Resolving disputes through dialogue

Alternate Dispute Resolution (ADR) is assuming significance worldwide and the adversarial system of justice delivery is embracing it and substantially incorporating its features. Mediation as an ADR is not a rehearsal trial in front of a judge but a dialogue process to capture parties’ insights and ideas in a dispute that help them to identify and shape their preferred outcomes. ADR procedures need to retain their distinctive features in order to gain and maintain faith and confidence of stakeholders. The growing evidence of failing faith in adversarial systems as an adequate basis for fair adjudication has brought the task of searching for alternatives to litigation to the forefront. “Litigation Explosion‟ is said to be both cause and effect of a court system incapable of providing timely, affordable and effective outcomes.

The court system that intends to provide a just, principled, practical and economically rational solution is largely perceived to do just the opposite. In advanced adversarial systems of the west lawyers as the primary players of litigation are also accused of promoting needless complexity, fomenting strife, manipulating legal technicalities, selfishly taking advantage of opponents and clients, advancing the interests of the rich and powerful against the poor and weak and undermining the health of the economy.

The recently enacted Mediation Act, 2023 which has been published in the Gazette of India in September 2023 is a unique step towards achieving the goal of dispute settlement through mediation and conciliation techniques in a refined way.The Act amends more than half a dozen legislations especially section 89 Civil Procedure Code to pave the way for dispute settlement through various approaches including the novel method of pre -litigation mediation.The avowed objective of the Act is to promote and facilitate mediation,especially institutional mediation for resolution of disputes-commercial or otherwise and extends to the whole of India.The Act provides a holistic mechanism for enforcement of mediated settlement agreements,envisages a new body known as Mediation Council of India,encourages community mediation,gives legal sanctity to on-line mediation as an acceptable and cost effective mechanism for dispute resolution.

The Act defines mediation in an inclusive way as a process, whether referred to by the expression mediation, pre-litigation mediation, on-line mediation,community mediation,conciliation or an expression of similar import,whereby the parties attempt to reach an amicable settlement of their dispute with the assistance of a third person referred to as mediator who does not have the authority to impose a settlement upon the parties to the dispute. Pre-litigation Mediation:Whether any mediation agreement exists or not, parties before filing any suit or proceeding of civil or commercial nature in any court,may voluntarily and with mutual consent take steps to settle the dispute by pre-litigation mediation.Where there is an express agreement ,parties have to avail the pre-litigation mediation and courts may refuse to entertain the suit or other proceedings.Even in compoundable offenses, the Act permits the process of mediation.

However disputes relating to claims against minors,deities,persons suffering from disabilities,suits for declaration of title against Government,disputes relating to prosecution for criminal offenses, complaints or proceedings initiated before any statutory authority or body in relation to registration, discipline,misconduct of any practitioner or other registered professional such as lawyers,doctors,chartered Accountant or any other professional regulated under any law can not be the subject of mediation. Like wise environmental disputes falling within the jurisdiction of National Green Tribunal, land acquisition including determination of compensation for such acquisitions, disputes relating to levy, collection or penalties for offenses in relation to direct or indirect taxes or disputes having effect on third parties who are not parties to the mediation.

In all commercial disputes where the Central Government/State Government or the Government of a UT or any of their Departments, agencies, public bodies, corporations and local bodies including entities controlled or owned by such Governments are a party,  pre-litigation mediation and other mediatory settlement approaches are to be given a chance before launching formal proceedings.

The Act provides for community mediation of local disputes which arise on a day to day basis. Any dispute likely to affect peace, harmony and tranquility amongst the residents or families of any area or locality may be settled through community mediation with prior mutual consent of the parties to the dispute.The District Magistrates /Sub-District Magistrates are required to form panel of three respectable persons from the respective localities to mediate in such types of disputes. The District Legal Services Authority can be approached for reference of such disputes for peaceful settlement.The other unique feature of the Act is that mediated settlement between the parties is clubbed with the legal system and given the same effect as a decree or other order of the Court once the settlement is registered by the parties.

Adversarial versus mediatory-dispute resolution: A century old historical lesson from “the valley of Kashmir”

The local history of Jammu and Kashmir is replete with instances which amply demonstrate that ADR methods have been used in J&K even after the introduction of English adversarial system of justice delivery. Use of ADR techniques have shown remarkable results in the past and people have well taken it as part of their indigenous culture. Walter R. Lawrence - the settlement Commissioner of Kashmir during the years 1890 to 1895 (A.D.), while giving an account of his unique mediatory methods of dispute resolution in Kashmir in the famous book “Valley of Kashmir”{Gulshan Book Publications at p.12} prefers ADR methods against court litigation for the following reasons:

“Since 1890, all suits connected with land, saving land situated within Srinagar and a few adjoining villages, have been removed from the ordinary courts and have been made over to me for decision. My procedure has been to hear and decide such suits in the village where the claim has arisen. Under a chinar tree in the presence of the assembled villagers, the claimant prefers his suit and the defendant makes his reply. Then the old men of the village and the headmen of the neighborhood give their opinion on the case, and a brief entry is made by me which finally settles the claim. This may seem a very rough and ready way of disposing of land suits, but so far no one has ever appealed against my decision. If a claimant went to the courts in Srinagar, the dark side of his character would appear.

Pleaders and court attendants would adulterate his simple claim and in the same way the defendant would throw off the candour and truthfulness inspired by the presence of his neighbors in the village and would lie in the most ingenious and surprising manner. For five years this procedure has gone on, and I attribute much of the quiet prosperity which is now growing in the villages, to the fact that money is not spent and bad blood is not engendered by litigation. My system is the old system of the village panchayat. The commonest intellect can tell from the faces of the villagers whether the claim is just, and the ‘genius loci’ seems to keep both claimant and defendant to the point and to the truth. The system is easy and possible in Kashmir, for one can reach any village in the valley in a day’s ride.

My object in alluding to this procedure is to add further testimony to the fact that Kashmiri peasants are not dishonest. If they had been the hopeless liars they are reputed to be, I could never have disposed of the many suits which have arisen. A Kashmiri will rarely lie when he is confronted in his village by his fellow villagers; he will invariably lie when he enters the murky atmosphere of the Law courts.....If litigation is fostered in Kashmir prosperity in the villages will be checked”.

Given the fact that people in Jammu and Kashmir as well as Ladakh are known for their preferences to amicable solution of disputes and they move towards litigation as a last resort after all means of amicable settlement of dispute have failed, the new modes of justice delivery can be successfully launched once proper infrastructure is put in place.The hon’ble High Court of J&K and Ladakh through Legal Services Authority has already been on the mission to achieve optimum amicable settlement of disputes through

Lok Adalats and Court -annexed Mediation Centres, the J&K International Arbitration Centre and has envisaged newer means of access to justice through modern technology and E-Court programmes to especially the marginalized sections. Wide variety of Rules recently framed by the Hon’ble High Court ensure access to justice to people especially residing in remoter areas through the use of modern technology/post offices etc and online templates of formats have been facilitated for ease of access to courts. Legal Services Clinics/Clubs are already in place in some Rural areas and Colleges/Law Schools .There is need for establishment of more such Legal Services Clinics at each Tehsil and District level where young lawyers can be required to spend some time during holidays to create awareness about litigation preventive strategies and the new processes of dispute settlement.Such of the lawyers who spend time in such clinics along with the paralegal staff posted in the Clinics need to be trained through Judicial Academies/judges and experts.

Lawyers/Law students can play their role by spreading awareness about the newer means of justice delivery in remoter areas especially as part of such clinics and ensure reference of disputes to such clinics for amicable settlement at pre-litigation stage.Young lawyers engaged in such clinics, however, need to be provided some incentives like engagement as standing counsels etc so as to attract talent. Senior Law students as paralegals and young lawyers can spread awareness about the mediation and conciliation avenues available under the law. These Service Clinics, with adequate infrastructural facilities, can with the passage of time occupy the steering wheels in the implementation of new approaches of justice delivery and help in peaceful settlement of large amount of disputes especially smaller disputes including family matters whose number shows rising trend both in rural and urban areas .

 By: Professor(Dr.) Mohammad Ayub Dar

 The author is an Advocate at J& K High Court, formerly Head and Dean and Professor of Law,School of Law,University of Kashmir.