The idea of revisiting the issues and the ways to unleash the true potential of Alternative Dispute Resolution (ADR) was nagging me for a long time. However, certain things need an occasion and a particular timing to gain the true weight and due strength in order to convey a sense of purpose.
Ever since, if I use the often repeated clichéd term, ‘liberalisation, globalisation and privatisation’, has started happening in the country, coincided by telecom and the Internet revolution, we have truly become a republic of ideas. Ideas are abound, and it may be said that these days they are rehashed, reprocessed to such an extent that they seem dime a dozen.
If you Google the term ‘Alternative Dispute Resolution’, you will find loads of information, analyses, critiques on the challenges and methods for popularising it. Besides Googling it, there are so many conferences and seminars taking place around the country on this theme, which reminds of the saying ‘everybody talks about weather but nobody does anything about it’. Same is probably the fate of this brilliant concept, which still has to gain the intended momentum to truly become an ‘alternative’ to the traditional litigating methods of dispute resolution.
So the challenge for me was how not to be too verbose, long winding in my analyses and to say something of true value so that you not only may appreciate the effort but also enjoy whatever is being said on this theme, which is not mundane, ordinary and routine. Besides, whatever I say also has some weight, some authority to provide the sanctity to my effort.
That wait has been worth its while as I was presented with an occasion which was not ordinary, the ideas were not mundane or routine and to top it all, it had the sanctity and authority which anyone would rely on.
This suitable occasion arose during ‘International Conference on ADR – Conciliation and Mediation’ organised by the International Centre for Alternative Dispute Resolution (ICADR) on 19th January 2013. No doubt that the introductory description of the conference was not out of the ordinary but it surely conveyed its intent and which was stated in its objective as ‘ Alternative Dispute Resolution methods for settlement of commercial and other disputes are absolutely necessary in view of heavy pendency of cases in courts.’ However, it truly had the DNA for a greater purpose which was captured in the words: ‘to create public awareness about adoption of such methods for resolution of disputes’.
This greater purpose was provided with its true strength, sanctity and weight by the participating luminaries. It was attended by none other than Dr. H.R. Bhardwaj, Governor of Karnataka and Kerala and Chairman, ICADR who besides being the law minister of the country in the past, has been a leading lawyer. Then there were two judges from the International Court of Justice, Rt. Hon’ble Christopher Greenwood and Hon’ble Justice Dalveer Bhandari, yes the former judge of the Supreme Court. Then there were three judges from Supreme Court – Hon’ble Justice P. Sathasivam, Hon’ble Justice S.S. Nijjar, and Hon’ble Justice Madan B. Lokur. Besides these luminaries, there were many hon’ble judges from different high courts, former judges and other persons of excellence.
Undoubtedly the challenges are numerous as we take note of a fact shared by Prof. (Dr.) Ranbir Singh, Vice Chancellor, National Law University, Delhi that by the year 2040, the number of cases pending in the courts would be approximately 40 crore. If this projection is correct then this is definitely a very serious challenge as it has the potential to threaten our very social, economic, political and judicial fabric – in what terms and in how many ways and would add to what kind of despondency amongst the populace – it is even difficult to imagine. And if we consider the statement of Hon’ble Justice N. Kumar of the Karnataka High Court that, ‘judicial determination of disputes has a direct nexus with the health of the economy as the efficiency of judicial system bolsters economic system’, then the seriousness of the problem also dawns upon us. So let alone India’s enemies outside, as even if they do not do anything to subvert our journey towards greater socioeconomic prosperity and well being, challenges like these are good enough to render us. And if I may say so, Maoism, which is eating into the vitals of our nation, has got its genesis in the failure of justice administration system to a greater extent.
As per Mr. Suman Jyoti Khaitan, President, PHD Chambers of Commerce and Industry, and an experienced lawyer in his own right, the costs arise on account of arbitrator’s fee, rent for arbitration venues, travel and boarding for arbitrators, administrative expenses and professional fees paid to lawyers besides expenses on the professionals working in-house of the parties. So much so that arbitration and particularly ad hoc arbitration is becoming more expensive vis-à-vis traditional litigation. And this fact is not allowing development of a cost effective quality arbitration practice in India.
Lack of legislatively provided timeline within which an arbitration must be completed. Scope for interference of the courts is also one of the reasons for causing delays as litigants themselves approaching arbitration with the mindset of litigation complicate the process and seek to delay the entire proceedings. Besides, litigants are increasingly involving the courts in issues that require the courts to delve deeper into the crux of the arbitration agreement. This does take time and results in arbitration no longer being as efficacious a remedy as envisaged, so much so that the awards invariably end up in courts. Also, the system does not provide for disincentivising delaying the whole process on frivolous grounds.
As per Mr. Khaitan, the key to deal with the devils of cost and delays, which is plaguing the ADR system, lies firstly in bringing legislative amendments to the law to ‘remove the anomaly which enables a defeated party to avoid execution of arbitral awards by merely filing an application for setting aside the award under Section 34, of the Arbitration and Conciliation Act, without being required to deposit a part of the award amount.’ He believes that powers conferred on arbitral tribunals are weak in the case of interim reliefs; it has no mechanism to enforce its own direction. Besides this, enforcement of the awards itself is a very time consuming process and the present law does not help in quick enforcement thereof.
As per Hon’ble Justice Sikri, the attitudinal changes are one of the important aspects which would go long way in addressing the issues in the debate as to how to inspire confidence in arbitration in India. To this, he suggested that role of lawyers in the domain of arbitration is different and they will have to rethink their role, not from adversarial perspective but with a pro dispute resolution mindset i.e. instead of ‘my way’ v. ‘your way’ lawyers must think of ‘our way’. Also, the emergence of five star hotel culture of conducting arbitration is also a big challenge which must go. Instead of such pleasure arbitration, more seriousness and sanctity as to business of arbitration must be accorded to and such pleasure/convenience needs to go away and they must be conducted from 10 AM in the morning to 5 PM in the evening.
There was a consensus amongst the luminaries that there is an increased role of educational institutions in promoting specialised study and research in ADR mechanism and they must also play a role in advocacy, awareness and training for popularising ADR methods. The point was part of the popularisation strategy of the ADR methods. To this, Dr. Ranbir Singh, Mr. B.S Saluja, Secretary General, ICADR shared their mutual synergies as to how ICADR had tied up with NLU Delhi to offer PG diploma courses in ADR. Besides it, training was given to the officers of GAIL in ADR methods by ICADR.
As per Hon’ble Justice Sathashivam, Supreme Court of India, a great opportunity in easing judicial burden and making access to justice cheaper, the solution lays in popularising mediation so much so that it should be brought to the very door step of the common man to make him able to resolve his disputes easily in a cost effective manner by saving time as well. For this, he suggested mediation centre in each district of the country and promotion of community mediation centres. He listed out the kind of disputes which may be addressed through mediation and include disputes in accidental compensation, employment, family, landlord-tenant and insurance. And almost on similar lines, Hon’ble Justice Madan B. Lokur, Supreme Court of India also shared his views as he believed that there is an urgent need to institutionalise mediation and resolving petty disputes through community mediation. And one of the factors he believed, which was not letting this system to be popular, was lack of awareness and thus suggested the concept of village mediators to bring access to the justice to common man.
The choice between ad-hoc or institutional arbitration depends largely upon the nature of dispute and the paying capacity of the parties. So in that sense, it is horses for courses kind of proposition as to which method to opt for. However, both the methods suffer from their own procedural problems and sooner they are resolved the better it is. In the conference, a lot of suggestions were made. For example, Mr. Ajay Thomas of LCIA India suggested that the power to appoint arbitrators must be given to arbitral institutions and the govt. must put clauses favouring institutional arbitration in its contracts.
The view was that once a dedicated bar composed of lawyers would be in place for primarily dealing with arbitration matters, then there will emerge an altogether different ethos as to how to approach arbitration and bring in more professional seriousness to the business of arbitration found its echo amongst all the participants and the desire was expressed to make some positive movements towards having a dedicated arbitration bar.
In order to conclude, I must recall the words of Hon’ble Justice Dalveer Bhandari that substantial justice is the name of the game for long lasting peace and that can be gained through ADR methods. He delved on the menace of docket explosion in the country which he opined will further explode because of population growth, increasing awareness, lack of judges and physical infrastructure, with result being further crippling of judicial system by clogging. And this would lead to an ever increasing cynicism towards the efficiency and efficacy of the justice delivery system, so much that it has started benefitting the unworthy and penalising the fair. As per justice Bhandari, in California State of USA, 94 percent cases are decided through mediation. So the question which he asked was – if America can adopt ADR then why can’t we?
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