The year was 1997. India had recently introduced the Arbitration & Conciliation Act, 1996, and was vigorously pursuing the introduction of Court Annexed ADR (arbitration, conciliation, mediation, and judicial settlement) in its Civil Procedure Code. At the invitation of the Government of India, a delegation from the Government of Australia visited New Delhi & Mumbai, respectively, the political and financial capitals of India. A significant part of the delegation was a highly trained team of mediation trainers from LEADR, Australia’s peak dispute resolution organization (now, Resolution Institute). The team conducted training workshops in these two cities and followed it up with additional training for a few of the participants in Sydney.
As if in a way to celebrate the silver jubilee of these first mediation training workshops in India, comes along a very fine collection of writings on the topic of mediation & conciliation.
From the point of having only anecdotal attempts at collaborative dialogue in and out of court to implementing mechanisms of Court Annexed ADR, it has been quite a long journey of varied experiences. Traditionally, India has had a rich culture of established mechanisms for collaborative dialogue in several spheres of society, ranging from family to cross-border trade. However, now is a new inning that we are in. And this book provides a studied look, with ample cross-references, at the developments made in these past 25 years in the field of mediation and conciliation in India.
The editor, Gracious Timothy Dunna (GTD)/(editor), has taken great pains in selecting the contributors as well as the topics. This adds immensely to the book’s richness, as we now have access to a panorama of views based on experience and research of a broad spectrum of writers, ranging from lawyers, researchers, academicians, neutrals, and trainers, some wearing more than just one hat.
The book starts with an appropriate backdrop provided in a Forward by Michael Mcilwrath. It sums up the prevalent gloomy situation being faced in India in the field of ad hoc arbitration. Until around the year 2000, ad hoc arbitration was just about the only mainstream justice dispensation mechanism available in India, outside the law courts. It is another thing that it still leads you back to court, like a truant student trying to skip class. Fortunately, all that has been changing, initially at snail’s pace and now with long strides.
Another Forward, by Ratan K Singh, draws our attention to the resurgence of Mediation in India – this time, with institutional support – and the importance of books (such as this one) to help understand the lay of the land. I cannot resist the temptation of quoting verbatim a couple of lines from Mr. Singh’s Forward: “Mediation is not a case disposal system, yet some conceive it thus. It is a manner of handling relationships; tricks and traps do not constitute consensual dispute resolution.”
As stated in the Preface, there is now a minimum sufficiency of awareness, forums, and support to witness a steady development of a mediation culture in India. At the same time, certain pockets of the end-users confuse mediation with meditation, or worse, as another style of conducting an arbitration. And that too, provided they have heard of it. All the more reason, one would say, for these stakeholders to grab a copy of this book.
The editor (GTD) has made a considerable contribution to the book, starting with a general introduction.
While the book as a whole gives the lay of the land of the field of mediation in India, the Editor’s Introduction gives a lay of the landscape proffered by the book and the four broad segments that help build it up:
GTD shares with us in chapter one a neat understanding of the critical ingredients of the process and, for good measure, explain some related terms to give a somewhat bird’s eye view of mediation/conciliation. Also touched upon are some of the developments in India, including the Indian leg of the Global Pound Conference, held in 2017.
In chapter two, Prof. Joel Lee & Jonathan Rodrigues talk about the stages of the mediation process, negotiation, and the facilitative & evaluative approaches of the mediator. They also discuss the interplay of interest, rights & power in the mediation process, the games people play, and some techniques to address deftly such coarse moves.
Anil Xavier and Sandeep Bhalothia have dedicated chapter three to ethics and ethical standards. One good example of a busy person’s reason to purchase this book lies at the end of this chapter – a cross-comparison of ethical standards expounded in three different Instruments.
In chapter four, Laila Ollapally and Raj Panchmatia offer a detailed understanding of the legal and regulatory framework for mediation and mediators in India, including the capacity building for Court-Annexed mediation. They also discuss some perspectives on MSAs (mediated settlement agreements).
In chapter five, Tejas Karia & Shashank Garg tackle the whole gamut of institutional mediation – its several stages and the roles of the different stakeholders. They also discuss confidentiality in the mediation process.
In chapter six, Sahil Kanuga and Shraddha Bhosale deal with commercial mediation/conciliation in the backdrop of different statutes and the enforceability of MSAs (mediated settlement agreements).
Anant Merathia discusses in chapter seven the mediation of disputes in insolvency and bankruptcy proceedings against different types of companies and what would ‘fit the fuss’ for the emerging scenarios in these types of disputes.
In chapter eight, Arjun Natarajan and Badrinath Srinivasan discuss at some length the running of mediation, conciliation, and ombuds services in a variety of backdrops where some of the other arms of a government are involved.
Investor-State Disputes and optional approaches available for settling them are addressed by Pratyush Panjwani and Harshad Pathak in chapter nine.
A. J. Jawad and Nisshant Laroia come together in chapter ten to delve into the multifaceted landscape of Mediating Family Disputes and the skills required for convening the deliberations.
Ishana Tripathi takes up the issues relating to E-Mediation in chapter eleven. In the course, she also shares current statistics on court pendencies.
Community Mediation, which is afforded a separate chapter in the Mediation Bill, 2021, is taken up for discussion by Kudrat Dev and Ajay Kumar Pandey.
For the last five chapters, GTD teams up with various contributing authors on a range of topics.
In chapter thirteen, he and Kabir Duggal, while discussing Mixed-Mode Dispute Resolution, touch upon a range of connected issues, viz. dispute resolution provisions enacted in the Code of Civil Procedure, 1908 and the Arbitration & Conciliation Act, 1996; hybrid models like arb-med-arb; the panning out of an escalation clause; emergency arbitration and have, for good measure, even thrown in a checklist of issues for process design as also a draft ‘Guided Choice Clause” (both prepared by the Mixed-Mode task force of IMI).
Cross-Border Enforcement of International Mediated Settlement Agreements and the Singapore Convention are discussed by GTD & Jatan Rodrigues in chapter fourteen.
GTD and Manisha T. Karia, in chapter fifteen, deal threadbare with the law on Conciliation, as enacted in Part III of the Arbitration & Conciliation Act, 1996
GTD teams up with Judith B. Ittig to round off the book with twin chapters, one focused on the role of the mediator and the other on the role of the Advocate in a mediation process.
This book contains a great deal of what is required to get a sense of how the field of mediation has developed in India in the last quarter-century and where to locate the required resources to dive deeper. I see it as a required addition to any library being accessed by those keen on doing business in or with India.
I raised the question in a past blog, what is Faith-Based mediation and why is it important? The answer, if faith is important to the parties then it’s important the...By Leslie Short