by Jim Holbrook
Dean Hiram E. Chodosh of the University of Utah S.J. Quinney College of Law was the featured speaker at the meeting of the International Law Section of the Utah State Bar on April 14, 2011, at the Utah Law & Justice Center in Salt Lake City, where he discussed “From Mediating India to India Mediating.”
Chodosh described three important global trends that are increasing the number and nature of conflicts both within nations and internationally: (1) social and political democratization; (2) movement from centralized command-and-control economies to market-based entrepreneurial economies; and (3) financial and industrial globalization. These trends increase the amount of international trade, but they also increase the number of conflicts and create new kinds of claims. As the number and nature of disputes have increased, countries have not made concomitant investments in their legal institutions. This “capacity gap” has caused conflict resolution bottlenecks and has exacerbated existing problems of court delay, judicial corruption, political interference, psychological and physical coercion in criminal investigations, and increased incarceration for criminal defendants awaiting trial.
In India, for example, it is estimated that at current disposition rates it would take 124 years to clear the existing 29 million cases pending in courts around the country. Similarly, it is estimated that 70% of criminal defendants awaiting trial are incarcerated for periods that are longer than the maximum sentences for which they could be sentenced following trial and conviction, if there were no pre-trial detention.
A second “capacity gap” exists when the United States (and other Western and European countries) attempts to provide rule-of-law assistance to host countries seeking judicial reforms. There are several intellectual and structural constraints on the effectiveness of such international assistance. Provider organizations often are unfamiliar with local conditions and project their own ideology, values, and institutional experience onto the host country’s needs and objectives. Providers suffer from “amnesia” because relevant local knowledge and “lessons learned” from previous experience typically are deemed “proprietary” and are not made publicly available or shared. Providers can get caught up in the “hubris of grand solutions” (e.g., many more people say they “drafted the Iraqi Constitution” than say they supported the work of members of the Iraqi Parliament’s Constitutional Review Committee). Too often there is no social science that proves a provider’s contention that a proposed innovation will result in a specific change of conditions on the ground in the host country, i.e., “they don’t know what they are doing.”
Chodosh then described more “reactionary methodological weaknesses” in the delivery of foreign assistance. Some providers eschew responsibility for any useful consequences of their work, by claiming they are “only facilitating” or that the host country’s culture is monolithic, static, and therefore “unchangeable.” Others have escaped into “romantic localism” and discounted deficiencies in or ignored abuses by the host country’s traditional conflict resolution practices that do not solve current problems.
Chodosh focused on India as a case study of civil justice reform and addressed “four phases” of adoption and implementation of court-annexed mediation. In Phase One, in the mid-1990s when he was a law professor at the Case Western Reserve University School of Law, he was asked to serve as the reporter on an Indian task force engaged in a large national study of the Indian civil justice system commissioned by Supreme Court Chief Justice Ahmadi. Recommendations in that study prompted legislative amendments to the Indian Civil Procedure Code in 1999, which were implemented in 2002.
In Phase Two, beginning in 2003, Chodosh was a Fulbright Fellow in India where he conducted a series of regional workshops and a national conference on mediation held by the Law Commission of India. Many in India naively assumed that the earlier legislative amendments by themselves would lead to accepted use of mediation as a new court process. They failed to take into account important disincentives by lawyers, judges, and litigants to adopt mediation: lawyers were compensated by repeatedly handling filed cases; and judges and litigants had more confidence in the fairness of court judgments than in negotiated settlements.
In Phase Three, Indian judicial leaders and senior lawyers learned important lessons from this earlier failure to embrace mediation and they adopted a new educational approach to inform and train the Bench and Bar. Western approaches to communication concepts and bargaining strategies were “disaggregated” and replaced by Indian “analogues” before being “re-aggregated” into distinctively “localized” approaches to mediation that leverage traditional and emerging Indian values, customs, and practices. For example, the Western assumption of party “self-determination” as the cornerstone of mediation received in India the “communitarian” overlay that extended family members will participate in mediation and must be consulted by parties before reaching a facilitated agreement. This enables India to play a crucial role in the development of mediation in South Asia and elsewhere in the region, e.g., India’s senior mediators recently have been asked to help the courts of Sri Lanka develop court-annexed mediation in that country.
In Phase Four, “India is mediating.” For example, the Delhi High Court Mediation and Conciliation Centre called “Samadhan” opened in 2005 and already is handling more than 100 cases per day on three floors of the courthouse, with 20 more rooms promised. Samadhan’s success is due to the proverbial “three-legged stool” of support by the Bench, senior leadership by the Bar, and adequate public funding from the Delhi government. Indian lawyer-mediators are collaborating with Dean Chodosh, clinical law professor James Holbrook, and IT expert Aaron Dewald to assist with train-the-trainers education and to create the first-ever web-based mediation training materials accessible anywhere in the world, which ultimately will include video demonstrations, lectures, training aids, plus comprehension and performance self-diagnostics.
The future of “India mediating” is very exciting. For example, although arbitration has a long and accepted history in India, international commercial arbitration is becoming prohibitively expensive and difficult to vacate or enforce. The S.J. Quinney College of Law’s Global Justice Project: Mediation will continue to collaborate with our Indian colleagues to develop transnational commercial mediation as the new standard for cross-border conflict resolution. Chodosh concluded by saying that he foresees a time when our role in India will be completed and we will move on as the iconic “18th Camel” to support others elsewhere in their localized efforts to build their own capacity to resolve legal conflicts through mediation.