Alternative Dispute Resolution Centre A Centre for Public Policy Research Initiative

Panel Discussion on Taking ADR to the Common Man
Taking ADR to the Common Man
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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 22nd 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;
  • Justice P K Balasubramanyam, Chairman, E-committee, Supreme Court,
  • Justice Madan B Lokur, Judge High Court of Delhi,
  • Justice Manmohan Sarin, Lokayukta of Delhi,
  • Advocate Krishnan Venugopal, Senior Advocate, Supreme Court,
  • 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. Speaking about alternative dispute resolutions, he started with an introduction about the reasons for the growth of this new concept in our country called the “ADR”. According to him, it was with the advent of British system that the earlier system of Panchayats faded away and the docket explosion in the current system that led to the growth of this concept.

He also 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 speaking about the Lok Adalats, he stressed on the idea of conciliation to be undertaken. The Arbitration and Conciliation Act of 1996 had elaborate provisions regarding conciliation but it just remained 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. Apart from Lok Adalats and Conciliatio proceedings he also mentioned about arbitration. In his words, “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 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 Nyayalays, their working and development strategies.

Advocate Krishnan Venugopal spoke on the topic “Fashioning ADR mechanisms to the poor”. He said “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 Nyayalays 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 foolowed by the 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 given 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 Harisankar of The Centre for Public Policy Research.

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