Can Conciliation and Mediation take precedence over Court Litigation
Honble Justice Y.K.Sabarwal, Senior Judge Supreme Court of India, Honble Justice Anil Dev Singh, Chief Justice of Rajasthan and other Honble Judges of High Court of Rajasthan, dignitaries on the dais, my esteemed colleagues, ladies and gentlemen. I am overwhelmed for this opportunity to address this august gathering at Jaipur today. More than 75 years ago, on January 7, 1929 my grandfather joined judicial services in the erstwhile State of Jaipur and retired as the first Registrar of Rajasthan High Court. Subsequently my father served judiciary and retired as the Chief Justice of this Honble High Court. I feel privileged to carry forward the legacy of my family tradition. I take this opportunity to congratulate Indian Arbitration Association for holding this seminar on a very relevant and current topic today.
Every single day of my life as an advocate for the last 27 years in the Supreme Court of India I observe, human co-existence means having relationship and having conflicts. In its legal parlance relationship leads to agreements and conflict leads to disputes. Every human being from his first breath to the last, survives amongst these two and also a third a love hate relationship. Whether the issues are domestic, professional and social there are agreements and there are disputes. After going through the rigors of two world wars United Nations was formed to save the world from the scourge of wars. One of the principal organs of UN is International Court of Justice and the statute of ICJ categorically provides for mediation, conciliation and arbitration, as modes of amicable resolution of international disputes...
No conciliation and mediation is possible without a person having experience of life and knowledge in law and worldly wise-ness. The shortest distance between two points is not a straight line but middlemen and more competent the middlemen, the shorter the distance to be covered. Ironically once this fact is accepted by one and all, several disputes will be resolved. Conciliation or mediation is an alternate dispute resolution process of reaching to a common line of acceptance of solution to a dispute. It is almost akin to negotiation, the contradistinguishing feature, however, is that in the later the parties are looking forward for a relationship, while in the former adjustments and compromises are sought to be arrived at after insinuations and allegations have been made.
Conciliation
Conciliation is adjustment or settlement of a dispute in a friendly and un-antagonistic manner. It is an informal process that involves resolution of problem by working on communication and relationships. Generally conciliation is used prior to mediation. During this problem solving stage the conciliator focuses on reducing tension by clarifying facts between the parties and helping them understand the value of good relationships. Like notice for demand of justice before filing of every writ petition and Sec.80 CPC notice before filing every suit, there must be a notice of dispute, in writing, by one party to the other, in every case where a dispute arises. The purpose of this notice of dispute is opening up negotiations. After a notice of dispute has been given, the parties are obliged to meet, try to resolve the dispute in good faith and make every reasonable effort to enter into a fresh relationship.
Once appointed, the conciliation officer will meet with representatives of the parties in order to assist them in reaching a mutually acceptable agreement. The conciliation officer must have a considerable expertise in human understanding and relationship gained through years of practical experience. The conciliation process may take a maximum up to 30 days, although the parties may mutually agree to extend this time period.
The conciliator must get relevant facts from both the parties, inform each side the view point of the other and arrange meetings between them. In many cases where the party is able to see the other point of view it may result in resolution of the issues. The parties may reach satisfaction or resolution without the need for a settlement agreement or may negotiate a fresh agreement. The issue of the dispute must be defined, in writing, at this stage of the process. Incidentally putting issues on paper itself resolves several problems, because then there is a possibility of objective thinking.
Genuine reconciliation often seems unlikely as there are always hidden agendas, surprises up the sleeve and the chances appear to be slim that the conciliator will be able to come up with a solution acceptable to all sides. There are several retired judicial officers whose valued experiences may be utilized for this purpose
Mediation
Mediation is a process whereby a mediator serves as a neutral third party and assists the disputing parties in reaching to a mutually satisfactory resolution of a problem. Normally a person should not serve as a mediator if that person was previously involved in the informal problem solving efforts or was responsible for processing of the grievance or conciliation. Mediation appointments must be made once a formal conciliation procedure fails. The mediator must look into the documents and hold conferences with the persons necessary for the mediation. Persons may include the aggrieved person, witnesses, representatives, neutrals, expert negotiators and conciliators.
The mediator must proceed expeditiously and inform the aggrieved person about the mediation process, including procedures and schedules. The mediator must conduct the mediation in 1-2 calendar days and may meet with the parties together and/or separately during the process. The mediator must keep no written record or transcript of the process. The grievant may be represented during the mediation by a designated representative, selected by the grievant. However, in the interest of improving workplace harmony and enhancing communication, the grievant should speak for himself or herself during the mediation process. Mediation requires the voluntary participation of all parties. The mediation may be terminated, with no resolution, at any time by the grievant.
Statements made during mediation must be kept confidential. Further, no party may subpoena or request as a witness the mediator in any subsequent proceedings between parties. The mediator will brief the parties only on the result of the mediation, including the terms of any proposed settlement. However, before disputes reach mediation two opportunities for yet another conciliation in which the dispute is resolved by the parties themselves may be given otherwise the parties must choose to accept a resolution proposed by a mediator. First opportunity should be given before a Regional Mediation, Conciliation and Arbitration Unit that may be staffed by civil servants. If this fails, the second opportunity must be given on the same day as the public hearing before the judicial officer specialising in the nature of dispute. The judicial officer may attempt mediation, which means that an interesting mixture of conciliation and mediation is involved. Most of these Regional Units may come under the jurisdiction of the Autonomous Administrations like the Indian Arbitration Bar. Experience has shown that nine out of ten disputes can be settled by mediation.
Believe you me friends, no body litigates because of fun or the joy of it, litigation is both time consuming, expensive and painful and there is no dispute which cannot be resolved. If European Union can be formed and Berlin wall can be removed after Second World War, when passions were charged to their possible heights and if samjhauta express can run after years of conflict, there is nothing which cannot be resolved by amicable settlement. It is all about changing the perception of people. We are aware that there are clients who are called as professional litigants and there are clients who are cantankerous but if you talk to them, they also feel that it is not all that easy, they also look forward to reasonable settlement.
If after negotiation, conciliation and mediation any party still approaches the court, the court must take it very seriously, there is a problem at hand, which must be resolved. Root cause of all litigation is a suppressed will or a broken heart, a feeling of inequity and injustice which we while providing judicial services try to resolve to the best of our ability. Even then, after years of litigation, mediation is a possible, when passions dry down and the benefits to be received out of litigation do not seem to be forth coming, people compromise, somebody must be there to give them correct direction.
Caste issues and election process has created vested interests and has even effected the Panchayati Raj system, which was one of the best process of conciliation and mediation. Vested interests blur the issues and capacity of people to think objectively. In most of the property disputes there are cash dealings, for which conciliation and mediation is best forum. Labour disputes can always be resolved by conciliation and mediation. Matrimonial disputes can obviously be resolved by conciliation and mediation. Service disputes can also be resolved if somebody is willing to take the responsibility of the decisions made and that person is not punished for not showing favours. In all matters every officers is aware where and when the employee is being treated arbitrarily or unreasonably and in which tendering process the action is arbitrary.
Every one who goes to the court, goes because he feels that he has been wronged, he feels that he has suffered enough, it is one of those classic slogans kab tak sahain, khamosh rahain. The aggrieved person feels that others have got benefits and he has been left out and unequal or arbitrary or unreasonable treatment has been meted to him, whether the dispute is with government or private. It is like going to a doctor, only after trying all dadima ke nuskhe and no recovery. Before going to the court every person tries his level best to conciliate or mediate, but when he thinks and feels that he is at a stage of no return, he goes to an advocate and moves the court.
I believe that conciliation and mediation is a powerful, but an underutilized tool for harmonious human relationships and resolving the conflicts. I believe that litigation must be the last resort for resolving any conflict. Today, we all advocates are better placed to play a useful, effective and reasonable role in conciliation and mediation of all kinds. Long live advocacy.
Aruneshwar Gupta
Read at a Seminar held by Indian Arbitration Bar at Jaipur on January 31, 2004
