ISDLS - Report - India Conference, May 2003

On May 3-4, 2003, the Law Commission of India, chaired by former Indian Supreme Court Justice M. Jagannadha Rao, hosted a nationwide conference in New Delhi in collaboration with ISDLS. The conference was the single most significant event undertaken thus far in the Indian effort to implement long-needed reforms to reduce the substantial backlog and delay in the Indian civil justice process. For the first time, the conference brought together the leading legal professionals from the Supreme Court, High Courts (including most of the High Court Chief Justices), Subordinate Courts, Bar Associations, and Bar Councils to discuss the implementation of court-annexed ADR, to comply with recent legislation requiring the use of mediation in every civil case in all of India.

The Conference addressed the current status of the Indian civil justice reform effort, the detailed functioning of the US civil justice reforms, and strategies for implementing the reforms throughout India. During the Conference, numerous High Court Chief Justices approached ISDLS to express their interest in implementing the reforms through a pilot project study facilitated by ISDLS. The Law Commission of India, the High Courts, and ISDLS have developed a project plan for reform implementation via pilot project, and the World Bank has expressed their interest in supporting the project.

Background

ISDLS’ participation in and guidance of the conference was a natural extension of the partnership it has fostered with the Indian legal community since 1996, when then Chief Justice A.M. Ahmadi invited ISDLS to participate in his national assessment of the backlog in the civil courts. In 1996 backlog in the Indian courts was a serious problem that had already spanned more than two decades. Some cases filed over 25 years ago are still pending before the Indian courts today. The tremendous battle to handle the growing number of cases was exacerbated by the growing volume of litigation and India’s exponential population increases. ISDLS and then Chief Justice A.M. Ahmadi’s assessment was quite successful and resulted in the article “Indian Civil Justice System Reform: Limitation and Preservation of the Adversarial Process”, published in New York University’s Journal of International Law and Politics in the Fall of 1997. The study concluded that the application of rigorous mediation to civil and commercial cases is the critical solution to the profound problem of backlog.

In 1999, legislative reforms to §89 of the Code of Civil Procedure were passed that mandated mediation in every civil case in India. Unfortunately, powerful opposition from various Bar Associations prevented immediate implementation, and the legislation was suspended. Despite the unrest, the Ahmedabad Bar Association, exceptional among the bar associations in its support for the reforms, invited ISDLS to collaborate in the creation of a mediation center. The Ahmedabad Mediation Center is currently the only private mediation center in India, and its success has been instrumental in the effort to demonstrate to the Indian legal community that ADR is the solution to the overwhelming backlog and delay.

On July 1, 2002, after a three-year delay, the §89 legislation requiring mediation in every civil case was implemented.

In September 2002, then Chief Justice B.N. Kirpal invited ISDLS to participate in the Annual Conference of Chief Justices in New Delhi, during which he announced that the ADR reforms would be implemented in every court. The following month ISDLS participated in the Indo-U.S. Supreme Court Exchange, during which US Supreme Court Associate Justices Sandra Day O’Connor and Stephen Breyer met with their Indian counterparts and pledged their support for the on-going reform effort. With the momentum for reforms stronger than ever, Justice M.J. Rao invited ISDLS to participate in the May national conferences, the goal of which would be to inform and educate the Indian legal community at large of the practical steps necessary to bring ADR mechanisms into every court.

The Conference

The May Conference addressed the current status of the Indian civil justice reform effort, the detailed functioning of the US civil justice reforms, and strategies for implementing the reforms throughout India. Indian Minister of Law & Justice and Commerce & Industry Mr. Arun Jaitley and Chief Justice of India Mr. V.N. Khare both spoke at the inaugural address, and US Ninth Circuit Court of Appeals Judge J. Clifford Wallace read a letter authored by U.S. Supreme Court Justices Sandra Day O’Connor and Stephen Breyer in honor of the conference. Supreme Court Justice R.C. Lahoti (future Chief Justice of India) gave a compelling keynote address in the valedictory session that set a strong positive tone for the rest of the conference.

The Conference consisted of presentations by Indian and U.S. experts. Both sets of presentations were excellent, to the point, and very well received. The presentations by the U.S. experts focused on the successes and difficulties faced by reformers in California when ADR was first introduced. These presentations were particularly well received and the general consensus of the attendees was that they were quite informative. Judge Wallace discussed the first introduction of ADR in the California courts in the form of judicial settlement; he also gave a comprehensive and forward-looking overview of the past and future of the reform effort at the conclusion of the program. San Diego Superior Court Judge Wayne Peterson discussed the evolution of mediation and case management in the California state (high volume, general jurisdiction) courts, and the evolution of the San Diego pilot project. Judge Linda Quinn, also of the San Diego Superior Court, discussed in detail the functioning and results of the San Diego pilot program, and demonstrated a case management conference. Attorney Edward P. Davis discussed the development of the federal case management and ADR models, and emphasized the process of overcoming the initial resistance of the bar associations to the reforms, an issue particularly relevant to the Indian reformers who have had to deal with violent protests from the majority of the nation’s bar associations. The team responded to numerous questions during the interactive sessions, and provided authoritative and source materials that were distributed at the conference and will be bound as part of the conference souvenir.

The Indian presentations focused on the need for mediation and case management in India, and on the pockets throughout the country where mediation has begun to be practiced. In discussing the basics of the mechanisms and addressing misconceptions, the Indian presenters were met with a strongly positive response. Several presentations addressed the applicability of the reform mechanisms to the Indian courts as well as the fact that although the reforms can be deemed “foreign”, they are quickly becoming the international standard that will propel India forward economically and socially.

The Future Of Reform Implementation

The energy and momentum the conference generated among the assembled High Court Justices was electric. One of the main conference topics was reform implementation via pilot projects; following the conference, several of the High Court Chief Justices expressed significant interest in developing a pilot project in their court. Thus far six High Courts have expressed interest in conducting pilot project studies: New Delhi, Chennai, Andhra Pradesh, Mumbai, Ahmedabad, and Gawuhati. The Law Commission has expressed their support for developing pilot projects, and Law Minister Arun Jaitley and Chairman of the Law Commission Justice M.J. Rao have requested that regional conferences (similar to the national conference but with an added emphasis on local implementation) be held in selected individual High Courts to allow a much greater number of High and Subordinate Court Judges and attorneys to participate in the reform dialogue.

The benefits of conducting pilot projects are tangible, as they allow local legal communities to design models that incorporate their particular needs and culture into the more universal reform concepts. Through the use of pilot programs, India can accelerate the implementation process in a non-threatening way by encouraging the acceptability of the reforms through local adaptation and design. After one year, the pilot program findings can be compiled and a national implementation plan developed based on the experience and results of those projects. The national implementation plan may be developed either through authoritative papers distributed nationally or a second conference similar in scale and presentation to the May conference.

To continue the momentum from the May conference and to build towards the pilot project implementation, regional conferences can be held in several of the pilot project courts as soon as possible. The regional conferences should be similar in content and structure to the May conference (presentations by Indian and Californian experts and interactive sessions), with an added emphasis on the development of an implementation plan. The final conference session could be devoted to a detailed discussion of the design, functioning, and implementation of local multiple-track pilot projects.

The regional conferences should include the local legal professionals in the reform dialogue, including the trial court judges and lawyers. (This would be critical to the success of the pilot project tracks that deal with categories of cases at the trial level). Exposing a much broader range of the local legal professionals in the regional conferences could help to establish a base of support and understanding that would facilitate the implementation of the pilot projects. The regional conferences would provide a forum to directly address the skepticism and specific concerns of the local bar associations. Further, mediation training seminars could be conducted in conjunction with the regional conferences to begin establishing a base of court-selected qualified mediators.