"Role of Mediation Mechanism in Dealing with the Problem of pending cases - why and how", Inauguration of First Intensive Training Course on Theory and Practice of Mediation, Gandhinagar, Saturday, 5 September 2009
Honorable Justice Mr Mohit Shah, an ADR enthusiast, a quintessential role player in the setup of the Gujarat High Court, Court Annexed Mediation Centre
Staunch supporter of mediation and our collaborator of the event Senior Advocate Mr Niranjan Bhatt
Faculty Members, students of GNLU, distinguished guests,
Most importantly the trainee participants of the first GNLU Intensive Training Programme on Mediation
While statistics are elusive, a reputed marriage counsellor says the divorce rate in India was 3-5% in 1974 and grew to 13-15% in 1998 and it has only grown further. It’s not that marriage has gotten harder. It’s just gotten harder to hide its challenges.
With growing legal awareness, families have begun to exploit the legal system to settle their personal disputes. Unfortunately the fight today has become of one’s legal rights vis-à-vis a question of one’s interests and emotions. Earlier we would have gone to the elder of the family and got our disputes settled or one of the parties would have just given in. The institution is so finely woven that every legal action creates ripples causing great emotional trauma and suffering to all concerned. Resultantly litigation in matrimonial and family disputes involves multiple proceedings including not just the two individuals but also their kith & kin. Long drawn litigation results in greater bitterness, hurts, sufferings, emotional trauma, financial strain, often dragging the parties to a state of impasse. The message is mediation as a mechanism can appropriately deal with the underlying interests and emotional sufferings between the parties to either amicably settle the disputes or peacefully part ways.
We are fully aware that litigation often turns into a mud slinging match where the parties concerned remain mute spectators to the slur fight between the advocates. The real issues, very often not translatable into cogent legal arguments, remain unaddressed. Mediation helps address these core concerns amongst the families concerned.
It would be then an optimum suggestion to mention that mediation with the support of Indian Courts is possibly the next best way. It assures the sense of fairness and justice offered by a court of law, along with the neutrality and impartiality of a third person. It gives us the opportunity to vent our emotions and finally lay all the cards on the table. It gives our families the chance to say things that they haven’t been able to owing to the 5-10 year pendency of their litigation. For these very reasons the process of Mediation and Conciliation has picked up in India. I would say, stereotype advocates beware !!! There still continue to be great hindrances and obstacles to the development of ADR for family Law in our nation; some procedural, some temperamental.
A system that is followed by India referred to as ‘Court Annexed Mediation’; in cases where-in the Court deems the case to be resolvable, cases are recommended to the Court Annexed Mediation Centre. The Gujarat High Court has recently opened one under the auspices of the Supreme Court Committee on Mediation and Conciliation headed by Hon’ble Justice Raveendran of the Supreme Court.
Generally, the Code of Civil Procedure of 1908 governs the civil justice process. A typical civil proceeding consists generally of several adversarial, party-controlled stages, including pleadings, a determination of jurisdiction, trial, judgment and decree, appeals (including revision and review), and execution. These concerns were expressed first in a study conducted under the auspices of Chief Justice A.M. Ahmadi on the eve of his retirement in the spring of 1997, when the Parliament promulgated (in 1999) several amendments to the Civil Procedure Code of 1908. Among these many amendments, Section 89 and Order X (1A) provided for court-annexed alternative dispute resolution. Under the new provision, the court directs the parties to choose among several ADR mechanisms, including lok adalat (people’s court), arbitration, conciliation, and mediation. Section 89 contemplates that the judge (presumably the judge assigned to the case) should first determine whether there exist “elements of a settlement which may be acceptable to the parties.” If so, the court secondly “shall formulate the terms of settlement and give them to the parties for their observations.” Third, “after receiving the observations of the parties, the court may reformulate the terms of a possible settlement” and refer the same for arbitration, conciliation, judicial settlement, including through lok adalat, or mediation. This discretion is conferred on the Hon’ble Court at all levels of appeal and review.
In a panel decision written by Chief Justice Kirpal in late October, 2002, the Supreme Court upheld the constitutionality of the law and established a five-person committee to study the reforms and to make recommendations on the need for any amendments or additional rules to facilitate implementation of the reforms. Our Law Commission conducted a national conference in 2003 and then promulgated guidelines for the use of mediation. The decision in Salem Bar Association was affirmed in 2005.
Conflicts among and between the bar and the bench over the role of these reforms and the impact they may have on corporate or individual professional interests has substantially delayed wide-spread implementation. Even with strong initiative in several important pockets of the judicial system (including the Bombay High Court in particular), the judiciary and the bar were initially poorly prepared to move the reforms forward to meet the country’s challenge. Until recently, no court in the country had implemented a formal Section 89 proceeding. In other words, for several years after the major anti-delay legislation in the country, no responsive changes had taken place. Only now with the express direction of the Supreme Court and responses from several courts in Chennai, Delhi, Ahmedabad, and Mumbai beginning to implement rules is any observable activity taking place. Although ADR activity has picked up greatly in the United States and other Western and Asian Nations, the Indian Bar still believes that it is going to feel the pinch of such ADR on its pockets. Therefore it is the lawyer’s mentality that first needs to be addressed and continues to remain an active obstacle to the role of ADR.
Offences that are laid down in FIRs such as Section 307 of the IPC (attempt to Murder), Section 97 of the CrPC (search for persons wrongful confined) are often laid down in the heat of argument and temper. More often than not the offences are non-compoundable in nature and therefore the complaint for which cannot be withdrawn and the case cannot be discontinued in the event of settlement. There have been a plethora of Supreme Court and High Court judgments which have settled the law on the point in favour of the process of Mediation.
Hon’ble Justice A.K. Sikri of the Delhi High Court sought to compound a non-compoundable offence under Section 482 of the CrPC invoking the inherent powers of the Court. In doing so the Court has not only removed the obstacle for settlement of Criminal cases in India (be it compoundable or non-compoundable).
This is a great step in the furtherance of the cause of Mediation and ADR as a whole. However this isn’t enough.
I note with regret that whilst the Code of Civil Procedure has Section 89, there are no provisions for such Mediation in Criminal Law. One argument might be that criminal cases are those against society and therefore cannot be compromised upon. The flipside however is that such strenuous and often frivolous cases are ways of parties to vent each others emotions which can often be cured by simple communication. This is a grey area in the field of mediation of criminal disputes, which in all likelihood will be settled soon by judge made law.
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.
Of the several ADR techniques, "mediation'" seems to be the most widely used one, it is the same dispute resolution process as conciliation, except that in the case of former the neutral third party plays a more effective role in putting forward his own suggestions for the settlement of the disputes. Mediation, as a method of dispute resolution is no new phenomenon, rather one that has for long existed in our traditions. In most of the cases, the disputants desire for an amicable solution. Mediation has been employed by various tribes of our country by way of a village council, usually consisting of certain village elders.
It is a process in which a neutral intervener assists two or more negotiating parties to identify matters of concern, develop a better understanding of their situation, and, based upon that improved understanding, develop mutually acceptable proposals to resolve those concerns. Mediation embraces the philosophy of democratic decision-making. Thus the Neutral is given absolutely no powers of decision making but simple the role of a communications facilitator. A Mediator does not decide what is fair or right, apportion blame or predict the outcome in court. Rather, a mediator acts as a catalyst to bring the two disputing parties together by defining issues and eliminating obstacles for communication and settlement.
The confidential relationship between a mediator and the parties to a dispute is a fundamental characteristic of the mediation process. This has played a crucial role in Pre litigation Mediation’. However, its role in post-litigation mediation is not to be undermined either. The parties are encouraged to speak their mind and convey their perspective. They can admit to anything freely and get the guilt of their chests and yet expect the other party to see the reasonableness of their offer.
Lawyers conventionally remain present for mediations even abroad so as to ensure that their client’s interests are not being compromised. However in India the presence of lawyers at the mediation table is not encouraged. This general practice has its drawbacks and I am sure this will be discussed in great detail in the coming few weeks.
The mediation if successful, leads to an agreement but its enforceability is still disputable. The current system envisages the enforceability of such an agreement in the same way as a contract. It is submitted before the court, which is approved and passed in the form of an order.
Inefficient court administration systems, and limited alternatives to a protracted and discontinuous full trial frustrate several goals of the adversarial process of litigation itself. Inefficiency in court administration denies timely access to legal dispositions. Excessive party control places those seeking legal redress in an unequal position because respondents can abuse and delay the resolution procedures with impunity. In all likelihood a ‘stay’ granted by the court is enjoyed for a rather long time and therefore no one chooses to go in for final hearing.
Interim injunctive relief is routinely granted, but long delays in hearing the contentions of those enjoined persist. Commonly made interlocutory appeals fracture the case into many parts and effectively stay the trial. The absence of alternatives to litigation makes a full, discontinuous trial necessary, regardless of how long a full trial may take. Once a judgment is reached, the truly hard work of enforcement and execution begins. As cliché as it may sound ‘Justice Delayed is Justice Denied’.
Finally, the unavailability of alternatives to litigation clogs the system. Many cases awaiting judgment are no longer contentious and long-awaited judgments are often difficult to enforce particularly when either one of the parties has not been able to survive the 20 year process. Protracted delays erode public trust and confidence in legal institutions, and act as significant barriers to India’s chosen path to social justice and economic development. The inability to enter final legal decisions within a reasonable time renders state action functionally immune, turns obligations to perform contractual duties into effective rights to breach with impunity, and devalues remedies eventually provided. In sum, the inability to resolve disputes in a timely manner eviscerates public and private rights and obligations.
Consequently the term ‘Litigation Fatigue’ has evolved. Most parties after a particular point are saturated at the thought of another adjournment and simply wish to resolve the dispute amicably. After all a family is the most integral part of a person’s life and the high-octane anger doesn’t last for over 4-5 years.
Owing to this litigation fatigue people are self-inspired to get their cases resolved and therefore are more open at the Mediation table.
Criminal Cases for the family Court of Ahmedabad as on 01 September 2009, there were 5,804 cases of which 340 are older than 5 years. In more updated figures the total number of pending cases at the Family Court, Ahmedabad are 7,658 of which 5,252 are criminal (showing a notable decrease in pending litigation of over 600 cases in 4 months) in addition to this there are 145 criminal cases which are pending since over 5 years. Of the total 2,406 pending Civil Cases, only 122 are pending over 5 years. This makes the total pending case percentage of cases over 5 years merely 3.5% (267 of 7,658). Whilst other sectors and courts such as the metropolitan Magistrate’s Court has over 12.67% cases pending over 10 years (41,512 of 3,27,595) and 17.9% pending over 5 years (58,629 of 3,27,595).
However this does not hold true for other Family Courts in the State. Surat has 3,361 pending cases of which 264 are pending for over 10 years and 486 are pending for over 5 years. This makes the total percentage 22.3%. Of the 2,334 pending cases at the Family court in Rajkot 109 are pending for over 10 years and 198 are pending for over 5 years giving us a Pending Percentage of 13.15%.
What must be noted is that Rajkot and Surat Districts do not have Mediation Centres of their own. However, the one in Ahmedabad has only recently been opened. Hence it would be incorrect if the lesser pendency was credited to the Centre. None the less the inference that can be drawn is that Judges at the Ahmedabad Family Court are more proactive and ADR friendly than the others. Since a Mediation Centre has been opened there as well as the High Court of Gujarat in the year 2008 Courts are closer to the concept of ADR here than in Surat and Rajkot. This draws us to the conclusion that although ADR is not the sole cause of reduction in arrears Judges who are sensitive to arrears have faith that ADR as a system is one of the solutions to pending litigation and speedy justice.
In San Diego (California) having the third largest number of trial Courts in the USA, 97% of the civil cases get settled through mediation. Mediators have been successful in settling all kinds of civil disputes including highly contested cases, cases having important legal issues, and involving stakes of millions of dollars. It is in very rare cases (that is only 3% of the cases) that parties go to trial. Mediation is an incredible success in the California State and elsewhere. More than 90% of the cases do not go to trial. Heavy and highly contested cases with huge stakes go through mediation process within 4 to 6 months from the date of institution of the suit.
In the USA, the initiative for establishing mediation centres came from lawyers. Mediations are both private mediations (without reference by the Court) as well as the mediations referred by the Court. There are private mediation firms like JAMS having 45 full time mediators and with all infrastructure facilities to hold a large number of mediations. The American Arbitrators Association (AAA), CEDR, the Harvard Negotiation Project are all examples of the demand and interest in Mediation by both the Client and the Lawyer.
Mediation Reforms took place in England and the United States in the early 80s. However Mediation continued to be opposed in India until as recently as 2005. It is only after the setup of the Supreme Court Committee and the Prime Ministers commitment to further the cause of Mediation that it has steadily started growing in India. However this growth is not a very noticeable one. The primary reason for its slow growth is the perceived lack of role for the lawyers. The Legal Community must first embrace Mediation before it gets popular with the Clientele.
The Supreme Court of India, the Apex judicial forum of the country handles 130 Special Leave Petitions in 2 days. Statistics calculated by a former Supreme Court Judge, Justice Hegde, show that roughly on an average each Supreme Court Judge is paid 75 paise per page that he reads. Today a court room’s board is a joke. With 120 matters listed on the board and 5 hours of work, 24 matters must be dealt with in an hour. Which makes it 2.5 minutes per case.
Is this what we want for Audi Alteram Partem and the opportunity of a fair hearing? Our temples of Justice are founded on the singular principle that justice must not only be done, but justice must seem to be done. We know that Mediation is gives us this right.
The response to our first training was so overwhelming that we had to decline, due to limited capacity, expression of interests by many candidates. I would like to thank Mr Rohan Lavkumar who provided invaluable research assistance. Dr Vikas Gandhi, the Programme Coordinator deserves big applause for his initiative, coordination and team-spirit which has borne into the successful launch of our first training programme on mediation. The Programme Organising Committee commands respect and deep appreciation for their commitment and tireless efforts.
Thank you for your attention and we wish you a useful training.
Bimal N. Patel