Alernative Dispute Resolution & Legal System Reform in India

This is the summer of dreaming dangerously (yes, Zizek too is in the summer reading list). I have been trying to pack in three different projects in this summer plus a travel in the subcontinent. Here goes a brief on the first internship at the Bangalore Mediation Center in Bangalore on mediation as a method of alternative dispute resolution in India’s legal system reform. 

 

This summer I work with a team on a project to study mediation as an alternative dispute resolution method. ADR is looked upon in the legal fraternity as a way ahead in achieving legal system reform in India. There is a tremendous backlog of pending cases in the Indian courts across states and in the Supreme Court of India. Estimates suggest that if the number of cases pending in the courts are continued to be tried in the same way as now then it would take up to 340 years to solve all of them. That by any means is a tough situation in a society. Therefore, alternatives are being considered. One stream of thought suggests that what is to be done is clearly known – that the legal system faces capacity and resources issues and therefore open up more courts and modernize the courts to be able to handle such a heavy case load. The other approach however suggests that we must look at alternatives to the process of dispute resolution itself. Why is it necessary that every case must be adjudicated i.e tried in a court of law where a judgment is handed over to the parties and they live with it? An alternative approach can be to – mediation, conciliation, arbitration and counseling. These means are different from a trial in the way that it doesn’t involve a judgment of what is right or wrong (primarily) and instead focuses on what are the disputing parties’ interests and how to achieve a state where both the parties’ interests are met by negotiation. The neutralizing communication skills and powerful bargaining strategies of facilitated negotiation can strengthen the system’s capacity to bring justice to the society, as Chodosh suggests.

ADR is not new to India. It existed as a part of the Arbitration Act of 1940. Arbitration and Conciliation Act, 1996 and the National Legal Service Authority Act, 1987 (under which the Lok Adalats were constituted) are provisions which offer alternatives to a regular trial in court. Also, Section 89 of the Code of Civil Procedure provides for Mediation as an Alternative Dispute Resolution mechanism in India. However, with the increasing pendency of cases there is an increasing thrust on ADR as the legal processes in India proceed at a very slow pace. In 2007, High Court of Karnataka set up Bangalore Mediation Center (BMC) to mediate cases that would be referred to it from various courts in the state. The center is overseen by a director, a coordinator and a team of 82 trained mediators who are all practicing lawyers. BMC is widely perceived as a successful initiative because of the high number of cases it has mediated as well as for its high settlement rate. It mediated over 18,000 cases in a five year period since 2007 with a success rate of about 64%.

We examine the case data from BMC for general patterns that could suggest trends in using mediation as an ADR method. The exercise also serves as an exercise in testing how valid is BMC’s claim about its success in mediation of cases. We look for the type of cases mediated, success rates, time taken for the cases to be solved and what kind of cases are more likely to get resolved through mediation. For instance, family disputes have a higher tendency of resolution by mediation than cases of criminal nature.

What interests me in this study is that I come to this field from a non-legal background. I do not have training in law except a semester long course in law and governance, which served as an orientation into reading the law, understanding it and gaining a proficiency which can help in working in development sector. The dataset from BMC therefore looks interesting, for the associations and relationships that I figure between the variables are not seen the same way by the others with a law degree.

Over the next few weeks I sit as an observer in the mediation sessions and closely watch the process where a mediator is hearing a case between two parties at the BMC. The mediation sessions are observed to identify interests of both the parties. What kind of motivations do they hold and how does the mediator figure these out. The concerns, goals, priorities and means through which a resolution is achieved are of critical importance in understanding mediation as a process. And then how does all of these differ across various types of cases like matrimonial cases, family disputes etc. Observe interests, as the coordinator of BMC suggests. The enthusiasm towards mediation is high at BMC. One lawyer even suggests that “this is a silent revolution going on in the Indian courts”.

A good social (ethnographic?) account of the process and a identifying patterns (related to method, type etc) in mediation of cases would be a more likely product of this study.

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