I am one of the founding coordinators of the Bangalore Mediation Centre, the Court annexed program of the High Court of Karnataka. A few months after we started the mediation program, a young advocate walked into my office and could not contain her excitement. She had experienced a successful mediation and exclaimed ‘A silent revolution is happening in our courts. We now have a forum for quick, cheap and efficient resolutions. Most importantly, the parties are in control of the outcome’. Today, after 12 years, the mediation program in the Bangalore courts has grown and almost 150 cases are being mediated every day. There are many lawyers like the young lady advocate, who are developing the skills to use mediation in both court and private mediation and are enthused by a steady growth in their legal practice.
What is mediation? It is a process where a mediator who is a third party neutral, helps disputants to try to come to a consensus and find a mutually acceptable outcome. A mediator understands the differing perspectives of parties without judging, explores their underlying interests, allows them to vent their feelings and when they are ready to negotiate, facilitates a negotiation between them. The skills and expertise of the mediator is critical for a positive experience at mediation.
In an adversarial process, it is the third party, the Judge, who decides the outcome. The process includes pleadings, evidence, arguments and layers of appeals. It is structured in a manner that requires parties to be wedged into positions and lawyers argue on behalf of their clients. The lawyers are required to polarize parties to enable the Judge to decide who is right and who is wrong, who is liable and who is not.
As the processes are very different, advocacy in mediation differs from advocacy in an adjudicative/adversarial proceeding. Mediation is assisted negotiation and the lawyer’s role is to coach their clients to negotiate and take decisions that are self-determined. As in any negotiation, parties need to determine the point at which they need to ‘walk away’ if necessary, from mediation. This is achieved through a knowledge of the time, cost, possible outcome and its consequences in alternative processes like arbitration and litigation. As the mediator is a neutral, it is the lawyers who provide this information in mediation. Lawyers also work with their clients to persuade the other side for best possible terms in the negotiation without antagonizing the other side. They ensure that the settlement terms arrived at in mediation are legal and enforceable.
The two processes are clearly different and the lawyers are integral to both processes. The skills required of a lawyer in mediation are transferable from the skills used in adjudicative practices. However, lawyers need the awareness that they are wearing a different hat. A deep understanding of the process with training in ‘advocacy in mediation’ and a mindfulness and willingness to adapt, are important pre requisites for a lawyer for effective advocacy in mediation.
Clients like Mediation
The Global Pound Conference held for over 2 years in 24 countries is an electronically conducted survey of all the stake holders of a dispute. The India conference was held in 2017 at Chandigarh. Thousands of stakeholders to a dispute were interviewed worldwide. 70% of the interviewed litigants stated that they wanted their lawyers to have a changed approach to dispute. They wanted their lawyers to give them appropriate resolution in acceptable time frames and at realistic costs. They wanted the dispute resolution framework to include adjudicative and non- adjudicative processes. The quest for ‘appropriate’ and the need for the availability of ‘non-adjudicative processes’ clearly signals the need for change in approach to dispute resolution in the 21st century. Disputants are progressively requiring their lawyers to give them a choice of adjudicative and non-adjudicative processes while deciding on the dispute resolution mechanism for their dispute.
This survey also brought out an existing anomaly between the need/expectation of the litigants regarding the role of their lawyers and the perception of the lawyers as to what their clients want from them. 67% of the lawyers interviewed saw their role as ‘arguing for clients’. A lawyer who envisages his/her role as ‘arguing’ often misses exploring the immense potential for the non-adjudicative processes like mediation. There is a high probability that mediation could provide the appropriate solution within a reasonable time frame and at realistic costs to the clients. Another interesting finding of the GPC survey is that lawyers are reluctant to use mediation, not because they are fearful of diminishing revenue, but they are unfamiliar with the mediation process. The skills to argue and the skills to reconcile are both necessary skills that a lawyer is bound to possess.
India is integrating both Domestic and Cross Border Mediation into the dispute resolution system
- India’s response to the changing dispute resolution landscape around the world was by introducing Section 89 to the Civil Procedure Code in 2002. Since then the litigant has a choice of litigation, arbitration, conciliation, mediation and lok adalat, to resolve disputes.
- Almost all High Courts in the Country have a Court Annexed Mediation program. Free mediation services are available in the courts, serving the multitude of litigants who need cheap access.
- Private Mediation is beginning to take root in the country. When market forces are allowed to operate, clients can choose their mediator and consequently, services improve. Complex and sensitive cases, and multiparty disputes are being mediated.
- Commercial Court Act, Company’s Act, Consumer Protection Act, Real Estate Law include mediation.
- India has signed to the Singapore Mediation Convention which gives enforceability to cross border (international) mediated settlements.
Why lawyers ‘must try’ mediation in most civil disputes?
- Some clients want to wage war but most eventually want peace. However the only way clients are aware of achieving this peace is through war. They are so relieved when lawyers can show them another way.
- Clients are satisfied when the outcome has been determined by them. They settle only if their real needs are addressed to the best possible extent. As a result compliance is high. Less than 1% of mediated settlements reopen.
- Negotiation in mediation involves in-depth discussions, jointly and privately, to explore underlying interests of parties. There is space for emotions to be expressed. The different possibilities for settlement are explored. After this exercise, when parties take a decision, all involved in the mediation have a good understanding of the dispute and the available possibilities for settlement. A subsequent trial, if it has to be, is much more mindful.
- Even if the case does not resolve, lawyers get an opportunity to test the trial theories on a mediator who is not judging, less threatening and less risky.
- Lawyers are keeping abreast of the developments in their profession. Almost all civil disputes in several developed countries are mediated.
Heroes that bring Change:
A Judge recently narrated an incident in his court. A junior lawyer in his court was persuaded by him to go for mediation. The lawyer resisted as this was his only file and he needed it to keep his profession going. The judge insisted and used section 89 of the CPC to refer the case for mediation. 6 months later, the lawyer was back in the same court. He excitedly informed the judge that since the earlier case was a bank dispute, his clients were so happy with the settlement, they referred another 25 cases to him.
Four heroes: The judge who managed his cases and had the skill to recognize possibilities for settlement and thereby expand the rule of law; the lawyer who adapted to the additional role as a problem solver and demonstrated that he could skillfully wear different hats in the different processes to get a resolution for his client ; the mediator who is competent and earned the trust of the parties; and the bank taking a decision to use both adjudicative and non- adjudicative processes to resolve their cases.
The search for Justice in the 21st century is ‘appropriate solution’. The choice cannot be singular any more. The restlessness for choice is palpable everywhere in today’s world and when lawyers provide a choice of adjudicative and non- adjudicative processes, they become most sought after. A word of advice: ‘Early bird catches the worm’.