India and ADR – An Update

Today’s post comes from one of the JAMS Weinstein International Fellows, Laila Ollapally. Based in India, Ms. Ollappy is a founding mediator and senior coordinator at the Bangalore Mediation Centre (BMC), an initiative of the High Court of the State of Karnataka.

Recently, the World Justice Project Report reviewed 66 countries in 2011 and India ranked 18 out 66 on Independent Judiciary, 22 out of 66 on Free Speech and 25 out of 66 on open government. But, unfortunately, the Civil Court system ranked 48 out of 66. “court congestion,” “delay in processing cases” and “difficulty in enforcement” were negatively impacting the Civil Court system.

Back in 2002, Section 89 of the Civil Procedure Code (CPC), attempted to address these very issues. Unfortunately, its implementation has been inadequate. The Statute mandates that whenever the Court feels that there is an ‘element of settlement’ in a case, it has to be referred to an Alternative Dispute Resolution (ADR) mechanism like arbitration, conciliation, judicial settlement or mediation.

The Supreme Court of India has also repeatedly highlighted the importance of ADR. In a recent ruling, the Supreme Court held that Court Annexed Mediation is necessary to give speedy and effective relief to litigants and to reduce the burden on the courts. In pioneering bold steps, recently the Supreme Court referred a border dispute between two states to mediation by two eminent mediators and the Karnataka High Court referred a sensitive, long standing dispute to mediation by a retired Judge of the Supreme Court and another mediator.

Furthermore, at a recent conference in Bangalore, the strong support of senior judges was encouragingly evident. Mr. Justice Dalveer Bhandari of the Supreme Court emphasized the need to provide effective infrastructure for mediation in every state. Mr. Justice Cyriac Joseph, also of the Supreme Court (Former Chief Justice of Karnataka who played a key role in setting up the Bangalore Mediation Center for the State) spoke from personal experience when he pointed out how critical the Chief Justice’s full support is for the ‘Mediation Movement’ to take root in a state.

In Bangalore and Delhi where, with the help of senior judges, the Courts have set up mediation with infrastructure of excellent standards, the results have been extremely encouraging. For example, since its inception in 2007, more than 17,000 cases have been mediated in Bangalore Mediation Center and 64 percent of them have been settled.  There is recognition and enthusiasm among the Bar and the litigant public about what mediation can do. A young advocate after a mediation session excitedly said, “this is a silent revolution in our Court system.”

If other states in India were to follow the example of Bangalore and Delhi and effectively implement Section 89, the solution to the problem of India’s Civil Court system is well within reach.