Report No. 184
Alternative Dispute Resolution training for students as well as lawyers
6. The Commission has felt it expedient to add a separate chapter on 'Alternative Dispute Resolution' both for students at the law schools and for lawyers who are already at the Bar.
6.1 Recently, Parliament enacted new section 89 in the Code of Civil Procedure, 1908 by requiring every civil suit to mandatorily go through the ADR process, however, giving the parties the option to choose one or other of the processe.- like arbitration, mediation, conciliation and settlement through Lok Adalats. These provisions have come into force from 1.7.2002.
6.2 Parliament enacted these provisions into our civil procedure with a view to lessen the burden of the civil courts and to save money and time for the litigants. But, unfortunately, the subject of ADR is not familiar to most of the lawyers at the Bar. Not only are they not familiar but there is some kind of antagonism or disbelief in the efficacy of these systems. Lawyers and judges are known for their conservatism. This conservative experience regarding ADR is not peculiar to our country.
Even in advanced countries in America, Europe and in the Commonwealth when, over just about 20 years ago, these ADR systems were proposed there was resistance from the lawyers and Judges. There is vast literature on this aspect. But over a period, the lawyers and the litigants in this connection have realized and recognized the utility of these systems. In those countries, in just about 20 63 years, the number of civil matters settled at the stage before trial, has risen to nearly 90% and only 10% of cases are going for trial.
6.3 Recently, the Supreme Court had occasion to deal with the utility of ADR systems and we shall refer to the said judgment in Salem Advocate Bar Assn. v. Union of India, 2002 (8) SCALE 146. Speaking for the Bench, after referring to section 89 of the Code of Civil Procedure, Kirpal CJ observed as follows: (see para 9 to 12)
"It is quite obvious that the reason why section 89 has been inserted is to try and see that all the cases which are filed in court need not necessarily be decided by the court itself. Keeping in mind, the laws delays and the limited number of Judges which are available, it has now become imperative that resort should be had to Alternative Dispute Resolution Mechanism with a view to bring an end litigation between the parties at an early date.
The Alternative Dispute Resolution (ADR) Mechanism as contemplated by section 89 is arbitration or conciliation or judicial settlement including settlement through Lok Adalat or mediation. Subsection (2) of section 89 refers to different Acts in relation to arbitration, conciliation or settlement through Lok Adalat, but with regard to mediation, section 89(2)(d) provides that the parties shall follow the procedure as may be prescribed. Section 89(2)(d), therefore, contemplates appropriate rules being framed with regard to mediation.
In certain countries of the world where ADR has been successful, to the extent of over 90 per cent of the cases are settled out of court, 64 there is a requirement that the parties to the suit must indicate the form of ADR which they would like to resort to during the pendency of the trial of the suit. If the parties agree to arbitration, then the provisions of the Arbitration and Conciliation Act, 1996 will apply and that case will go outside the stream of the court but resorting to conciliation or judicial settlement or mediation with a view to settle the dispute would not ipso facto take the case outside the judicial system.
All that this means is that effort has to be made to bring about an amicable settlement between the parties but if conciliation or mediation or judicial settlement is not possible, despite efforts being made, the case will ultimately go to trial.
Section 89 is a new provision and even though arbitration or conciliation has been in place as a mode for settling the dispute, this has not really reduced the burden on the courts. It does appear to us that modalities have to be formulated for the manner in which section 89 and, for that matter, the other provisions which have been introduced by way of amendments, may have to be in operation. All counsel are agreed that for this purpose, it will be appropriate if a Committee is constituted so as to ensure that the amendments made become effective and result in quicker dispensation of justice.
This Committee may consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the ADR referred to in section 89. The model rules, with or without modification, which are 65 formulated may be adopted by the High Courts concerned for giving effect to section 89(2)(d)."
In the light of the above judgment, it is clear that every case must compulsorily pass through a process where an attempt is made for settlement by ADR procedures.
6.4 The Commission is, therefore, of the view that ADR procedures must form and continue as a compulsory subject in all law schools and that there is urgent need for training lawyers, who are already practising in the courts, in these ADR procedures.
6.5 Courts must be recognized as centers for adjudication or settlement:- According to age old and popular conception, courts were recognized only as places where disputes are adjudicated by a competent judge in a court established by the State. But, these age old concepts have now undergone a complete transformation. According to Prof. Frank EA Sander, today, the status of the court is different. Today, the court is also a place which encourages settlement. Prof. Sander's vision was that the:
"court was not simply a courthouse but a dispute resolution centre where the grievant, with the aid of a screening clerk, would be directed to the process (or sequence of processes) most appropriate to a particular type of case" (Sander, Frank, EA 'Varieties of Dispute processing' 707 RD 111 quoted in 'Dispute Resolution' by Goldberg, Sander and Rogers, 3rd Ed, 1999)
The law students, the Bar and the Bench must, therefore, consider that practice in courts is no longer confined to developing skills in advocacy but also skills in ADR procedures.
6.6 In an adversarial system, lawyers have grown to view courts as places for a combat or a legal fight. Law students and lawyers must be trained not merely to speak for their clients but to listen to the views of the opponent and see if an adjustment can be made which will save time and money for the litigants and incidentally save time for the courts. If some cases are settled, courts can deal faster more complex or important cases or cases relating to criminal offences etc. which must necessarily be adjudicated by the courts.
If the training in respect of ADR procedures starts right from the law school, a lawyer who has gone through that training or prospect will not be averse to a system of settlement by ADR methods. A culture different from the one now prevailing has to be developed and this has to be started in right earnest from the law school level. Now that section 89 imposes a mandate that every case must go through ADR processes. ADR processes must be made a compulsory subject in the law school for students.
But, the more important thing today is that lawyers at the Bar, have not had sufficient knowledge of the techniques relating to the ADR systems or the ground rules or the ethical aspects of the system.- such as those relating to confidentialit.- but are compelled to participate in the ADR processes by virtue of the mandate of section 89 of the Code of Civil 67 Procedure, even though they have not had any training while at college or at the bar so far in regard to those ADR processes.
6.7 A look at the vast literature on ADR systems shows that the subject does require considerable training to be given to lawyers. The norms and the nuances and the rules of the game have first to be learnt. There are several standard books on the subject. There is voluminous literature that can be immediately accessed through the Internet even in remote parts of the country.
6.8 In order to familiarize the lawyers at the Bar to ADR procedures, there is urgent need to go about training in ADR systems more or less on a 'war footing'. The Bar Council of India and Bar Associations and Indian Law Institute and its Branches and other recognized organizations like the ICADR must step in to start training in ADR systems urgently (The High Courts and Districts courts must start training in ADR system for Judicial officer).
6.9 We have introduced a system into our civil law by virtue of section 89 of the Code of Civil Procedure w.e.f. 1.7.2002 before the Bar is able to accept it, or recognize its worth, much less implement it. In text books on the subject, hundreds of pages are written on each of the techniques of mediation, conciliation, negotiation, settlement and arbitration, about which our lawyers are not quite familiar.
6.10 One has to first learn which of these procedures is suitable to a given case and if so, how to go about it. It is in the light of the above urgency of situation that the Law Commission has introduced a separate chapter on ADR in this Report to emphases that (1) law students and (2) lawyers who are at the Ba.-must be trained in the ADR systems.
6.11 It appears that Bar Council of India has already treated ADR as a compulsory subject (see page 92 of the UGC Model Curriculum 2001). It also appears that the UGC Curriculum Report 2001 has accepted the said recommendation as is clear from the same paragraph of the Report.
We, therefore, recommend that clause (h) of sub-section (1) of section 7 be amended for enabling the Bar Council of India to promote ADR as a subject of academic study in the law school for students and also to promote continuing education on ADR for legal practitioner.
We, also recommend that the High Courts, BCI, State Bar Councils, the Indian Law Institute, the ICADR and similar organisations should start ADR training programmes for lawyers and judicial officers. The training could be a short term one for one week, or it may a one-month certificate course or a six-month/one-year diploma course.