Originally published by IMI, here https://www.imimediation.org/2019/09/10/reintroducing-mediation-to-millennial-india-part-ii/
Jonathan’s previous article set out solutions to awaken interest and the widespread application of mediation as a dispute resolution mechanism in India, focusing on restructuring and reintroducing mediation practices on a legislative and institutional level. Part two looks at branding and marketing of mediation in India.
Mediation requires an entirely different branding approach—away from being a charitable amenity in court, towards becoming a commercially viable service. This generation can’t afford its time and money on courtroom services. The modern era demands time-efficient, cost-effective, and stress-free services, which makes mediation a preferable option for resolving disputes—but at the moment, it’s rarely even considered. Mediation hasn’t appealed to the millions of languishing litigators, and that’s probably because we have the wrong brand ambassadors promoting mediation.
A year ago, India was embroiled in a controversy surrounding the movie ‘Padmaavat’, where the depiction of the lead female character—Rani Padmavati—in the movie had angered certain sections of the Rajput community in northern India. In the midst of this socio-politico imbroglio, that saw violent protests, causing damage to public property and loss of lives, a national news agency reported the story of a self-proclaimed mediator. Upon watching the movie, and much to the horror of allegedly victimised community, this mediator walked out of the theatre, saying, “Alauddin Khilji has been portrayed in the manner he should have been portrayed”.
The self-proclaimed mediator went on to fuel further conflict by calling the movie a victory for the Rajput community—a statement which could have easily antagonised the Islamic community in India, which had so far stayed away from the controversy. This person’s lack of mediation professionalism didn’t end there, as he was quoted praising the violent protests and stating that these acts were essential in negotiating a proper depiction of the Rajput character in the movie. While in this instance, the person wasn’t mediating and was a private citizen, he was reported in the national media as a ‘mediator’, meaning his views were conflated with and damaging to the mediation profession. In this case, his actions were scandalous, as he had torn down three pillars of mediation—he lost his neutrality by taking a side, destroyed confidentiality by revealing any discussion that might have happened in the theatre after the movie, crossed the line of party autonomy and turned into an arbitrator by passing a judgment. What do you think the readers would make of who a mediator is?
Another example of mediation in India receiving negative branding was the Supreme Court of India’s appointment of a religious leader as a supposed neutral in the Ayodhya mediation case. The half-a-century-old communal conflict revolving around a disputed prayer house in northern India, claimed by both Hindus and Muslims, was finally referred to mediation in April 2019. Much to the surprise of many, the apex court appointed a Hindu religious leader as a mediator—someone who had an explicitly compromised position, having publicly stated that the religious site belonged to the Hindus. A national newspaper reported him as hinting at war and violence if the Muslim community didn’t give up possession and ownership of the place. Once again, my question is simple—what impression does such a biased ‘mediator’ leave on the minds of the common folk?
Solution: The authentic success stories of mediation haven’t reached the ears of the billion people of this country, and this is our biggest failure as promoters of mediation in India. We need to find the genuine brand ambassadors of mediation – those who have been practicing for years and whose work has help resolve disputes – in the community and the commercial world. There is the limitation of confidentiality, but stories of successful mediation must be reported without real names and situations. The media must dedicate space to reporters and columnists who write about conflict resolution. Radio stations can run campaigns and TV anchors can hold chat shows, highlighting the perks of mediation. I once listened to short a sketch on the radio about paying taxes, and as much this could seem like the worst topic when you are spending your time stuck in Indian traffic, it turned out to be entertaining and educational. The same tool could be used for mediation.
Next problem: There are academics and professionals in the legal industry who are misinterpreting mediation theories. A senior lawyer from the national capital once told me that “mediation is useless, as the mediator’s decision is not binding”. This ignores the fact that the mediator is not supposed to make a decision—rather, mutual agreement is made between the parties, and as so parties abide by it. Even in the most evaluative forms of mediation (referred to as conciliation in India), the neutral’s role is limited to suggesting what would be likely to happen if a case went to arbitration, and in no case do they make a decision themselves. The senior lawyer in this case fails to understand the importance of the mediator’s role in facilitating the process and refuses to accept that mediation, and for that matter, conciliation, is ultimately a party-driven process. He expects the mediator to make a decision or push for a settlement, thus blatantly ignoring the concept of mediation.
Solution: Law schools must accurately inform students of the fundamentals of mediation, with examinations for both theoretical and practical aspects. Those lawyers who are trained to be mediators or mediation advocates at a later stage of their careers must also take a test, and the certifying authorities must make sure the lawyers pledge their loyalty to the core principles of mediation.
Additionally, I have seen mediators at district and high court mediation centres shout, swear at, and scold clients and lawyers who are being a little stubborn to settle disputes. Re-branding will require the implementation of quality control over the mediation profession and mediators alike.
It is important that some sort of ‘feedback forum’ is formed on a national level for users to constructively review the service provided. Users feel safe knowing there is a sense of accountability, while exploring mediation. India could develop something along the lines of a national roster of professional mediators, as seen in several other countries. Yes, we risk making the process bureaucratic, but having seen the dark side of services provided by mediators, I believe we need to have a national roster for recognition and quality control purposes. It will mean that mediators, though given the licence to creatively operate, will still swear by certain professional ethics to preserve the integrity and globally recognised standards of mediation.
Almost all mediation practice in India is packaged as a service offered by the court in those cases it considers “not worth its time”. The value of mediation further decreases when it is conducted in a court-annexed building, as psychologically and mentally, disputants are influenced by the court room atmosphere and may not consider this space safe for frank conversations.
Solution: We need dedicated infrastructure for mediation away from the court premises, drawing parallels to organizations such as Singapore International Mediation Centre (SIMC) and the Florence International Mediation Chamber (FIMC) in Italy. The Bangalore Mediation Centre in Karnataka (India) is a fine example of how an exclusive space was provided for mediation. Delhi High Court’s mediation centre ‘Samadhan’ is still in the court premises, but the thought put into the interior design of the space—the sound-proof conference rooms, exclusive caucus areas, children’s recreation room, art and furniture in the lounge area, etc—makes up for any outdoor distractions. There has to be a conscious decision to provide an amicable setting which doesn’t allow interference from judges (thus maintaining neutrality) and which enables user choice and control (upholding party autonomy).
Next, let’s talk financials. Mediation is provided as a cost-free service at almost every court-annexed mediation centre. Anything that’s given free or dirt cheap in India is treated with indifference and disregard. For this reason, distribution channels need to change—court mediation centres shouldn’t be run like local government hospitals, where you just have to admit yourself for free treatment. It must be treated as a professional service which comes at a cost.
Mediators who are paid their professional fees for the service provided, are likely to be highly motivated and more reliable. Like any other contractual obligation, the mediator is now committed to invest time, efforts and skills in providing the client quality service. There is no scope for “I shall get back to this matter when I am done with my other work” or “I am doing you a favour here, so don’t waste my time and settle quick”. Therefore, I suggest dedicated court mediators, who are provided a financial package to deliver the service. This will also help private or pre-litigation mediation flourish in India as it gives users the right impression of service. If people only look at mediation as a free service, then they wouldn’t be willing to pay for it at a private mediation centre, therefore defeating the scope of pre-litigation mediation. Indian law firms need to take the plunge and create exclusive mediation wings, just like arbitration wings, sticking to similar business models, with dedicated teams to manage its operations.
Finally, for commercial mediation to succeed, the legal industry in India has to open its doors to private mediators from non-legal backgrounds. Why can’t a banker mediate a financial dispute, or an engineer mediate a construction dispute? If it’s a skill set that can be acquired via training, then why does matter if the mediator is a lawyer or not? Let the market decide if a non-lawyer mediator is what it wants. Having industry experts serving as neutrals could enhance popularity and ensure widespread practice of mediation in the corporate and commercial world, keeping frivolous workplace and small-scale economic disputes away from the courts.