Courts in India overcrowded; mediation tool for social change: Justice DY Chandrachud

Courts in India are overcrowded and mediation, therefore, is an important tool to resolve disputes in a non-adversarial manner, Supreme Court judge Justice DY Chandrachud said on Friday..Mediation, he said, can bring about social change and could be more beneficial to marginalised communities and women. "We are all aware that courts and courtrooms in India are crowded, both physically and metaphorically. In view of pendency numbers, dispute resolution mechanisms like mediation are an important tool that go about in a non-adversarial manner," he said.The judge, however, cautioned against parties agreeing to go for mediation merely out of deference to the authority of courts."Courts shouldn't impose their opinion of the best legal resolution process. I have held back from always referring to mediation as a judge. Biggest fear is they would be mediating out of deference. We don't want that," he stated.Justice Chandrachud was delivering the Justice YV Chandrachud memorial lecture on 'The Future of Mediation in India' at the ILS Law College, Pune. The Supreme Court judge also inaugurated the ILS Centre for Arbitration and Mediation on the occasion.Championing the cause of mediation as a form of alternate dispute resolution (ADR) in the country, he said,"The future of mediation in India is its ability to impact social change. In my view, mediation is a tool for social change, brought in consonance with constitutional values and the flow of information.".Justice Chandrachud while recalling how his father Justice YV Chandrachud would reach ILS on chilly mornings in Pune, quipped,"Of course climate change has overtaken us. Unless the NGT [National Green Tribunal] does something for us. I am happy that the NGT is here in person and not virtually."The judge also expressed his delight at the choice of acronym for the newly-established mediation centre at ILS. "I am delighted that the acronym for the new centre is ILSCA; I think that is in keeping in mind our quest for gender justice in our society."He hoped that the Singapore Convention on Mediation, to which India is signatory, is ratified soon. On ADR and mediation in the country, he stated,"I would prefer the word to be 'appropriate' instead of 'alternate' in ADR.".On why mediation is a more suitable form of legal remedy than traditional options, Justice Chandrachud explained,"Traditional legal remedies adopt a one-size fits all approach. Mediation can take into account social relations and family dynamics. Mediation when it succeeds, succeeds. But even when it fails, it achieves a great deal as parties have begun talking ... The finer tenets of mediation are more suitable to marginalised communities. They can put forth their voice, specially women, rather than go by the words of a lawyer. Mediation means that voices of all parties have to be heard."Even as mediation helps in bringing clarity as to the nature of the dispute, it comes with its procedural and structural inequalities, the apex court judge stated."Bias in mediation translates in two forms - one that is inherent because of the unequal bargaining power - for example employer versus worker, wife versus husband etc. Plus the need for an objective nature of the mediation. Those with more higher tangible resources and social standing hold more stead than others. So when members of marginalised groups stand for mediation, dialogue occurs between unequal parties."This may mean that when those from the marginalised sections of society opt for mediation over litigation, they may end up settling for less with their reduced bargaining power in the face of the other route being more expensive, he added. "How can they afford a top rank Supreme Court lawyer? We must deploy the resources of NALSA (National Legal Services Authority), [to] give them higher bargaining power in a mediation setting.".Watch the full speech here.[Follow our coverage of the speech]

Courts in India overcrowded; mediation tool for social change: Justice DY Chandrachud

Abhimanyu Hazarika

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