It’s common knowledge that going through almost any legal process in India can be a harrowing, long-winded and expensive experience. Our courts face a debilitating backlog of dockets — in 2008, the Delhi High Court had 74,599 cases in arrears — and this is put down to various reasons such as corruption, high volume of cases and inadequate number of judges. In 1996, the Indian Arbitration and Conciliation Act was passed, to provide a faster and easier way of concluding cases. According to a paper written by Sumeet Kachwaha and Dharmendra Rautray of Kachwaha & Partners, it was meant “to permit an arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings to encourage settlement of disputes” and minimise the role of the court. While arbitration has seen its fair share of success, it was still not enough.
In April 2005, the Madras High Court introduced court appointed legal mediation as an alternate dispute resolution method. The aim was to achieve inexpensive and speedy justice. Ten years on, and after being introduced in several other courts in the country, many people are still not aware of mediation being an alternate solution to their legal woes.
About a year ago, five trained legal mediators from Chennai — R. Vijaykrishnan, Uma Ramanathan, A.J. Jawad, Pushya Sitaraman and Chitra Narayan — decided to make mediation more accessible, and if possible, eliminate the need for court proceedings entirely. Together, they started the Foundation for Comprehensive Dispute Resolution, to help parties determine solutions to the issues between them.
Here, they explain the concept, share their opinions and experiences over a decade of legal mediation.
A. J. Jawad
A mediator talks to both parties and helps them understand what the actual issues that are underlying the problems and helps them come to a conclusion that will be beneficial to both of them or will put at rest the dispute between them. It is often called a win-win situation, but it really isn’t that simple. It does prevent future conflict from arising between the parties. Unlike litigation, it goes to the root of the situation. It helps them identify their immediate concerns and long-term interests. Accordingly they reach a conclusion that is acceptable to both of them. The best part of it is that the outcome is in the hands of those involved, and not up to a judge or arbitrator. A mediator is a facilitator and has to be trained as the process itself is very structured.
R. Vijaykrishnan
There are tremendous delays in our courts. It is a long process and extremely expensive: at every stage you have to pay your lawyer, the court fees, apart from all the energy and stress involved. So what’s the way out? Arbitration was of course one of the ways. In mediation, there is a lot less time lost and there is also the satisfaction it gives to the people involved. It is superior to arbitration as it is the parties who ultimately decide what they want to do. Though the mediator helps them reach the settlement, the parties have sorted it out within themselves. It is their success.
Chitra Narayan
The underpinning of the mediation process is such that the parties cannot be pigeonholed as Mr Virtue or Mr Vice; it never happens that way. There is a large grey area. Whereas if you go to court, you have to put it in the bracket of “I am good and I am right and I haven’t made single mistake in this situation, either legally or otherwise.” The idea is to paint the other person as completely in the wrong. Mediation does not require this as is required in a legal environment. It is more appropriate to the genesis of the dispute, the ways of settling it. It can be held anywhere, but it has to be a neutral ground.
Uma Ramanathan
In India, no one just rushes to court; they already have a lot of people to advise them or they have their own apprehensions. There is no personal connection with what is happening in court. When offered the option to go for a settlement, many people gladly take it. If they are not satisfied, they can still go ahead for legal recourse. They can also rework the agreement at any time. So far, it was only court-appointed; it is only now that we are offering mediation even before going to court. I cannot say that mediation is successful in the legal sense all the time, but it does sort out a lot of things. For example, we once had a parent and child who had a disagreement. They opted for mediation, and a lot of old, unresolved issues came up. Although they finally did end up going to court, the child thanked us profusely for helping them get over many other issues in the process.
Pushya Sitaraman
The biggest advantage of mediation is that it is completely confidential. What is said during a mediation session cannot be used in court. It also helps that the mediator is completely neutral, with no attachments to either party involved. Now, there are trained mediators and mediation centres from the Supreme Court down to the District Courts. And a lot of matters do get settled, be it commercial, employment, matrimonial, family, custody, maintenance and alimony, partition, business, real estate or consumer disputes. In foreign countries, it is almost compulsory that people should try out mediation before going to court. Only if it does not get settled there, you go to court.
