Saturday, March 26, 2011

Mediation is the best advocacy

Gandhi ji's experience at Bar- Dada Abdulla's case:

( From "My Experiments with Truth")

"I saw that the facts of Dada Abdulla"s case made it very strong indeed, and that the law was bound to be on his side. But I also saw that the litigation, if it were parsisted in, would ruin the plaintiff and the defendant, who were relatives and both belonged to the same city. No one knew how long the case might go on. Should it be allowed to continue to be fought out in court, it might go on indefinitely and to no advantage of either party. Both, therefore, desired an immediate termination of the case, if possible.

I approached Tyeb Sheth and requested and advised him to go to arbitration. I recommended him to see his counsel. I suggested to him that if an arbitrator commanding the confidence of both par-ties could be appointed, the case would be quickly finished. The lawyers' fees were so rapidly mounting up that they were enough to doveur all the resources of the clients, big merchants as they were. The case occupied so much of their attention that they had no time left for any other work. In the mean-time mutual ill-will was steadily increasing. I became disgusted with the profession. As lawyers the counsel on both sides were bound to rake up points of law in support of their own clients. I also saw for the first time that the winning party never recovers all the costs incurred. Under the Court Fees Regulation there was a fixed scale of costs to be allowed as between party and party, the actual costs as between attorney and client being very much higher.

This was more than I could bear. I felt that my duty was to befriend both parties and bring them together. I strained every nerve to bring about a compromise. At last Tyeb Sheth agreed. An arbitrator was appointed, the case was argued before him, and Dada Abdulla won.

But that did not satisfy me. If my client were to seek immediate execution of the award, it would be impossible for Tyeb Sheth to meet the whole of the awarded amount, and there was an unwritten law among the Porbandar Memans living in South Africa that death should be preferred to bankruptcy. It was impossible for Tyeb Sheth to pay down the whole sum of about £ 37,000 and costs. He meant to pay not a pie less than the amount, and he did not want to be declared bankrupt. There was only one way, Dada Abdulla should allow him to pay in moderate installments. He was equal to the occasion, and granted Tyeb Sheth instalments spread over a very long period. It was more difficult for me to secure this concession of payment by installments than to get the parties to agree to arbitration. But both were happy over the result, and both rose in the public estimation. My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men"s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby-not even money, certainly not my soul."

Quoting II part of above statement of Mahatma Gandhi, the Supreme Court of India in SLP (Civil) No. 2896 of 2010 B.S. Krishnamurthi v. B.S. Nagraj decided on 14/1/2011 by Hon. M. Katzu and Hon. Gyansudha Mishra,JJ, referred a case , which is between two brothers, to Bangalore Mediation Center.


  1. Marvelous and Excellant,
    Mahatma was simply Maha-atma.
    Somewhere I have read about his childhood experience that while he was child some of other children who were his cousins quarreled with him, but he kept quiet, and complained and narrated this incidence in a simple manner to his parents, but in spite of getting justice he got scolded.
    When he came into practice of law, he analyzed this incidence, and came into the conclusion that only plain truth is not sufficient, rather we must know the way to present the truth to fetch the justice.
    Also he was very selective in picking up the cases.

  2. Off course "Mediation is the best advocacy", and is also necessary to promote healthy national feeling.
    There is one good saying, which is “Wafer thin negotiation is better than fatty lawsuit.”