Consensual Dispute Resolution

Adarsh Dubey on Consensual Dispute Resolution in Criminal Cases and Role of Plea Bargaining

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“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln[i]

WHAT IS CONSENSUAL DISPUTE RESOLUTION?

Consensual Dispute Resolution [referred to as “CDR” hereinafter] are voluntary settlement processes, through which parties attempt to resolve their disputes or differences through negotiation, without taking resort to the services of the court and judicial officers in order to arrive at an amicable settlement between them.[ii]Two of the most common methods of CDR are the Collaborative process and the Mediation process.[iii]These have been considered to be the preferred options when it comes to the resolution of disputes as it allows the parties to exercise better control over their own lives and relationships, thereby avoiding, to a certain extent, the possibilities of negative by-products of an adversarial court proceeding.

In many cases, cooperation and collaboration to reach a mutually acceptable settlement is not merely desirable, but quite achievable. CDR not only allows the parties to arrive at a reasonable and mutual agreement for themselves, but also tends to be a more expedient, effective, inexpensive and satisfying process for many in comparison to the traditionally contested litigation proceedings. By avoiding the court proceedings, the temptations of parties and their counsels to throw personal attacks at one another in court hearings in their attempt to win the confidence of the judge, can also be averted. Instead, CDR encourages the counsels and their clients, to carry on the negotiations in bona fide faith. Mediation and Collaborative processes enables the parties to directly participate in the decision making process, rather than letting their counsels take decisions on behalf of them, and rather than completely resting their fate on the decision of a third party [i.e. a Judge]. Parties are considered as rational beings, who are capable of deciding their own fate. Research has proved that those parties which consensually accept theirdivorce settlement agreements, are far more likely to abide by those agreements and take it in a positive way, as compared to those parties whose divorce settlement agreements have been imposed on them by the decision of a judge, or, who feel that their counsel has forced them to approve the agreement.[iv]

WHY TO IMPLEMENT CDR IN CRIMINAL CASES?

Consensual Dispute Resolution has been molded as a machinery of law for speedy disposal of disputes or differences. CDR, as a method of dispute resolution mechanism, is of prime importance, especially in the light of the large number of cases that are pending in the courts of countries like India.  As we know that law is itself a dynamic concept, there is a need to employ more effective devices in order to change the obsolete aspects of our current criminal justice system. Presently, plea bargaining is the major phrase through which CDR can be implemented in our criminal justice system as a mechanism for speedy disposal of disputes. However, CDR also has certain disadvantages, due to which it must be implemented in a manner that does not harm the criminal justice system. Failing to find a proper way to implement the same may reduce the case backlog and increase quick disposal but such success may have a harmful impact on the quality of our criminal justice system, which may then become a mechanism of imbalanced power in the society.

PLEA- BARGAINING: A STEP TOWARDS IMPLEMENTING CDR IN CRIMINAL CASES?

The criminal law (Amendment) act 2005 introduced the concept of plea-bargaining through chapter XXI-A in CrPC.[v]Plea bargaining is often seen as a mediation process between the prosecution and the offender or his counsel.[vi]The above can be inferred from the similarities that both plea bargaining and mediation have in terms of the characteristics that they possesses such as autonomy, consent, fairness and neutrality.[vii]Plea- Bargaining is one of the types of CDR mechanisms which has been suggested for criminal cases. It has been defined under section 265-A of the CrPC, which states that plea bargaining shall be available to the accused who is charged with any offence other than offences punishable with death or life imprisonment or an imprisonment for a term more than seven years.[viii]The concept of plea-bargaining has been taken from the US legal system, and have developed from the pre-trial negotiations between the prosecution and the accused person or his lawyer.[ix]It is one of the most prominent examples of negotiated justice in criminal cases, which adopts a lenient view of the accused, who have admitted their guilt and repent, while punishing them. It is undertaken to bring the two diametrically opposite parties together in order to reach an agreement between them. The same is done with the assistance of a judge, without any formal trial. Plea- bargaining can be of three types:

  1. Charge Bargain: In such cases, the accused is given an opportunity to negotiate with the prosecutionin order to reduce the number of charges that have been alleged against him.[x]
  2. Sentence Bargain: It providesinformation to the accused in advanceaboutwhat will be his sentence in case if he pleads guilty.[xi]
  3. Fact Bargain: It involves negotiations and admissions of certain facts stipulating to the truth and existence of provable fact, thereby eliminating the need for the prosecutor to have to prove them,in return for an agreement not to introduce certain other facts into evidence.[xii]

In simple words, plea-bargaining is the process of negotiation where the accused admits his or her guilt and negotiates for lower criminal charges.[xiii]

WHAT ALL RECOMMENDATIONS  SHOULD BE FOLLOWED IN CASE OF INTRODUCING CDR IN CRIMINAL JUSTICE SYSTEM?

From the above discussion, it is clear that the practice of CDR in providing speedy disposal of disputes should not become a vehicle of imbalanced power of the society.  Malinowski and Radcliffe- Brown, who have propounded the ‘Functionalism Theory’, pointed out to the need for all the organs of the society to function properly in order to maintain the society as a whole.[xiv]Law can be seen as a social organ, and it is also regarded as the heart of any civilized society, which is charged with the duty to maintain the balance of power in the society. In order to maintain the well-being of our criminal justice system, it is important that CDR is introduced in our criminal cases. However, the same should be subject to the following recommendations and suggestions.

First, CDR must be introduced in our criminal justice system through practicing more of our existing laws which already allows the exercise of machinery such as compounding of offences. We need to consider all the cons of CDR before implementing the same in criminal cases. Also, as we do not have adequate institutional framework for applying CDR in civil cases, thus, we need to take appropriate measures for the same before implementing CDR in criminal cases. Secondly, it is impertinent to ensure transparency and independence of our judicial proceedings before CDR can be implemented in our criminal justice system. A whimsical introduction of the same may succeed in reducing the case backlog, however, it may reduce the quality of our justice system. Thirdly, the scope of Section 265-A of the Code of Criminal Procedure must be enlarged in order to allow the accused the opportunity to avail the benefit of Plea Bargaining. Lastly, CDR training institutes must be established and judicious allocation of funds in that respect must be ensured, before introducing CDR in our criminal cases. Awareness regarding the same should also built through studying, practicing and implementing the proper functions of CDR.

CONCLUSION

Finally, we can safely conclude that the CDR system, if undertaken with appropriate measures, can promote court reform, provide access to justice and reduce not only delay but also the cost of resolving disputes, which are associated with traditional court proceedings. The present conditions demand the implementation of CDR system in our criminal justice system in order to reduce the ever-increasing caseload of the courts. In this sense, CDR plays an important role in criminal trial of convicts, which are devoid of general facilities.

[i]“Dispute Resolution Quotes” (ADR Toolbox) <http://www.adrtoolbox.com/library/adr-quotes/> accessed June 13, 2019

[ii]“Consensual Dispute | Thomas Borst Law | San Ramon, CA | 925.718.8201” (Thomasborstlaw) <https://www.tomborstlaw.com/consensualdispute/consensual-dispute-resolution/> accessed June 13, 2019

[iii]Ibid.

[iv]Ibid.

[v]Saini NL, “A CRITICAL STUDY ON ADR IN CRIMINAL TRIAL” (http://www.madhavuniversity.edu.in/) <http://www.madhavuniversity.edu.in/critical-study-on-adr.html> accessed June 13, 2019

[vi]Hallevy G, “Is ADR (Alternative Dispute Resolution) Philosophy Relevant to Criminal Justice? – Plea Bargains as Mediation Process between the Accused and the Prosecution” <https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1315984_code729075.pdf?abstractid=1315984&mirid=1&type=2> accessed June 13, 2019

[vii]Ibid.

[viii]“Plea Bargaining: An Overview – Litigation, Mediation & Arbitration – India” (Plea Bargaining: An Overview – Litigation, Mediation & Arbitration – India) <http://www.mondaq.com/india/x/273094/trials appeals compensation/Plea Bargaining An Overview> accessed June 14, 2019

[ix]Deo R, “Criminal Cases and ADR” (AcademikeFebruary 28, 2019) <https://www.lawctopus.com/academike/criminal-cases-adr/> accessed June 14, 2019

[x]Karim R, “INTRODUCTION OF ALTERNATIVE DISPUTE RESOLUTION IN CRIMINAL JUSTICE SYSTEM OF BANGLADESH” <https://www.researchgate.net/publication/321527042_INTRODUCTION_OF_ALTERNATIVE_DISPUTE_RESOLUTION_IN_CRIMINAL_JUSTICE_SYSTEM_OF_BANGLADESH> accessed June 14, 2019

[xi]Ibid.

[xii]Supra at note ix.

[xiii]Supra at note x.

[xiv]Ibid.

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