1.1 The problem of inordinate delay, huge arrears & backlog of civil cases is recognized to be the most serious problem of the Indian Judiciary. Number of studies have been made by different committees, the Law Commission and other agencies and various suggestions have been offered. However, the results have not been very significant so far. Delay of decades in civil cases in India runs into tens of millions of cases. For evolving solutions to this complex problem, looking around for solutions evolved by other legal systems in the world should be considered a welcome sign.
1.2 A decade ago, the USA had a similar problem, though not of the Indian magnitude. But Delay of 5 years in civil cases and a huge number of pending cases was causing a lot of concern in the USA. Judicial conferences, legislatures and their committees made various suggestions and reports. However, within a short span of 15 years the US Courts have achieved very significant results. For example, in California, known to have Courts with high volume of litigation, the delay has been reduced very significantly and most of the cases are disposed of within one year and almost all within two years and today there are no arrears of cases older than two years.
1.3 Considerable reduction in delay in disposal of civil cases in the USA has become possible due to various measures which have been implemented with the cooperation, dedication and efforts of judges, lawyers and their associations. Most important of these measures are two:
(i) Mediation (Alternative Dispute Resolution) and
(ii) Case management.
2.1 The concept of “Mediation” has become immensely popular, highly effective and most satisfactory to all parties. From a mere concept, it developed as a tool, then as an ADR mechanism and it has now ripened into a culture. In San Diego (California) having the third largest number of trial Courts in the USA, 97% of the civil cases get settled through mediation. Mediation is a voluntary process and the mediator acts in a friendly manner without any power to decide. His only role is to facilitate the parties in coming closer and to make each party understand the case of the other party. The Mediator does not decide, he has no authority to decide, yet he successfully brings the parties together and helps them in finding out a mutually, acceptable resolution of the dispute. Mediators may be lawyers or retired Judges or technical experts – all of whom have undergone practical training for mediation skills. Mediation has the advantages of –
➔ time and expertize of mediators,
➔ privacy, confidentiality and continuity of mediation process,
➔ participation by the parties in finding out the solution,
➔ appealing to underlying interests of the parties rather than just demanding sacrifices from them.
2.2 Mediation has been developed as a highly specialized subject. The law schools have courses in mediation and it is offered as a subject for specialization at the postgraduate level. There are thousands of lawyers who practice exclusively as mediators. Retired Judges also act as Mediators. Every mediator is required to undergo intensive training. There are super specialist – Mediators who specialize in various branches such as Intellectual property, realty, bankruptcy, torts, accidents, medical negligence, construction, commercial causes, etc. Mediators have been successful in settling all kinds of civil disputes including highly contested cases, cases having important legal issues, and involving stakes of millions of dollars. It is in very rare cases (that is only 3% of the cases) that parties go to trial. Mediation is an incredible success in the California State and elsewhere. More than 90% of the cases do not go to trial ! Heavy and highly contested cases with huge stakes go through mediation process within 4 to 6 months from the date of institution of the suit.
2.3 In the USA, the initiative for establishing mediation centres came from lawyers. Mediations are both private mediations (without reference by the Court) as well as the mediations referred by the Court. There are
private mediation firms like JAMS having 45 full time mediators and with all infrastructure facilities to hold a large number of mediations. More people attend such places rather than wait in Courts ! The Government as well as the Judiciary have also realized the importance of mediation and how it can take a substantial load off the judicial system and thus prove both economical and satisfactory as a short term measure as well as in the long run. Hence, there are Court Annexed Mediation Centres run with funds readily made available by the Government. The mediator’s fees for first four hours of mediation are borne by the State through the Court and for further period, if at all necessary, the hourly fees of the mediators are borne by the parties. Most of the cases get settled in less than four hours.
3.0 CASE MANAGEMENT
3.1 Case Management means the proceedings of a case are managed effectively by the Judge presiding over the Court and not controlled by the lawyers. In the USA, it has been realized that alternative dispute resolution mechanisms like mediation or any other mechanism will not achieve desired results, unless the parties know that in case the dispute is not settled, they will have to go to trial after a few months with all its attendant uncertainties, and that too on a date already fixed in advance. It has further been realized that at the earliest stage of the case, the Judge should take the initiative to persuade the parties sitting in a multi door hall to select the door to the appropriate room for dispute resolution. In short, mediation and case management are considered as complementary to and indispensable for each other.
3.2.0 CHIEF JUDGE
3.2.1 The Chief Judge (elected by colleagues for a fixed term) of San Diego Courts (comprising of 128 Judges & 40 Commissioners, referees and a staff of 1600) devotes his time exclusively to Court management & administration (judicial work is undertaken hardly once or twice in a month) and he monitors the working of each court, its needs and problems and gives solutions and support. He has to see that all his courts (128 + 40) work optimally & efficiently. He is assisted by a number of professional management persons & consultants who are very highly paid, often even more than the Chief Judge.
3.2.2 As the Chief Judge of such a large establishment, he has enormous task of implementing reforms, policies, monitoring the work of judges, supervising, guiding & instructing them, looking after the entire administration and staff of 1600 & budget of $ 140 million. If the administration is not done efficiently and effectively, the work of all 128 judges would suffer. Thus, the priority of the Presiding Judge is to oversee the whole judicial administration and ensure that the judges’ time and energy are utilized to their optimum capacity. He rarely sits in the courtroom for judicial work. For doing judicial work, he has 128 judges, but for over all administrative leadership and for ensuring good administrative support to those 128 judges, he is the only driving force. In other words, t he other Judges will be able to look after C ase M anagement more effectively, when the Chief Judge looks after the Court Management.
3.2.3 The authority of the Chief Judge, however, does not merely stem from his status and position. He also considers suggestions from a Joint committee of Judges and lawyers who meet once in a couple of months to discuss problems being faced by litigants, lawyers and judges in the course of judicial administration – whether before or during trial andfind solutions.
3.2.4 Judge Henderson, a senior Judge of the Federal District Court, San Francisco who was also the Chief Judge of that Court by rotation, indicated that circulation of disposal figures amongst the Judges also helps in motivating the Judges in deciding more number of cases and is useful as a peer pressure tool. Judge Peterson, the Chief Judge of San Diego Courts had also interesting things to say about the manner in which cases are distributed amongst the Judges of his Court and the manner in which he could motivate the Judges to decide more number of cases.
3.2.5 Some of the problems of delays and arrears in India can be attributed to the lack of time made available for effective management to the judicial leadership. Judicial Leadership is expected to attend to judicial work in the same manner and in equal proportion to that of a sitting Judge of the Court. Thus, the time available for administrative work is quite limited.