Before the establishment of modern courts, people from all countries have a lengthy history of informal dispute resolution. These indigenous processes for dispute resolution vary widely in their characteristics, due to cultural, political, and other influences.
In India, one contemporary process for dispute resolution that is rooted in ancient tradition is called Lok Adalat (meaning “People’s Court”). It draws from the panchayat system of justice, where panchas, or village elders, helped villagers resolve their disputes. Lok Adalat, as it is currently practiced, is a type of a swift settlement conference presided over by a judge and/or a panel of attorneys, with the distinctive feature being that the neutral party, the Lok Adalat judge, is often viewed by the parties as an authority figure. Lok Adalat judges frequently propose monetary solutions to a dispute. Such settlement proposals are often accepted by the parties by virtue of the Lok Adalat judge’s perceived authority.
In modern times, Lok Adalat was authorized by the Legal Services Act of 1987 promulgated by the government of India. It is provided free of charge to litigants by government-funded agencies and the courts. Lok Adalat is used in disputes where monetary compensation is claimed, including insurance disputes and automobile accident proceedings. The use of Lok Adalat on a wide scale has been instrumental in reducing the backlog of the courts, including recently in Bangalore, India, where coordinated statewide Lok Adalat programs have resolved over 20,000 cases in a single day.
Mediation, likewise, is being used by the Bangalore courts, and elsewhere in India, to resolve civil lawsuits on a broad scale. Disputes that are being referred to mediation include complex and long-standing property disputes, marital disputes, and commercial disputes. In a recent Bangalore mediation, a complex property dispute filed in the 1960’s was settled completely by all interested parties after only 4 hours of mediation. For more than a decade, the Institute for the Study and Development of Legal Systems (ISDLS), a non-governmental organization based in San Francisco, California, has contributed to the development of mediation in India through the use of mediation study exchange groups, judicial and professional delegations, and mediation training programs.
Both mediation and Lok Adalat are dispute resolution processes in which the parties attempt to settle their civil disputes through negotiation. In its contemporary form, Lok Adalat shares some of the features of the mediation process, but is also distinct in several important ways. Consequently, different types of disputes may lend themselves to mediation, Lok Adalat, or both, depending on the characteristics of the dispute.
This article attempts to identify the essential characteristics of Lok Adalat and mediation, including similarities and distinctions between the processes. [1] The article also will identify characteristics of disputes that lend themselves to Lok Adalat, mediation, or both. It is
suggested that, due to their structural and procedural features, both Lok Adalat and mediation can co-exist as dispute resolution alternatives for the benefit of disputing parties.
DEFINITIONS
Mediation is a structured voluntary confidential negotiation process with identifiable stages where a neutral third party uses specialized communication and negotiation techniques to assist parties in resolving their dispute. In the process, the underlying interests of the parties may be explored. Both traditional and non-traditional terms of agreement may be reached. Mediation focuses on the factual background of a dispute, the parties’ current circumstances, and future opportunities for working out a practical solution to a dispute.
Lok Adalat is a public evaluation process presided over by a judge or panel of neutrals who propose a monetary settlement after briefly hearing the factual background and claims involved in a dispute. Negotiation, in the form of offers and counter-offers, may take place on a limited basis during the Lok Adalat process, after which the Lok Adalat judge proposes a specific settlement.
1. Nature of the process.
Mediation is a negotiation process in which the parties, with the assistance of a mediator, attempt to reach a solution to their dispute through a series of offers and counter-offers. The parties retain control over the outcome of the process (i.e., whether to settle and the terms of settlement). The mediator facilitates communication between the parties and helps them generate possible solutions to a dispute. Mediation is characterized by extensive negotiations between the parties, attention to the specific facts of a dispute and interests of the parties, and focus on both traditional and non-traditional terms of agreement.
Lok Adalat is essentially an evaluation process in which a panel of neutral lawyers, judges, and prominent citizens proposes a settlement after hearing the facts and claims involved a dispute. Limited negotiations may take place during Lok Adalat. There is rarely any direct communication between the parties or any extensive give and take regarding their settlement offers.
2. Forum [where it takes place].
Mediation takes place in a private conference room. It is private in the sense that the public is not invited. Only the parties, their advocates or other representatives, or other people accompanying them are present.
Lok Adalat usually takes place on court or agency premises when numerous cases referred to Lok Adalat are submitted to Lok Adalat panelists (often referred to as “judges”). Often more than 25 cases are placed before each panel. Lok Adalat proceedings are held in public, in the presence of all persons assembled to attempt to settle their cases.
3. Temporal focus.
Mediation considers the factual background (past), the immediate circumstances of the parties (present) and their future needs/interests (future).
Lok Adalat is primarily focused on the past, with attention given to assigning fault based upon the prior conduct and actions of the parties.
4. Focus on liability or problem-solving. [2]
Mediation considers the rights, liabilities, and obligations of the parties based upon their past conduct, as well as the interests of the parties and opportunities to work out a mutually agreeable solution to a dispute.
Lok Adalat is concerned primarily with assigning fault/assessing liability as a foundation for determining monetary damages.
5. Collaborative or adversarial.
Dispute resolution processes may be characterized as collaborative, adversarial, or a combination of the two. Different processes feature varying degrees of collaboration or adversarial elements.
Mediation is a essentially a collaborative negotiation process. However, it retains an adversarial element in that the parties often are making competing claims based upon diverse information. Often, legal issues, claims, and defenses are a part of the mediation process. Mediation often goes beyond the traditional legal framework to examine and explore the personal and business interests of the parties as well as non-traditional options for agreement.
Lok Adalat is adversarial inasmuch as the primary focus is on right/wrong and compensation, although there is a secondary element of collaboration that is involved in the limited negotiations that take place. Due to the time constraints of Lok Adalat and the judge’s role as an authority figure, there can be, at times, an element of coercion or perceived pressure to settle.
6. Party-centered or neutral-centered process.
Mediation is a party-centered process, where the focus is on establishing communication between the parties, fostering a mutual understanding of the facts, issues, and law, and generating ideas for agreement. The primary focus is on the needs and interests of the parties.
Lok Adalat is a neutral-centered process, where the primary focus is on presenting the factual/legal background of a dispute to the Lok Adalat judge and satisfying the legal requirements for compensation. Communications are directed to the Lok Adalat judge, with very limited, if any, direct communication between parties.
7. Morphology [structure] of the process.
Mediation features introductory comments by the mediator, a detailed exchange of information in a joint session, a series of separate and private meetings with the parties (referred to as caucuses) and an agreement stage.
In Lok Adalat, it is customary practice for the Lok Adalat judges/panelists to talk with all advocates present (as well as advocates/parties involved in other cases) in a large room, to help persuade the parties to settle their case. The presentation of information to the Lok Adalat judge is brief. The exploration of possible settlement terms, likewise, is limited. The panelists often propose settlement terms. If panelists talk with any party privately, it is generally only once, due to time constraints.
8. Control over the process.
In mediation, the mediator controls the process by facilitating communication between the parties, managing the interaction between parties, directing the flow of communications, helping the parties set an agenda, and helping the parties develop options for agreement.
In Lok Adalat, the Lok Adalat judges/panelists determine how the process will be handled, which party will speak and when. The process generally invites limited give and take by advocates representing the parties.
9. Selection of a neutral.
In mediation, generally the parties decide who will serve as the mediator.
In Lok Adalat, the parties do not have a role in deciding who the panelists will be. The parties must submit their case to the panelists assigned as Lok Adalat judges. They do not have the freedom to select panelists of their own choice.
10. Time spent in the process.
In mediation, parties are afforded reasonable time to negotiate the agreement. This may involve a number of hours or, when necessary, days. Mediation may take place over a course of time to accommodate the parties and the complexities of a dispute.
In Lok Adalat, advocates are permitted very limited time to present their case and to engage in limited negotiations. The agreement has to be reached in a limited amount of time as the appointment of Lok Adalat judges is only for a specified day or period of time.
11. Control over the outcome.
In mediation, the parties control the outcome and work together in arriving at a settlement with the assistance of the mediator.
In Lok Adalat, the parties retain the right to agree or disagree to a settlement proposed by panelists. However, in practice, Lok Adalat judges/panelists exert considerable influence over the decision to settle (whether to settle and the terms of settlement). The role of Lok Adalat judges is to be highly evaluative and to propose settlement terms when the parties are unable to resolve the dispute between themselves.
12. Referral of dispute and payment of mediator’s fees.
In mediation, reference to mediation may be made by court order, or by consent of the parties, or pursuant to a contract clause, etc. Mediation may provided on a volunteer basis or for a fee. The parties pay for mediation or the court may pay for mediation, if the program provides funds.
In Lok Adalat, reference generally is made by the court, with the consent of the parties or their advocates. Parties may opt to appear or not to appear. Parties do not pay for Lok Adalat expenses. Attorney panelists are unpaid volunteers. Facilities, scheduling, and organizational expenses are mostly made and funded by the Bar Association and the Legal Services Agency.
13. Confidentiality.
Mediation is a private process that is not open to the public. It is generally a confidential process, by agreement or statute. Without consent of the parties, neither the parties nor the mediator may disclose the statements made during mediation or documents prepared for mediation.
In Lok Adalat, the process is generally not private. It takes place openly in a large conference room, courtroom, or hall, and in presence of all others who have assembled for their respective cases.
14. Depth of analysis.
In mediation, the factual and legal analysis is detailed and in depth. The history of a dispute is examined, along with the current circumstances of the parties, their future needs, and any specific interests that may warrant non-traditional terms of settlement.
Due to time constraints and the nature of the process, Lok Adalat judges rarely engage in an extensive discussion of a claim (the precise nature of the claim, the factual background and damages and possible settlement terms).
15. Types of disputes resolved.
In mediation, all types of disputes, including complex commercial disputes, property disputes, partition disputes, family disputes, contract disputes, personal injury claims, real estate, probate, etc., are resolved.
In Lok Adalat, mainly motor accident claims and insurance claims are handled. Commercial and other disputes which require creative solutions are rarely referred to Lok Adalat.
16. Role of the neutral.
In mediation, the neutral person works in partnership with the parties to assist them in finding a solution that meets with their needs, interests, priorities, future relationships, etc. A mediator applies specialized techniques to facilitate communication between the parties and specialized negotiation techniques to overcome impasses. A mediator constantly and carefully intervenes in the negotiation process, at the same time respecting the parties’ right to decide for themselves whether to settle and what the terms of settlement should be. A mediator meets separately and privately with the parties to brainstorm settlement options and to discuss confidential information.
In Lok Adalat, judges/panelists seek to persuade the parties to settle their case in the amount proposed by the Lok Adalat judge/panel. There is minimal focus on working together with the parties/advocates to find solutions that meet with the parties’ individual needs, interests, priorities, future relationships, etc. Creative, non-traditional agreements that are personalized to the parties generally are not explored.
17. Role of the parties.
In mediation, parties play an active role in presenting factual background, discussing positions, developing offers and counter offers, making decisions, etc.
Parties generally do not have an active role in Lok Adalat. They play no active role in presenting information, identifying interests, making offers of settlement, responding to offers of settlement and shaping the terms of settlement.
18. Role of Advocates.
In mediation, advocates play an active role, presenting the case, discussing positions, developing offers and counter offers, and advising clients regarding terms of settlement.
In Lok Adalat, advocates play a primary role in presenting a case to the panel and advising their clients to settle if they consider it advisable.
19. Range of Possible Outcomes–Traditional/Non-Traditional. In mediation, parties are not limited to traditional legal remedies (e.g., monetary damages). Highly creative, innovative and non-traditional solutions are possible. In addition, it is possible to build future relationships by re-writing contracts, re-structuring relationships, etc.
Usually, in Lok Adalat the case is reduced to monetary damages. Imaginative solutions involving non-monetary or non-traditional remedies are not usually considered.
20. Post-Hearing Follow-Up.
In mediation, in cases where the parties do not reach a global settlement of all claims during mediation, the mediator will offer to continue to work/negotiate with the parties to reach a mutually satisfactory agreement.
In Lok Adalat, there is no follow-up by the Lok Adalat judge/panel in the event of non-settlement or less than global settlement.
DISPUTES SUITABLE FOR BOTH LOK ADALAT AND MEDIATION
DISPUTES SUITABLE FOR LOK ADALAT
DISPUTES SUITABLE FOR MEDIATION
Both mediation and Lok Adalat offer litigants significant advantages over the lengthy, expensive and unpredictable trial process. [3] As a result of their distinct characteristics, mediation and Lok Adalat provide different benefits and they can exist side-by-side as part of an integrated approach to reducing the court backlog and expenses associated with trial. Together, these dispute resolution processes can be part of a multi-faceted approach to improving access to justice. A careful analysis of the parties’ needs and the nature of a dispute will provide a basis for selecting mediation and/or Lok Adalat as an appropriate dispute resolution process in a particular case.
End Notes
1 Lok Adalat and mediation are compared in the context of an Analytical Template of ADR Processes developed by Gregg Relyea, which attempts to identify the essential elements of ADR processes: nature of the process (investigation, negotiation, adjudication, hybrid, other), forum (where it takes place), temporal focus (past, present, and/or future), neutral-centered or party-centered, focus on liability v. problem-solving, collaborative/adversarial, structure of the process, control over the process, control over the outcome, selection of the neutral, role of the neutral, role of the parties, role of the attorney, range of remedies/terms of agreement–traditional and/or non-traditional, private (not open to the public), confidentiality, level of formality, role of the rules of evidence, time allotted to the process, depth of factual and legal analysis, collaborative/adversarial, source of options for agreement.
2 Processes that are described in dualistic terms, e.g., fact-finding/blaming or problem-solving, may include elements of both in varying degrees.
3 Despite the increasing use of mediation, Lok Adalat, and other forms of alternative dispute resolution, the trial process should be recognized for the critical role it plays in society. Trial judges will retain their status as the ultimate arbiters of civil disputes that cannot be negotiated or otherwise resolved between the parties. Trial is appropriate where the parties desire a public airing of their dispute, they wish to establish legal precedent, or the parties can handle the financial burdens associated with trial.
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