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Gandhi and ADR

When it comes to great leaders who have hailed from Indian soil, Mohandas Karamchand Gandhi is without a doubt at the top of the list. Born on the 2nd of October 1869, Gandhi was a lawyer by profession. Before turning into a social activist, he used to practice law in South Africa. In fact, it was during his practice in South Africa that he witnessed the sufferings of Indians residing there, and hence, it marked the entry of Gandhiji into the era of social activism.

Both in his professional as well as social life, Gandhi always, directly or indirectly, emphasized and favoured the concept of an alternative way of dispute resolution, which is today known as the Alternate Dispute Resolution or ADR.

Alternate Dispute Resolution
ADR is a legal way of resolving conflicts without resorting to conventional litigation. ADR is a process that helps people and communities to promote collaboration and social order while also reducing conflict. It is a non-adversarial conflict resolution process, in which parties work mutually and cooperatively to reach an amicable solution, beneficial to everyone. ADR may help to reduce the workload of the traditional courts while also providing a favourable and mutually beneficial outcome for the parties involved.

There are broadly five following modes of ADR systems, that are widely practiced in India:
  1. Arbitration:
    This is a mechanism wherein a disagreement is brought to an arbitration panel, which delivers a binding ruling (commonly referred to as an "Award") on the matter. The foundation of this mechanism resides in the fact that the Arbitration Panel/Tribunal is actually selected by the parties themselves with the objective that it will act judicially after considering all the material information as well as the parties' submissions in order to provide an unbiased decision.
     
  2. Mediation:
    Mediation is a system where a mediator, an impartial third party, facilitates the discussions and deliberation between the opposing parties in order to reach an agreement that is mutually agreed upon by everyone. The primary aim of this process is to give the parties a chance to communicate, negotiate, deliberate, and explore ideas with the help of a professional mediator in order to assess whether or not a resolution is achievable. Village Panchayats and Nyaya Panchayats are excellent examples.
     
  3. Conciliation:
    This system is defined as "a process in which a neutral person meets with the parties to a dispute which might be resolved; a relatively unstructured method of dispute resolution in which a third party facilitates communication between parties in an attempt to help them settle their differences".
     
  4. Negotiation:
    Negotiation is a system that indeed follows a consistent pattern, but it really has no established standards. It is a predominant form of conflict resolution, which is defined as a discussion with the goal of persuasion. It offers the benefit of enabling the parties to guide the flow of the discussion and reach a solution, as opposed to methods using independent third parties.
     
  5. Lok Adalat:
    Along with the emergence of other alternative dispute resolution, individuals now have a new way to resolve their disagreements i.e., Lok Adalat. Lok Adalat is another way of resolving disputes without going into litigation. It is a platform where conflicts that are currently pending in any court or are even in a pre-litigation stage, be resolved peacefully.

Gandhi's View on ADR:
Despite the fact that the concept of ADR was not formally established at that time, it is clear from Gandhi's life that he laid stress on the essentials of the ADR. Today, most ADR approaches, whether consciously or unconsciously, do reflect Gandhian values. Moreover, many researchers and academicians have conducted detailed studies establishing a link connecting the Gandhian idea of nonviolence i.e., "Ahimsa" and various conflict resolution approaches.

Gandhi saw attorneys as more social than professional, he viewed them as a mediator instead. According to his recommendations, lawyers should not only assist in the provision of legal justice, but also in the provision of social, economic, and political justice.

Alternative conflict resolution procedures were also favoured by Mahatma Gandhi, who advocated for civil disputes to be settled via a compromise between the parties, whether with or without the assistance of outsiders. He attempted to persuade his clients to settle their disagreements quietly rather than going to court many times in his own life. During his early days of litigation in South Africa, he was involved in one such episode.

While in Durban, he fought and won the case of his client, Sheth Abdulla. As per the judgment, the other party should have paid a hefty amount to Sheth in a lump sum. However, realizing that doing so will completely ruin the business of the other party, and also his relationship with Sheth Abdulla, Gandhi convinced his client to accept the payment in installments instead.

This taught Gandhi that a lawyer's ultimate goal is to build cordial relations between the parties, not only to win the case. Mahatma Gandhi recounts in his autobiography his attempts in South Africa to resolve a legal dispute via arbitration.

Gandhi went on to intervene in a number more instances after this occurrence.

In his memoirs, after reuniting the parties, he said unequivocally:
"My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and enter men's hearts. I realised that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my life during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby, not even money, certainly not my soul."

His life is littered with episodes in which he attempted to bring ultimate justice to the persons involved. Win-win techniques for conflict resolution are similar to Gandhian Satyagraha.

Gandhi believed that if courts can be avoided, they should be, since neither party can be satisfied by the defeat of the other. He was a staunch supporter of decentralized conflict resolution. The panchayat system and the Lok Adalat concept are built on the same principle that Gandhi pushed for. It has shifted the focus of conflict resolution away from formal legal resolution and toward more localized approaches.

The role of the mediator is to help the parties in reaching their own settlement of their disagreement. Mediators may take action if the parties have a close connection. The Gandhian mediators would serve as a Satyagraha catalyst, assisting the parties in reaching a mutually satisfactory agreement, with the goal of resolving the underlying conflict, achieving a higher degree of truth, and achieving transformation in both the opponents and their larger social context.

Gandhi has always been a strong supporter of the current notion of ADR. It is the avoidance of legal judgment or legal establishment. It is the responsibility of the system third party to help the parties in reaching their own settlement of their issues. Alternative dispute resolution involves parties cooperating with one another and eventually reaching an agreement with the assistance of third parties. This ADR movement resembles Gandhian Satyagraha in many ways. It comprises panchayat level mediation by panchayat members and mediation center conciliation operations.

Conclusion:
From some of these instances of Gandhiji's life and from the principles that he followed in his life, it is clear that most ADR approaches, whether consciously or unconsciously, reflect Gandhian values. In the legal system, the Gandhian approach to dispute resolution is an essential tactic for encouraging mediation and dialogue. The contemporary ADR movement has tried to avoid formal adjudication by providing disputants a degree of influence over the resolution of their conflicts via the mediation services of a mediator, in a Gandhian spirit.

It's not surprising that Gandhi used the terms 'mediation' and 'arbitration' interchangeably because he died decades before the Alternative Dispute Resolution (ADR) movement, or before the conflict resolution movement or conflict resolution literature had brought some order to the terminology used in the field. Gandhi is, without a doubt, India's predecessor of ADR, and his style of conflict settlement is a suitable dispute resolution model. We may infer that modern conflict resolution theory and the notion of ADR are extremely similar.

References:
  1. Gandhian Concept Of Justice And ADR. (2020, May 2). Niti Manthan. Retrieved May 8, 2022, from https://nitimanthan.in/blog-posts/blog-niti-manthan/2020/05/02/gandhian-concept-justice-and-adr/#:%7E:text=Mahatma%20Gandhi%20was%20also%20in,free%20and%20fair%20compromise%20procedure
  2. K. (2019, March 22). ADR in India: Legislations and Practices. Academike. Retrieved May 5, 2022, from https://www.lawctopus.com/academike/arbitration-adr-in-india/
  3. Patil, G. G. (2012). Lok Adalats in India: Issues and Perspectives. NUALS Law Journal, 6, 101-120.
  4. Gandhi, M.K. (2009). The Story of My Experiments with Truth. Fingerprint Publishing
  5. Gutman, J. (2011). Litigation as measure of last resort: opportunities with challenges for legal practitioners with the rise of adr. Legal Ethics, 14(1), 1-20.
  6. Relyea, G. F. (2003). Mediation and case management. Dispute Resolution Magazine, 9(4), 13-16.
  7. Srivastava, S., & Singh, J. (2021). The rise of a.d.r. & current situation in india. Jus Corpus Law Journal, 1(3), 50-58.
  8. Kumar, M. (2017). Gandhi's Concept of Conflict Resolution. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.2927388

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