ADR system needs to be made more responsive
There are certain practical difficulties in implementing the ADR methods in our country because people are not fully aware of the functioning of the system of ADR. The law is too complex for a layman to deal with and that is why they deal with Advocates and represent their cases through them in courts. What to say and what not to say when a dispute arises is absolutely controlled by the Advocates. That is the first practical difficulty which stifles the process of ADR.
Second, is the conflict of interests between the Advocates and the ADR process, be it Arbitration, Mediation, Conciliation or Judicial settlement. If the ADR process fails the dispute is back in the court and the parties will continue to pay the fees to the Advocates. That being the case why the Advocates want to lose money allowing the mediator to solve the problem?
Third is the ignorance of the parties. Parties are not aware that what transpires between them and the mediator/Conciliator cannot be used as evidence against them during regular process of trial if mediation/Conciliation fails. So they do not want to open their mouths about many aspects and many facts of the case which are otherwise strong points to them in regular trial. Say for instance, in our country in a divorce proceeding no husband wants to admit that he received so much amount of dowry in a mediation process, even if he is given fair amount of knowledge that facts admitted in mediation will not be used against him in regular legal proceedings in Court. And unless that fact is admitted the wife’s party will not be inclined to negotiate further because understanding can be reached on if both the parties speak facts as they are aware about each other by virtue of being related to each other. If one party hides a fact blatantly which is amply known to other party or claims that the fact averred by the other party is false, the other party will no way be impressed and wish to be part of mediation process.
Another drawback for the process of mediation is the way Section 89 of Civil Procedure Code and Order X of CPC is designed. Keeping the question of whether it is mandatory for the court to direct the parties to opt for one or the other ADR processes in Sec.89(1), when we read Order X R.1A we come to know that the Court refers the case to ADR too late that is by then the Admissions and Denials are already recorded by the referral judge in regular proceedings of the Court. That means that both parties have already appointed their Advocates whose bread and butter is Adversarial system of justice and that is too late. The problem with this is modernization of our typing technologies and computerization. Earlier, when computers were not existing the clients used to sit with Advocates and enumerate the facts and Advocates used to write down….facts….as Pt.no.1, 2, 3 etc. The same used to appear as averments in typewritten form. Now it is all copy-paste computer technology. Before proceeding further I wish to share a joke on Bar and Bench relations:
The Judge of Family court who deals with an Advocate regularly who files Original applications of the parties finds that Mr. Bhonsle, one of the Advocates is regularly filing same averments in all his Original Applications. Like in a Hindi film, he asks the Advocate in one hearing, “Mr. Bhonsle, it seems you have filed same averments in your last OA also I want you to come with your last case plaint next time when you come….I want to verify….how the hell all the clients of yours have same problems and averments?”. Mr. Bhonsle nervously replies, “No your honour they are not exactly the same….”. Judge fires, “What do you mean….NOT EXACTLY SAME…? Anyway you bring what I said let me verify.”. Mr. Bhonsle turns up with last plaint during next hearing and the Judge sits with earlier plaint and present plaint. He finds no difference, number of paragraphs, space between lines ….everything appears same. He gets angry and asks, “what is this Mr. Bhonsle….is there any difference between the two….what the hell you are doing….”….Mr. Bhonsle….defends with a pleasing nervousness….”No your honour…they are not exactly same…..”. “You are still obstinate about your point? Show me any difference….”. “Your honour….in the last plaint the husband slapped the wife on Left cheek and in the present plaint…he slapped on right cheek…..and in the last plaint the husband had lifted the wife and thrown her down on the floor two feet away….in the present plaint he had thrown her away three feet…..”………Judge : ”……..”.
That is how it happens. Now what is the relevance of this to mediation…one may ask. When Advocates prepare the OAs and plaints the facts are read by the clients of opposite parties. When they see all that they do not know or think that these are regularly and routinely done by Advocates what they think is my wife/husband had said such and such thing about me to the Advocate. “Oh Hell! Did he/she say that about me…???!!! Liar….” will be the reaction. Many a time they are also deliberately engineered by some mischievous Advocates. That is why I say, by the time the case is referred to mediation it is too late.
And fifthly the right of self-determination in mediation has its limitations. For instance, the mediator cannot draw up a conciliation agreement saying “the parties have amicably settled all the issues before them and they have agreed for a divorce”. Because divorce can only be granted by a regular law court it cannot be a point of agreement between parties.
What I say is for all these problems there needs to be amendments to be made. One such amendment is relating to the above paragraph. Even if parties amicably agree for divorce in mediation the Conciliation agreement shall have binding force, it should be statutorily taken as Mutual Consent Divorce and implement it as if it is a decree of Mutual Consent Divorce. Other aspects relating to sharing of properties, lumpsum amounts and maintenance of course can be tackled with existing provisions of law.
And the first thought that came to my mind when I thought about conflict of interests between Advocates of parties and Mediation process, I felt that the fees paid to Mediator shall be divided among three, i.e., the Advocates of both the parties and the Mediator. But that may be too much of a burden for the clients and too less for the professionals whose job is bread and butter for them. So I feel, that instead of calling the Advocates of the parties during first hearing, after the plaint is filed and the case comes to the cognizance of court/judge, the parties themselves must be called and be asked to opt for one among the four ADR modes in Sec.89(1). At that stage, only the first party had appointed the advocate and he filed the plaint on behalf of plaintiff. Without that the court will not have cognizance of a civil case and therefore, that much of process must be over. At that stage, admissions and denials do not take place, the averments of opposite party is not known and therefore there will be no heart burn. There is less possibility of Advocates playing spoilsport.
The third amendment I suggest is if the mediation/conciliation fails, Arbitration must be made compulsory. Only if the Arbitration order is too perverse or against the principles of substantive law or on the existing grounds that principles of natural justice were violated the Arbitration order must be set aside and regular legal proceedings must be conducted. Otherwise it must be implemented as if it is decree of a Civil court. This means it is like a filtering process. Whatever cases that can be resolved through mediation/conciliation will be solved and then some may be resolved through Court annexed Arbitration and by then if atleast 5 out of every 10 cases are resolved that will be a great success for ADR system in India.
Now coming to the aspect of how much the Advocates are going to lose by Mediation/Conciliation proceedings gaining ground over the proceedings of adversarial system of justice….I wish to say that in our country only 10 to 20 percent of the population tap the doors of court for resolution of disputes and justice. If courts are able to solve the problems of people through ADR process that will promote the faith in judicial system and that figure will jump to 30 per cent…. may be even more to 40 or 50 per cent. That means it makes no difference for the earnings of Advocates instead it will increase their earnings in case they also specialize in the art of mediation/conciliation because simple logic is more people approaching courts means more work and more money for Advocates.
