Mahatma Gandhi's thought on resolution of disputes catching on in Bangalore
My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and enter men's hearts. I realised that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby, not even money, certainly not my soul. — Mahatma Gandhi
This understanding of Gandhiji on the importance of mediation — a time and cost-efficient alternative method for conflict resolution instead of fighting litigation before courts for years — is catching on in Bangalore if we go by the statistics of litigation referred by various courts to the Bangalore Mediation Centre (BMC), an initiative of the Karnataka High Court, during the past five years. Similarly, the percentage of disputes resolved reflects the level of satisfaction among the litigants in the outcome of the mediation process.
In 2007, the year in which BMC was launched, the number of cases received for mediation was only 2,500. Now it has crossed 5,000 cases per year and 23,000 cases have been referred between 2007 and March 30, 2012.
Interestingly, the BMC has recorded successful mediation in 11,850, which is 64 per cent of the 18,569 cases that were mediated. In addition, 1,588 ancillary disputes connected to the main disputes too were settled. While disputes could not be settled through mediation in 6,700 cases, mediation did not take place in 3,900 cases for various reasons, including, non-appearance of parties having disputes, case being unfit for mediation, etc.
The provision for mediation as an alternative dispute resolution mechanism was included in Section 89 of the Code of Civil Procedure, 1908 by Parliament through an amendment in 1999. However, it was challenged by the Salem Advocates Bar Association before the Supreme Court, which, in its two judgments of 2002 and 2005, upheld the amendment. And, rules for mediation were framed by the High Court of Karnataka during 2006.
Section 89 empowers the courts to allow settlement of disputes outside court by referring civil disputes for resolution through alternative mechanisms — arbitration, conciliation, judicial settlement, including settlement through Lok Adalat and mediation.
At present, BMC deals with only court-referred disputes for mediation and is not taking up mediation at the pre-litigation stage. Matrimonial cases constitute a major portion as 10,000 of the cases referred to it are related to divorce, judicial separation, restitution of conjugal rights, etc. The average success in settlement of these types of cases is 65 per cent, and in divorce cases, it is 83 per cent.
Cases related to property, partition, possession, money suits form the second large group as 7,000 cases fall in this category. About 60 per cent of the cases in this category have been settled successfully.
Justice K.L. Manjunath, a senior judge of the Karnataka High Court and president of the Board of Governors of BMC, says the number of litigants opting for mediation is on the rise indicating that people get a “satisfying result” from this process. “We are not charging any fee from litigants for mediation, irrespective their financial background. We want more people to benefit from mediation,” he says.
The centre has 80 advocates with a minimum of 15 years of practice and trained in mediation by the Institute for the Study and Development of Legal System, U.S., as mediators. BMC offers Rs. 1,500 per day as conveyance with a ceiling of Rs. 15,000 per month to them.
While admitting that the number of mediation rooms (15) have become insufficient with the increase in the number of cases, Mr. Manjunath says, “The problem will be solved when a new building is in place in two years. We will also accept disputes at the pre-litigation stage itself once the statutory provisions are enacted.”
Senior Civil Judge and BMC's Deputy Director M. Chandrashekar Reddy says a dispute is settled in an average 1.59 sessions while an average time spent is 126 minutes. However, complicated issues need five or six sessions.
As per the rule, says Mr. Reddy, mediation should produce results within 60 days from the date of reference. Otherwise, it referred back to the court.
In many instances, the cases were referred again and again by courts, and some disputes are resolved during the second or third references.
If litigants had not agreed to mediation, a majority of these cases would have been pending before civil courts for years, Mr. Reddy points out while adding that courts, to encourage litigants to opt for mediation, refund litigation fee paid by them if their dispute is resolved through mediation.