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Published online by Cambridge University Press: 06 March 2019
In the western part of India, on the edge of the Thar Desert, a wealthy camel herdsman died, leaving his seventeen camels to his three sons. His final wishes distributed the camels to his heirs in specific proportions: one-half to the eldest, one-third to the middle son, and one-ninth to the youngest. The sons quickly appreciated the immediate obstacle to complying fully with their father's wishes. How could they make this specific distribution? They could not wait for the camels to breed; nor did they choose to sell them off and share the proceeds because herding camels was all they had ever known. Accordingly, they decided to consult their village leaders from the local panchayat. Seemingly uncertain of the appropriate solution, one of the five elders suggested that the boys accept a loan of one of his camels, go home, think it over again, and return the camel to him on the very next day. Disgruntled by the ostensible futility of this advice, they returned to their tent, under their breath cursing the stupidity of the old man.
While shaking their heads over tea, the youngest quickly rose in excitement. “Brothers,” he exclaimed, “we now have eighteen camels.” “So?!?,” the eldest mocked him, “we will have seventeen only tomorrow. What good will that do, you fool?!?” “But bhaya, with eighteen camels, we can divide them up according to the wishes of our papa: you get nine; our brother gets six; and I get two. That makes seventeen. We divide the herd, and give the eighteenth camel back to our elder!”
1 The story of the 18th Camel, a fable from the Middle East and adapted here is well known to the mediation community and many other areas of discourse. See generally Lynn Segal, The Dream of Reality (1986).Google Scholar
2 Integrative bargaining involves the investment of external resources in the resolution of a conflict or solution to a difficult problem. Diverse examples are many. Parties to a breach of contract claim may seek financial assistance from a bank willing to lend money in support of a newly-mended business relationship. A wealthy philanthropist may donate money to provide an ailing hospital charged with malpractice with the necessary technologies to handle emergencies. The owner of a house with a recalcitrant tenant may convince a construction company to knock down the building and build a new one with more units for his growing family, as well as a new flat for the tenant who refuses to move, and a sufficient number of additional rental units to make a profit on his investment. The appeal of the camel story and its applicability to this diverse range of problems thus made it one of my favorite pedagogic tools in presentations on the application of mediation in India.Google Scholar
3 These parts A and B draw heavily on Chodosh, Hiram E., Indian Civil Justice Reform: Limitation and Preservation of the Adversarial Process, 30 NYU Journal of International Law and Politics 1 (1998).Google Scholar
4 See Moog, Robert, Delays in the Indian Courts: Why the Judges Don't Take Control, 16 Justice System Journal 19, 22-30 (1992). Moog cites various structural constraints, including a three-year judicial rotation system and an imbalance of power between judges and attorneys in favor of the attorneys, as the major impediments to case management approaches in India.Google Scholar
5 Adapted from Chodosh, supra note 3.Google Scholar
6 The Code of Civil Procedure (Amendment) Act, No. 46 of 1999; India Code (1999).Google Scholar
7 See India Code Civ. Proc. § 89(1)–(2), describing and directing court to utilize dispute resolution mechanisms, including arbitration, conciliation, judicial settlement, judicial settlement through lok adalat, or mediation:Google Scholar
(1) Where it appears to the court that there exists elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for—Google Scholar
(a) Arbitration;Google Scholar
(b) conciliation;Google Scholar
(c) judicial settlement including settlement through Lok Adalat; orGoogle Scholar
(d) mediation.Google Scholar
(2) Where a dispute has been referred–Google Scholar
(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 or 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;Google Scholar
(b) to Lok Adalat, the court shall refer the same to Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;Google Scholar
(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat under the provisions of the Act;Google Scholar
(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.Google Scholar
8 See India Code Civ. Proc. Order X, describing and directing court to utilize dispute resolution mechanisms, including arbitration, conciliation, judicial settlement, judicial settlement through lok adalat, or mediation:Google Scholar
Direction of the court to opt for any one mode of alternative dispute resolution.Google Scholar
1A. After recording the admissions and denials, the court shall direct the parties to the suit to opt either mode of the settlement outside the court as specified in sub-section (1) of section 89. On the option of the parties, the court shall fix the date of appearance before such forum or authority as may be opted by the parties.Google Scholar
Appearance before the conciliatory forum or authority.Google Scholar
1B. Where a suit is referred under rule 1A, the parties shall appear before such forum or authority for conciliation of the suit.Google Scholar
Appearance before the court consequent to the failure of efforts of conciliation.Google Scholar
1C. Where a suit is referred under rule 1A, and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the court and direct the parties to appear before the court on the date fixed by it.Google Scholar
9 This may be seen by some to mean that a judge might refer parties to binding arbitration without their consent. Surely, the statute can be read to allow for that understanding; however, it would be inconsistent with the principle of consent and self-determination to compel parties to binding arbitration without their consent. The control of the parties over the outcome in each of the other proceedings reduces concern about compelling a constrained choice of an ADR technique.Google Scholar
10 See India Code Civ. Proc., supra note 7.Google Scholar
11 See The Arbitration and Conciliation Act, No. 26 of 1996; India Code (1996), § 73 (using language nearly identical to Section 89).Google Scholar
12 See Salem Advocate Bar Association v. Union of India, (2002) 8 S.C.C. 35, 146–52. (“With the constitution of such a Committee, any creases which require to be ironed out can be identified and apprehensions which may exist in the minds of the litigating public or the lawyers clarified.”) Former Supreme Court Justice Rao and Chairman of the Law Commission chaired this committee, on which the former Law Minister Arun Jetley also served. The Supreme Court initially gave the Rao committee four months to seek comments and to report back. Chairman Rao drafted consultation papers, including rules on mediation and case management, and circulated them to the High Courts for comments; however, these papers did not reach the High Courts until late January, thus leaving insufficient time for adequate study and commentary. Chairman Rao asked for an extension of time until July, and organized a national conference on mediation and case management, in which most of the authors of this book contributed papers and gave presentations. The national conference involved Chief Justices of each of the High Courts, and two lower court judges, as well as prominent lawyers from the bar.Google Scholar
13 Salem Advocate Bar Association II v. Union of India, (2005) 6 S.C.C. 344 (including the Civil Procedure ADR and Mediation Rules).Google Scholar
14 Venkatesan, J., Apex court for early clearance to national mediation policy, The Hindu, Jan. 7, 2007, available at http://www.hindu.com/2007/01/08/stories/2007010819041100.htm.Google Scholar
15 The global interest in mediation is growing substantially. See for example details about the newly formed International Mediation Institute at http://www.imimediation.org/?cID=about_imi.Google Scholar
16 See Roger Fisher & William Ury, Getting to Yes 3-8 (1983).Google Scholar
17 To go beyond the positions of the parties does not mean that they are no longer relevant. Experts speak in terms of knowing the best alternative to a negotiated settlement (BATNA), the worst alternative to a negotiated settlement (WATNA) and the most likely alternative to a negotiated settlement (MLATNA) (similar to BATNA, but including a factor of probability in the calculation) (together referred to as ATNA). As in any negotiation, these provide useful guideposts to help parties recognize their options (both good and bad) which include settlement under different terms and alternatives to settlement through trial and its aftermath. Although many mediators may stress the irrelevance of positions to interest-based bargaining, negotiation in the shadow of alternatives actually necessitates exploring the likely outcomes of a litigation. To do that realistically, the position-based bargaining skills presented above will be quite useful. Therefore, exclusive (and misplaced) emphasis on interest-based bargaining in legal disputes undermines the full value of ATNA evaluations. In other words, the current valuation of rights and liabilities is one of the parties’ many interests to be factored into an “exclusively” interest-based negotiation.Google Scholar
18 See generally Fisher & Ury, supra note 16.Google Scholar
19 A lawyer from Hyderabad relayed a story about a married couple engaged in a serious conflict. The husband had decided to donate one of his kidneys to his ailing mother, without having consulted with his wife. The wife, who had no substantive disagreement with his decision, was offended by her husband's failure to confer in advance of such an important decision. The couple grew estranged and could not speak to one another as a result of the conflict. A family lawyer asked them to come to his house. He placed them in a room together and then abruptly left. The couple sat silent for a long time, then began to yell at each other, and after some time began to talk (and listen). Finally, they were able to overcome their conflict. This was no mediation. The lawyer only facilitated the meeting of the couple, their joint presence, short of communication, which only came later. However, this anecdote shows that even the establishment of a meeting (nothing more) can help to bring parties together to resolve their disagreements.Google Scholar
20 William Ury, Getting Past No 40 (1991) (“Every human being, no matter how impossible, has a deep need for recognition.”).Google Scholar
21 See, e.g., Albie Sachs, Soft Vengeance of a Freedom Fighter (2000).Google Scholar
22 See Relyea, Gregg F., The Critical Impact of Word Choice in Mediation, 16 Alternatives 9, 1 (1998). The author is particularly grateful to Mr. Relyea for sharing his mediation materials prepared for Indian audiences.Google Scholar
23 Take, for example, the statement, “My husband is a pathological liar! I hate him!” The effective mediator may reframe the outburst as: “I can understand why you would be so angry if you feel that your husband was not truthful.” Here no judgment, only acknowledgment has been expressed in a neutral way without losing the substance of what was declared.Google Scholar
24 For example, if the litigant exclaimed: “And then she left for the hospital, but before she got back she took out money from our joint bank account, which did not belong to her, and then she went shopping with it, for shoes, but that was before she went to the hospital or so she said; she is always doing stuff like that, lying, taking money, not going where she says she's going.” An effective mediator might reply, in a more neutral and structured summary: “So you appear upset about two things: First, you feel that your wife should not have taken money out of your joint bank account; and second, you feel that she does not tell you what she's going to do.”Google Scholar
25 See India Code Civ. Proc., supra note 7; India Code Civ. Proc., supra note 8; Salem Advocate Bar Association, supra note 12; see also Law Commission Consultation Paper on ADR and Mediation Rules (2003) 1 (calling for a Section 89 proceeding “after recording admissions and denials at the first hearing of the suit under Rule 1 of Order X”); Law Commission Consultation Paper on Case Management, Rule 4, at 9 (2003).Google Scholar
26 Concerns about enforcing confidentiality and ensuring that the Section 89 process does not further protract the trial process are additional concerns.Google Scholar
27 This may be seen by some to mean that a judge might refer parties to binding arbitration without their consent. Surely, the statute can be read to allow for that understanding; however, it would be inconsistent with the principle of consent and self-determination to compel parties to binding arbitration without their consent. The control of the parties over the outcome in each of the other proceedings reduces concern about compelling a constrained choice of an ADR technique.Google Scholar
28 See India Code Civ. Proc., supra note 7.Google Scholar
29 See Arbitration and Conciliation Act, supra note 11 (using language nearly identical to Section 89).Google Scholar
30 Order X may solve this and other problems raised in the context of Section 89, including the question of timing. See, e.g., India Code Civ. Proc., supra note 8, at 1.A. (“After recording the admissions and denials, the court shall direct the parties to the suit to opt either mode of the settlement outside the court as specified in sub-section (1) of section 89.”).Google Scholar
31 See Rule 7, Consultation Paper on ADR and Mediation Rules, supra note 3, at 5.Google Scholar
32 See, e.g., Chodosh, , supra note 3, at 9.Google Scholar
33 See generally id. at 6-13.Google Scholar
34 See Hiram E. Chodosh and James R. Holbrook, ADR Education in Law Schools (Mumbai, India: The American Center, 2007).Google Scholar
35 See Merryman, John Henry, Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, 25 American Journal of Comparative Law 457, 481 (1977). For a more recent critique of U.S. foreign assistance, see generally Thomas Carothers, Aiding Democracy Abroad: The Learning Curve (1999) (noting a lack of humility, superficial assessment, simplistic modeling, misplaced emphasis on ends instead of process, and weak evaluative tools and commitments).Google Scholar
36 See generally Trubek, David M. & Galanter, Marc, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 4 Wisconsin Law Review 1062 (1974).Google Scholar
37 I first recounted this story in Local Mediation in Advance of Armed Conflict, 19 Ohio State Journal on Dispute Resolution 213 (2003). It was narrated to me by one of the leading figures of international social work, Dr. Herman Stein, the John Reynolds Harkness Professor Emeritus of Social Administration at the Mandel School of Applied Social Sciences. Dr. Stein was formerly Dean, and two-time Provost, of the Mandel School of Applied Social Sciences and holds the title of professor at Case Western Reserve University.Google Scholar
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