This article has taken for its theme, the legal services to the rural poor and other disadvantaged groups. Particular reference is made to the role of law schools in delivery of such services. What follows is a report on an attempt to deliver mediation as a dispute resolution resource under the leadership of the Tamil Nadu State Legal Aid & Advice Board of Madras with Justice Sri.N .Krishnaswamy Reddiar as Chairman.
Rural poor in Asia is illiterate. We are up against the problem of illiteracy at the very threshold when we approach the rural poor. The unlettered can relate concepts only to their own experience. So dispute resolution is an occasion for legal literacy. A lot of time and trouble are taken in the mediation centres Tun by the Tamil Nadu State Legal Aid & Advice Board to explain how law is a resource for the poor. The centres are located in villages at least 20 to 30 kilometre away from the nearest court centres. So they answer the problem of access to courts to some extent. Courts cater to litigative needs; legal services are larger than that. The thrust of legal literacy at the mediation centres is to bring home to the poor the role of law as a means of supplying what the poor need -an awareness and assertiveness of their rights. The context. of their own dispute concretises the concepts, otherwise abstract and unreal to them. Mediation brings it to them in recognizable forms. Thus as a resource, mediation is eminently suited to supply the needs of the poor.
The informality of the mediation processes reduces the importance of the resources. The poor lack resources; so they feel unequal in their conflict with the rich in resource based systems like the courts. Mediation, by eschewing the role of resource for both the conflicting parties, eliminates one of the factors that create and emphasize the inequality. For instance if the poor party is unable to project the state of affairs on ground, the mediator will move to the spot for a settlement of the dispute there itself. Photographic evidence or a commissioner’s inspection acceptable to the courts may be beyond his reach. The waiving of rigid proof norms according to rigid statutory requirements, the elimination of inflexible procedural regulations and taking in to consideration the feelings as well as facts do away with the importance of resources as a factor tilting the scale of justice. The rural poor stand to benefit as a result.
STRESS & STRAIN
Conflict produces emotional stress. This acts on top of pre-existing strain under which the poor live due to inadequate resources even to find the bare necessities of life. Rational conduct often becomes impossible under such tension. Formal litigative proceedings are not concerned with these effects of conflicts. Indeed they add to it by the uncaring and impersonal way in which disputes are handled there. Equality before law is a fiction super imposed as a veneer on the system in justification of it. The mediator on the other hand, takes upon himself the task of eliminating the handicaps, unwinding the tension, informing the ignorant and approximating their equality to the extent possible. The disparity in bargaining power arising from the handicaps due to poverty is tackled by the mediator as an immediate task.
This attempt at equalisation of the disputants is made possible by the positive role that the mediator plays. He is not a passive onlooker like the judge. He is not expected to be neutral like an umpire. His is an active role, however limited. He helps in organising the meeting of the disputants and in starting the dialogue between them. Often communication is the first casualty in a conflict. The mediator endeavours to restore it. Once the talks are under way, he would identify the points of agreement between the conflicting parties and enlarge them.
Mediator ensures that neither party is compelled to accept mediation as a means of settling their dispute. The whole process is based on exercise of free will and consent of both disputants. The moment this is withdrawn, the process of conciliation collapses. This consent is the source of the mediator’s role. It circumscribes his functioning. As it has an important bearing on the end result, it should be briefly explained to the parties at the outset. It can not be and shouldn’t be enlarged in the course of the process by assuming powers of finding on facts or confronting the disputants with an award. The entire effort is an exercise in persuasion. You cannot change tracks halfway. To do so would be not only to betray the values underlying mediation, but also to a breach of faith with the disputants. The essence of mediation is that the solution is crafted by the conflicting parties themselves. Others may help.
In the field, the mediator working amongst the rural poor finds himself stonewalled by apathy, an indifference to the outcome of all efforts at dispute resolution. The rural poor are victims of a culture of dependency. This is in part due to the fatalism that marks the thinking in Asia. This invites exploitation. Any conflict to resist it is not to be frowned upon. To do so would be a culture of acquiesence, an atmosphere of assent without objection. Thus conflict has a heakhy connotation also. Educating the party to use conflict as a tool is part of the programme.
FEAR OF CHANGE
The educating process has to first begin with the removal of fear of change in the mind of the oppressed. It is the exploited that must demand the change. Ironically, it is they who shy of it. The exploitation has emasculated the personality of the individual to such an extent that any change is looked upon as an unsettling factor, disturbing the even tenor of the life of the victim. Even a ripple looks like a wave. The already oppressed person under stress of a further conflict, looks to the oppressor himself for help. That is why the clashes are engineered by the oppressor himself with a view to entangle the oppressed more and more in the coils of the conflict. The only way to neutIalise such machinations is to destroy the fear of change and to promote a perception that change also can be used as a tool to bater their position. On the other side, there will be resistance to change. The oppressor has a vested interest in the status quo and any attempt to divest him of that advantage would naturally be resisted. An unequal relationship is an unstable one. It carries within it the germ of instability. Educating him about the durability of a more equitable relationship is the task on hand in such contexts.
A LACK OF FOCUS
Another problem encountered in the mediation centres is a lack of anticipation on the part of the disputants. Sometimes, when the disputants come to the mediation centre they do not know what to expect from it. It depends on what they look forward to as likely to happen there. This lack of anticipation of the various stages of mediation process denies them the needed focus on the end result of a satisfactory settlement. It robs them of a commitment to a positive result. It denies them a sense of direction. For instance, they feel cheated if halfway through the mediation they are told how allocation of blame or punishment is not the aim of mediation.
A SENSE OF POWERLESSNESS
One of the common disillusionments of the disputants is the lack of power in the mediator. The poor want power to be exercised over the other party. Their sense of powerlessness prompts them to seek a third party with a clout. Mediator, they think. should take on that role. They are weak but oftm shrewd. The poor want to carve out for themselves a position of vantage by placing the other party in the wrong. “See, he does not respect you. He does not respond to your invitation to come to the mediation centre”, they would tell the mediator. They would imagine that they are enroling the mediator on their behalfby setting the other disputant against the mediator. They think that they can stand on the shoulders of the mediator and say “Boo” to their opponent. “Compel him to come. Set the police on him!”, they say when the other party to the dispute fails to turn up. Even after both parties meet, if one of them is not amenable to a reasonable suggestion, the other party would exhort the mediator to compel him. Again if a party defaults to do something agreed upon, the aggrieved party would at once insist on the mediator punishing the defaulter or at least reporting the original dispute to police. They imagine that a report through the mediator stands a better chance of prompt action. If the mediator does not oblige, they would ask for a certificate from him that they cooperated but the other party did not. They expect to derive some advantage from it. They want something to lean on. This betrays the sense of powerlessness of the rural poor.
Seen in that context, awareness and assertiveness by themselves may only make the rural poor more litigious. That has to be avoided. Mediation has to be looked upon as a protest against legalism, excessive reliance on law as a solution for all problems. Has our society, from ancient days, evolved the concept of mediation as countervailing force to excessive legalism?
One of the main objectives of this programme, particularly at Tiruporur in Chengaipattu Taluk, near Madras, is empowerment of the rural poor. It is aimed to create skills necessary for handling conflict situations constructively. Hopefully it will undermine their sense of powerlessness. A few instances of conflict resolution are extracted below to illustrate the point, leaving it to the reader to draw his or her own conclusions as to the adequacy and pocentialities of the programme as a resource of the rural poor. It is a human resource programme.
Two brothers quarrelled about the ancestral residence, a tiled house in their native village. They are weavers by occupation. The elder brother was aftlicted with leprosy. Before moving to another village, 50 km away, he transferred his half share in the house to the younger brother for a price of Rs.6000/-. It represented the then market value when the family arrangement was made in September 1979. An unstamped and unregistered writing (worded as sale) was executed by the elder brocher in favour of the younger. The elder brocher put up a thatched house in the other village and lived there. He has a daughter, married and settled in life.
In May 1986, the younger brother came to the mediation centre at Tiruporur to seek its help in perfecting his exclusive title to the tiled house in terms of the 1979 arrangement. He complained that his elder brother was demanding division of a half share in the house for some months, offering to return the sum of Rs.6000/- received by him in 1979. “How can my brother go back on the arrangement ?”,he asked. “Please send for him’ and persuade him to affirm my title to the whole house by a registered deed”, he pleaded. The elder brother did not respond to the usual request to attend the centre, sent by post. The field worker called on him to explain the programme and how he could give mediation a chance. The matter rested there. It was the third week of July by then. There was nothing that could be done. It was explained to the initiator how infirm his title to his brother’s share was.
The writing was not registered, hence the sale was not valid. It was not stamped, hence the deed was not admissible in evidence. His possession had not perfected the title as the transaction was less than twelve years old. Principles of part performance and estoppel were unsure grounds, depending on various circumstances. Anyway, it is not the objective of mediation to explore the legal subtlety. The parties have to be educated about the techniques of handling their conflict. True, conveying information about their rights is an essential step before they exercise their options. It was emphasised how the younger brother faced a very restricted choice situation. He left the centre, disappointed, but he was assured that mediation would be resumed any day both the brothers came to the centre.
On the 10th of August, 1986, both of them came. A relation interceded and sent the elder brother. He had informed the younger brother about it. When the younger brother’s version was read out to him, he conceded the 1979 arrangement and charged the younger brother with breach of faith as he had undertaken to buy a site and construct a tiled house for the elder brother in the other village. The younger brother admitted that there was some talk about such a proposal in 1979, but he had expressed his unwillingness to undertake the responsibility. So it was that the sum of Rs. 6000/- was paid to the elder brother and a sale writing was executed.
During the talks, the younger brother agreed to pay Rs.2000/- more in return for a registered sale deed. The elder brother did not feel persuaded. He wanted his share in the house. They parted on a note of recrimination. Travails of litigation were explained to the elder brother who found it so difficuh to visit the mediation centre even once. He said he would sell his half, the buyer would drag the brother to court. The mediator let fall an observation that there was another option: upgrading the amount. They did not appreciate it. More than two months later (on 26th of October 1986), the younger brother turned up at the centre to report the settlement of their dispute. The relation had again moved them. The elder brother had executed a duly registered sale deed after receiving Rs.3000/-. The flaw in his title had been cured. He was thankful.
The conflict arose out of a sense of discontent of the elder brother. That he was afflicted by an incurable disease might have been the root cause for a sense of isolation and self-estrangement. When the real property values appreciated many times in that locality in the last 8 years, the feeling became a sense of deprivation. He felt he had received a raw deal from his brother. A belief that one deserves better is often a causal factor for conflict. The inchoate nature of the transaction furnished a ready handle. A combination of these detonated the conflict.
The younger brother talked morality. The elder talked law. He too invested his stand with a moral tinge by offering the return of the Rs.6000/-. When a transaction is invalid, status quo ante is the corrective step, he felt. Why did they skip the fonnalities of stamp and registratioo ? The extortionate rate of stamp duty levied for transfers was a dis-incentive to their compliance with the legal requirements. Recourse to infonnal, though invalid documents is very prevalent amongst the rural people. Life is so personal there and “if we agree, where is the need for law to prot.ect us “, is their attitude. When they no longer agree, law hurts them by not affording a legal basis for their transaction. They curse the law.
Mediation brought home to them an acceptance of the limits of their action. It engendered a willingness to settle for something less than what each demanded initially. Moral postures would not have helped resolution of the dispute. Moral moderation promotes the give and take of mediation process. Both the brothers had the wisdom to perceive it.
Would the parties have settled the dispute without the intervention of the mediator? Did the thoughtful act of sending the field worker to talk to him assuage the feeling of isolation of the elder brdher ? That the field worker had trekked 50 km to search him out and invite him for talks should have set the elder brother thinking. True, he did not respond that week itself, but he came all the same. Is it not significant that he finally accepted the affinnation of the earlier transaction as the basis for satlement ? Does it noc show that a brief pause in the process would trigger their thinking? In this conflict, mediation stalled only to succeed a little later.
Is that perception right? Should the mediator leave enough elbow room for the parties to act on their own ? Or should there be a deadline to motivate the disputants to push forward energetically towards a consensus? Would it otherwise become procrastination? WouId the elder brcther have resiled from the 1979 transaction if he had continued to live in the same village? Did the fact that he had moved away contribute to his indifference to the loss of face, consequento his resiling?
THEY RETRACED THEIR STEPS IN TIME
He was about 45. He wanted a second wife. His childless marriage was 20 years old. He had one acre of cultivable land. No brothers. Father was dead. His mother advised a remarriage. He is a milk vendor, a Yadhava.
A distantly related family is in a nearby village. The daughter was aged 20. She was offered as second wife to him. The father of the girl took Rs.400/- from him in January, 1985 towards the price of a silk saree for betrothal in March 1985. Father did not turn up; mother attended the barothal. No new saree was bought. A used saree was placed at the function. A writing for the barothal was signed by two elderly relations on either side. The marriage was to be in June, 1985. In the mean while, the milk vendor heard that the bride’s father was nd. living with his wife, but with some other woman. Perhaps, that was why only the bride’s mother attended the betrothal. He did not want any alliance with such a family; indeed he did not want a second wife at all. Due to pressure from the bride’s party, a will was drawn up, signed and delivered to the her mother at the betrothal. It was not. registered. The second wife was to have half of his prqJerty on his death. The bride’s mother met him in April. 1985. He asked for the return of the will for registering it and also the sum of Rs.400/- for purchasing a saree for the marriage. She said a will was not an adequate provision and asked for a registered settlement deed. On 15th January, 1986, he sought the assistance of the mediator to secure the return of the will and Rs.400/-. He did not want to marry again.
At the next session, the girl’s uncle and not the girl or her mother came. He explained how he advised his sister to give her daughter in marriage as a second wife. He had called on the milk vendor to ascertain the attitude of his wife. She had assented in writing. A few elders of the community, on being consulted, opined that as they had no child, a second marriage was permissible, with the consent of the first wife. A professional document writer who usually scribes at the sub registrar’s office words the will and the betrothal letter. A villager (not a Yadhava caste man) who came with the girl’s uncle said that he heard that the milk vendor was not going ahead with the marriage as his first wife’s parents raised objections. At this stage the uncle promised to bring the caste head man and the girl’s parents for the next session.
Next week an elderly relation of the milk vendor (uncle’s son) asked the mediator to arrange for the ra:um of the will and Rs.400/- as the first wife and her parents were apprehensive that the first wife would be prejudiced if a settlement was executed in favour of the second wife as now insisted upon.
The girl did not attend even this session; but her father and some relations came. The milk vendor and the girl’s father after some discussion, agreed that the betrothal stood cancelled and the letter was to be so endorsed. The will was to be returned to the milk vendor duly cancelled. Rs.400/- paid for the saree was not to be refunded. It had to be adjusted for the expenses of the betrothal function when the milk vendor’s party dined at the girl’s house. It was implemented then and there and the compromise specifically recited that there was no more bitterness. This was on 26th January, 1986.
The parties were faced with a choice situation. The outcome depended on their initial judgement. They could have speculated on a litigation. Would a breach of promise action lie when the promise was for a void marriage? Would courts have recourse to principles of public policy? In that sense, the choice was predetennined. Mediation is best suited for extricating oneself from the consequences of one’s own action. Courts decline to take individual’s personal equation into account. The higher standard of the individual is sacrificed to the wider interests of society as a whole. That is public policy. The parties had acted in defiance of law in deciding on a second marriage. They had to unravel it also outside the framework of legal structure. Perhaps they could not go to court even if they had thought of it at the instance of the professional scribe. In another sense it was a difficult decision for them. It was obvious that they were a conservative group. They were recalling one or two other instances of rro-acted betrothals in their community at the intake session. They had to go long years back to find a parallel; but they needed it to face the community.
How did the elders of the caste sanction the second marriage when they were consulted? Did they not know that it was an offense? They sure did. The consent of the first wife and the fact that she had no child were supposed to furnish the legal and moral justification for the bigamous marriage! The rural poor have their own law; not the lawyer’s law !
How informed and voluntary was the consent of the first wife to her husband marrying again ? She never came to the centre, though requested. What was the attitude of the bride? She did not attend the betrothal. She did not come to the mediation in spite of a letter asking her to come. The entire episode betrayed scant respect for human rights. The two persons whose rights were vitally affected in this conflict are the women; Yet neither had her say at the mediation. The only women at the centre were a lawyer amongst the mediators and a English woman social worker who had come from London on a visit to the centre.
The exercise in legal literacy benefitted not only the milk vendor who undertook not to look for another bride but also all the relations and caste people who were involved in the resolution of the dispute. Amongst them were a close relation of the milk vendor, another relation of the bride and 3 villagers of another caste.
Does this analysis lend an impression that the problem was identified as a conflict between two individuals? Was the root cause lying in a wider social context taken note of? Would the mediator have been better advised to decline to intervene unless the first wife and the wife to be were at the centre? There are usually many values involved in a conflict context. Can all of them be presented in terms of the conflict? Is it incorrect to say that mediation sessions can focus only on specifics ? Would the exposure to the processes of mediation suffice to orient them towards respect for gender justice ? Did accurate self evaluation of their strength by the negotiators contribute to the successful resolution of the dispute ? Was immediate implementation of the consensus due to the credibility of the mediation centre?
ASSERTIVENESS, AT WHAT COST?
This is a conflict between a student and his college. A youth was admitted to the engineering course in a college run by a religious trust. He is poor. He is a Harijan. He paid Rs.3500/- in August 1987 towards the fees and other charges. He attended the classes.
A few weeks later, he was intimated his admission in another college for which he had simultaneously applied. He asked for refund of Rs.3500/- paid by him. In the mean while he joined the other college, the advantage being that it provided an opportunity to earn while doing the engineering. Being poor, this would ensure resources for completing the course. This was in October, 1987. His case fell withm the scope of the rules govemmg the refund. Yet his application was turned down.
Only Rs.I 00/-, a caution deposit was returned. The student felt that an injustice had been meted out to him and took the matter to the government of Tamil Nadu. The Director of Technical Education ordered the refund. The college would not comply. He took some social workers to demand the refund on his behalf no success. In September, 1988, the youth came to the mediation centre at Tiruporur. The college, though only about a 100 KIn away, did not respond to the request to attend. It later transpired that the college authorities had started a correspondence with the Director of Technical Education explaining how, according to them, the student was not entitled to refund as he had joined only a part time course in engineering at the other college.
The field worker contacted the college authorities to explain the mediation programme. The mediator met one of the persons well connected with the trust to discuss the problem. In the mean while the administrative assistant of the district committee for legal aid had also met the college authorities. The dispute was settled.
What was the dispute here? The student was entitled to refund subject to some deductions as per the regulations framed by the college. The college did not question this; but why should the student bring social workers to espouse his cause? asked the authorities. Is he not entitled to assert his rights? He had to look around for support only after their refusal? How could that be a reason for denying refund? Even in the first instance the student was very assertive, they complained. He demanded the refund as of right. He was a Rarijan. He was poor. He was a student. Does it all add up to a justification for denial of a right?
The legal competence of the student resulted in an avoidable delay of 15 months during which he needed the funds badly for pursuing his studies elsewhere. Why should the college resent the awareness and assertiveness ofhis rights by a student? Thus the right to refund had receded and the right of the poor to assert their rights has emerged as the issue during the processing of the dispute at the mediation centre. In this instance, a denial of such a right prejudiced the student by holding up the refund for a year and more.
The money, less some deductions was refunded on 9th November, 1988 to the initiator. The seemingly successful termination betrays a flaw. The administrative assistant, when he met the college authorities, went armed with a letter from the secretary of the district committee for legal aid and advice explaining the problem. What is it that triggered the final decision of the college to refund ? Was it the letter from the committee with the suggestion of coercive power of the court system or persuasive negotiation of the mediation centre ? The letter head of the secretary’s letter showed the district and sessions judge as the ex-officio president of district committee for legal aid and advice. Does it not undermine the voluntarism? Does it manifest the dependency culture; looking around for somebody with a clout to solve our problem for us ?
Does the involvement of the administrative assistant, resulting in a deviation from the norms of mediation, focus on the imperative need for a field worker exclusively for the mediation programme ? Is not a commitment to mediation values inconsistent with short cuts to achieve quick results ? Is the college under no accountability to its students ? Has the religious character of the trust managing the institution contributed to the lack of active response to the demand of the student? Was his being a Harijan relevanto the situation? Does the attitude of the dispenser ofbenefrts create a tension in such contexts ? Does resentment at assertiveness of the poor betray a context of exploitation? What corrective action is suggested to sensitize the people to the rights of the poor? Can the mediation programme in any way contribute to promote a positive reaction to the legal competence of the poor?
Legal competence consists of awareness and assertiveness. Self awareness is a step towards awareness of one’s own rights. Knowing who you are enables you to know what your rights are. Attitude formation is promoted by awareness. Attitudes are associated with behaviour patterns. So, if self awareness is created in the socially backward people, it can increase consistency between their actions and attitudes. What is attitude but a consequence of evaluation of people and issues. How does the mediation prOgran1me organise and promote such attitude formations in the minds of the poor? Does self awareness help in identifying the exploitative context in a relationship? The poor are expected to acquiesce in their suffering. That is the image the poor project to the rest of the society. So, if they show any assertiveness, the special pattern of attitude towards them, i.e, the prejudice, is unsettled. A negative reaction follows. Nobody wants his social conclusions challenged. Is this the cause for resentment? Can mediation be used as a vehicle for socialleaming ? Mediation encourages reflection. Would that put him or her on the road to attitude change by elaboration of the persuasive message?
Jay Smooth, founder of New York’s longest running hip-hop radio show, WBAI’s Underground Railroad, hosts ill doctrine, a hip-hop video blog featuring hard-hitting, thoughtful social commentary. Smooth recently posted “How...By Diane J. Levin