Quarrels and disagreements are common features of life. Very often they can be settled amicably one-to-one due to a give-and-take spirit. Occasionally, however, it may be necessary for a third party to intervene to establish common ground between the parties involved. While minor matters are usually resolved at the local level, matters of an important nature involving complex legal issues or high risks may need to be taken to court for resolution. The same applies to divorce with regard to parental leave.
In July 2009, the New Jersey Supreme Court granted parents an additional ability to resolve issues such as custody and parental leave through arbitration. Sometimes parents prefer to refer their affairs to an arbitrator because they have flexibility in choosing an arbitrator over a judge who they cannot choose themselves. Another component of this flexibility is that the plant parties must agree their time with the arbitrator, rather than being available as directed by the court.
Experience has shown, particularly in India, that litigation before courts, particularly in civil cases involving disputes between parties, individuals or institutions, drags on for years.
Legal proceedings are time-consuming, cumbersome, expensive and the consequences cannot be foreseen. Very often, in order to save time and money, many parties opt for an out-of-court settlement. Arbitrators play an important role in these matters by providing both parties with an opportunity to reach an agreement that will be finalized by an impartial, independent and fair third party with appropriate legal qualifications and experience. Such a scheme is also referred to as an alternative dispute resolution scheme. The parties prefer such a route due to the fact that the procedure is confidential, less formal and less stressful than court proceedings. One such process is arbitration.
Abraham Lincoln said: “Discourage litigation, persuade your neighbors to compromise whenever you can. As a rule, at least one neutral arbitrator is involved in the arbitration procedure, which is mutually agreed upon by the parties concerned. Because it is a private procedure, the details are not available to the public and there is the benefit of privacy.
An alternative method is to resort to arbitration, which leads to an amicable, quick and inexpensive settlement. The parties can determine the time frame, the structure and the content of the procedure. Here, too, the procedure is protected from public view.
A variant of arbitration is the method of mediation, which uses a neutral mediator who does not pass judgment but facilitates discussion between the parties to find a mutually acceptable solution. Such alternative dispute resolution methods are often used to maintain relationships and get what they want without losing friends or business associates.
An award rendered by arbitration has the added advantage that it is final and not subject to appeal or review by a court except as a result of questioning the arbitrator’s credibility or a misjudgment of fact or law.
In India, the consolidation and expeditious settlement of criminal and civil cases is also facilitated by institutions such as Lok Adalat. Typically, Lok Adalats handles petty crime, matrimonial matters and auto accident claims
While serving as Secretary to the Vice President Justice Hidayatullah, I learned that he had previously conducted a number of arbitrations. He once showed me a pocket diary with entries showing how he used to earn almost 2.5 lakhs rupees a month. One particular entry that made me roll my eyes in disbelief related to the fees he received for settling a dispute between Libya and Chad over marine oil reserves. My father also presided over a series of arbitrations after retiring from the bench of the High Court of Andhra Pradesh. Although I have shot at a variety of activities since retiring from the NDMA almost 10 years ago, despite being a member of the Arbitration Council of India, I have yet to act as an arbitrator in a dispute.
An interesting memory from my travels is the time when I visited one of the courtrooms of the International Court of Justice in The Hague. As Deputy Secretary in the Ministry of Agriculture of the Government of India, I was visiting Holland with my minister to study the flower market in Amsterdam.
Individuals, institutions and countries can also take on the role of arbitrators for the purpose of mediation between two conflicting parties. India did this, for example, in the confrontation between the LTTE and Sri Lanka. The United Nations often plays a similar role, even sending peacekeepers to ensure that conflict between two countries does not recur after a ceasefire. The United Nations peacekeeping force is also helping to accelerate the difficult advance from conflict to peace.
The manner of resolving disputes when a neutral third party is present to find an amicable solution can be traced in various religious texts around the world.
In the Gita, Lord Sri Krishna says to Arjuna: “I envy no one, nor am I partial to anyone; I am equal to all.” Gita shows how Sri Krishna was an ideal mediator for the Kauravas and Pandavas and suggested numerous settlements between the two parties to avoid war. As the war took place, he surrendered his armies to one side and became an advisor to the other, while the other was impartial throughout the process. Sri Krishna was an ideal mediator.
A verse from the Holy Qur’an says about the process of arbitration in a family quarrel: “If you fear a rift between the two of you, appoint (two) arbitrators, one from his family and the other from hers, if they wish For peace will be made Allah bring about their reconciliation. For Allah has full knowledge and is acquainted with all things. Another verse recommends “peaceful conflict resolution: within the Islamic community, between Islamic and non-Islamic communities, and between two or more non-Muslim communities”.
In mediation, the Christian mediator serves as a third party to help people enter into dialogue with God to resolve their differences. In arbitration, the Christian arbitrator assists in situations where the parties agree to be bound by a decision made on their behalf. Arbitration is also available in Islamic law. Islamic mediation or Wasaatah is well established today. The Holy Bible also exhorts Christians to useful means of settling disputes amicably, explaining that in the event of a blockage, the parties should contact a third neutral party to resolve their issue.
Non-governmental organizations (NGOs) often play a significant role in conflict resolution. However, in order to play a more effective role in conflict management, they may need to reorient themselves with the necessary attitude and skills, which of course should be seen as an additional element of their developmental work. I have been a member of the Arbitration Society of India for a number of years. But for some reason I need to be assigned another case.
Before we stop I have to tell you a story about the judge who heard the plaintiff and was inclined to accept the pleadings. After that, after hearing the defendant, he was pretty clear that it was the defense that had a good case. Somewhat confused, the court clerk pointed out to the magistrate that the court could not come to an agreement with either side. The magistrate gave the officer a wise nod and said, “Yes, you’re right too!”
(The author is former Chief Secretary of the Government of Andhra Pradesh)
(The opinions expressed in this column are those of the author. The facts and opinions expressed here do not reflect the views of The Hans India.)