Mediation:
A Pro – Poor Analysis
By Abhirup Ghosh
III-Year Student Gujarat
National Law University Gandhinagar Gujarat
Mediation
India is presently witnessing a considerable progress in the usefulness of the alternative dispute resolution system i.e. ADR. But one should make it clear that ADR is not the method but the network of various dispute resolution systems. This network includes mainly five methods namely 1. Arbitration 2. Conciliation 3. Settlement through Lok Adalats 4. Mediation 5. Negotiation. The provisions for arbitration and conciliation have already been codified through Arbitration and Conciliation Act of 1996. From the name itself it becomes clear that the Act primary emphasizes on arbitration and conciliation and except for section 30 of the Act, mediation finds hardly any reference in the Act. But the present day trend shows how disputants are more interested in heading towards mediation process in spite of having statutory provision available under the 1996 Act. Before coming to an analysis of the reasons, we must undertake the exercise of explaining the concept of mediation.
Mediation is one of the methods of ADR. It contemplates a significance of a neutral third party who by helps the disputants in reaching an agreement in order to solve the dispute. The plus point of mediation is that a mediator avoids opinions and judgments. He facilitates communication between the parties and considers the interests and priorities and then tries to bridge the gap. There are certain advantages of mediation like it is cost effective, it consumes short period of time to dispose of the conflict, it has no formality unlike the courts, very flexible and most importantly non binding in nature. Therefore it gives the parties adequate space to have a test drive on the dispute before going to the Court. Considering the advantages of mediation the present article makes an effort to highlight how this process of ADR can serve the poor effectively—particularly the ones who stay beyond the so called light of urban civilization.
The Present
Judiciary of India and the poor
The Supreme Court of India in a number of cases pronounced and reiterated the principle of “justice delayed is justice denied”. But the present scenario of judicial efficiency does not show us any impression that this principle has been a part and parcel of the judicial system of India. And the worst sufferers of this problem are the poor people and undoubtedly the rural ones. The backlogs that have been created in the courts are beyond the imagination of a commonplace person. In one phrase it would be called as “Docket Explosion”. It was unanimously opined in the conference of the Chief Justices of various High Courts held on 4th December 1993 that the Courts are not in a position to bear the entire burden of justice system and thus it is imperative to think about effective alternative dispute resolution system. Such system would necessarily reduce the strain the conventional trial system. Apart from the backlogs there are other problems which really concern the poor people. One on them is over-professionalization of legal practice. Since common citizens regard Court as a final authority to deliver justice, therefore the access to Court is highly monopolized by the lawyers. The drafting of most of our laws are highly influenced by the British and thus understanding of the language of law is beyond the capabilities of the common mass and perhaps it is impossible for the people who are poor and not acquainted with the urban or metropolitan culture. Therefore in this area mediation will not be better but the best option available for those people.
Finding
“Alternative” amongst Alternatives
One may ask a particular question as to why mediation is preferred over the other alternatives available within the recognized network of ADR. To answer this question one must showcase the distinctions between mediation and other alternative dispute redressal mechanisms. In arbitration the disputants employ a third party to decide the outcome and parties do not have a direct role to play. The award given by the arbitrator is final and binding subject to appeal. An arbitrator hesitates to go beyond the traditional remedies, there is the risk of loosing and some formal or semi-formal rules are there. In conciliation also the conciliator plays a relatively direct role and sometimes he may appear as responsible to figure out the best solution for the parties. But mediation in contrast to these two aforesaid is a peaceful kind of dispute resolution. Here a neutral third party assists the two parties to interact with each other and to find an amicable solution. In mediation the parties are the best Judges of their problem but what the mediator facilitates is communication between them as lack of communication is the root cause of many problems. In mediation there is no formality, a mediator never assumes the position of a Judge and the outcome of the mediation may even cross the traditional concepts resulting into an innovative idea. Therefore mediation can be regarded the best amongst the alternatives available.
Mediation as
an effective tool for poor people
As far as mediation is concerned, in my opinion it can be a very useful resource for dispute resolution particularly for those who are lying in the rural areas. Parliament as well as the state legislatures have enacted a number of laws concerning to the welfare of the poor people. But these laws have not attained the expected success because of their improper implementation by the executive. Moreover no significant step has yet been taken for spreading awareness about those laws in the public. Awareness apart, the institutions which are administering such laws should have gained the faith of the people in the first place. But it is apparent that due to inadequate or no legal literacy, complexity in language, exploitation by lawyers, poor people are not still aware of many of their rights. In rural side people are afraid of going to the courts because of pre-imagination of harassment, humiliation and most importantly the cost of litigation is too high to be borne by them. Therefore a mentality for compromising with the violation of rights and silently suffer the exploitation is on increase. But this is not fair. When we have the pie of ADR in our hand then why not share it equally amongst all and in such distribution if more of the portion goes to the poor particularly the rural one then there is no harm in it. The constitution has given adequate space for positive discrimination in favor of the weaker sections. The Arbitration and Conciliation Act of 1996 provides for mediation but it does not mandate the authority concerned to improve the existing mechanism and the future incorporation of more of such institutions for the purpose of serving the poor people. The modern picture depicts that the mediation centers are mainly coming up in the urban areas particularly in the metros and the people are already enjoying its fruits. But most, rather say all of them are based on private ownership and they charge very high fees. Therefore they are far fetched dreams for the poor. But if the same is there in the rural areas with reasonable fees then it can be beneficial in various aspects.
1. Growing legal literacy: In India the rural poor are not at all aware of the black letters of law. Thus development of mediation agencies in rural areas can help in thrusting legal literacy upon the poor by allowing them in taking part in dispute resolution. In this way the knowledge of law can be inculcated in the minds of the people in a more simple way. Further in this way rural poor can become aware of their legal rights.
2. Significantly informal: Mediation is simplest of all procedures. Therefore the illiterate people can easily understand it. In this way exploitation of the poor people by lawyers not at all possible.
3. Reducing mental agony: Any kind of conflict gives birth to mental tension. Moreover in judicial proceedings there is a win-lose situation and as a result people are always scared. This is more relevant in context of poor. On the other hand a mediator himself takes the task of removing handicap.
4. Not a passive onlooker: A mediator is neither a passive onlooker like a Judge, nor he is as neutral as an umpire. He keeps his efforts on in restoring the effective communication between the disputants. It is very important because in any kind of dispute communication is the first victim.
5. Non Compulsiveness: Mediation is necessarily a non compulsive procedure. There is nothing which binds the disputants to come to an agreement. Therefore it gives the persons enough space to approach the door of the Court.
Conclusion
and Recommendations:
India is the largest democracy in the world. A true democracy must provide adequate facility to the people to access effective mechanism of dispute resolution at reasonable costs. A democracy must be bound by rule of law otherwise dispute will be at increase and that in turn will breach the social solidarity. If social solidarity is violated then the country will not progress. Therefore we must head towards the creation of an effective ADR system with a huge network having equally represented in all over the country and particularly, ensuring that the rural poor are deriving benefits out of it. This will be the ideal way to maintain social solidarity and communal harmony. It is an imperative to ensure that judicial waste of time must not take place in dealing with unimportant matters. Only important matters must receive judicial attention. India is becoming more and more prominent in international scenario and thus it is necessary that measures should be taken by the govt. to bring change in the present judicial system to give effect to the same. Therefore at the end we must remember that it is the prime time to reform the judicial system in India in order to achieve a society which is free of conflicts, beneficial to the development of trade & commerce, ultimately in the advancement of the nation in all spheres.
2. Clifford Wallace, “HOW TO OVERCOME AN UNACCEPTABLE
BACKLOG”, International Judicial
Conference - Prague, Czech Republic, May 17-19, 2006, retrieved from:
http://www.internationaljudicialconference.org/PDF/Interventions/How_to_overcome_an_unacceptable_backlog.pdf, Visited on 12.07.2007.
3. Matthew Bashalany, “Bingham joins delegation to introduce mediation in India”, retrieved from: http://www.bingham.com/Media.aspx?MediaID=5249, visited on 12.07.2007
4. Leonard P. Reina, “Mediation vs. Arbitration vs. Litigation: What's The Difference?” retrieved from: http://library.findlaw.com/1999/Jun/1/129206.html,
Visited on 12.07.2007.
5. “What are the differences between an arbitrator and a mediator?” retrieved from: http://www.peoples-law.org/core/mediation/adr_directory/faq-arbvsmed.htm, visited on 12.07.2007.
6. “Mediation-A Resource of the Rural Poor in India” retrieved from: http://www.mediate.com/articles/sampath1.cfm, visited on 13.07.2007.
7. S.R. Khanzode, H.J.S, “ADR - You & Me”, retrieved from: http://slsagoa.nic.in/newsletter/goanya_is%202%20vol%20II.pdf, visited on 13.07.2007.
8. “ADDRESS AT THE TAMIL NADU MEDIATION AND CONCILIATION CENTRE, CHENNAI” Retrieved from: http://presidentofindia.nic.in/scripts/sllatest1.jsp?id=821, visited on 13.07.2007.
9. “Address by Hon’ble Sh. K.G. Balakrishnan,
Chief Justice of India
At the National Seminar of the Bar Council of India at Cuttack”, retrieved from: http://www.supremecourtofindia.nic.in/new_links/cu14407.pdf, visited on: visited on 14.07.2007.
10. “ACCESS TO JUSTICE ROLE OF LAW AND LEGAL INSTITUTIONS IN THE ALLEVIATION OF POVERTY AND DEPRIVATION”, Inaugural address in golden jubilee regional seminar of Indian Law Institute at Cuttack, Orissa on 9th September 2006. Justice Y. K. Sabharwal retrieved from: http://www.supremecourtofindia.nic.in/new_links/CUTTACK.pdf, visited on 14.07.2007.
14. “Sustainable Development in India: Perspectives”, http://envfor.nic.in/divisions/ic/wssd/doc4/consul_book_persp.pdf
Visited on 17.07.2007.