ADR: Mechanism And Effective Implementation - Hon'ble Mr. Justice S. B. Sinha, Former Judge, Supreme Court of India Alternative Dispute Resolution mechanism which provides for an additional forum in the dispute resolution mechanism has now come to say. Adispute precedes a litigation. A dispute is raised because of ignorance on the part of the disputant. The relationship between the litigants becomes bitter when his ignorance about his right is fuelled by his ego. With a view to resolve the dispute, its source must be traced. The mool mantra of mediation, conciliation is empowerment. The disputant must be empowered which would mean that they must have adequate knowledge as regards existence or extent of their right under statute ora custom. Once a disputant is empowered by making him aware ofhis right or the extent thereof, the dispute may come to an end, Mediation should be part of the juvenile criminal justice system. For non-violent offenders, victim-offenders mediation may be applied under the supervision of the criminal justice system caseworkers, which would help both sides to humanize and rehabilitate each other. Mediation may be a part of family counseling. It is a way for members of the family who Me splitting into parts to know as to how to deal with the changes in roles, duties and opportunities and to face the same with emotional balance. It may also be a part of the civil court system where parties to law suits are aided in settlement negotiations aimed at helping them find their own best interest, It may be a part of the community action. It may be employed in labour dispute seeking to improve any conflict and feelings in the workplace. Itis, however, not always alternative to the formal justice system purported to be conducted by “real human beings” rather than lawyers. ‘The concept of employing alternative dispute resolution has undergone a sea change with the insertion of Section 89 in the Code of Civil Procedure. The Parliament intervened having regard to the success stories of its effective implementation in other countries, particularly, in United States of America where the settlement rate rose upto 94%. Initially, there would be resistance to the system both from a section of the Bar and the Bench but a positive change in the outlookis necessary. Asa lawyer ora judge each at one time of his life or other play some role in settlement of a few cases and thus, there is no reason as to why at least some of us would not buy the idea. Conciliation and mediation should now be a regular process in every case which comes to the court as it is now empowered to force the purpose for taking recourse to mediation and conciliation or arbitration as well as to judicial settlement. Legislationhowever, by itself may not be sufficient. Itmustbe done by motivating others. Settlement at mediation or conciliation , however, must ensure a fair procedure. No party should go back with a feeling that some settlement had been forced upon them although the same may bearrivedas aresult of reasonable persuasion, Delay in disposal of eases : The Judicial Officers of today have to realize that they are inheriting a legacy of huge arrears, The pendency of cases is huge because earlier methods of disposal were not very effective. Therefore, the Judicial Officers of today have to look at the problem of case disposal differently and to adopt different alternative methods of dispute resolution. To illustrate the point of arrears, I would like to quote from report in which itis said “ Unless a Court can start with a reasonably clear slate improvement of methods is likely to tantalize only, The existence of a mass of arrears takes the heart, out of a Presiding Jude So long as such arrears exist, there is temptation to which many Presiding Officers succumb, to hold back the heavier contested suits and devote attention to the lighter ones. The turnout of decisions in contested suits is thus maintained somewhere near the figure of institution, while the real difficult work is pushed into the background.” This may appear to be a quotation from report that could have been prepared only yesterday, but in fact it is from the Justice Rankin report of 1925. The situation does not seek to have changed over the last 75 years and that is why some non-conventional methods have to be adopted to tackle the huge pendency of cases. Our justice delivery system is bursting at the seams and may collapse unless immediate remedial measures are adopted not only by the judiciary but also by the legislature and the executive. Ithas been said by Lord Devlin: If our business methods were as antiquated as our legal system, we would have become a bankrupt nation long back.” Different wings of the State are plagued with corruption, Nepotism, redtapism. There is hardly any law and order in this society. There are problems of poverty hunger malnutrition and food adulteration. Even after more than 57 years of independence, we have not been able to provide safe drinking water to the people of this country. It is in this background that the common people of this country, with a hope that the judiciary will remove these ills with which society is suffering, see our courts as a last resort. However, today even the judiciary ist cross-road and itis a matter of concerntoallofus, People had lost faith in the other two wings of the State much earlier, Unfortunately, the faith of a common man in the judiciary is also being eroded.We all know that people indisputably have been trying to avoid law courts. Sometimes they are forced to do so. As is the case in some of the States people are forced to take their disputes only to the extra constitutional courts, Should we, being a part of the society, allow this to happen? When for avenging a murder another murder takes place; when a landlord instead of approaching the Court of law hires the services of goods or where the services of the criminals are hired for settling all types of disputes; can we say that we are living in a civilized society governed by the Rule of Law? Answer to this question must be rendered in the negative. We have to take remedial steps to prevent this erosion any further, and one of the major requirements for this is to deliver speedy and inexpensive justice to the common man, Recently in H.P.A. International Vs. Bhagwandas Fateh Chand Daswani and others [AIR 2004 $C 3858], the Supreme Court while deciding a matter arising out of the Specific ReliefAct lamented the delay in disposal of the suit, thus: The facts of he present case should be an eye opener to functionaries in law courts at all levels that delay more often defeats justice invariably adds complications to the already complicated issues involved in cases coming before them, and makes their duties more onerous by requiring them to adjust rights and equities arising from delay. Ina litigation ridden commercial society also it is essential to explore consensual dialogue between disputants so as to enable them to arrive at an amicable solution, The job of facilitator is not that of an arbitrator. Whereas an arbitrator decides issues between the parties, a conciliator would bring them together with the object of settling the disputes. An ADR practitioner unlike a lawyer's a healer of conflicts and not a combatant. ADR was at one point of time considered to be a voluntary act on the part of the parties which has obtained. statutory recognition in terms of Code of Civil Procedure Amendment Act, 1999, Arbitration and Conciliation Act, 1996, Legal Services Authority Act, 1987 and Legal Services Authority Amendment Act, 2002. The Parliament apart from the litigants and the general public as also the statutory authorities like Legal Services Authority have not thrown the ball into the Court of Judiciary. What therefore, now is required would be implementation of the parliamentary object. The access to justice is a human right fair trial is also a human right. In some countries, trial within areasonable time is apart of the human rights legislation. In our country, itis a constitutional obligation in terms of Article 14 and Article 21. Recourse to ADR as a means to have access to justice may, therefore, have to be considered as a human right problem. Considered in that context the judiciary will have an important role to play but the goal cannot be achieved unless requisite infrastructure is provided and institutional framework is put to place.In fact, the Supreme Court started issuing various directions so as to see that the public sector undertakings of the Central Government and the Union of India and their counterparts in the State should not fight their litigations in court by spending money on fees of counsels, court fees, procedural expenses and wasting public time. (See Oil and Natural Gas Commission Vs. Collector of Central Excise, 1992 Supp (2) SSC 432, Oil and Natural Gas Commission Vs. Collector of Central Excise, 1995 Supp (4) SSC A 541 and Chief Conservator of Forests Vs, Collector, (2003) 3 SCC-472), For successful implementation of the ADR programmes a comprehensive plan is required to be formulated which would include the expenses which are required to be incurred both for the purpose of raising the requisite infrastructure as well as the expenditure tobe incurred for its smooth function. A judicial impact assessment is normally carried out in England by preparing a financial memorandum whenever a new bill is introduced. The financial memorandum indicates the amount of expenditure that is likely to be incurred as a result of any statute or amendmentin the existing statute. Before bringing in Section 89 of the CPC and other statutes, no assessment was carried out as regards financial implications or the infrastructural requirements to make it effective. For example, for mediation, trained mediators will be required and expenses will have to be incurred for their training. Similarly, some space may be provided to the mediators where they can sit and carry out, their job. Most of our Courts do not have adequate space even for their existing work and, thus, itmay not be possible to accommodate the facilitators, mediators, or arbitrators to provide for suitable accommodation to them within the Court premises. The infrastructural requirements in terms of rooms, trained mediators, etc. thus, must be provided for effective implementation of ADR regime so long it had not been done but it is not too late to make these arrangements even now. Mediation/Conciliation/reconciliation is carried out in matrimonial matters and in child custody cases. Usually in the District Courts, there is no space available for children to meet his parents. Some meetings are held in the Chambers of the Judges not only at the district level but at the High Court level. The atmosphere is not conductive to such meetings. Similarly, conciliation is provided for under the Industrial Disputes Act. Conciliation in such cases normally takes place in the office of the Conciliation officers or in the premise of the Management which does not give a fair chance to the workmen to negotiate. There should be a neutral place for such kind of mediation. What is needed is providing a properand congenial atmosphere for mediation. Ina case of this nature, there should bea separate budgetary allocation at the outset. Like Fast Track Courts, the Central Government should come out with a budget taking into consideration the possible expenditures that the High Court and the District Courts are likely to incur. ADR and Mediation Rules, 2003 with or without amendment are to be given effect to and those who have seen these model rules, they may also give their suggestions. The High Court should also take the mattera little more seriously. The institutional framework must be brought about at three stages. The first stage is to bring awareness, the second acceptance and the third implementation. With a view to spread the message of ADR, we have to build each step of mechanism scientifically and methodically. AWARENESS With a view to bring awareness, holding of seminars, workshops, symposiums, ete. would beimperative. A detailed ADR literacy programme has to be chalked out. By spreading the message of ADR, the disputants can be made aware of its benefits. ‘The awareness campaign must take in its stride a change in the attitude or the mindset of all concerned including the disputants, the lawyers and the judges. Their active participation in te process must be ensured. The members of the legal and judicial fraternity must accept ADR mechanism as an additional forum for resolution of the disputes. It is a continuous process and proper and effective mechanisms should be adopted so that the message reachesa large section of populi, Our awareness or lack of it would be tested from the fact that how many of us are aware that in terms of section 7(hb) of the Notaries Act, 1952 one of the functions of a notary is to act as an arbitrator, conciliator, if so required. How many of us would even think of availing the services of notaries as mediators who are absolutely untrained. ACCEPTANCE ‘The courses imparted to the facilitators apurpose, it is necessary to impart appropriate training. Extensive training would also be necessary to be imparted to those persons who intend to act as facilitators, mediators conciliators. Different categories of mediators and conciliators should be produced so as to enable them to work in theirrespective fields of specialization. Itisalso necessary to have trained welfare experts, family counselors who would not only have fair knowledge in the branches of law they are required to deal with but also with psychology , sociology, ete. as a fair knowledge of the said subjects have a direct impact on the job. Indisputably, the judges and judicial officers should also be imparted requisite training. We are ill equipped for this purpose. Tothe best of my knowledge at Hyderabad Centre at ICADR post graduate diplomas are awarded to the students of ADR and family counseling. In some States, some NGOs impart such training but the certificates issued by them may or may not be recognized by courts. The legislators must chalk out a comprehensive plan to establish institution so that the persons have the facilities of getting themselves trained in different fields of mediation orconciliation, To start with at least services of some experts may be requisitioned to train some trainers who in turn may impart training to those who intend to play a role of mediator or conciliator. Different experts teams, thus, should train people to have expertises in specialized fields. Industrial Disputes Act, 1947 was enacted in the same year when we attained our Independence. The act provides for appointment of conciliator who although are ‘charged with the duty of mediating in and promoting the settlement of industrial disputes’ failed in performing their duties as they do not have requisite training. Similarly, the matrimonial courts and family courts are unable to effectively settle the dispute as they donot have either the requisite training or the mind set therefore. The taxing statutes provide for setting up of settlement commissions which are quasi judicial bodies having wider jurisdiction than ordinary tribunals but they act like adjudicators and not conciliators. We have not yet come across any case where a Court has forced the parties to take recourse to conciliation under Arbitration and Conciliation Act, 1996, A qualified mediator must undergo 30 to 40 hours of general mediation training which would include experience in mediation either as an observer or a co-mediator or participant in role-plays or mock practices. Chief Justice Benjamin, F. Overton in an interesting Article published in Dispute Resolution Magazine, Winter 200, I feels that the judges are the most experienced neutrals in the justice system, and if properly trained in the mediation process would turn out ot be excellent mediators,In short, imparting of training should be made a part of continuing education on different facts of ADR so faras judicial officers and judges are concerned. IMPLEMENTATION The third stage of the ADR framework should be to see that, the disputes and differences between the litigants coming before the courts are actually referred to for conciliation, mediation or arbitration. ‘The judicial officers must also be trained to identify, cases which would be suitable for taking recourse to a particular form of ADR. They must be able to identify cases which are capable to being resolved through the ADR mechanism and that too which one of them would be suitable for the said purpose having regard to the facts and circumstances obtaining therein. The court annexed mediation conciliation or arbitration should be encouraged if not made compulsory. With a view to encourage court annexed mediation and conciliation, the court may sometimes be required to be a bit harsh on the litigant. An example of it can be found out in a recent decision of the House of Lords in Dunnett Vs. Railtrack ill (in railway administration) [2002) 2 All ER 850]. In that case the defendant unjustly and probably on misapprehension that involving themselves to mediation would necessarily involve the payments of money which he was not willing to contemplate over and above what they had offered. Brooke, U.Speaking for the Court of Appeals noticing the relevant rules being CPR 1.3 and 1.4 noticed: 11. However, the time did come when this court in terms suggested that this was a case for alternative dispute resolution. CPR 1.4 reads: (1) The court must further the overriding objective by actively managing cases, (2) Active case management includes...(e) encouraging the parties to use an altemative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure..." 12. Inthe helpful notes to that rule in the Autumn 2001 edition of the White Book (Civil Procedure), the editors write (at para 1.411): 13. “The encouragement and facilitating of ADR (alternative dispute resolution) by the court is an aspect of active case management which in tum is an aspect of achieving the overriding objective. The parties have a duty to help the court in furthering that objective and, therefore, they have a duty to consider seriously the possibility of ADR procedures being utilized for the purpose of resolving their claim or particular issues within it when encouraged by the court to do so. The discharge of the parties' duty in this respect may be relevant to the question of costs because, when exercising itsdiscretion as to costs, the court must have regard to all the circumstances, including the conduet of all the parties ()1.44.3(4), see too 44.5). 14. Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instances in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond ther powers of the court to provide. Occasions are known to the court in claims against the police, which can give rise to as much passion as a claim of this kind where a claimant's, precious horses are killed on a railway line, by which an apology from a very senior police officer is all that the claimant is really seeking and the money side of the matter falls away. Although the defendant succeeded, no costs were awarded. In this connection reference may also be made to Halsey Vs. Milton Keynes General NHS Trust [2004] EWCA (Civ) 576. The question which came up for consideration therein was as to whether the court should impose a costs sanction against a successful litigants on the ground that he has refused to take part in an ADR. The decision noted that a party could not be compelled to go in for mediation because this might be violation of Article 6 of the Eurpoean Convention of Human Rights inasmuch as it would be an imposition of an unacceptable obstruction on the right ofa litigant of access to court. (See Deweer Vs. Belgium (1980) 2 EFRR 439, para 49) But on the question as to what costs order should be passed when a party unreasonably refuses to accept ADR, it was felt that several factors were required to be taken into consideration, namely, the nature of the dispute and whether itinvolves a determination of issues of law or construction or allegations of fraud or commercially disreputable conduct; the merits of the case and the conduct of a party that unreasonably believes that his case is, water tight; whether other settlement methods have been attempted; whether the cost of mediation is disproportionately high; delay in suggesting mediation which may have the effect of delaying trial of the case, and whether mediation has a reasonable prospect of success. After considering all these factors, it was held that an order, denying costs to a successfull litigant might be passed, if there is an unreasonable refusal to accept ADR. Needless to say, this decision is a big step forward in ensuring that ADR is now taken even more seriously in England.Such court annexed mediation should be enforced in (i) commercial mediation; (ii) Matrimonial matters; (iii) labour disputes. It can also be made applicable in the litigants where the defendants is bound to apply for leave to defend within a time frame in terms of the provisions of the statute as, for example, the cases falling under Order 37 of the Code of the Civil Procedure. In such an event the defendant may be directed to pay the admitted amount due to them and they should be asked to go for mediation or conciliation as regard the disputed amount, It may be enforced in the cases under the Companies Act, Negotiable Instrument Act, Money Claims and several others, For successful implementation of the mechanism, it is imperative that we fix our target which would be two fold viz., (i) all the cases which are instituted in courts having original jurisdiction must be disposed of within 18 months and ina court of appellate jurisdiction within 12 months; (ii) only 15% of the disputes should be determined by the ordinary courts, Forthe purpose of achieving this object, itis necessary to take recourse to judicial reform in justice delivery system. With a view to achieve this target, itis necessary tosce that: (i) Gram Nyayalaya or a body at the grass root level should process 60 to 70% of rural litigation having the regular courts to devote their time on complex civil and criminal matters. (ii) Rent and eviction matters which constitute a considerable chunk of litigation in urban courts should be disposed of by taking recourse to alternative mode of resolution in terms of suggestions of the Law Commission that there should be a conciliation court alongwith a participatory model where a professional Judge interacts with lay Judges and evolves a reasonable solution. No appeal should lie their against but revision may be permissible on question of law to the district courts. (iii) Pre-trial conciliation should account for the disposal of a considerable chunk of cases. For the aforementioned purpose, the Government and the Judiciary have to undergo the process of judicial review seriously both on an operational and structural level. *Ifaall the players viz., the Government, the Judiciary, the Bar and the litigants take a concerted action in co-operation with each other, there is no reason as to why all stake holders, should not reach consensus on the programme. (* See Judicial Reforms in Justice Delivery System, (2004) 4 SCC (Jour) 35). eo