Will A.D.R. affect the Legal Profession?

The compromise is the art of dividing a cake so that everybody believes he/she got the biggest piece.” – Ludwing Erhard

Introduction:

A.D.R. means Alternative Dispute Resolution and it includes Arbitration, Mediation, Conciliation, Negotiation, and Mini Trial. These are fast dispute resolution systems, which can be parallel and/or collateral to the Court System. Especially, in mediation system, a natural and impartial third party i.e. the mediator facilitates dialogue in a structural multistage process to help parties reach a conclusive and mutually satisfactory agreement.

v  Need of A.D.R.

Over the years, more cases have accumulated in our courts. The litigation whose case is not worth a contest has developed a mind-set that there is nothing wrong in delaying justice, either by compelling the other party to go to a court of law or by himself moving to the court and keeping the issue subjudice. It is obvious that the Government of India will not be able to establish all the needed courts in a short span f time. Alternative methods must therefore be necessarily found, even otherwise.

The problem of overcrowding of dockets is not peculiar to our country. Such problems have been and are faced by almost every country in the world. Necessity became the mother of invention in several countries. Alternative Dispute Mechanisms were evolved and adopted in many countries like U.S.A., Australia, etc. The U.S.A. was a more litigious country than ours. So, these countries have introduced Federal and State legislations, Rules of Court to enable parties to resort to mediation voluntarily or by compulsion (by what is called court annexed mediation). Initially, there has been some resistance from Bar. But gradually, once the systems were implemented, the Bar and the Bench found that litigants did benefit enormously in terms of time and money and conciliation and mediation became popular. In U.S.A., in 20 years, surprisingly the settlement rate rose upto 94%. There are similar success stories in other countries like Australia, U.K., New Zealand, etc.

Human beings, when it comes to dispute relating to money or property or status, are all the same, everywhere round the globe. Selfishness, strength of money power for protracting litigation or ego are common features. If the conciliation / mediation solution have been successful in other countries, they must and will succeed here also. Where the problems are same, the solutions could be similar, though there may be differences in degree or the methodology adopted.

The procedure for conciliation and mediation are today part of the systems of almost every judicial administration both in common law countries governed by civil law systems. The fact that we have woken up in 1999 and started to enforce Section 89 of Code of Civil Procedure only from 1^st July, 2002, should not matter. Better late than never.

Another climax about need of A.D.R. is Globalisation, Privatisation and liberalisation has taken place in 1991. The multinational companies made demand for A.D.R. systems in India. Mainly, disputes of these companies have been solved by the Arbitration. Latest example of Arbitration is dispute between Sahara Airways and Jet Airways as well as dispute resolution by mediation in partition matter of Ambani brothers.

Why A.D.R. Techniques became popular?

            The normal adversarial court system faces the following main problems –

1. Delay
2. Expense
3. Rigidity of Procedure
4. A reduction in the participatory role of parties.

Besides the rigidity of procedure of procedure, courts allow for a limited participatory role for parties. Litigants who contest their case in person are often times seen to give vent to their emotions, opinions, perceptions and interests. The court is not necessarily concerned with all of these since the primary duty of the court is to dispose justice according to law.

The advantages of A.D.R. is that it –

1. focuses upon the parties’ own needs and interests,
2. provides for a full disclosure of competing interests and positions
3. confers upon the parties a right of self determination
4. allows for procedural flexibility
5. maintains privacy and confidentiality
6. creates win-win situation in the minds of parties
7. separates the problem from the people
8. saves the time and money

The main Issue of The Discussion:

            “It was the duty of lawyers to make efforts to settle disputes and that by doing so, lawyers would not be losers.” – Mahatma Gandhiji

He further stated that he, in fact, built up a reputation that he would always appear for the party whose case was invariably the just one. Therefore, the systems of conciliation and mediation are as much part of our cultural heritage as they are in any other country.

The natural meaning of the issue is in negative sense. It means will A.D.R.  ruin the practice of Advocate? There may be, not quite surprisingly, resistance from the part of legal profession towards the acceptance of mediation because of the fear that a reduction of litigation may ultimately result in dilution of the work. This point is explained by some advocates as –

In the Court System,

Side 1: Advocate for Disputant

Side 2: Advocate for Disputant

But in Mediation/Conciliation Process,

Mediator/Conciliator who may be an Advocate

Side 1: Disputant Party

Side 2: Disputant Party

This means at least 50% work loss in case of mediator is advocate and in other time that work loss to lawyers may be 100%

            Another blame on the mediation process is there is no binding enforceability. Even though mediation agreement has been done through Court, then if there is breach of it, then ultimate result will be – Litigants will come to the Courts again.

            In fact the persons who say A.D.R. affect the legal profession badly, they forget the following things:

1. Every Advocate cannot become successful mediator:

            The process of mediation is totally different from the Court System. In mediation process, the emotions, privacy, confidentiality, win-win situations are taken into consideration. So, every advocate cannot acquire the skills of mediator.

2. Saturation of work will be disbursed:

            There is always statement of lawyers who oppose the A.D.R. mechanism that already there is saturation of work. But this is mere boogie. If A.D.R. mechanism spreads over India, then saturation will also decrease.

3. A.D.R. cannot work everywhere:

            A.D.R. is not generally successful when –

1. A party does not have a significant decision maker
2. Dispute involves important issues of law or public policy
3. One party is in weak position and other party is in strong position i.e. there is an imbalance of power
4. One party wants to delay resolution of dispute for one or the other
5. The dispute involves significant questions like government policy
6. The dispute involves the question of law

The above discussion reveals that if A.D.R. does not work in all sectors, then how it affects the legal profession in bad manner and how it ruins the practice of advocate.

Conclusion:

            Traditionally, the role of the lawyer in our legal system is associated with the functioning of Courts. Mediation does not postulate the displacement of the lawyer. Mediation does, however, contemplate a shift in the focus of the legal profession.

            For this purpose, this sense of awareness has to be created in the legal profession on an urgent basis by promoting a dialogue within the profession and between the professional and non-professional bodies. A determined effort has to be made to acquaint members of the Bar of the importance of mediation and of the special obligation, which the mediation process casts upon them.

            Professional bodies (such as the Bar Council in each State) conduct Refresher Courses for lawyers and it would be appropriate if knowledge and awareness in mediation were imparted through such bodies.

            Some of the premier law schools in the country have incorporated A.D.R.  Techniques as a part of the curriculum. But this development has largely been isolated. The programme of awareness and advocacy must extend to student of law who will be lawyers of the tomorrow. The success of the movement towards the mediation will depend in a large measure upon the co-operation of the legal profession.

            Awareness, advocacy and the need for positioning senior members of the Bar in positions of leadership is the sine qua non in order that A.D.R. is able to develop into a viable system.