ADR Mechanism In India: Role of Legal Practitioners In Mediation
Peace is the most important factor for the development of mankind. Where there is a man there is a conflict. It is the reality of life. However what is more important is that how we resolve the dispute. The success of nation depends upon the effective judiciary. But unfortunately today our judiciary is stressed with pending cases. Directive Principle of State Policy Article 39 A of Indian constitution speaks that justice shall not be denied to any person on the basis of any inability whether physical or monetary. Article 21 Right to life and personal liberty includes Right to speedy trial. Even though it is fundamental right its enforcement has become challenge before the judiciary.
Litigants feel lost when they have to face rigid, costly and time consuming procedure of law. Considering the plight of poor litigants legislature has introduced a best mechanism to resolve dispute. This mechanism is ‘Alternative Dispute Resolution’ system. Civil Procedure Code was amended in the year 1999 and it introduced Section 89.Section 89 has made obligatory on the part of court to refer the dispute to one of the mode of ADR i.e Arbitration, mediation, conciliation, court settlement – Lok Adalats if there is an element of settlement of dispute.
Significance of topic selected:
It has been seen from personal observation that many advocates are against the mode of mediation. Their view is, introduction of ADR, especially mediation is violation of their ‘Right to livelihood’. This system will make them brief less lawyers. This way of thinking is actually is nothing but the myth. Reality is totally different. Client needs advocate at each and every stage of mediation. The object behind selection of this topic is to widen the horizon of that advocates who are having negative attitude towards mediation system & supports only the conventional method of courts procedure to resolve dispute. Making advocates positive regarding ADR – with special regard to ‘mediation process’ is the main purpose behind this Article.
II. Meaning of ADR
The layman’s definition of Alternative Dispute Resolution is solving of a dispute by a method other than litigation. Alternative Dispute Resolution technique includes different modes of ADR i.e. Arbitration, conciliation, mediation and court settlement including Lok Adalat. According to this method in accordance with nature of the case it shall be on the part of the court to refer the dispute to any of the mode ADR. e.g If the matter is of commercial nature it shall be referred to Arbitration. The family matters like divorce and maintenance shall be referred to Mediation or conciliation.
III. Legislative Approach:
Law relating ADR has been made under Section 89 and Order X of Civil Procedure Code 1908, The Legal Service Authorities Act, 1987.
Section 89, C.P.C. - Settlement of dispute outside of the court
1.Where it appears to the court that there exist element of settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for –
d. judicial settlement including settlement through Lok Adalat
For mediation, the court shall effect the compromise between the parties and shall follow such procedure as may be prescribed.
Section 89 came into being in its current form on account of the enforcement of the CPC (Amendment) Act, 1999 with effect from 1-7-2002.
Order X provides for when court may direct to take recourse to alternative means to resolve disputes, the duty of the parties to appear before such forum and the responsibility of the presiding officer to act in the interest of justice and return the suit if better suited for the court.
Examination of parties by the court
1. Ascertainment whether allegation in pleading are admitted or denied.
According to this section court shall record admissions and denials from each party or his pleaders in their plaint or written statements.
1.A. Directions of the court to opt for any one mode of alternative dispute resolution
After recording the admissions and denials, the court shall direct the parties to the suit to opt either mode of the settlement outside the court as specified in sub-section 1 of section 89.On the options of the parties, the court shall fix the date of appearance before such forum or authority as may be opted by the parties.
1-B. Appearance before the conciliatory forum or authority
Where a suit is referred under rule 1-A, the parties shall appear before such forums or authority for conciliation of the suit.
1-C. Appearance before the court consequent to the failure of efforts of conciliation
Where the suit is referred under rule 1-A and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the court and direct the parties to appear before the court on the date fixed by it.
The Legal Service Authorities Act, 1987.
Section 19 (5): The Lok Adalat shall have jurisdiction to determine and to arrive at a compromise settlement between the parties to a dispute in respect of
i. Any case pending before; or
ii. Any matter which is falling within the jurisdiction of and is not brought before, any court for which the Lok Adalat is organized
Section 20: Where the case is referred to Lok Adalat according to section 19. The parties thereof agree or one of the parties thereof makes an application to the court for referring the case to the Lok Adalat for settlement and if court is prima facie satisfied that there exist chances of such settlement. The court shall refer the case to the Lok Adalat. Lok Adalat shall proceed to dispose of the case and arrive at a compromise or settlement between the parties. The Lok Adalat shall act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity fair play and other legal principles. Where no award is made by the Lok Adalat on ground that no settlement could be arrived at between the parties the Lok Adalat shall advice the parties to seek remedy in court.
IV. Meaning of Mediation According to Alternative Dispute Resolution and Mediation Rules, 2003
‘Mediation’ means the process by which a mediator appointed by parties or by the court, as the case may be, mediates the dispute between the parties to the suit by the application of the provisions of the Mediation Rules in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties own responsibility for making decisions which affect them.
Role of Legal Practitioners In ADR
Advocates play an important role ‘before, during and after mediation’
Role of Advocates before mediation
It is seen that majority of parties are always unaware about the mediation process. There is only one person on whom they can trust is their advocate. It is the duty of an advocate to make them aware about the procedure of mediation. Advocates have the skill to convince and make their client protected. He should ensure the quick and cheap justice to them. Before the mediation advocate and his client can prepare the mediation brief where they collectively formulate the options if any. Without presence of an advocate client may feel clueless. Advocate can become his support system and ensure justice. It has been stated by ‘Abraham Lincon’,” Because of their skill and experience advocates have superior opportunities to do good.
Role of advocates during mediation
Role of advocates during mediation is most important .It is the rule of mediation that mediator can generate options for settlement of dispute. Mediator cannot impose any of his decision on parties. If parties are not ready he cannot force them to compromise. At this stage advocate has to play the role of serious vigilant of the process. So that,the interest of his client will not get affected. He can save his client from pressured settlement. Many times at the time of mediation he gets the chance to rethink the merits of the case. At this stage he gets an opportunity to suggest mediator as well as opposite party terms of settlement. Advocates are experienced and skilled person who can better know the consequences of accepted terms of settlement. Because of his presence parties can take firm decision. Their decision is may not always positive regarding mediation but presence of advocate make them confident about the decision taken by them. At this stage it is the duty of an advocate to guide his client in best possible manner.
Role of advocate after mediation
Advocate has to play significant role after completion of mediation process. The result of mediation may be anything. Mediation may be successful or fail. In both the situation clients need guidance from advocate. If mediation fails then client needs to take remedy from court. For this purpose he needs help from advocate to start again his litigation from that stage at which it was referred to mediation. If the mediation gets success and clients are ready for settlement of dispute. They need to formulate settlement agreement. Advocate is the best person to see the settlement agreement protects the interest of his client. It has been seen in majority of cases unless and until advocates reads settlement agreement and ensures its correctness client don’t sign it. After signing of settlement agreement it is the duty of the advocate to see that the decree or order passed by mediator is executed.
In this way advocate should always keep in mind that even though mediation process includes referral judges, mediation judges and parties. Advocate also has significant role to play in the whole process of mediation.
Advantages of mediation for advocates
Peace of mind
Anything can be bought with money but not peace of mind. The feeling that my client has got quick and cheap justice, his satisfaction gives peace of mind to advocate.
Fulfillment of responsibility towards society
As an officer of the court it is the responsibility of every advocate to fight for justice. Money making should be secondary objective. Mediation saves time of clients. Client is nothing but the part of society. If advocate takes part in mediation positively he can save time and money of his client as well as of court. In this way he can fulfill his responsibilities towards the society
Fulfillment of responsibility towards judiciary
Advocate has vital duty to save the time of judiciary. It is the duty of every advocate to lessen the burden of judiciary. He can fulfill this duty by guiding his client in positive way at mediation process.
Publicity and money making
If advocate takes active part in mediation and ensure quick and cheap relief for his client. Good publicity of such advocates is possible and it can bring him more clients. It can fulfill his both the objectives i.e. money making and peace of mind.
Advocates should think about ADR mechanism in positive way
If advocates themselves think positively about ADR they can easily convince their client to settle their dispute outside the court by following suitable mode of ADR. In this way client can get easy and quick justice.
Advocates generally have convincing power. Advocates should voluntarily come forward to devote his time out of their busy schedule for doing mediations at mediation centers. It can help judiciary to lose the burden of pendency of cases.
At academic level every law student should be given mediation training. So that he can gain skills of mediation at initial stage only.
It is an advocate who can change the attitude of society regarding dispute resolution i.e from “I will see you in the court” to “Lets settle the matter outside the court through ADR”
Alternative Dispute Resolution system is the ideal system of dispute resolution. Before certain years ADR was considered as voluntary act of the client. But after 1999 it has got legal recognisation through code of civil procedure Amendment Act, 1999, Arbitration and Conciliation Act 1996, Legal service Authorities Act 1987, Legal service Authorities Amendment Act 2002. The word ‘Alternative’ denotes the mechanism which is alternative to conventional method for resolution of dispute outside the court. Mediation is one of the modes of ADR. Mediation is negotiated settlement with assistance of third neutral party. It is the best method of resolving dispute as it saves money, time and relationships from spoiling for forever. It benefits not only to clients but also advocates. Advocates should not think negatively about this system. If an advocate assists his client during the process of mediation and settlement happens. It can give him positive publicity which is actually very important for his profession. He can give more time to other complicated cases. Mediation doesn’t violate advocate’s right to livelihood. It is up to advocate to decide the fees for consultation for mediation process for making the mediation brief etc. It is the best mode of dispute resolution and can proved to be helpful for enforcement of fundamental right i.e Right to life and personal liberty which includes within its ambit right to speedy trial. Article 39 A which speaks that justice shall not be denied to any person on the basis of any inability whether physical or monetary. It is the Directive Principle of State Policy. ADR can give effect to Article 21 & 39 A in best possible manner. The view behind introducing section 89 of, order X of Civil Procedure code is very noble but unless and until all the law practitioners and society at large think about this system in positive manner it will not get desired success.
# Section 89 of Civil Procedure Code, 1908
# Order X of Civil Procedure Code, 1908
# Legal Service Authorities Act, 1987
# Role of legal Practitioners in Mediation