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Photo of Indian man standing in flood waters prayingIn India when lakes rise behind newly built dams, ancestral villages are flooded out of existence. The poster, a painting of the Godess Narmada, was put up ceremoniously by the people of the Jasindhi village. The caption reads, "Mother Narmada will give us Justice." [photo by Harikrishna]

Working to Break India's Legal Logjam

by Jeff Worley

For half a century in India, progress and technology have worked together to devastate the lives of millions of people. That's a strong statement all right, and it does need some qualification. Specifically, it's been the building of dams throughout the country that has resulted in people being forced to leave their homes and relocate when lakes rise behind the newly built dams and flood ancestral villages out of existence.

"Dams have been built at a prodigious rate for over 50 years to improve India's irrigation system," says John Stempel, director of UK's Patterson School of Diplomacy and International Commerce. "The problem is, there's never been a mechanism for checking out environmental consequences. So when one of these towering structures 'fulls up,' people have to flee."

How many people? Millions. Arundhati Roy, in an essay titled "The Greater Common Good," puts the number at 33 million people displaced by big dams alone in the last 50 years. Roy, author of the best-selling novel The God of All Small Things, uses statistics from a detailed study of 54 large dams done by the Indian Institute of Public Administration to arrive at this number.

Along with their displacement, Stempel says, a lot of "political fuss" results. The court system in India continues to be deluged with environmental cases—the flooding of dams being just one of many—in large part because environmental regulations have been slow in coming, he says. Even though "fast-track" developing countries like India have adopted the same kinds of environmental regs that the United States has in place, these U.S. laws have evolved over a 35-year time period, allowing our legal system the opportunity to evolve with them. In India, on the other hand, the print is scarcely dry on enacted environmental regulations; most have been in place no longer than five years.

The result? Legal wrangles have hit their own dam-like barriers, leading to nothing but a thundering stalemate. Since 1996, for example, the State Supreme Court in Tamalnadu has been working to resolve lawsuits that pit environmentalist groups against various government agencies. A year ago, the court had a backlog of 216 cases.

"Out of these 216 cases, the court has, so far, resolved five—just five," says Stempel, who served as U.S. Consul General for South India at Madras for three years before coming to UK. "And not one of these was resolved by prior trial agreement—we're talking zero out-of-court settlements." Since up to 85 percent of civil cases are resolved in India through agreement outside of the courtroom, the obvious questions is, How are these environmental cases different?

"The short answer is that these cases are expensive, very complex, and emotionally charged," Stempel says. "After the case grinds through the lower courts, there are two likely litigated outcomes. The state could win and the decision would be appealed. Or the environmental group could win and the decision would be appealed. When the dust settles, the two sides see that they were merely fighting over whose name would appear at the top of the next court filing."

Alternative Dispute Resolution
Stempel's interest in all this follows not only from his stint in southern India as consul general; he also has a strong interest in an ameliorating policy called alternative dispute resolution, or ADR. "With ADR, instead of worrying about the legal case, you just call both sides together, get them in a room, and talk about what's best for both parties. You're not trying to make points through a lawyer; you're trying to find out exactly what both sides can agree to live with," Stempel explains. "I like to call ADR 'diplomacy made safe for lawyers.'"

Photo of John Stempel and M.J. SinghOn his trip to India to discuss alternative dispute resolution, John Stempel, director of the UK Patterson School, received a traditional VIP garland from M.J. Singh, chief justice of Tamilnadu.

Patterson School involvement in this judiciary impasse in India resulted from a phone call to Stempel from Albert C. Harberson, manager of the National Institute for State Conflict Management at the Council on State Governments, located in Lexington. "We had identified a couple of grants that we were interested in applying for," says Harberson, who has worked with mediation systems at both the state and federal levels. "We saw one that focused on India and some problems they were having in adjudicating cases in their court system. We are typically involved in dozens of international projects, so it's not unusual for us to look overseas like this. And when we started thinking about experts who might want to team up with us on this project, John Stempel's name jumped right out."

"Bert has been involved in ADR for over a decade and has shown over and over how well this process can work," Stempel says. "He's mediated over 300 cases and settled 80 percent of them, saving the interested parties, I'd guess, close to a billion dollars." With the exception of their use in labor-related conflicts, Stempel adds, ADR methods—particularly mediation—have been used more than perhaps any other method in environmental disputes in this country.

These cases are amenable to mediation due to several factors, Harberson explains. "The disputes involve multiple stakeholder groups, often a national interest group and one or more government parties. They are legally complex and expensive, requiring thousands of hours of preparation time by attorneys and others. They are almost always highly emotionally charged, and require vast amounts of scientific and technical information."

A local example involved the National Park Service (NPS), the state of Kentucky, a state and national environmental group, the city of Middlesborough, and Appolo Fuels Inc., a coal-mining company. The dispute was simple. The state issued a permit to Appolo to mine near the Cumberland Gap National Historical Park without first consulting with the National Park Service. In response, the NPS, city, and environmental groups protested the decision on the basis that the mining would interfere with visitors' views and, therefore, prior consultation with the NPS was required.

"To their credit, the parties recognized not only the value of a mediated resolution, but worked hard to achieve one," Harberson says. "In the end, an agreement was reached for scaled-back mining and the planting of additional trees to reduce the mining's visual impact on the park. And the state and federal government agreed to enter into a memorandum of understanding to help avoid similar disputes in the future."

"The more we talked about the situation in India, the more convinced we were that we could really help," Stempel says. The two then turned to, as Stempel says, "a UK connection once removed"—former William L. Matthews Professor of Law at UK Tom Stipanowich. "Tom is one of the leading ADR scholars and practitioners in the world. He worked with us on our initial proposal, helping us think through some of the trickier problems." Stipanowich taught at UK from 1984 to 2000. He is now president of the CPR Institute for Dispute Resolution in New York City, the world's largest association of corporations and law firms that support dispute resolution techniques.

Stempel and Harberson then outlined a program and submitted a proposal to the United States-Asia Environmental Partnership, which gave them a thumbs-up—funding the project for two years. This pilot project, called the Conflict Resolution Partnership, funds travel to India to educate and equip the project's Indian partners to work on similar conflicts and develop a model approach for such disputes that could be used throughout India and the rest of Asia.

So in February of 2000, Stempel and Harberson found themselves on a plane to India.

Making Their Case
Twenty-four hours later, Stempel and Harberson touched down in Chennai, the capital of Tamilnadu State on the Bay of Bengal. Chennai, formerly called Madras, is Stempel's old stamping grounds, and he admits it felt good to be back. "In some ways, it was as if I'd never left. Of course some of the young businessmen were now older businessmen and some of the government folks I'd worked with had retired. But it definitely felt comfortable being there again."

Before Stempel or Harberson could even shake off their jet lag, they were handed an itinerary of meetings and workshops for the next week—meetings with government officials, corporate executives, environmental protection organizations, and various representatives from the legal system.

"I'd call these 'high-energy' get-togethers," says Stempel. "Because my successor twice removed and I knew some people in the legal system, we got a good hearing throughout the area. There was tremendous interest in what we had to say about alternative dispute resolution, and a terrific opportunity for us to learn about some of the pending conflicts in their legal system."

Their discussions were tightly focused on the role of ADR in legal disputes and explored the possibilities that ADR could play a part in the country's judicial process. "The chief clerk of the Supreme Court was at one of these meetings, and he arranged for a meeting with the Supreme Court Chief Justice and his colleague on the environmental bench, Justice Sampath," Stempel says. "When we met with them, they quite readily saw that this was very likely a good way to clear away some of the legal logjam they were dealing with. This was a breakthrough meeting."

Another result of their interactions in India was that the complicated and emotionally charged focus on lawsuits involving the environment has been broadened to what is termed "technology-heavy" environmental disputes.

"Technology heavy," Stempel explains, "refers to the fact that sometimes environmental disputes can be resolved by a higher level of technology." He cites the example of a company in Bangalor that produces leather goods. The chemicals used in the production process pollute the nearby river. The company has been able to clean up the water to the point where it's safe to drink, but there's still a problem.

"Problem is," Stempel says, "the water is blue—safe to drink but blue." (He raises his empty coffee cup in the air and says, "Anybody wanna drink some Tidy Bowl?") "So it's an aesthetic problem." It so happens, he adds, that when this problem was mentioned to him on his last trip, he knew of a solution, one close to home.

"There are similar plants in Kentucky that have technology sophisticated enough to not only clean up after themselves but to also make the water clear again. That's the kind of technology we can pretty readily export, though it'll take some time for the Bangalor factory to buy the equipment and get it set up," Stempel says. "This is an example of putting to use the knowledge that we took with us."

The ADR approach to conflict resolution is now a formal proposal awaiting Supreme Court approval. "We have every reason to believe this will be approved," Stempel says. "As most things in legal systems worldwide, it will just take some time."