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Justice Should Be Served, Not Adjourned

Perhaps there is a man-made solution that uses a God-given gift to humanity that has the propensity to avert this predicament.

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“India to have 15 crore pending cases by 2040” was the headline of a Times of India article on Jan 17, 2013 i . If you were to extrapolate these statistics by juxtaposing them to the current 3.2 crore pending cases, by the time the lockdown is lifted, we are looking at close to an additional 6 lakhs cases in the pipeline, on the conservative side. Let’s top this with a new breed of disputes that will arise on account of force majeure, doctrine of frustration, labour, leases and tenancies, insurance and many others. This ‘Act of God’ coupled with the ‘Inaction of Man’ has brought us face-to-face with another crisis, a humanitarian one – one where justice isn’t served, but merely adjourned, that too, sine die.

Perhaps there is a man-made solution that uses a God-given gift to humanity that has the propensity to avert this predicament. Historically, it has spared us from wars, both military and economic, and conceivably it has catalyzed peace amongst the mightiest of foes. This guardian angel has many aliases, some call it ‘dialogue’, some ‘diplomacy’; we professionals call it ‘mediation’.

When we accept that the goal of resolving conflict in a relationship, personal or contractual, is not victory or defeat but in reaching an understanding and letting go of our need to be right, is when we have realized the real import of mediation. For those like us who propagate advocacy for resolving conflicts will discover that the contentment of ending a disputant’s misery far outweighs the rush of winning in courts. Pursuing the path of litigation lands up ‘quashing’ the hopes of the litigant, ‘sets aside’ the rush of momentary victory, ‘dismisses’ the sense of closure, ‘distinguishes’ the mirage of justice, ‘disposes of’ the faith of the people in our justice delivery system and ‘creates’ a foe for life!

Madhyastham, a word of Sanskrit origin that means mediation, on the other hand, is centered around autonomy, communication and rational problem solving. If resolution is the endgame, common sense suggests that mediation should be the first resort for warring parties to explore before committing to a lifetime of litigation, uncertainty and suffering. The journey from conflict to resolution through the tunnel of mediation requires the support of a competent and well- trained mediator, who, alongwith the help of the attorneys, will guide the disputing parties to the light at the other end.

Statistically, two joint sittings with all stakeholders and an equal amount of private sessions with either side shall be sufficient for the referred dispute to travel from introduction to settlement, from positions to interests and from who is right to what is right. While the odds of success are greater than 50%, wouldn’t it be great if more of us adopted, understood and experienced this system of conflict resolution, and collectively reach for its full potential, perhaps achieve a success rate closer to 100%. Well, it costs us nothing to dream, and everything not to.

We need not wait for our routine to resume, for such times have highlighted that normalcy is a myth. To enjoy the benefits of this gentle process, we can, like most of our other personal and professional activities, take advantage of technology and migrate online in this contactless society. Paraphrasing the words of India’s most sought-after mediator, Mr. Sriram Panchu, resolving from home gives the shade of autonomy, a sense of safety, a certain space when you are online ii . Experiencing mediation and doing so online at the comfort of one’s home is the epitome of a party-centric process and it happens to be the only hope for an efficient, mature and progressive economy. And there is no better time than now when ‘being online’ has become a part of our normal regimen.

Change is often a consequence of crises, and those who will re-align their goals and redefine their priorities will emerge as leaders of the new world, and those who don’t will be contributors to the next humanitarian tragedy. India to have 15 crore pending cases by 2040 – are these the “times of India” we want our children to see?

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house. Unless otherwise noted, the author is writing in his/her personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency or institution.

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legal justice adjourned

Bhaven Shah

The author is co-founder of Presolv360 – a legal-tech company that specializes in online commercial dispute resolution. With an academic background in finance and law, he has a decade of experience in understanding law, human relations and conflict resolution.

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Ashok Barat

Corporate Advisor & Board Member, Forbes & Company Limited

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