As an acronym, ADR is the most touted expression in legal circles. This is for not necessarily the same reason. Many see it not as an alternative to the court system but as a necessary adjunct to the established justice delivery portals. Though a British system of courts that displaced banyan tree justice or panchayat system that were indigenous as tools for conflict resolution, it lies strongly embedded in an average Indian psyche that the vernacular Cutcheri in many an Indian language means the same thing. Any angry diatribe between contesting parties in any situation will conclude with a warning, ‘let us meet in Cutcheri’ or ‘let the Cutcheri decide’ or ‘I will drag you up to Supreme Court!’.
This does not still mean that we have worked our courts well. If we have 32 million cases in various tiers of judicial adjudication, there is something seriously amiss. If foreign investors are weary of coming to India for fear of not being able to find easy resolution through our courts or if we are seeing the shifting of venues of arbitration out of India to the nearby Singapore, we must admit that there is a stranglehold of courts that we are not able to shake free from. Not the delays, not the apprehension of corruption, not even sometimes their poor quality could be dampeners. If, in USA, the settlement culture is propelled by avoidance of high costs of contested litigation, the extraordinary delays ought to entice us away from this system, but no, the blindfolded Themis is an unshakeable seductress!
Arbitration and conciliation on court leash
This explains why choice of arbitrator is always mired in controversies and resort to High Courts for appointment of arbitrator is the constantly invoked provision under the Arbitration Act. A large incidence of challenging awards in courts as though arbitral tribunals are courts of first instance and appeals to courts shall be the norm, arise out of a mindset firmly entrenched not merely in lawyers or parties fomenting litigation but also of judges, who do not want to let go their jurisdiction for flimsy reasons. Conciliation as a viable form of dispute resolution never took root, although the Industrial Disputes Act made it obligatory before any dispute could escalate through a notification by government for reference to Labour Courts. The provision was only seen as a necessary evil and parties were always eager to secure a ‘failure report’ so that a reference could land them in courts. Conciliation under the 1996 enactment was a processual variation of the popular concept of mediation that had gained ground in U.S at that time but it is doubtful if the parties ever resort to this practice.
Mediation mostly court annexed
Mediation, when it was introduced through procedural law in Civil Procedure Code, it was conceived of as a mechanism attached to the court so that it is the court’s initiative that consigns parties to arrive at the mediation table. If a settlement takes place it shall still go back to court to secure the court’s imprimatur. There are over 30 Central legislation that make references to mediation but there is still no standalone law on mediation that anoints a team of professionals through a well structured training syllabus, an accrediting body to recognise and regulate the practice of mediators and giving teeth to mediated settlements the status of decrees to secure enforcements in the event of default of compliance of agreed terms. The Companies Act, 2013contains provision for a mediation panel but strangely, the legislative understanding is so warped in litigative approaches that the law makes provision at the same time a provision for challenge in NCLT if the party is aggrieved, as though there could be still a lingering dispute after settlement. The Insolvency and Bankruptcy Code, 2016 repeals existing provisions of insolvency laws and some provisions of companies Act, apart making substantial amendments in the law of partnership, central excise law, customs law, debt recovery law of 1993, SARFAESI law and SICA. The Resolution Professionals under the Code need not be trained mediators; they could make their recommendations like bosses over warring parties to the NCLT and the ultimate resolution is largely adjudicatory and adversarial. Commercial Courts Acts expect mandatory mediation but leaves commercial litigants of high value claims to resort only to the ill-equipped, bureaucratic minded Legal Services Authorities operating at district levels to be administered with mediatory approaches. It is just another institution like conciliation offices under ID Act that only offer passages for entry to courts with failure reports. The Lok Adalats cater largely only to Motor Accident Claims and not effectively used by insurers who prefer courts’ judgements on contests than negotiated settlements.
No Standalone legislation for Mediation in sight
It is 8 months since India signed United Nations Convention on International Settlement Agreements Resulting from Mediation, called the Singapore Convention on Mediation, that expects a domestic law to support a mediated settlement of a cross border disputes to be enforced in any Court in India but there is no law in sight through any form of legislative activity, such as producing a draft of bill and placing for public debate or for discussion before select panels, either parliamentary or ministry driven. The Supreme Court itself has set up a committee to recommend a draft law to take recourse to, perhaps, Visakha jurisprudence as a judgment driven law but it is anybody’s guess when it will take shape.
Small incremental step is the way forward
The initial trust in court’s adjudicatory abilities shall be leveraged to secure more referrals through courts to any of ADR formulations in chosen fields, such as transport accident claims, cheque bouncing cases, maintenance actions, family partitions, compensation for land acquisitions, to name but few which can surely be settled and ought not to be taken up for trial. Not just new cases, but the cases that are in Courts’ Records Sections. Let the courts themselves give the hope to parties that with ADRs, they could settle for more; they will not just split the difference but enlarge the pie and divide; power back to parties and win-win resolutions; that these are all not just empty rhetorical slogans but realities to be experienced and redeemed.