Community Mediation – Improving Access to Justice

bppxrv1fo4s-igor-ovsyannykovThe denial of justice through delay is the biggest mockery of law! Considering the fact that it takes an average of 15 years to resolve a civil or commercial dispute in India, it is not limited to mere mockery – but the delay in fact kills the entire justice system of the country. The legal system is simply not equipped to handle the number of cases filed. It is often said that litigation is an unwelcome houseguest that stays for years or even decades.

In many parts of the country, this has led to instances of people settling scores on their own, reflecting the frustration of the people in the long wait for justice they are compelled for. People with severe mental health problems, such as sufferers of trauma, obviously yearn for relief as quickly as possible preferably in an inexpensive way.

Community mediation clinics

It was in this context that the Indian Institute of Arbitration & Mediation (IIAM) thought of providing an avenue to resolve disputes through IIAM community mediation clinics (CMCs) as an inexpensive option, with the motto of ‘Resolving conflicts; promoting harmony’. The concept was launched by the Chief Justice of India on 17 January 2009 in New Delhi, India.

The idea was to establish CMCs at the grass-root level in numerous villages  and enhancing access by helping to bring justice to the society. In order to make the rule of law a reality, there was also a strong focus on reducing the cost of legal proceedings. The vision being, the right to speedy justice is an assurance extended to a citizen under the right to life guaranteed by the Indian constitution.

The plan for implementing this was to work together with corporate entities to adopt or build such CMCs as part of their corporate social responsibility programmes, so as to be part of a process of positive social transition.

We were able to establish some pilot CMCs, which generated a good response and the outcome was extra-ordinary. Even though most of the disputes were in the nature of family or social disputes, CMCs could cater for commercial disputes as well.

A higher quality of justice

It is a fact that conflict is a part of life. No matter how trivial the conflict, it causes serious stress for everyone involved. Even though the initial idea of CMCs was to deliver fast dispute resolution, the users found it more attractive as they could find workable solutions by sitting down and talking face to face. No wonder that a study has come out stating that 70% of the ‘winners’ in litigation were unhappy in the end. One can safely assume that close to 100% of the ‘losers’ in litigation were also unhappy.

People have started to realise that court is not always the best place to settle a dispute between private parties. Behind almost every human conflict someone feels dismissed, discounted, disenfranchised or disrespected. A decision imposed by way of adjudication will only mask the dispute. Underneath the still waters, there may be a turbulent wave of emotions. Resolution made through mediation helps the parties find an authentic resolution and peace of mind.

The feedback from disputants or users of mediation, both family and commercial were almost identical. Mediation adds value in an economically and psychologically measurable way. The quality of justice is much better.

The process allows them the freedom to solve their problems in a way that best fits their situation, increasing the likelihood that they will abide by their agreements and feel good about the resolution. We found that CMCs also help in restorative justice through their variety approaches and reintroducing the offender into community by providing correctional practices, thereby giving everyone a second chance.

Enacting social change

CMCs have the potential to change society and empower the community to resolve disputes. Setting up CMCs throughout India with a view to mediate all disputes will bring about a profound change in the Indian legal system. Conflict management programs with the formation of such clinics will serve to diffuse tensions in societies and prevent them from erupting into violence.

At this time of the Global Pound Conference Series entitled ‘Shaping the Future of Dispute Resolution and Improving Access to Justice and conducted around the globe in more than 40 cities in 30 countries – with the goal to create a conversation about what can be done to improve access to justice and the quality of justice around the world in civil and commercial conflicts – I think it would be extremely relevant for the corporate community and business associations to recognise the value of CMCs.

Propagation and establishment of CMCs will definitely enhance the social capital that is crucial for society. These clinics have the potential to shape powerful conflict transformation partnerships. Such approaches often have the power to create a loving and caring world.

Written by Anil Xavier.

ax18aAnil Xavier is an advocate practicing in India. He is the President of Indian Institute of Arbitration & Mediation and the Vice-President of the India International ADR Association. He is the Chairman of the Accreditation Committee of the Asian Mediation Association (AMA) and a member of the Independent Standards Commission and Ethics Committee of the International Mediation Institute (IMI), at the Hague, Netherlands. Xavier is also the Advisory Board member for conducting the Global Pound Conference Series in India.

He can be contacted at anilxavier@arbitrationindia.com 

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Categories: ADR, mediation

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