Justice B V Nagarathna, judge of the Karnataka high court said on Saturday that the training of the mediators and providing corresponding facilities to the trainers, the mediators and the litigants is a challenge. “The Emphasis should be not only training mediators but updation of legal knowledge too is important,” she said while speaking on the subject: Mediation: Achievements and Challenges at the Legal Leadership Conclave organized by India Legal in Bangalore today.
At the outset, she noted that father of the nation, Mahatma Gandhi– was an effective mediator, spent most of his professional life in South Africa before he came to India, more as a mediator than as an advocate speaking for one side only.
Quoting from his autobiography, “after a successful mediation, but both were happy over the result, and both rose in the public estimation. I realized that the true function of a lawyer was to unite Parties riven as under. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.” This should be an inspiration for us in Mediation, restricted not only to the learned mediators, message is more to our advocates – give Mediation as a process of alternative dispute resolution, she said.
She pointed out that Section 89 of the court procedure was there in 1908, deleted in 1940 and re-inserted in 2002. Under Section 89, Mediation is recognized as the alternative to settlement of disputes between the parties.
She noted that the SC has exhorted the state government and central governments to take action for bringing into effect alternative disputes resolution. “The Legal fraternity talks of two concepts – Docket explosion and Docket exclusion. Today’s conclave is about Docket Explosion, how to curtail the Docket explosion in courts. One of the remedies found by legislature is Alternative Dispute resolution – by Mediation” she said.
According to her, the recognition of Mediation as an effective tool of dispute resolution — is an achievement to the regular court adjudication. Acceptance of Mediation by litigants is the corresponding challenge to that legislative recognition.”The core challenge is to encourage the litigant public to mediate the disputes,” she said.
She pointed out that the other aspect of mediation and infrastructure had two parts software, in the form of trained mediators and hardware which meant all facilities and amenities
Right now, the challenges before mediation were many. They include:
- Lack of trained mediators: content, schedule of training
- Lack of trainers
- Lack of referrals
- Lack of infrastructure particularly in district levels.
- Absence of suitable legislation — central/ parliamentary legislation on mediation
- Resistance amongst basic actors and stake holders namely judges, lawyers and litigants towards mediation.
- Lack of mediation managements.
- Lack of adequate funds
Ending on a positive and hopeful note, she said Justice should be loud and clear. “We are all warriors seeking justice, resolution of disputes, we want there should be peace in society and peace is now guaranteed through mediation because relationship is restored,” she concluded.
Sr Adv Sriram Panchu while speaking on the subject Arbitration and Mediation: strange bed fellows or harmonious partners, said: “In every litigation, relationship goes for a toss.” Mediation on the other hand respects relationships, promotes them and tries to save and salvage every bit of harmony left.
He quoted Chief Justice of Singapore on the question of choice of mediation as dispute resolution mechanism – “What’s not to like about it?” He said that Arbitration is result oriented, combining mediation and arbitration has one hurdle – confidentiality of mediation proceedings is breached in arbitration. So, one way is a mediator should never become the arbitrator in the same case.
Other salient points he made:
- The structure of contracts should be such as to place mediation clause before arbitration. Courts can then enforce the contract terms and contribute in effective dispute settlement.
- It is his experience that parties would want to mediate at any stage of arbitration.
- An effective tool is the mediator sits with arbitrators while all arguments are put forth and gains complete knowledge of the case. And then, before the arbitral award is arrived at or declared, mediator speaks with parties to arrive at a mutually accepted decision.
- He has shared his experiences as an arbitrator when he decided to initiate mediation between the parties with tremendously satisfying results.
- Mediation considers human factors like equity, fairness, family relations, emotions and sentiments that have no room in the adversarial process of litigation or arbitration where the binding verdict necessarily puts one party at a disadvantage.
- Basic Philosophy underlying conflict resolution is “Consensus before adversarial”
Like other speakers, he too emphasized on the need for training for mediators. “Not every good arbitrator is a natural mediator. Mediation should be a professional career option. Else it will never flourish. It has always taken a backseat, which it shouldn’t. We must focus on supply of well-trained mediators as it will also bring down the case pendency scenario in India. Then it is going to be Appropriate Dispute Resolution instead of Alternate Dispute Resolution,” he said.
Speaking on the Subject Mediation-Arbitration : Need for Statutory Reforms and Trainings, Senior Advocate Shiv Kumar said: “ We do not have a definition of ADR we do not even have a definition of Arbitration, we also do not have a definition for Med-Arb or Arb-Med. We need a definition because in this country a lot of us believe that ‘khap panchayats’ and ‘honor killings’ is also Alternative Dispute Resolution methods.”
He said it needs to be kept in mind that Med-Arb (mediation-arbitration) as a form of ADR. For this, the first Statutory Reform that is needed need is the amendment of section 89-1 which will record in addition to what is already recorded the concept of Med-Arb, Arb-Med and neutral evaluation as a form of dispute resolution
Other points noted included:
- If in substance the conciliator equals the mediator then obviously the Statutory Reform that is required is to add mediation to part 3 of The Arbitration Act.
- We need as a Legislative Reform a comprehensive Code not on Mediation but on ADR. What we need is not in ADR this legislation or this code is Dispute Resolution Code.
- Is it possible to create a Dispute Resolution Service ?
- We need is creation of an independent autonomous body outside of government control on the lines of the ISO 2000-2001 organizations that certify quality.
- And also the creation of a Dispute Resolution Ombudsmen who will have powers to supervise and receive and deal with complaints against this process.
Ashok R Patil, director of an consumer mediation centre while speaking on the subject of Online Mediation: the Future Technique of Mediation referred to a a supreme court which said that access to justice must four essential elements:
- Effective adjuratory Mechanism
- Reasonable accessible in terms of distance
- Must be speedy
There were two types of Online Dispute Resolutions:
- Synchronize interaction – like teleconferencing,
- Asynchronize – text based chatting
All three parties have to be present at the same time in the first interaction, which is not so in a synchronize interaction
- ODR – information can be shared online, all privacy ensured.
- huge scope for ODR
He said that with three crore cases pending in the courts across India, it was imperative that State provide software which is costly and space that is needed to judicial process through ODRs.
The final speaker Deepak Sharma spoke on branding India as an International Mediation hub and said that Branding India in any way when our methodology and technology is still in a nascent stage could only result in failure. “The time may not be ripe for India to be mapped on the global platform as an arbitration hub,” he said.
—India Legal Bureau
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