Alternative Dispute Resolutions

Kerala Confusius 1.3

2010-12-08T22:14:00.001+05:30

Ajmal Kasab says that he was not present in CST when the 26/11 attacks happended. Thank god he did not say i was not present in Mumbai !! Kerala Confusius 1.3

Amendment on the Arbitration and Conciliation Act, 1996

2010-04-16T17:06:00.004+05:30

The government has invited Consultation papers on the proposed amendments to the Arbitration and Conciliation Act. The Law Commission had submitted its suggestions in 2003 which however took time to be paneled by the Government before their Appointed Committee. At a time when Arbitration practice is redefining itself, India has a paradox to discuss about. Matters affecting 'public policy' is forever the interpreting line of distinction shifting the justice tables to the court. The Jindal Saw pipes case gave the opportunity to redefine it, which however failed. Now that the Government is considering strategic movements in the field of ADR, by liberalizing or rather distancing Award scrutiny from the courts. This process has its own merits and disadvantages since the Supreme Court themselves have find out that Arbitration is a costly affair and cannot be relied upon!! It is left to the ADR Case managers to provide clarity and the consultation invitation does offer good grounds for addressing the issues.

It has to be understood that ADR has and is the future, since at a point of time, the clients will have a major say in deciding their issues which is possible through mediation more than the present mechanism. Unless the atmosphere is set right with the sufficient checks and balances, a serious predicament cane arise at a later stage. Another point is the the legal system has always been slow in accepting changes. Once the process roles out, through greater leeway provided to ADR, then the economy and the state will vote for a better mechanism of dispute resolution.

Arbitration fails as an ADR Tool?

2010-04-07T10:59:00.002+05:30

Arbitration faces the test of Supreme Court after it commented that Arbitration is not friendly. It has been found by the Hon'ble Supreme Court that Arbitration is very expensive compared to other ADR mechanisms often scaring away the genuine clients. Affordability is an issue, however accountability is another issue. The Arbitrators need to redefine themselves to shrug off its tag. A competent ADR Institution can bring in honor to the profession. The lawyers and the judges should contribute to this rather than make other persons demean such a noble profession. Indeed a lot of controversies arises as to the impartiality in Arbitration Awards of few arbitrators. However with a competent mechanism in place with the combination of neutral persons in the Panel, the solution tend to be neutral. It is a challenge to build up such an institution keeping in the mind the external influences. However, it is the clients who determine the process and not just one client. A satisfactory and neutral evaluation determines the efficiency and efficacy of ADR. The Supreme Court should rethink on its approach towards Arbitration. However it is the Arbitrators and institutional institutional that has to arise and stand to clear away such remarks.

Finishing School for Law Students

2010-03-26T16:32:00.001+05:30

The Finishing School for Law Students Course which was intended to broaden the horizon of a law student came to an end on February 28th, 2010. With an impressive array of resource persons drawn from various fields like Law, Politics, Press, Social science etc, it was a treat for the students. The sessions were entertaining with active interactions with the students on variety of topics. The Course was dovetailed to provide unique insights to a law student different from the academic lines taught in the Colleges. The ‘Reality speaking’ classes had the students experience the innumerable options in studying law. The course indeed facilitated the process of ‘Moulding the future lawyer’.
Prof Bhasker Iyer of TIME handled the language part with stress on Accent Neutralization and Voice Modulation. Prof KC Abraham moderated the interview and public speaking sessions with individual review of students. Mr Nandakumar Menon, DGM of Kerala Ayurveda Pharmacy took sessions on Time Management with his Motivational class arousing the interest of the students. Mr Dominic Presentation, MLA provided insights into the law from the Legislators point of view while Prof ES Francis stressed on the values of Expression in art and public life. Mr D.Dhanuraj redefined the views of the students on Public Policy invoking the students to a different level of thought. Ms Zarine Habeeb, Harvard Law Graduate spoke on the Higher education options in law which was informative to the students. Adv Bechu Kurian introduced the Art of Advocacy to the students stressing on practical issues confronting a lawyer. An interactive session with the Living Legend Justice VR Krishna Iyer was one of the highlights of the course. The final session by noted Legal Columnist Mr Scaria Meledam, Indian Express highlighted the role of Media in development of the judicial process was a fit end to the inspiring course which was made memorable by the diligent students contributing to the sessions.
ADR Centre is conceiving inviting applications for its second batch from the encouraging views of the students who participated in the course. The Centre would be inviting thought provoking faculties for the course which can enthuse the students and make them capable to face the realities of the profession.

2010-03-13T17:23:00.000+05:30

Dispute Resolution and the Indigenous Australian Community

A topical issue in Australia at present is how to resolve disputes surrounding the cultural property of Indigenous Australians, such as land title over sacred sights like Uluru. This paper begs the question; is the best method of Dispute Resolution Based on Rights?

By Amy Sobels

‘Cultural property represents in tangible form some of the evidence of man’s achievements and generally the milieu of which he is a part. The fact that this material has the ability to communicate, either directly or by association, as aspect of reality which transcends time or space gives it special significance and is therefore something to be sought after and protected.’ – Geoffrey Lewis

I. The Issues

Cultural Heritage is vitally important for numerous reasons. It is important for people to be able to preserve the past in order to create a bank of knowledge for generations to come. It is important for cultures to be able to recognise their own identity in cultural traditions. It enables people to feel a part of larger connected entity. It is natural then for the connection to cultural property to be an emotive one; involving beliefs, traditions and personal identity as well as a broader humanitarian aspect which creates a sense of a less personal belonging to the entire human race.

It is rare to find anyone who disputes the importance of Cultural Heritage. The greatest contention is in what actions this should translate into. The obvious answer to the Western World is of course to preserve cultural heritage objects. This is done in national museums with sterilized glass and rope barriers. It is agreed to by various states, including Australia, at the International level that this preservation is important for the whole of humanity for the key reason of promoting education and understanding as defined in the 1954 Hague Convention for the Protection of Cultural Property in the Event of an Armed Conflict.

These states have also signed to the importance of rights of indigenous minority groups. In the United Nations Educational, Scientific and Cultural Organization’s Conventions on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property the importance of the objects is defined as being to the originating nation. The recognition of two divergent interests is recognised in international legal obligations. Despite this there is no domestic or international process for the return of property to Indigenous communities when the state in possession is the originating state. This essay will deal with the need for an adequate dispute resolution process for such situations as occurring between the Australian Indigenous population and Australian government.

There are several difficulties in attempting to arrive at a method of dispute resolution considering the nature of the conflict. At its most simplistic, this type of conflict generally has both realistic and unrealistic elements. The differing cultural notions of property cause this. The Australian Indigenous community does not have the same monetary value attached to proprietary ownership. It is not legally bought and sold through contracts of sale. The property simply belongs, collectively to their community because of its role in their way of life. There is no inclination of communal rights of tangible property in international, or domestic Australian law. There is one, true owner. Therefore the dispute is realistic from the Western point of view as it is based on tangible interests. But the driving emotional factors for the Indigenous communities must also be taken into account. They are fighting for the re-instatement of a piece of their culture, and tradition. It is based on an attitude, a way of life. For the live indigenous communities it is about preservation of a way of life, not a tangible object. And for those who no longer practice the traditional lifestyle, it is important to their on-going identity and development as a person. For white Australia to place importance on the preservation of this heritage, and the Aboriginal way of life would show a great deal of respect for their people and may help to create a future reconciled relationship between the two cultures.

There are other issues raised by cultural difference. It is nigh on impossible to create a uniform system of dispute resolution because of the intra-cultural difference between the hundreds of Indigenous Australian communities. There are uniform elements of their dispute resolution processes but to a large extent each case needs to be treated as individual.

Cultural difference leads to other, more practical issues which need to be resolved. One of the aims of cultural property protection is conservation. Indigenous communities do not necessarily have the means to conserve objects. And Aboriginal Australian culture is oral, they do not practice the conservation of objects, instead they pass down the meaning of them through song, dance and story telling. Their traditional practices may even involve destroying the objects. For example, upon the death of a member of an Indigenous Australian community, the person’s belongings are destroyed by fire. In such cases it is not possible to conserve both traditional way of life, and the heritage object.

It is feared also, that the return of indigenous cultural property may force enclosure of the intellectual commons. Not simply if their cultural practices involve the destruction of the property but if their practices are secretive such as the Australian Aborigines ‘secret men’s and women’s business’. The study of the culture as a living, breathing entity is arguably more potent in knowledge than the tangible property which derives its meaning from within the culture. However, if the study of the culture is prohibited then there may be a strong rationale behind the need to retain the property. This makes it difficult to find common ground from which a resolution may be derived.

Immovable cultural property creates further complications. Economic interests come into play, as most sites of immovable cultural heritage are also tourist destinations. Several examples are the rock paintings at Kakadu National Park and Uluru-Kata Tjuta National Park. Tensions are created between the need to inform and educate the broader community, at the same time as protecting a sacred site and maintaining respect for the beliefs and traditions of the Indigenous community.

Resolving disputes of this nature is extremely difficult and complex. Politics can come into play, as well as racial prejudices, power imbalance between the dominant and subservient cultures, commercial factors, scientific practicalities of conservation, cultural differences in conflict handling methods and interpretation of situations. The following will discuss whether Rights-based conflict resolution is appropriate for such situations.

II. Rights Based Approach

A rights-based approach to conflict resolution is one in which there is an absolute answer; a ‘right’ is effectively established. Cultural property rights could be established through legislation and common law provisions. There would be a ‘winner’ and a ‘looser’ determined by the adversarial court system. This may be appropriate given some of the seemingly unresolvable issues such as the intended destruction of property by live indigenous communities. Further, there is no motivation for the party in possession of the property to attempt to resolve the dispute at all. The possessor of the property, especially since they are the dominant cultural group are in a particularly powerful position. A rights based approach fought through the Australian legal system forces the dominant party to take part in a resolution process.

Further, the government may only be held in check by institutionalised processes like the judicial system. Some cultural property such as immovable rock paintings attached to government owned land or objects kept in state run and funded institutions like the National Art Gallery in Canberra are the usual examples of state possession of cultural property. The government is only answerable to the Indigenous communities by institutional processes such as the court system. As they are a minority group having a rights-based process available to them is particularly important.

Larissa Behrendt points out that the Australian adversarial system is subversively racist towards Indigenous Australians. This does not only create a bias but a great power imbalance between the Indigenous and non-indigenous parties to the dispute. Eric Willmot believes that this subversive racism has its roots in the colonial European employment of the ‘Dragon Principal’ to cultural property in Australia. The ‘Dragon Principal’ is the confiscation of cultural property by and for elites within the society. He says that ‘with all good intentions they [European Colonists] gathered the treasures of Australia’s past to themselves, bestowed it on their own, but excluded the people whose birthright they had collected.’ Bedrendt provides evidence of current bias in the criminal justice system by which the number of Aboriginals found guilty is disproportionate to all others found guilty of the same or similar offences. She also provided evidence that Aboriginals are given harsher sentences than all others. The judicial system cannot fairly or impartially decide disputes involving Aboriginals; it is therefore not the appropriate form of dispute resolution.

The essence of a rights based resolution process is to focus on what is fair as determined by an objective assessment. An objective test which recognises the importance of cultural property to communities embodied in legislation, or common law would make a rights based approach a viable option for parties. It would recognise communal property rights. The ‘personality theory’ test, which has been argued in International repatriation cases, recognises the importance of an object to be when the object is so bound up in the personality of a party that the party would not have the same identity, or be developed in the same way without the presence of that object. This test is highly appropriate towards recognising Aboriginal rights. Eric Willmot likens the removal of Aboriginal cultural property to genocide. He discusses how it made indigenous Australians reject their own identity. Kevin Gilbert said ‘It is not so much my black Aboriginality that you deny me as my right to human growth and human potential.’ This test not only makes legal recognition of communal property rights possible, it acknowledges the importance of cultural heritage to its original owners. It is consistent with a rights-based approach to use this objective measure to resolve cultural property disputes.

However it does not deal with the more deep seeded issues of power imbalance. It is possible for the government to argue that the nation also has the same attachment to the cultural property. That it forms a part of the greater identity of the Australian nation. This is quite clearly showed in the Hindmarsh Island case in which the government proposed development on a sacred site. The courts rejected Aboriginal rights to the cultural heritage site because the objective test was not satisfied. Although not Personality Theory, the test still needed evidence of a certain level of traditional connection with the site. Despite statements from community members and anthropologists the claim failed. There is also the matter of resources and the power of the government to legislate in response to any court decision countered by the fact that the Aboriginal population are in minority and have a socio-economic disadvantage being less educated and lacking funds for appropriate power within the adversarial system. More drastic assertion of Aboriginal cultural property rights is necessary to combat the gross power difference.

Though vesting an absolute right to cultural property in the original creators would at the same time sacrifice the interests of the archaeological and scientific community to discern information from the object for educational purposes. And therefore has a negative impact on the whole of humanity. Even at the International level there is confusion as to what is the better interest, there is no discernable ‘right’ and ‘wrong’ claim. The conflict is not so black and white; both needs are legitimate.

Angela Riley believes that the codification on legislation of Sui Generis laws of Aboriginal People would help protect indigenous cultural property rights. She argues that native laws are the only ones which can truly understand the nuances of the culture. She is correct in this regard however sui generis laws will not solve the conflict. Western Australia has ensured that state laws take into account indigenous laws and practices, as do the South Australian Nunga Courts. The recognition of Aboriginal laws is merely that, recognition, and not an overruling of the Commonwealth Laws which already exist. This leaves traditional values as having only persuasive value. They do not establish rights. Even if Sui Generis were to become law, there would still be a ‘winner’ and a ‘looser’ because the body of enforcement would be the judicial system which is not desirable. However a step towards cultural understanding does show a shift from bias so it is important that these interests are taken into account. Law is malleable and changes according to societal values. In this way it shows a social acceptance and respect of Aboriginal culture and therefore more willingness to enter into negotiations on the subject. Absolute rights to cultural property are perhaps not necessary.

The informal recognition of sui generis laws already successfully takes place in cases of immovable cultural property. Michael Brown argues that the voluntariness of the adoption of traditional laws and customs is the key to this success. It creates understanding and promotes good relations in the future. He uses the example in America of Devils Tower, a popular climbing destination. A similarity can be drawn to Uluru. A rights-based approach was not taken. Instead, changes of symbolic importance were made, such as the change of name. Mutual respect was also encouraged. The right of tourists to visit the site and learn of its cultural and historic significance was balanced against the need to protect the sacred site. Members of the Indigenous community educate the tourists. The visitors were asked not to climb Uluru out of respect for Indigenous culture, similarly to Devils Tower. These measures proved highly effective. It is possible for a win-win agreement to be reached through mutual understanding, rather than a rights-based approach. This agreement was reached despite the presence of secret men and women’s sites at Uluru showing that this approach can reach resolution without causing animosity at the enclosing of the intellectual commons. Having Aboriginals perform their traditional role as custodians of the land and attached cultural property is an ideal solution. Their ‘affinity with the land is like that bonding between a parent and a child. You have responsibilities and obligations to look after and care for a child. You can speak for a child. But you don’t own a child.’ Being able to practice the role of custodian is more meaningful than holding proprietary rights. This role of custodianship is now recognised in government policy, it is also codified in the National Parks and Wildlife Conservation Act 1975 (Cth), creating a ‘right’ and setting a positive notion for future dealings of this nature. It is a more flexible Right than absolute ownership, and is used in conjunction with negotiation.

Slightly different issues arise for removable cultural property. The written aim of the National Museum in Canberra is to foster positive recognition of achievements of both cultures. John Mulvaney argues that the way to do this is to; ‘win acceptance from Aboriginal communities on equal terms; they must convince them that, not only are their interests positively safeguarded from amalgamation into European culture, but that they are involved in all facets of museum activities, in their role as custodians of their cultural material.’ It should not be that aboriginal culture is taken into museums for the purpose of studying it to create a prehistory. It is important to acknowledge that the prehistory is already present in the form of the aboriginal ‘dreamtime’ and not attempt to overwhelm their beliefs by westernising their cultural heritage objects. But the objects, being in a museum, are still abstract from the communities. Further, preventing the study of the objects is contrary to the interests of the scientific community. There are already certain absolute rights in Australian legislation. Remains of the dead are returned to communities, and cultural objects are protected from desecration, which is any practice offensive to traditional beliefs. Elizabeth Evatt believes that true protection of the objects will only occur once they are returned to their originating communities. She believes an absolute right of ownership necessary. The right balance of interests is more difficult to arrive at for moveable cultural property. But it is clear that points of compromise are possible.

Larissa Behrendt agrees that compromise through mediation and negotiation are culturally appropriate as they can be likened to traditional Aboriginal dispute resolution processes. She expresses concern that westernised versions of these processes do not equate the parties, there is still discrepancy of power. She believes that the process needs to take place on Aboriginal terms and that a basic level of legal rights is needed to underpin Aboriginals. Based on Behrendt’s analysis of Aboriginal dispute resolution the process should take place as an informal discussion including the community as a whole with regard to traditional laws as explained by the elders. It is important for the result to be consensual. Some custodian rights are within law and policy but perhaps a greater recognition, solidifying certain rights so as to ensure greater strength in bargaining power.

A rights-based approach would clearly not be effective on its own. All interests in cultural property are legitimate. The adversarial system is inappropriate. A need to further foster understanding and cooperation between the two cultures is needed to continue the growing naturalisation of recognition of Aboriginal Rights whether codified in law or not. It is culturally appropriate to informally discuss the issues and reach a consensus on the best way to preserve the Aboriginal way of life as well as their traditional cultural property for everyone’s benefit. Through good relations, cooperation and better understanding the relationship between Indigenous Australians and White Australia may be reconciled in the future.

Bibliography

Websites

Michelle Maiese, Interests, Rights, Power and Needs Frames (2004) The Conflict Resolution Information Source at 29 April 2009

Stewart Mills, Conflict Resolution Theory (2006) Thesis at 29 April 2009

Books

Colin Renfrew, Loot, Legitimacy and Ownership (1st ed, 2000)

Jeanette Greefield, The return of Cultural Treasures (2nd ed, 1995).

Larissa Behrendt, Aboriginal Dispute Resolution, (1st ed, 1995).

Leo Hawkins, Michael Hudson and Robert Conrall The Legal Negotiator; A Handbook for Managing Legal Negotiations More Effectively (1st ed, 1991).

Micheal F Brown, Who Owns native Culture? (1st ed, 1993).

Vandana Shiver Biopiracy: The Plunder of Nature and Knowledge (1st ed, 1997).

Chapters in Edited Books

Alice Erh Soon Tay, ‘Law and The Cultural Heritage’ in Isabel Mcbryde (ed), Who Owns the Past? (1985) 113.

Elizabeth Evatt, ‘Enforcing Indigenous Cultural Rights: Australia as a Case-Study’ in UNESCO (ed) Cultural Rights and Wrongs (1998), 57.

Eric Willmot, ‘Dragon Principal’ in Isabel Mcbryde (ed), Who Owns the Past? (1985) 41.

John Mulvaney, ‘A Question of Values; Museums and Cultural Property’ in Isabel Mcbryde (ed), Who Owns the Past? (1985) 88.

Kathryn Last, ‘The Resolution of Cultural Property Disputes: Some Issues of Definition’ in The International Bureau of the Permanent Court of Arbitration (ed), Resolution of Cultural Property Disputes: Permanent Court of Arbitration International Law Seminar (2003) 53.

Norman Palmer, ‘Litigation, the Best Remedy?’ in The International Bureau of the Permanent Court of Arbitration (ed), Resolution of Cultural Property Disputes: Permanent Court of Arbitration International Law Seminar (2003) 265.

Peter Bridgewater and Theo Hooy, ‘Outstanding Cultural landscapes in Australia, New Zealand and the Pacific; The Foot Print of Man in the Wilderness’ in Bem Von Droste et al (ed), Cultural Landscapes of Universal Value, 167.

Sharon Sullivan, ‘The Custodianship of Aboriginal Sites in South Eastern Australia’ in Isabel Mcbryde (ed), Who Owns the Past? (1985) 139.

Journal Articles

Angela Riley, ‘Straight Stealing; Towards an Indigenous System of Cultural Property Protection’ (2005) 80, Washington Law Review, 69.

Frank Fechner, ‘The Fundamental Aims of Cultural Property Law’ (1998) 7 International Journal of Cultural Property 376.

John Merryman, ‘Cultural Property Internationalism’(2005) 12, International Journal of Cultural Property 11.

Tanya George, ‘Using Customary International Law to Identify ‘Fetishistic’ Claims to Cultural Property (2005) 80 New York University Law Review, 1207.

Reports

Law Reform Commission of Western Australia, Aboriginal Customary Laws, Discussion Paper 94 (2006).

The grave issue affecting the legal system and the people

2009-11-11T14:44:00.003+05:30

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

2009-10-23T08:31:00.003+05:30

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

2009-10-20T17:17:00.002+05:30

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

2009-09-24T15:43:00.004+05:30

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

2009-08-19T11:54:00.002+05:30

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

2009-08-11T12:23:00.000+05:30

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

2009-07-18T14:25:00.000+05:30

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?

2009-07-14T10:20:00.006+05:30

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

2009-07-10T15:19:00.006+05:30

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

2009-07-07T11:42:00.004+05:30

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

2009-07-07T11:31:00.005+05:30

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

2009-07-04T19:52:00.001+05:30

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

2009-06-22T15:46:00.004+05:30

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

2009-03-03T23:17:00.005+05:30

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

2009-02-20T01:30:00.004+05:30

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

2009-02-07T11:39:00.005+05:30

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

2009-02-05T23:39:00.001+05:30

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

2009-02-03T00:07:00.001+05:30

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

2009-01-29T12:52:00.007+05:30

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

2009-01-28T23:55:00.011+05:30

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

2008-12-18T15:31:00.002+05:30

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…

2008-12-18T12:38:00.002+05:30

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 ..........

2008-12-04T15:33:00.003+05:30

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

2008-12-01T18:24:00.003+05:30

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

2008-11-18T16:50:00.002+05:30

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 .

National Legal Aid Day

2008-11-09T10:37:00.003+05:30

November 9th is supposed to be an important day for the common people. The National legal Aid day is celebrated by NALSA and the other state authorities by conducting Adalats all across the country. The intention is respected but the outcome disheartening. While a number of cases are reported to these Adalats, they fail to achieve a final and binding outcome. Most of the cases are left unrepresented or the parties feel dejected on the awarded rather than compromised amount.

But we have reasons for optimism in the present trends in reducing the pendency of cases. The number of cases getting heard, delivered and disposed off by the court has increased proportionately to the number of cases reaching before it, which was not existing before. The outcome of this encouraging state of affairs can be owed to those judges who are competing themselves in setting records for disposing of cases. However, the Judges should not take this as a mere game of competition, for they are the flag bearers of justice. Disposing does not mean dispensing injustice to the Daridra narayanas of the country, quoting Justice V.R Krishna Iyer. They should not be unmeaning to the cause of the common people who are left in a pitiful state of affairs and have nowhere to go, than the courts by spending their hard-earned money.

The declaration of Cheriyanad Panchayath in Alappuzha District of Kerala by the Chief Justice of India as the first Litigation- controlled and Legally-literate Grama Panchayath is a welcome step in achieving the Constitutional goals and more importantly achieving the cause of the people. It is definitely a precursor of change which ought to be streamelined in the right direction. At the same instance we need to have a mechanism for judging or measuring the success of such endeavours. Claiming a litigation-less society is laudatory but a mechanism providing the maximum justice is and would be the most undebatable and cherished endeavour.

Arbitration and ADR

2008-10-07T21:47:00.003+05:30

There has always been a school of thought who believe that Arbitration does not form a part of the ADR mechanisms. Arbitration is said to have evolved sui generis because of its distinction with other forms of ADR viz Mediation, Conciliation etc. Arbitration is similar to a court on the aspect of its binding nature and the procedure involved in challenging a final arbitral award... Unlike mediation and conciliation its impossible or very difficult to challenge the appointment of an arbitrator.... the uniqueness of Arbitration arises because of finality of the question involved and binding nature,,,,,,, However it has to be kept in mind that Arbitration like Mediation and Conciliation are only alternative to the court system as seen by the common terminology used Alternate Dispute Resolution (ADR).......... As long as the normal court system exists and enjoys wide acceptance, Arbitration like any other ADR's are treated on common terms.......

Keralas First Mediation centre Inaugurated

2008-09-29T21:18:00.007+05:30

Kerala States First Mediation and Counselling Centre was inaugurated in the District Of Calicut by Justice J.B.Koshi on 27th September, 2008. With its entry in ADR, it has to be seen how successful does the Mediation Centre would work and it has also to be seen how do they select the mediators, what training is provided to them and what are the areas they would concentrate upon!

India to be the hub of Commercial Arbitration

2008-09-24T21:22:00.005+05:30

This article coming in economic times shows how corporate India are takin steps to create India to be a top destination for Arbitration like Dubai and Singapore......

but we should find methods to improve the existing mechanisms for Arbitration and other ADR Methods work within India itself ie in other words for making ADR work for Indian transactions especially those involving common people...... it is here the government should come out with concrete solutions and plans...... this would bring out a significant change in the justice delivery system........

“Gram Nyayalayas” as an ADR method

2008-08-16T10:28:00.006+05:30

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

2008-08-10T08:07:00.004+05:30

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

2008-08-08T07:29:00.005+05:30

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

2008-08-08T07:20:00.001+05:30

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

2008-08-07T14:44:00.002+05:30

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...

2008-08-07T09:43:00.003+05:30

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

2008-08-03T09:12:00.003+05:30

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

Going by the Tradition

2008-07-27T11:01:00.004+05:30

This post is an attempt to show the importance of Traditional community based courts which i read in the Economic Times (17 July, 2008)..... the editorial traces the strong desire for justice in Rwanda a place which witnessed one of the most comprehensive genocides ever perpetrated... it left a huge scar on the people and the system which found it hard to stand in its own feet....... however contrary to all expectations, Rwanda entered into a mass rebuilding exercise. it was possible only with a strong call for justice to the people who were made to suffer physically and more importantly emotionally...

the whole process started with the assistance of the traditional community based village courts which were till that time left in the lurk.... it was a grass-root level approach requiring the participation of the entire village community to arrive at the truth....the re-invigoration process transcended boundaries and led to the finding of truth or bitter lies were unfolded......the gacca(grassroot) courts was a huge success........

this article brings into light how we need to re-orient ourselves towards a community based approach existing in the village communities especially in India.the Panchayath system should not be under valued......an attempt towards revamping and developing of the age old system can in the long run reduce the burden of the courts, provide speedy relief and more efficient relief to the people.....most importantly it secures a long step towards justice...... the existing legal system was an inventory of the Britishers for their convenience in ruling us......it led to the downfall the largely effective justice by elders... it is time that we realize it...we cannot de-establish the courts system.but rather should effectively encourage the age old panchayath system which provides relief to the grassroots and more efficiently, as it is a more community based approach......

Securing Justice

2008-07-26T22:21:00.002+05:30

The law reforms Committee in Kerala constituted under the chairmanship of the Living Legend Justice V.R Krishna Iyer has sought to repeal those obsolete laws which are existing in Kerala as a dead wood... one of the thing which i found interesting was the Village Courts Act, 1960 which was enacted by the Kerala Government but was never implemented. Taking from the words mentioned in the Committee Report:
" It was aimed to consolidate, amend and unify the laws relating to village Panchayath Courts and Village Courts in the State of Kerala. Section I (3) provides that the Act that shall come into force on such date as the Government, may by notification in Gazette appoint. But till date it has not been brought into force. In the matter of Administration of Justice there has been reluctance allround to set up courts outside the independent judicial system. Hence the non enforcement of this law for over four decades. There is no point in retaining it in the statute book and it may be repealed."

It is interesting to note that the government has failed in its attempt to create more Courts for delivering justice, stressing the rural areas. Providing of Village Courts is a good step if necessarily implemented quickly.

In addition to this the Committee has proposed to bring into effect Access to Justice Bill which is a novel concept for the purpose of securing and providing a statutory right for access to courts and tribunals in matters affecting public interest. The proposed Bill clearly shows the mood prevalent vis-à-vis securing justice for the people. The government has found out a serious lacunae existing for guaranteeing the constitutional right of providing access to justice.

If the government shows its laxity towards establishing enough courts to serve the people then atleast they should try to encourage the alternative systems i.e ADR's. The government has failed to initiate any significant attempts to encourage ADR's in its true sense other than the widely publicized Lok Adalats which has not been able to deliver in an efficient manner. If it is the financial constraints that matter then ADR's significantly supported by private institutions can deliver in a more effective manner. The Government can or may regulate it without interfering with its autonomy especially in matters like fees. One should understand if the state is committed to its goal of achieving justice to the people. Then they should encourage such institutions to achieve the constitutional goal.

The falls from the Governmental side

2008-07-26T02:12:00.006+05:30

In India the percentage of increase in number of judges appointed(40% during the period from 1985 to 2003) is much lower compared to the percentage of increase in number of cases (84% during the same period). The Law Commission in its 120th Report (1987) and the Honorable Supreme Court in its 2002 All India Judges Association Case (2002)(4) SCC 247, has directed the Govt. to increase the number of judges and the number of Courts respectively. A few statistics would show that in India the number of judges per million population is near to meagre 13 while in Australia it is 41.6, in Canada its 75.2, England have 50.9 and 107 in USA!! Where these numbers, compared to its meagre 13, must definitely be eye openers to the members at the governmental side, they have always resorted to the defence that the requirement of Courts and judges is not to be assessed on the basis of population.

In the 2002 case the Court had directed that the number of judges must be increased to 50 per million within a period of five years. However today in 2008, 6 years since the judgment was passed, it has to be reviewed as to how far the words of the Apex Court has been followed and implemented. It has to been seen as to what policy has the Government initiated to implement this directive.

Further more, when we look into the money allocated to the judiciary by the Planning Commission, it is another meagre 0.071% of the total expenditure. Though in the 1993 judgment of All India Judges Case it has been held that the Court has been included as a subject by the Planning Commission, judiciary has always been blatantly ignored with such poor allocations. The question that raises our eye brows is as to where is the money from Court-fees going? In the 1992 Case, first among the series of All India Judges Case, the Court had given directions that the Court fees must be made available to the administration of justice. However the question remains unanswered as to whether it is actually used in the administration of justice or is it mixed with other collection as to tax. The exact figure as to the amount collected tyhrough the Court fees too has to be made public.

"ADR" generally

2008-07-21T02:46:00.001+05:30

The term "alternative dispute resolution" or "ADR" is used to describe a variety of dispute resolution mechanisms that are alternative to a full-scale court proceeding. The term refers to everything from facilitated settlement negotiations, in which parties are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems that look and feel very much like a courtroom process. Processes designed to manage community tension or facilitate community development issues can also be included under the head ADR. ADR systems may be generally categorized as negotiation, conciliation/mediation, or arbitration systems.

Negotiation systems can create an atmosphere to encourage and facilitate direct negotiation between parties to a dispute, without the intervention of a third party. Mediation and conciliation systems are very similar; in that they interject a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Mediators and conciliators may simply facilitate communication, or may help to direct a settlement, but they do not have the authority to decide. Arbitration systems authorize a third party to decide how a dispute should be resolved.

It is important to distinguish between binding and non-binding forms of ADR. Negotiation, mediation, and conciliation programs are non-binding, and depend on the willingness of the parties to reach a voluntary agreement. Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that the disputants must follow even if they disagree with the result. It is much like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject.

It is also important to distinguish between mandatory processes and voluntary processes. Some judicial systems require litigants to negotiate, conciliate, mediate, or arbitrate prior to court action. ADR processes may also be required as part of a prior contractual agreement between parties. In voluntary processes, submission of a dispute to an ADR process depends entirely on the will of the parties.

Centre for Public resources, New York

2008-07-15T03:04:00.002+05:30

This post refers to Centre for Public Resources, in New York, an organization which has created a means by which corporates can try ADR procedure before moving to litigation. An organisation founded in the year 1979 was a leader in the movement towards ADR in the United State of America. It is a completely non-profit organization established with a mission to spearhead innovation and promote excellence in public and private dispute resolution. Today the organisation serves as the primary multinational resource for avoidance, management and resolution of business-related and other disputes and has its wings spread in China, Latin America, Europe and Russia.

Mediation in India

2008-07-12T15:26:00.001+05:30

Mediation is the amicable settlement of disputes with the involvement of a third party called Mediator. It has various advantages as been cost effective, reliable and confidentiality. This technique of Alternate Dispute Resolution (ADR) has been used by many countries for effective dispute resolution mostly relating the business or trade.
However, we find that only an insignificant minority using this technique to settle their disputes. The recent one been the rejection for conciliation by the Reliance bigwagons Mukesh and Anil Dhirubhai Ambani over the take over of South African Telecom Major MTN.

It should be seen the big corporates may go for easy settlement of disputes rather than approach a tiresome court litigation as is evident in the Western countries where 90 percent cases are settled through ADR’s. In India we need to address the problems associated with docket explosion to the common man who are made to suffer because of the procedural difficulties of approaching, litigating and settling a dispute.

However, the present system existing with respect to ADR, more importantly mediation has not been directed to address the problems of the common man. A brief perusal of the laws pertaining to mediation highlights that Mediation has been largely confined to commercial transactions. It is only the companies and people with commercial interest who opt for mediation for settling disputes. The Arbitration and Conciliation Act, 1996 is framed in such a manner that it is concerned mainly with commercial transactions than that involves the common man. It is clear from the provisions of the Act that it was intended to benefit the commercial interest than the common man’s interest. The Act is more of a procedural law rather than a substantive law on the matter of ADR’s. The Act treats Conciliation and Mediation is similar lines. It can be seen that there exist a major lacunae in the Act in not having provisions relating to mediation beneficial to the common people. The Legal Service Authority Act, 1987 provides for setting up of Lok Adalats which has been far from satisfactory. Till now we have only court assisted Mediation which have the added disadvantage that the dispute have to come to the court in the first instance, then the court should be satisfied that the matter can be settled through mediation and most importantly the court can only request the parties to opt for Mediation or any other forms of ADR. This lengthy procedure takes away the advantages associated with Mediation.

It should be seen that if the government takes necessary steps to ensure that Mediation proceedings be used by the commons, then it would be an answer to the ever increasing docket-explosion. Mediation has been found successful as an alternative cheap, fast and flexible mode of solving a dispute through settlement. The concept of mediation is not foreign to Indian legal system, as there existed in different forms aspects of mediation. The Village Panchayaths, the Nyaya Panchayaths etc are good examples for this; wherein the common people resorted to settling disputes other than approaching the King. The village Panchayaths still exist in different parts of India, though majority of such panchayaths got withered. The Government has now been taking serious steps to revive these justice delivering mechanisms by allocating funds for its running. This can be seen a positive step in the development of mediation most importantly benefiting the common man.

While mediation has been well received by the western countries, a very few percent of the population in India is actually aware of Mediation. Awareness do play a major role in extending the benefits of this efficient delivery mechanism to the people. There is a lack of initiative on the part of the government or any other institutions to take up the cause of encouraging and spreading awareness to the people at large. The court assisted mediation centres hardly cater to this aspect of reaching out to the people. The recommendation by the Malimath Commission did address certain aspects of opening up of various justice delivery mechanisms which have a profound effect in settling and decreasing disputes between the common people. The 129th Report of the Law Commission identified the urban areas to have certain modes for disposal of cases. They are:
1.Establishment of Nagar Nyayalaya with a professional Judge and two lay Judges on lines similar to Gram Nyayalaya and having comparable powers, authority, jurisdiction and procedure;
2. Hearing of cases in Rent Courts by a Bench Judges, minimum two in number, with no appeal but only a revision on questions of law to the district court;
3. Setting up a Neighbourhood Justice Centres involving people in the vicinity of the premises in the resolution of dispute; and
4. Conciliation court system, which is now working in Himachal Pradesh.
If such a system is implemented at full, it would go a long way in addressing the problems related to court delivery system. The common people who will have a greater access to such a system would benefit a lot from it. Proposals for setting up Mediation Training Centre are going underway in Tamil Nadu, which have the advantage of proving sufficient well trained Mediators for settling disputes in India.

Setting up of Mediation Centres in all districts of each state with a view to mediate all disputes will bring about a profound change in the Indian Legal system. These Mediation centres would function with an efficient team of mediators who are selected from the local community itself. The people so selected would be trained for a period of 6 months by the Government who shall issue a certificate of recognition. The mediators so selected will be persons who shall be having a good repute in the local area to whom people shall have faith. This is to maintain a good recognition upon these institutions vital for the sustenance of the institution.

The Mediators are not to be selected or elected by the Government as it would invite corruption and political play. The success of the Mediation centre would naturally be evolved from the success of the mediators to whom the people may repose faith for settling the disputes. The Mediator should be selected unanimously from among the local community in which he has to serve. It would be preferable to have an elder as a mediator to whom the people of the locality reposes faith. The role of such mediators is only to assist the parties in coming to a settlement. He should be a neutral and shall not impose conditions or make observations on the dispute before him.

At the first instance to start with the Mediation Centre and the Mediators appointed shall themselves go about to the various localities to find out cases which are fit for settlement. This can be done by a socio-legal survey identifying disputes and even potential disputes. Based upon the outcome, the Mediators shall with the consent of the parties’ concerned resolve to settle the dispute through mediation. Since this is a community based process, the consent and encouragement of the communities is important for the mediation to be successful. Where there are any attempts on the part of the community to avoid or refrain from resorting to settle disputes through Mediation, it should be tackled amicably. The concept of village panchayaths already exist in various communities and it would not be difficult for the people from the community to adapt to such a system. So it would practical that the so called village or nyaya panchayaths which existed or exist shall be turned into mediation centres. This would in a sense make the people more closer and adapt to such a concept at the initial stages. However while attempting to do so, one should keep in mind the deficiencies which the Village panchayaths had and which was the eventual cause for its downfall. The mediation centres should therefore address these shortcomings for its efficient running and acceptance among the community. It all involves the greatest penetration a mediation centre can have in the community which may be plagued with superstitions, cultural dogmas, aversion attitude, class and caste attitudes etc. till now we had only started to realize the importance of mediation through court assisted mediation centres. But it has a big shortcoming of not directly involved with the communities. Setting up of Community Mediation centres at various places would be beneficial in the long run for delivering of justice which all legal systems aims for. Just like any other institutions this also should be impartial and independent in delivering justice for the needy.

Till now only companies and institutions in the field of Insurance, Banking, Trade communities etc relied on ADR as a means of settling disputes. There is a need to encourage and make mandatory provisions for making ADR especially Mediation be used as nomenclature. Awareness has to be aimed at the common people with wide publicity in various media. There is a need to involve the community as a whole for this beneficial concept. For this purpose there is a need to identify people or community based initiatives already existing in the community to take up the cause of popularizing mediation among the households. There can be a tie up with initiatives like Kudumbhashree as in Kerala which has largely been successful. This would go a long way in making ADR, especially Mediation aimed at community development bring social harmony in India.

By Madhu.S