In dispute resolution, adjudication has its limits, mediation its place
A large number of disputes can be settled outside the courtroom. This is less expensive for the parties and eases pressure on courts
Mr. Gopal Subramanium’s article in The Hindu (editorial page, >“When judges don’t adjudicate enough,” May 1, 2013) gives a thumbs down to dispute resolution processes other than litigation. He says that “adjudication of claims is of transcendental importance” and wants “the judiciary to take responsibility for adjudication of all the claims in this country.” With due respect to him as a lawyer of eminence, his prescriptions will leave every disputant with no alternative but protracted litigation, uncertainty of result, certainty of loss of relationships, spending enormous time and money (on court and lawyers’ fees), and at the end of it all, getting a verdict which may not effectively address the root dispute. Indeed, Judge Learned Hand of the United States, whom Mr. Subramanium certainly admires, said “... as a litigant I should dread a law suit beyond almost anything short of sickness or death.”
Mediation is a process in which an expert neutral helps the disputants to reach an enforceable agreement that settles their dispute. It is voluntary; either party can terminate it at any time without adverse consequence. The decision-making is in the hands of the parties themselves, who are the main participants. It is confidential. Disputes are usually resolved in a matter of weeks, and the cost is far less than in litigation. The purpose is to find a practical and sustainable solution, which both parties see as serving their best interests. The reader may decide which process, litigation or mediation, is risk-free and user-friendly.
Mr. Subramanium complains that Courts mandate resort to mediation, and that a party who refuses to settle faces “negativity from the Court.” This is not the case. Under Section 89 of the Code of Civil Procedure, the Judge, in appropriate cases, suggests recourse to the court’s own mediation centre, where lawyers trained as mediators provide the service without charge to the litigant. Mr. Subramanium is largely, though not wholly, right when he says that lawyers representing parties will concede to the Court’s suggestion to try mediation. However, what is important is that the Court can only send the parties to mediation; it cannot direct that they settle their dispute through mediation. Beyond making a bona fide effort, nothing more is required from the parties. If a party does not wish to continue the mediation, it has the right to terminate it. When the matter is sent back to the Court, no mention is made of what transpired in the proceedings, not even that a particular party desired to opt out. In several cases, litigants come unwillingly to the mediation table, and leave satisfied with the agreement they reach.
Mediation and rights
The complaint is made that rights and entitlements are bartered away in mediation. Again, this is a misconception. Rights are not ignored, but they are placed in the perspective of long term and larger interests. To illustrate, workers and management can battle over the right to bonus; their long-term interests are productivity, profits, fair wages and security of tenure, all of which point to settlement. Divorcing parents will fight endlessly on their rights to custody of children and sharing property; long-term interests are the stability and emotional security of the child, and the need of each party to the marriage to move on if it has ended, again favouring settlement. When rights are the sole language spoken, the battle is endless so long as the purse is not emptied. When they are harmonised with underlying and substantial interest, we get consensus and accommodation. Here, yielding is not surrender, but beneficial compromise. Parties are settling for more, not less. “Peace of mind” ought not to be consigned to the space within inverted commas.
Many cases must be handled only by the Courts such as writ petitions, criminal offences, human rights abuses, environmental pollution, breach of fundamental rights, cases manifesting severe imbalance of power, and as a last resort. But a large number of disputes, especially personal, property, civil and commercial ones, can be sorted out by parties without legal prisms and decrees of courts. What needs to be addressed is the conflict into which the parties have fallen. Litigation dresses up these conflicts in the garb of rights, for that is the only way that the codes of the law, and lawyers and judges, can deal with them. Such conflict gets exacerbated when handled with more conflict, which is what happens when we issue lawyers’ notices, draft pleadings and conduct bruising cross-examination. For these cases where solutions can be had without establishing rights in a law court, a better way to bring people out of conflict is to employ more humane methods like encouraging respectful communication, fostering common understanding, and jointly focusing on suggestions and creative options leading to amicable agreement.
Match and solve
Thus there is no one method that fits all cases, neither adjudication as Mr. Subramanium would like, nor mediation that some overzealous mediators want. The answer is simply finding the right method of dispute resolution for the particular case, of matching remedy to malady. He uses the term “alternative sub-culture.” In fact, the time has gone when the term A in ADR meant “alternative”; now it is recognised that each method of dispute resolution has a role to play, and hence ADR stands for “Appropriate Dispute Resolution.” The principle of appropriateness is a harmonising concept, and we need not negate or decry any method as “second-hand,” but take comfort from knowing that with a panoply of ways to address dispute, we have a good chance to control conflict between individuals, companies, other organisations and communities. There is nothing “improper” when the Court accepts and endorses mediation; the Court would be doing its petitioners, and itself, a disservice if it rejects a method which has a success rate of more than 50 per cent, avoids appeals and execution proceedings, and, most important, ends dispute.
Although mediation in India is a long way from realising its potential, it has made rapid strides from 2005; almost every High Court has a centre. The better functioning ones deal with 50 to 100 matters every day; thousands of cases have been handled, benefiting litigants and easing the strain on the Courts. A couple of thousand lawyers function as mediators, working after court hours, and for little remuneration. Some of them will be dismayed by Mr. Subramanium’s comments. They should take heart from what another lawyer said: “I realised that the true function of a lawyer was to unite parties driven asunder.” His name was Mohandas Karamchand Gandhi.
(Sriram Panchu is a senior advocate and mediator, and vice-president of the Association of Indian Mediators. This article is on behalf of the Association.)