Articles

La conciliazione in India: Profili storici e prospettive attuali


Abstract


Although the anglo-saxon approach to alternative dispute resolution is quite recent, the use of mediation can be traced back thousands of years. For many centuries, the mediative approach has been the primary way of dispute resolution in countries like China and India, where personal (and collective) responsibility and responsibility to the community are highly valued. In these cultures, somewhat paradoxically, the adversarial system of justice, and not ADR, has been for a long time and to some extent still is the "alternative" dispute resolution system. In India, the panchayat justice system in which a respected village elder(s) assists in resolving community disputes, has long been an accepted method of conflict resolution. The more formal integration of mediation as part of the judicial system, however, has not yet completely occurred, even if the Indian Arbitration and Conciliation Act of 1996 provides a legal framework for the process, and allows for the voluntary use of mediation with protection of confidentiality and the ability to develop legally binding agreements. Indeed, many forms of traditional mediation still remain in contemporary India, forming a unique framework of modern and ancient dispute resolution techniques. In particular, in an attempt to restore traditional forms of justice in the post-colonial India, jurisdictional power has been re-granted to the panchayat, but this attempt basically failed. Another traditional way of dispute resolution has been found in the lok adalat system: however, also the lok adalat, originally conceived as a voluntary and spontaneous provider of quick and accessible justice for petty claims, has soon become a quasi-official mechanism in India’s general system of justice.




DOI: http://dx.doi.org/10.13135/1825-263X/954

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ISSN: 1825-263X

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