Mediation in India is currently moving out of its nascent phase into pacy environs. Last year, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court (Amendment) Ordinance of 2018, inserted section 12A to the Commercial Courts Act, 2015, contemplating pre-institution mediation and settlement, before the filing of any commercial disputes. With this legislative amendment to the Commercial Courts Act making it mandatory for disputing parties to try mediation before litigation, it is important that the mediation community provides users and traditionally-litigious lawyers a good first impression of the process.
The amended legislation, which basically suggests an opt-out method successfully used in many western countries, states that “a suit which does not contemplate any urgent relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement…” The onus now rests on the mediation community to provide for an amicable environment that offers the parties and their lawyers a unique experience which rules out the idea of litigation. Even if disputing parties don’t settle in their first session, which is completely normal and expected, we must do the basics right and follow them strictly across institutionalised, private or court-referred mediations, so that the parties return for follow-up sessions.
The four pillars of mediation – voluntariness, neutrality, confidentiality and party autonomy – make it stand out as a collaborative dispute resolution process.
The first key pillar is neutrality, where the third-party facilitator is expected to remain unbiased in action and words. Many mediators, serving at court-annexed mediation centres in India, cross this thin line and begin behaving like arbitrators. The atmosphere for dialogue loses its amicable nature and the element of doubt creeps into the process. Neutrality breach could occur due to the lack of communication skills – a limitation that can be coached. However, more often than not, it is the lack of patience, an ill-tempered personality and an indifferent attitude towards the expectations of the role which makes many mediators seamlessly unqualified to mediate.
Majority of the mediations taking place in India are referred by court, and, therefore, are officiated by retired lawyers and judges, or by hardcore practicing litigation lawyers, who serve pro-bono, beyond their court work hours. These professionals, who are nurtured to be adversarial, find it difficult to wear a different hat in a mediation session. Expecting a retired judge, who has sat on a pedestal and addressed as “Your Lordship” to have patience with agitated disputing parties is asking for too much. Similarly, a lawyer, who has had a brutally exhausting day in court, cannot find the mental framework to empathise with the disputing parties.
There exist litigation lawyers, who dabble with mediation, and do an excellent job at it. A few basics of neutrality lie in maintaining a balanced body posture, holding healthy eye-contact with both parties, addressing them both by the right titles, posing questions to understand and leaving them open-ended, allowing tension to initiate and calming the atmosphere through mutual disciplinary measures, seeking clarifications without sounding skeptical or sarcastic, avoiding touching, restricting greetings to formal handshakes, having caucus time with both parties, etc.
Secondly, Mediation is a voluntary process – unlike a courtroom listing, where you are summoned to a litigious battle, a mediation is more of an invitation or a mutual decision to meet. Therefore, it must remain that way, even in court-referred mediations. Legislations in India are strict about consent when it comes to referring a case to arbitration and conciliation and courts will refer cases to arbitration and conciliation only if there is an existing clause in the contract. Interestingly, courts can refer disputing parties to mediation without consent. Referral to mediation may be forced upon the parties as an obligation, but engaging and settling must remain voluntary throughout the process, and parties cannot be coerced to settle.
The choice for disputing parties to choose their neutral is unique to mediation and this must not be compromised at court-referred mediation centres. Disputing parties at court mediation centres don’t have a chance to choose their mediators and are often allotted a neutral, who they have no clue about. Agreed, it is practically difficult to allow the parties to select their neutral as hundreds of cases are lined up and mediators are assigned a day of the week to serve at the court mediation centres. Logistically, it would be a hassle for the parties to have initial consent on their mediator, but it is ideal that they be briefed and acquainted with their mediator prior to the session. Importantly, they must be reminded that they can request for a change in the neutral at any stage during the process, if a conflict of interest arises or a mediator loses neutrality. This request for change must be treated with sensitivity and be devoid of bureaucracy. If disputing parties are forced to sit at a table where either or both are uncomfortable with their neutral, then parties will turn hostile and refuse to participate.
Keeping mediation matters confidential is crucial to setting the process apart from public court hearing, where privacy of conversations is not a luxury. A senior Supreme Court lawyer recently confessed that he is not keen on referring and representing his clients in a mediation as he doesn’t trust the process. “I have seen judges to adjudicate and judges who mediate the same case collude and that is neither ethical nor fair. A sitting judge shouldn’t be allowed to mediate as it infuses an element of doubt into the process”. This apprehension, as much as it may seem extreme, is real and relatable to many litigation lawyers.
Court referred mediation centres must find a way to strictly maintain the confidentiality of the process. Plugging a huge loophole that existed in the elaborate and introspective reports that mediators would send back to court of failed mediations, the Delhi High Court, in 2017, clearly stated that “a mediation report should only contain one sentence and nothing more, in order to maintain the confidentiality of proceedings”. This order must be strictly followed and officially introduced under the high court rules for court mediation centres across the country. Besides this, mediators appointed to a case shouldn’t entertain any media approaches regarding the case.
Party autonomy is the fourth pillar on which makes mediation stand apart from the courtroom. The parties decide for themselves and by themselves, as to how they wish to resolve the dispute. Not even their lawyers can interfere here, unless of course they are getting into an illegal or unlawful agreement. Instead of a stranger passing orders in a private matter between you and the opposing party, it’s you who gets to propose an offer or agree to a solution.
According to the Indian Civil Procedure Code (CPC), in a Mediation, the neutral is not supposed to even suggest or advice and the role is limited to simply facilitate. This gets complicated if the neutral is a conciliator, where the legislation permits you to advice or suggest in an evaluative style. In both cases, however, the final decision-making authority is the disputing party. You will find bad mediators who begin giving their legal opinion on ‘who is right’ and ‘who is wrong’ and push their arbitrary settlement offers on parties.
In India, there are some court mediation centres that provide ‘points’ for mediators who settle cases and even bonus monetary incentives, which I think is extremely dangerous. If a mediator is motivated by the financial incentive, there is a temptation to focus on the end by compromising on the means. A mediator must be monetarily compensated irrespective of whether the case is settled or not. There are mediators in court referred mediation centres who just lose their cool and coerce parties to settle, sometimes even threatening to send the case back to the judge with a bad remark. Once again, a correct education of the process ( skill-based training and knowledge of the law) is necessary to avoid such bad branding of the profession.
With the Indian legal fraternity taking giant strides towards mediation via recent legislative amendments and an exclusive law rumoured to be debated in the corridors of the Parliament, safeguarding the pillars of mediation – voluntariness, neutrality, confidentiality and party autonomy – is key to the success of this renewed interest in this collaborative process of dispute resolution.
This is the complete interview by Robert Benjamin with Clarence Cramer, long-time leader in the field of court-connected family mediation, including the mediation of cases involving domestic violence, filmed as...By Clarence Cramer