Arbitration he said, “if need be, tighten up the process of arbitration and keep the spirit in which it is to be invoked.”

Coming to the procedural rule that is adopted by the Indian Courts, he felt that Section 89 of Code of Civil Procedure was confusing, not precise and also not clear. Going by the section, 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 consensus of the parties to arrive at a solution. Before concluding, the Honourable Justice highlighted about the need to train the lawyers through the Munsiff Courts and give them the rights and powers to settle a dispute. Those lawyers should have a minimum qualification of 3 yrs of practice in the court. He also expressed his wish in giving a status to such a body and send them to local areas or to Gram Panchayats.

Hon’ble Justice Manmohan Sarin expressed his views on the topic ‘Mediation to the Poor’. His talk was basically on the need to adopt ADR and the manner in which it has to be adopted. The Honourable Justice opined that this matter cannot be any longer an issue to debate. He also raised about the failure of the 1996 Act to boost arbitration and how people could not afford the same under the Act. Justice Manmohan referred to the most famous ONGC v. Saw Pipes case and suggested in evolving a system which is inexpensive and capable of resolving a conflict where “the little man lives to his satisfaction”. He mainly focused on the concept of mediation. According to him, mediation is a process of dispute resolution. He laid down the importance of having a mediator and the skills required to be a mediator. Mediator, according to him, needs immense training with sufficient techniques and skills to handle a dispute. The essence of mediation lies in ending the conflict and maintaining relations.

Working on the mediator skills, he came out with a formulae that divided the qualities of a mediator as 3 P’s and 3 Is. The 3 Ps are Patience, Perseverance and Persuasion while the 3 Is are Integrity, Impartiality and Ingenuity. He made a detailed analysis about the failure of the system and attributed the reason to 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 that which comes to his mind is to start training the panel advocates of the Court and also the officers involved in the police. He suggested that the 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.”

Next to speak was Justice Madan B Lokur who threw light on the topic “India’s Experiments with Lok Adalats". “Capitalising the frustration of the litigants” is why lakhs of cases have been settled by Lok Adalat’s, in the words of Justice Madan B Lokur. The philosophy behind Lok Adalats was not litigation fatigue but speedy, expeditious and cheap justice. He questioned if we have lost this philosophy? According to him, there is no success in all these areas. He suggests the NGO’s to look at the 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. The question posed by him was whether these cases which we get in Lok Adalats 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 Nyayalayas, their working and development strategies.

Advocate Krishnan Venugopal spoke on the topic “Fashioning ADR mechanisms to the poor”. He opined “If you are poor, you simply do not get justice 99 % of the times. He added to his previous speaker, as he feels that we did not have resources to solve our legal problems. According to him, Gram Nyayalayas 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 we need to have popular participation which does not mean the poor will be also included in the discussions but discussions are to be held and the result has to be shared with the poor to impart such knowledge about these different and better methods of justice dispensing systems. We all need to think as to put in place the ADR system with regard to both the urban poor and also the rural poor.

Advocate Ramanand Mudkur put forth his ideas regarding the topic, “reviewing motivations for enhancing ADR access to the poor”. 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 he feels that 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 end of session was followed by a discussion between the Panels and the large gathering of audience which included advocates from Supreme Court and High Courts, Students, personnel’s from media and other professions. It was followed by distribution of the Prizes for the essay Competition conducted in the month of October, 2008. The Prize for the Best Essay Writing was given to Parnika Malhotra from Amity Law School, New Delhi. The Prize included Rs. 10,000/- cash prize and a certificate. The Second Best Essay was awaarded to Abhishek Kumar, Hidayathulla National Law University, Chattisgarh- cash prize of Rs. 7,000 and a certificate. The Third Best Essay Writing was co-authored by Rishabh Sinha and Sarabjeet Singh from National Law Indian University, Bhopal- cash prize of Rs. 3,000 and a certificate.

Vote of thanks was delivered by Harishanker of The Centre for Public Policy Research.

The Grama Nyayalayas Bill 2008 Passed in Rajya Sabha

noreply@blogger.com (Nikhil Balan) — Thu, 18 Dec 2008 10:01:00 +0000

The much awaited Gram Nyayalaya Bill was passed in the Rajya Sabha on 17th December 2008. The media coverage could be found here. The Honorable Union Law Minister H R Baradwaj, said that by the introduction of the “Gram Nyayalayas” the Government seeks to introduce new 5067 odd Courts at the grass root level. The judges sitting as “Nyayadhikaris” would be paid the same salary as that of judges of First Class Judicial Magistrate. 5067 new Courts means 5067 new Judges. It must be noted that our Government always has had problems with filling in the requisite number of posts of judges that remained vacant. Currently there is a vacancy in 18% of the judicial posts. It is actually indigestible for me when the government claims that they are going to add 6000 more judges! The Law Minister had sought the help of PM to send 3000 judges ..! Is our Honourable PM a repository of Judges?

Interestingly, our Law Minister even told the media that within a period of 5 years, India would have the best judicial system in the world.

…Lok Adalat mechanisms…

noreply@blogger.com (priyanka) — Thu, 18 Dec 2008 07:08:00 +0000

It is a fact that a large number of civil disputes pending in the courts, and to a small extent petty criminal matters, have been ‘disposed of ’ through the Lok Adalats that are a permanent ‘embedded’ feature of the functioning of legal services authorities. While one point of view sees this as a success, another questions whether the Lok Adalat as presently institutionalized is really a tool of ‘case management’ which essentially addresses the problems of an over-burdened judiciary and not so much as an instrument of justice delivery for the litigant. If the ‘success’ of the Lok Adalat stems from negative reasons attributable to the failures of the formal legal system, the utility of this mechanism may also be short-lived. In other words if the incentive for litigants to accept Lok Adalat decisions is that if they didn’t they would be faced with the prospect of further delays, uncertainties and costs, it constitutes a confirmation for them that the formal legal system is unable to provide an acceptable quality of legal services or justice. This in turn would not augur well for the legitimacy of the system in the long run. What this then means is that there has to be a gradual but conscious effort to offering positive reasons, and not negative ones, for litigants to be willing consumers of the ADR processes.

An ADR system that is both transparent and accountable is in the circumstances imperative in order to make the crucial difference to those presently engaged in the formal legal system which is largely perceived as lacking in this area. As has been pointed out by several speakers, a successful implementation of ADR processes will have to be preceded by an identification of categories of cases or specific dispute areas that are most amenable to their introduction.

Despite the challenges that face the ADR processes today, the benefits in the long run that they are capable of generating appear to outweigh the factors that may in the short run deter their enforcement. We have listened to many positive experiences of ADR in the past few days and this should encourage us to move forward with the reform process. The diverse nature of the country’s population defies any uniform approach or set pattern and this is perhaps the biggest strength of the ADR mechanisms. Their flexibility and informality, the scope they offer for innovation and creativity, hold out the promise of a great degree of acceptability lending them the required legitimacy. Their utility as a case management tool cannot be over emphasized. ADR processes provide the bypasses to handle large chunks of disputes thus leaving the formal legal system to handle the more complex litigation. Even while they do not offer to be a panacea for all the ills of the formal legal system, ADR processes offer the best hope yet of complementing and helping to fortify the formal legal system.

Lets think about this ..........

noreply@blogger.com (Jithin Paul) — Thu, 04 Dec 2008 10:03:00 +0000

I'm not sure , how many of you have thought about this , but we come across many "mandatory arbitration clauses"in our daily life. Let's try to list them .

Some of them which come to my mind are : credit cards and other banking services , automobiles , building contracts etc.

please post your entries in the comments section

ADR Conference

noreply@blogger.com (Madhu) — Mon, 01 Dec 2008 12:54:00 +0000

The Conference on 'Taking Alternative Dispute Resolution to the Common Man' conducted in ILI, Delhi was successful in identifying the need of using the ADR mechanisms effectively and use it as a tool for seeking justice to the common man. The key speakers included Justice Balasubramaniam, Justice Manmohan Sarin, Justice Madan Lokur,Senior Advocate Krishna Venugopal and Advocate Ramanand Mundkur. The speakers practically concentrated their talks on using of ADR throwing light on Lok Ayuktas and Adalat system.

The open discussion was based on the questions put forward by the audience as to the practical issues involving use of ADR. The Panel effectively answered the questions and put forward their opinions with regard to the burning issues. It is indeed difficult to frame an effective structure for implimenting the subject of Taking ADR to the Common Man. But it is only through useful discussions centered specifically on the subject and research than can lead to pragmatic implimentation of the subject. More importantly there has to be concrete efforts on the part of the legal fraternity, the media, the government and most importantly the laymen for bringing relief to the common man who are burdened themselves to go the courts who are themselves overburdened with cases.

Results - ADR Essay Writing Competition

noreply@blogger.com (Jithin Paul) — Tue, 18 Nov 2008 11:20:00 +0000

We are happy to announce the results of the essay writing competition , conducted on the topic " Taking ADR to the Common Man"

1st Prize : Parnika Malhotra , Amity law School , New Delhi

2nd Prize : Abhishek Kumar , Hidayatullah National Law University, Raipur

3rd Prize : Rishabh Sinha & Sarabjeet Singh , NLIU, Bhopal

We thank all, who have shown interest and looking forward to similar co-operation in future .