ADR can be used in all Civil matters and in Criminal matters where the offence is compoundable like cheque bouncing cases, petty offences, motor accidents claims cases, insurance and banking cases. Mainly ADR has been used in matrimonial matters, property matters, partnership and corporate disputes and practically most of the civil cases. There are various instances in which matters pending for more than 15 to 20 years have been resolved in 12 to 18 hours in 4 or 5 sittings.
The procedure is very flexible and there is total transparency in the process. ADR reduces the costs of litigation and time taken for resolving disputes.
With the coming of the Indian Arbitration and Conciliation Act of 1996 and amendment to section 89 and Order X of the Civil Procedure Code it has given boost to ADR. The Civil Procedure Code and the Indian Evidence Act does not apply to the process of Conciliation though in Arbitration the Arbitrators do apply the same. It is not necessary for a person to be a Lawyer or a Law graduate to be a Conciliator or Arbitrator. Settlement brought through the process of Conciliation acts like a Decree of the Court or an Award of the Arbitrator. Any party committing default can be proceeded against by taking out Execution Proceedings and there is no need to file a case for that purpose.
Cases Resolved:
(CASE 1)
A middle class girl by force of the parents got married and went to Bahrain. The husband being in a very senior position of a big Company was habituated to drinking and throwing late night parties which frustrated the girl. A daughter was born but still the husband did not improve and with his promotion and status became more socialite. The wife out of frustration came back to India with a determination not to return to her husband.
The husband made many efforts to bring her back and not having success came to India. When the wife refused to talk to him at the advice of the Advocates he filed for divorce making false and frivolous allegations. This was the first proceeding.
The wife got very frustrated and pending the Divorce Petition filed an Application for Maintenance for the daughter and herself. This was the second proceeding.
The Family Court gave a paltry amount which did not satisfy the wife. She filed a Letters Patent Appeal in the High Court. This became the third proceeding.
The High Court passed an Order raising the amount with retrospective effect. Husband committed default in payment for ten months. Wife took out contempt proceedings. This became the fourth proceeding.
Husband went in Appeal in which the Appellate Court admitted the Appeal but asked the husband to pay all the arrears as per the High Court Order and continue to pay till the Appeal is disposed of. This became the fifth proceeding.
The husband filed Review Petition before the Trial Court. The Hon’ble High Court passed the Order referring the matter to Conciliation. This became the sixth proceeding.
Conciliators took twelve hours to resolve the dispute to a win-win situation for both the parties who have not taken a divorce and are living as a happily married family for more than ten years. Extract of the Judgement of the Bombay High Court is as follows:
P.C.
“This was a matrimonial dispute; the past tense can now be used with some deliberateness since Parties have resolved the dispute in terms of Consent Terms which have been arrived at between them. In the main Writ Petition which is before the Court, an Order was passed on 12th December 2002. The dispute which came up before the Court was in relation to an application for the grant of maintenance to the petitioning wife. After the order was passed, a Review Petition came to be filed. The Respondent resides in Sharjah and there was a serious grievance made that the arrears of maintenance had not been paid by him. Fortunately, when the Review Petition came up for hearing, all the learned counsel as well as the Parties expressed their willingness to attempt a conciliatory resolution of their dispute. Parties agreed to Conciliation before Mr. Firdosh Karachiwala and Ms. Rajani Iyer, both of whom are Advocates practicing before this Court.
The Conciliators have spent almost 12 hours facilitating the Parties to resolve their dispute and in attempting to move them towards a negotiated settlement. The Conciliation took place under the provisions of the Arbitration and Conciliation Act, 1996. Parties have now appeared before the Court together with their counsel and have tendered Consent Terms which are signed by them and by the learned Advocates. The entire dispute between the Parties is resolved and they have agreed to divorce by mutual consent. The Consent terms are taken on record and marked as ‘X’. The undertakings provided for in the Consent Terms are accepted. The Family Court at Bandra shall now proceed to pass a decree for dissolution of marriage by mutual consent as envisaged by the Parties in Clause 2 of the Consent Terms.
Before concluding the matter, the Court would wish to record its deep appreciation of the expert assistance rendered by the two Conciliators, Mr. Firdosh Karachiwala and Ms. Rajani Iyer. They have in a true sense discharged their responsibility which lawyers as officers of the Court are expected to perform. Parties and their counsel have deeply appreciated their assistance. In view of the settlement between the Parties, nothing further survives in the petition for review. There shall be an order in terms of the Consent Terms.”
Though the order was passed granting divorce to the husband and wife they have not gone to Family Court and they are living as husband and wife in a happy situation. A marriage was on the rocks and with the efforts of the Conciliators the marriage was saved from breaking down and the poor child having to bear the brunt of separation and divorce between her father and mother.
In this case wife realized that the husband has truly apologized for what he had done in the past and the husband was willing to sign the Consent Terms convincing the wife that the marriage could now survive. She was convinced that he would change his attitude towards life and be more faithful and caring towards his wife.
(CASE 2)
A young girl of about 27 years of age and Architect by profession got married to a wealthy businessman’s son and during eleven months of marriage she was very happy and both husband and wife travelled throughout the world. Every night was a social night partying with friends living in a nice bungalow with car and chauffeur at their disposal and having big business. After eleven months of marriage one day the husband complained of certain pain in the body and certain swelling in the legs. He was taken to a very good hospital and after undergoing various tests the doctors came to a conclusion which was a shock to the whole family that the husband had whooping cancer and would not survive long. Three days later the husband expired which was a big shock and trauma to the wife and to her father-in-law. After the shock and trauma and religious ceremonies having got over friends of the wife in order to reduce her pain started taking her out of the house environment for dinner and socialising.
The father-in-law became anxious and concerned for his daughter-in-law. He tolerated this for some months and thereafter called the wife’s parents and pleaded with them to take her with them as she was still young. The wife’s parents asked for alimony, maintenance etc. of Rs.5 crores i.e. 50 millions of rupees. This made the father-in-law very angry as he had lost his son and over and above there was a demand for such a huge amount. He refused to pay any amount and told the parents that they could take any legal proceedings.
The parents along with their daughter came to my office to take legal proceedings against the father-in-law for the share of the wife in the estate of the deceased. Looking at the circumstances I suggested to the parents and the daughter that instead of litigation why not try Conciliation. After consulting a Judge they agreed for Conciliation proceedings. The father in law who is an Architect turned bussinessman appointed his own partner as Conciliator.
During the sessions of Mediation I had observed the changes which were happening to the daughter-in-law as she was looking very sick and frustrated. A suggestion was made whether there was a possibility to hold private sessions to which they agreed. In the private session as the daughter-in-law was sitting across I asked her what was happening to her as she looked very pale and frustrated. She cried and cried for a long time and thereafter stated that she did not know why this fight was happening between her father-in-law and herself who all throughout her marriage life treated her as his daughter and there was never any bitterness or quarrel. She felt that today she cannot face her father-in-law or bear his anger. Concilitors asked her what did she want in her life and to the shock of Conciliators she said that she only wanted one small Flat in Mumbai and one of the cars and for maintenance initially till she gets a job Rs.25,000/- per month. She said that this was all that she required and she was not insisting of 50 million rupees.
Thereafter Father-in-law in Private session also mentioned that the relationship was very cordial till demand was made from the daughterin laws' parents. Father-in-law said if in the place of his daughter in law if it was his own daughter he would ask for a Flat and reasonable alimony of Rs.50,000 and one car with Chauffer
Conciliators knew that ice was broken and there was possibility of settlement. Concilitors then gave opportunity for the parties, relatives and Advocates to go in separate rooms and consider the proposal. After 20 minutes of deliberation the parties came back to the Conciliators and said that the settlement was agreeable. Terms were drawn up, signed by the parties and their Advocates and attested by the Conciliators. After the Agreement was signed the father-in-law assured that he would keep his daughter-in-law in his own office, as also give her professional work, take care of her and also if there is a suitable boy for her he would arrange the marriage and bear expenses for her.
(CASE 3)
One case came up before a Conciliator in Pune city which was pending in the High Court for eighteen years and coming up for final hearing and disposal. Litigation had started with a brother who had died and thereafter it was continued by his son. More than twenty years back, their business was a flourishing business and after the disputes both the brothers had suffered heavy losses. The elder brother went away to Canada and married an Indian lady. In Canada the uncle who was now facing litigation against the nephew could not succeed in his business and had to return to India.
As the case was coming up, the Conciliator suggested to him that Conciliation would be the best way to resolve the dispute and he would not have to incur heavy costs and they agreed for Conciliation. As soon as they were in the suburbs of Mumbai, the uncle’s wife asked him to show around the property which was in dispute. The husband was reluctant but still the wife insisted. The wife then asked the husband to go up and say that they had a Conciliator and talk to his nephew.
As soon as the door opened, the nephew and his wife got angry and started shouting and using abusive language. The wife went up and the abusing doubled. The Conciliator felt that they would come to blows and requested the uncle to come down. As the uncle and his wife were relating to the Conciliator, the nephew’s wife came down and immediately called the watchman with three dogs which surrounded the Conciliator, uncle and his wife. She again started using abusive language towards the uncle and his wife.
At this stage the Conciliator intervened and told the nephew’s wife that he had not come to their place as an Advocate but as a Conciliator and that he would help them to resolve their dispute which was pending for 18 years and both the Parties must have definitely lost their energy and money also. The Conciliator told them that if Conciliation does not succeed they can go back to Court. The nephew convinced his wife to try this Conciliator. The Conciliator then used humor and said the first condition was that the dogs should be taken away as if she said something, the dogs would do everything.
The Conciliator said that the second condition was, that unnecessary Parties should not be in the Conciliation and the uncle’s wife she should be allowed to leave. The Conciliator then put the third condition that they should sit at a proper place because Conciliation cannot take place standing. The nephew and his wife requested the Conciliator and uncle to come in the sitting hall in the bungalow and the process of Conciliation started. The whole scenario changed in half an hour and conducive environment was created to conduct Conciliation.
In order to show fairness and impartiality to both the Parties, the Conciliator informed the nephew that the uncle had already told his part of the story whilst coming to Mumbai and whether he would like to repeat the story or he would like to give his opening statement. The nephew said that there are lots of things and burning issues which he wants to ventilate and speak about as to what the uncle had done against him. He said that his uncle is a liar and immediately the Conciliator intervened and requested the nephew not to use abusive language and reframed the sentence by saying that what his nephew meant is that the uncle is not saying the truth. Immediately the reaction of the uncle changed as he was very upset with the use of the word “liar”. The Conciliator being alert brought the situation under control by reframing the sentence.
Thereafter nephew made his Opening Statement and whilst making the same the uncle tried to interrupt twice and thrice but the Conciliator stopped him and told him that he will be given an opportunity to speak on his part after the nephew had finished. At certain time the uncle was not listening carefully and the Conciliator then told him to listen carefully to what the nephew was saying as he would have to respond to all the issues which were being raised by the nephew. The Conciliator is also taking down bullet points which is useful whilst summarizing. This assures the Parties that all the issues are now before the Conciliator.
After the nephew had made his Opening Statement, the uncle was asked to respond and to the utter surprise of the nephew the uncle was giving all the answers which the Nephew did not have and even imagined what had happened during his father’s time. The uncle made specific references regarding the accounts, regarding the debentures and all the property issues and when the nephew and his wife heard the uncle giving necessary clarifications and explanations, it started becoming clear to them as to where the dispute was between them. In this manner the Conciliator went to the root cause of the dispute and surfaced the issues. The Conciliator summarised for both the Parties what each of them had said and both the Parties confirmed the same.
The Conciliator along with the Parties listed out the issues of property matters, company matters, accounts etc. and the preliminary meeting lasted for three hours. The Conciliator next suggested private Conciliation and both the Parties on fixed date and time have to remain present before the Conciliator under the Arbitration and Conciliation Act 1996. The Conciliator also mentioned what would be the fees of the Conciliator per session which was also agreed upon by the Parties.
The Parties along with the Advocates came to the Chamber of Conciliator and in twelve meetings the entire dispute between the uncle and nephew was settled. In the process of Conciliation, the Conciliator had Joint and Private sessions and used techniques of WATNA, BATNA and MLATNA which made it clear to the Parties that it was easy to resolve the dispute which was pending for so many years. The necessary settlement agreement was signed and document registered which was required to be registered and the entire matter which was pending for more than 18 years in the Court was resolved in six meetings of approximately three hours each which did not only resolve the disputes but also the Party’s relationship grew and in the process the Parties closed their past and started looking for the future relationship and also visited each other and spent more time together.
(CASE 4)
One incident, which happened with Mr. Karachiwala before the amendment of Section 89 of the Civil Procedure Code where Conciliation was attempted instead of Court litigation, whereby the dispute was settled easily.
“I was at Jindal Naturopathy Farm near Bangalore (Karnataka State) when the then Chief Justice of Madras High Court Mr. A.P. Shah was also there. Whilst we were walking, I mentioned to the Chief Justice about the Conciliation and Mediation Proceedings done in the Ismaili Community for decades and that no Ismaili goes to a Court of Law for settling the disputes. All disputes relating to matrimonial, commercial or property matters are settled by Conciliation. In the Ismaili Constitution there is provision for settlement of disputes through Conciliation and Arbitration at the Regional, National and International levels. I further mentioned that under the Ismaili Constitution rules for Conciliation, Mediation, Arbitration and Matrimonial matters are framed which govern the community. His Lordship Chief Justice A.P. Shah showed keen interest and asked me if I could send the Rules to him. On returning to Mumbai, I sent the Rules relating to Matrimonial, Conciliation, Mediation and Arbitration to the Chief Justice.
Incidentally few months later a case came up before the Appeal Court of Bombay High Court (Appellate side) before His Lordship Justice A.P. Shah and His Lordship Justice V.C. Daga. The matter was being vehemently argued by both Parties and it was a divorce and maintenance case in which an irrevocable divorce took place by proclaiming Talaq and the question of maintenance for the wife and the child had to be decided. Justice A.P. Shah saw that the matter related to Khoja Community and asked his fellow Judge whether it could be possible to refer the matter to Conciliation as it was a Khoja case. I was called to the Court and when I saw the matter, I observed that it was not the case of the Ismaili Community but of Ishnashri Khoja Community. This was pointed out to the Judges and the Court was informed that in such a case Conciliation can be attempted.
Next day in the evening the Advocate along with the Parties came to my Chamber and the Conciliation started at 5.30 pm. Ground Rules for the Advocate were laid down and it was made clear to them that it was not a Court Room and the Civil Procedure Code and the Indian Evidence Act are not applicable to the process of Conciliation. I also mentioned to the Advocate that the entire process is confidential and if Conciliation does not succeed, only a short report would be submitted to the Hon’ble Court. Nothing said in the proceedings or any proposals made would be revealed to the Court nor would I come as witness for any of the Parties. I requested the Advocate to take note that no proposals or counter proposals made in Conciliation should be mentioned to the Court, if the Conciliation did not succeed.
After laying down the Ground Rules when I went to the depth of the case, I came out with the finding that the divorce took place because the young child of the couple was suffering from Leukemia and required blood transfusion every fortnight which the husband could not afford and out of frustration and anger, he had pronounced Talaq and divorced his wife. The wife stated that she could not bear the expenses, as she is illiterate and not earning. Further she has no support and she could not see the child die for sake of treatment. Therefore it is the duty of her husband to maintain his child. The husband said that it is not possible for him to maintain the child, as he has to look after aged parents and a sister who is suffering from paralysis and that he is facing lot of difficulties to maintain his family.
After hearing both the sides, as an option I invited the leaders of their community and asked them whether it is possible for the Community Trust to bear the expenses of the child. Immediately the office bearers said that they would bear the expenses. However they were asked to call a meeting of the Trustees next day and pass a Resolution so that the same can be submitted to the Court. Next day the meeting was called in which Trust passed a Resolution to bear the medical expenses of child and if required even send the child abroad for treatment. The Consent Terms were signed and presented to the Hon’ble Court within three days of the matter being referred to Conciliation. Hon’ble Court appreciated that such a complicated matter was resolved in such a short span of time to the satisfaction of the Parties. After the Consent Terms were filed, the parents came before the Conciliator and said that if Conciliation proceedings would have been initiated earlier the divorce would not have separated them and the child would have received the love of both the parents; since it was an irrevocable divorce the wife would have to marry somebody and after consummation, take divorce and then only could get married to the first husband.
This can only happen through Conciliation when a third Party who is not Party to the Suit/ Appeal can be called to resolve the matter. The following Order was passed by the Hon’ble Court.
HIGH COURT
O.O.C.J.
APPEAL NO. 584 OF 2000.
CORAM: A.P.SHAH AND VIJAY DAGA, JJ
DATE : 14.09.2000
P.C.
Parties are present.
“Consent terms signed by the Parties and their Advocates tendered, taken on record. Undertakings contained in the Consent Terms are accepted.
In view of the Consent Terms, Contempt Petition No. 111 of 2000 and Appeal No. 584 of 2000 are allowed to be withdrawn.
Office is directed to forward Consent Terms to the Family Court in Suit No. 0-39 of 2000. Upon receipt of the Consent Terms a Decree in terms of the Consent Terms shall be passed by the Family Court.
The above settlement between the Parties became possible only due to efforts taken by Shri. Karachiwala and we express our appreciation about the efforts taken by him without which settlement would not have been possible.
Alimann Charitable Trust, which is represented by Shri. Karachiwala has agreed to bear the medical expenses for minor child. A letter to that effect from Alimann Charitable Trust is already placed on record.”
Certified copy expedited.
(CASE 5)
An aged couple had a nice bungalow of ground and one upper floor at Vile Parle Mumbai. Their son for more than 25 years has been residing in USA. An Architect and Developer became friendly with this aged couple and promised to redevelop the whole property by constructing 4 additional floors and share the profits with them. The aged couple got the documents completed by a Chartered Accountant and also executed an Irrevocable Power of Attorney in favour of the Developer for developing the property. The son in USA was kept informed.
As the development of the building was taking place the aged couple realised that the Developer had constructed 6 floors instead of 4 and dispute arose between the aged couple and the Developer. To resolve the matter the son and his wife came from Los Angeles, looked at the project and found that the Developer had gone beyond the terms of the Agreement. He contacted the Developer and heated arguments took place. There was an Arbitration Clause in the Agreement which was invoked by both the parties and the matter came up before the Bombay High Court.
The Hon’ble Judge hearing both the sides and seeing that both sides were agreeable to the appointment of Arbitrator an Order was passed for referring the matter for Arbitration. A preliminary meeting was held with the Arbitrator mentioning his fees and gave necessary directions for filing the papers. The son who had come from USA inquired from his Advocate whether he would be arguing the matter before the Arbitrator. The Advocate said that a Counsel is appearing for the Developer and hence he would have to engage a Counsel. Looking at the frightful expenses the son started inquiring from his friends and relatives as to how to go about with such huge expenses and with time frame for the Arbitration to come to an end. Someone informed him to come to my office for advice. When the aged parents, the son and his wife came to my office they were totally frustrated and angry with the Developer and were not willing to go in for an expensive Arbitration. I suggested to them that I conduct Conciliation and explained to them the process of Conciliation and the benefits arising from the same. They liked the idea and I contacted the other side Advocate and asked him if he would like to do co-Conciliation to resolve this matter. The Advocate did not want to have co-Conciliation but “Without Prejudice” meetings or direct negotiations to see if the matter could be resolved amicably between the parties as the Developer was also not inclined to incur huge expenses on Arbitration proceedings. Meetings were held and the process though termed as negotiation was in reality a co-Conciliation where joint and private sessions were held and gradually the parties were brought to an Agreement in about 12 to 14 meetings. The Sole Arbitrator was kept informed about the progress and Consent Terms were filed before the Sole Arbitrator who gave Consent Award after going through the Consent Terms. The situation was win-win situation for both parties and the Advocates also benefited in their professional work. The Arbitrator also charged for his one day hearing and that is how the matter came to a happy ending.
(CASE 6)
One case came up in Court when a woman after 28 years of marriage was seeking divorce from her husband. The husband was addicted to hard drinks and he used to come home late at night, use abusive language and beat his wife and children mercilessly. Ultimately being fed up the wife filed a case for divorce. The Court referred the matter to Conciliation of an experienced Conciliator. The Conciliator called a preliminary meeting, introduced himself to the Parties and thereafter asked the Parties who would like to make the Opening Statement. The husband stated that let his wife begin her Opening Statement. The Conciliator informed the husband that whilst the wife was making her Opening Statement, he should listen carefully and should not interrupt her.
The wife in her Opening Statement stated that for five years she was harassed and she and her children were beaten up and the husband was addicted to hard drinks. The husband did not provide any money for their maintenance and education of the children. She sought divorce from the husband, as she did not want to be humiliated, abused and beaten up and that her children too were fed up with the husband’s habits. The Conciliator asked the wife if she had anything to say and she said that she wanted only a divorce and nothing more. The Conciliator then looked at the husband and said that he could make his Opening Statement and Response to the wife.
The husband began by saying that five to six years ago he was a very responsible husband, had no vices and never used to drink or smoke. He was working in a Government office and had to travel from suburbs to his office. As he suffered from acidity as such, he could not take any canteen / hotel food. In those days upon his return his wife would serve him a hot dinner and then they would spend time together, eat together and would talk after the dinner. He loved his children very much and looked after their education and well being right from the day they were born. He further said that five to six years ago his wife had started watching Television and whenever he returned home by 8.00 pm she was glued to the Television set. The second time the husband repeated the term watching TV; the wife got up and slapped the husband in the presence of the Conciliator. The Conciliator had lost eye contact with the wife and if he had noticed the wife, this incident could have been prevented.
The Conciliator immediately pointed out that this was an abuse of the process of the Court and this indiscipline would not be tolerated and that he would make report to the Court that the Conciliation had failed and the Court could proceed with the matter. The wife realized her mistake and profusely apologized for her behaviour and assured that she would not repeat the mistake again. The Conciliator asked the wife to apologize to her husband which she did. Thereafter the Conciliator asked the husband to continue and he said that after returning home from office she did not serve him dinner or even offer a glass of water or tea. Looking at the behaviour of the wife the husband started going out and meeting friends and took up drinks. Then he got addicted to alcohol and in this manner he ruined his family life and his own happiness. He however desired to amend his mistakes.
The Conciliator tried to generate some options. Firstly, he asked the wife whether she could stop watching television for sometime and serve the dinner when her husband returned from work. She said that during the time her favourite serials would be coming and she would not like to miss them. The second option the Conciliator tried to generate was to ask the wife whether she could watch the serials which also come in the afternoon and at late night. She said that she is a teacher and she gets up early in the morning and goes to school by 8 am and returns home after 4 pm and thereafter her students come for tuitions which generates good income for her. By the time she takes tuitions it is 7 p.m. and thereafter she watches television for relaxation from the hard day of work. That is why she cannot see the serials in the afternoon as well as in the night. The husband was asked whether he could cooperate in any manner to save the marriage. He said that he was suffering from acidity problem and he looks forward to the home-cooked food when he comes back home from office.
Then the Conciliator suggested why don’t they buy Video Cassette Recorder (VCR) with a timer so that during the dinner time they could record the serials and later on or during the holidays could watch the serials together. The Conciliator requested them to try it out for two weeks and adjourned the matter. After two weeks both of them came to the Conciliator’s office with broad smiles on their faces and said that they have made up their minds and there is no need for divorce. They also said that they are now going out in the evenings after dinner and watch movies in the cinema theaters and on holidays see the serials which is convenient in their VCR. They thanked the Conciliator and said their Advocates would make the application to the Court for withdrawing the Divorce Petition. Thus the marriage was saved and disputes reconciled to the entire satisfaction of both husband and wife and the children.
(CASE 7)
There was a couple who had with their sweat and blood constructed a hotel on a prominent beach in Mumbai city and resided on the upper floor of the hotel. The husband was suffering from asthma and always required an inhaler whenever he had an attack of asthma. One night the husband and wife went to a wedding reception and returned home very late after midnight. Being tired they immediately went to sleep. They had a new housemaid who had forgotten to keep the inhaler near the bed. Sometime in the night at about 2 or 3 am the husband got a severe attack of asthma. He searched for the inhaler besides the bed, he crawled to the dressing table to find the inhaler and not finding it, he collapsed and died. On the husband’s death the wife was scared and also apprehensive about the future of her three minor daughters as the property was joint family property.
The family of the husband came to Mumbai and behaved rudely with the widow making all sorts of allegations against her. After few days, when the religious ceremonies were over, the widow came to my office to file a suit and safeguard her rights in the property. After discussing the matter at length, I asked the widow whether she had spoken about her frustration to any of the family members. She said that it was pointless as her father in law who is nearly 80 years old and three brothers in law would never allow the father in law to come to any settlement. I asked her if she could write a letter to her father in law expressing her difficulties and frustrations and if there was no response, legal proceedings would be adopted. Next day she brought a one paragraph letter without giving any details of her sufferings.
I asked her if I could redraft the letter to which she agreed. Since I knew the frustration and the pain she was going through, I was able to put in the letter, the entire frustration and anxiety for her three daughters and their future. The letter was sent to the father in law in Hyderabad and immediately within three days the widow received a telephone call from her father in law and the first question that was put to her was “Who had written the letter”. The widow mentioned that it was drafted by a Solicitor under her instructions. The father in law requested her to take an appointment as he along with his two sons would like to meet the Solicitor.
After few days they came to Mumbai and at my office, I explained to them the benefits of Conciliation and whether they would be agreeable to settle the matter through the process of Conciliation which would be without prejudice to their rights. I also convinced them that I would act as Conciliator impartially and with fairness to both the Parties and assured the father in law that in case the Conciliation fails, I would not act as an Advocate for the widow. I also told them that anything said during the course of the Conciliation would be totally confidential and nothing said in Conciliation or any proposals made would be revealed to the Court, nor I will come as witness for any of the Parties. This communication in the first meeting and the letter written earlier, convinced both the parties that Conciliation would be the best way to resolve the disputes between them and that if the Conciliation does not succeed, the parties would be at the liberty to adopt their own legal proceedings as they may feel appropriate.
The Conciliation process commenced and within three days the whole matter was resolved between the entire family and a Memorandum of Understanding was signed with all the members resulting into a win-win situation in which the entire relationship was maintained, as also an amicable settlement was arrived at between the parties only because of the communication which took place between the parties through the Conciliator.
(CASE 8)
In a well known case in USA, there was dispute between the black farmers and white farmers which is now known as “black farmer’s case” during the time tenure of President Bill Clinton. The white farmers have had received certain subsidies from Financial Institutions which black farmers did not receive. The black farmers strongly objected to the millions of dollars in subsidies given to white farmers and which was not given to the black farmers. A case was filed and proceedings were conducted. News Media published the matter in the Newspapers as a result of which the hostility between the black farmers and white farmers accelerated. Hatred, jealousy and enmity prevailed. Judges of the Supreme Court in their wisdom referred the matter to Conciliation.
Two Conciliators were appointed one on behalf of the white farmers and the other on behalf of the black farmers. Two Conciliators jointly worked for 2 to 3 months and brought about a win-win situation for both parties. In this case in respect of the finance, Financial Institutions representatives and all those concerned, participated in the process of Conciliation and reached a consensus by which the matter was resolved to the satisfaction of the parties, Government and Financial Institutions. If the matter were to be heard by the Court, then it would have further increased the enmity between the blacks and whites that could possibly have divided the country and have led to serious political consequences. Conciliation worked and the matter got resolved expeditiously to the satisfaction of all.
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