Strategising at Salem: Lawyers ‘key’ in facilitating fair & speedy access to justice
The city of Salem in Tamil Nadu has had a long tryst with Mediation in India and visiting the city for a national conference allowed me to witness and network with some bright and enthusiastic minds in the field of ADR in South India. Hosted by Central Law College, Salem, and titled ‘Contemporary ADR Systems: Constraints and Strategies’, the two-day event ignited a spark in the minds of dozens of law students from across Tamil Nadu.
Around 75 students, law professors, academics from nearly 24 law colleges across the major cities of Tamil Nadu and neighbouring states walked up the stage and delivered their take on various themes, ranging from the general concept of ADR to the emergence of ODR; from mediation advocacy to ADR’s influence on the criminal justice administration; from it’s use in cases involving young offenders to it’s responsibility in creating the right atmosphere for persons with disabilities.
A consistent suggestion that concluded most of the presentations was that “ADR has the potential to reinforce constitutional assurances of speedy and fair trial”. Though most presenters took the liberty to include, both, mediation and arbitration under ADR, we can interpret “trial” as the opportunity to be heard. It is true that arbitration and mediation provide for a “confidential hearing” and the elements of voluntariness, flexibility, neutrality and document-less procedures ensure that the hearing is “efficient” if not speedy.
So, the question is – why does the Indian litigant still prefer the “court hearing”?
“It’s the lawyers, they are the biggest constraint. We must find a way to rid them of their insecurities and help them understand their role in ADR,” said a rather scandalised senior law student from Central Law College, Salem.
A judicial officer from Madurai echoed similar sentiments, stating that the entire profession has lost its integrity and has turned into a ugly business. “You have appellate lawyers who force small court counsels to push their client to consider appeal. The reasoning is not even legal, it is pure business. If soliciting is unethical, then this absolutely wrong on all fronts,” he said.
Many of the dignitaries gathered in the room for tea agreed that more specialised trainings and awareness about ADR needs to be created in the state and across the country, however the discussion kept redirecting towards “ethics” and “standards” of legal practice in India. “The client will blindly listen to what his or her lawyer says. In times of vulnerability, clients gobble any legal advice to feed their anxiety. The shift to ADR doesn’t start at the courts, its begins at client consultation,” suggested a former judicial officer and academic from Coimbatore.
I asked, “How do you convince the legal community that ADR is not here to take away their livelihood and ruin their lives?”
“But, being a lawyer is not about fetching for your livelihood. What happened to it being a noble profession?” asked a former Madras High Court Judge.
Reminiscing about the past, a professor of constitutional law and jurisprudence from a Chennai-based law school said, “Earlier, lawyers would never think about money while taking up a case. They had a little money pouch at the back of their robe wherein the clients would drop in whatever they could afford or however much they wanted to reimburse their lawyer for the services.”
“Things will change and the profession will regain its lost integrity. The shift to ADR will come but it will need a whole lot of convincing. Peer pressure must be used positively so that lawyers begin taking cue from their contemporaries who are pro ADR and leading their clients to platforms such as arbitration, mediation, conciliation or any other platform that encourages dialogue,” he said.
Highlights from the paper presentations at the conference in Salem –
- On “application of ADR in the criminal justice system in India” – L .S. Sathiyamuthy says, “…crime has to be not only considered as an issue of public policy and an unlawful act against the state, but the real party is the person who physically and mentally suffered from it must be given due recognition. In cases of theft, burglary, verbal abuse or defamation, before the commencement of trial, victim-offender dialogue must be encouraged. On par with section 89 of the CPC, a new provision must be introduced in the CrPC empowering trial courts to mandatorily refer deserving criminal cases to plea bargaining forum…”
- On ‘Mediation in domestic violence and cruelty cases” – K Indira says, “…In matrimonial disputes, in order to heal relationships and repair emotional damage, mediation would be the best mechanism. However, cases posing serious threat to a woman’s and child’s life must not be mediated. Though under section 14 of the Protection of Women from Domestic Violence Act, 2005, there is a mention about the magistrate referring the matter to a counselor, there should be a provision for mediation to avoid unnecessary and vexatious criminal litigation. This is not to dilute the provision of the law, but to safeguard the institution of marriage…”
- On “ADR in resolving insolvency cases” – D. Kiruthika says, “…ADR can be used to peacefully settle cases between debtor and creditor, and to reconcile the principle interest in insolvency cases. I would suggest the creation and maintenance of a rooster of insolvency arbitrators by jurisdiction and to forma a model insolvency procedure for arbitrators and thereby encourage the use of ADR in insolvency cases…”
- On “Pre-trial mechanisms in India” – Kela Jyothi Jagdish says, “… In India, the system of pre-trial hearing is not clearly identified as a distinct feature in the case management process. The objective of pre-trial conference is to identify the issue clearly so as to facilitate expeditious disposal of cases through proper case management and to promote amicable settlement of the dispute…”
- On “The Integration of Mediation in cases involving Young Offenders” – Lipi Parashar says, “… successful mediation programs (restorative facilitation) provides increased attention to the young offender, allows victims to express their feelings. It helps achieve restitution and other forms of reparations, to the victims and the society. There is need to humanise the criminal justice experience for victim and offender. The characteristic of individuality, which is inherent in Mediation reassures one that is a practical and potentially highly successful approach to juvenile justice…”
- On “ADR and legal sanctions” – N. Gowthaman and R. Darshini say, “… just like the khap panchayat and katta panchayat in TN, there are others like nattu and Patti panchayats which the locals refer to as ‘out of court’ mechanisms but these are held “unconstitutional and illegal in the eyes of the law. The panchayats were supposed to empower the people and the gram nyayalaya was proposed to be set up, but the government doesn’t recognise its legality. ADR mechanisms must be introduced and their operations broadly explained to prohibit unauthorised practices in the name of law…”
- On “the productivity of Lok Adalats as an ADR platform’’ – Sonali Badi says, “… success rate of Lok Adalats is higher than the courts and it helps take forward the constitutional mandate of article 14 which provides for equality before law, and equal before law which can be interpreted as affordable justice to all…”
- On “ADR as a tool for Social Justice” – D. Vaidya Shanker says, “… Speedy disposal of cases and delivery of quality justice is an enduring agenda for all who are concerned with administration of justice. The hallmarks being inclusiveness and transparency, through ADR, the decision making power is redistributed to the disputing parties. ADR in India needs structural and operational changes…”
- On “Arbitrability of Intellectual property disputes in India” – Anirudh A. Kulkarni says, “… the Indian legal framework lacks the competitive will to effectuate the arbitrabliity of intellectual property disputes in India. While there exists contradictory opinions within the judiciary, it becomes necessary for the legislature to incorporate the same through a well framed legislation or an amendment to the Arbitration and Conciliation Act and other laws pertaining to IPR…”
- On “ADR in protecting the interests of persons with disabilities” – A. Deivendram says, “…to maximise the involvement of a person with a disability, it is important to make the ADR process sensitive to the person’s needs. Avoid abstract language, deal with one issue at a time if the person has memory problems. For those with cognitive disability, make the meeting room informal and free of distractions…”