The Hindu : Opinion / News Analysis : A conciliatory approach to ending disputes

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Friday, Jun 10, 2005

Opinion

Opinion - News Analysis

A conciliatory approach to ending disputes

Sriram Panchu

With overburdened courts and escalating levels of conflict, mediation is an idea whose time has surely come.

MEDIATION IN India took a significant step on April 9, 2005, when the Tamil Nadu Mediation and Conciliation Centre was inaugurated by Justice Y.K. Sabharwal, judge of the Supreme Court. The centre's broad purpose is to foster the growth of mediation. Its first project is the scheme for the Madras High Court under which judges will refer cases from the court's cause list to mediation, which will be done by former judges and practising lawyers trained by the centre. Housed in the High Court building, the centre becomes the first of its kind in the country, a court-annexed mediation institution. Appropriate cases for referral include commercial and contractual matters, family and personal disputes, property and partition issues, and several others. Family business disputes are particularly appropriate for mediation. An outside time limit of 60 days is fixed for the mediation, which will be done at the centre. The court will pass enforceable orders in terms of the agreement reached. If no agreement is reached, the case will go back to court. The mediation centre is run by a team of lawyers, with an overseeing committee of judges.

Mediation is a strikingly different way of dealing with disputes. Instead of giving a verdict for one against the other as a judge or arbitrator does, a mediator will work with all the parties to reach a mutually acceptable solution. Unlike the coercive processes of courts, mediation is voluntary. Parties opt for it of their free will. Even when directed by a court to try it, a party to the dispute can terminate the mediation if it feels its interests are not being served. As opposed to a legal proceeding, which largely excludes the litigants in the decision-making process, mediation involves the participation of the parties themselves even when they are accompanied by their lawyers. Again, while the litigative process works on adversarial lines, with charges and accusations being routine, mediation serves to bring out cooperative behaviour from the parties.

These crucial differences between adversarial and consensual modes are reflected in the way a mediation is conducted. Each party is given an opportunity to speak. The mediator then lists out issues in terms of what needs to be resolved. Thereafter, in a series of joint and separate meetings, the mediator encourages parties to focus on their long-term interests, be realistic about the weaknesses and strengths of their case, and examine their alternatives to reach a negotiated settlement. Many come to see how a settlement furthers their interests. The mediator then gives them the freedom to come up with options for a settlement. Invariably this produces a wealth of suggestions, and good ones at that. By this time a welcome change of energy has taken place, from disputing to finding ways of ending the dispute. Options are worked on and refined to reach an agreement.

This process cannot work where a case requires the interpretation of a statute, creation of a precedent or corrective action by a court. One must also be careful about any severe imbalance in the negotiating strength of parties. However, not many cases are essentially about the establishment or interpretation of legal rights. They are more about conflicts into which the parties have fallen, a condition common to humankind. They need an efficient and sustainable resolution mechanism. That is what mediation seeks to be.

In keeping with its win-win strategy, mediation offers benefits to all those involved in the process. For the litigants, it offers a mode of resolution that stresses workable solutions, respects and even heals relationships, and comes with reduced time and cost. In most cases mediation bears fruit within a handful of sessions. So weeks, rather than years or decades, is the time span involved. For the legal profession, mediation represents a new avenue of professional practice. With their knowledge of law, study of human nature and persuasive skills, good lawyers make good mediators. Studies abroad have shown that mediation has wide acceptance among the legal community, there is a significant demand for it among clients, and it is remunerative for legal practitioners with quicker resolution of cases. And then there is the professional and human satisfaction in bringing about solutions by invoking the better human elements of cooperation and harmony. For the courts, mediation offers a method of reducing their burden, enabling them to concentrate on the cases that need their attention most — especially important issues of law and constitutional justice. Court-annexed mediation centres will enable the judiciary to supervise the application of mediation and ensure the requisite competence and credibility.

Mediation is successful internationally. It has much domestic potential. Farsighted judges have welcomed this initiative. As Justice Sabharwal observed at the centre's inauguration, it is both an art and a science. Justice Markandey Katju, Chief Justice of the Madras High Court, to whom the centre owes its creation, refers to it as the need of the hour. With our overburdened courts and escalating levels of conflict, mediation is an idea whose time has surely come. Applied well, it can revolutionise the way we deal with disputes. That is why the initiative of the Madras High Court is important.

(The writer is Senior Advocate and Organising Secretary, Tamil Nadu Mediation and Conciliation Centre.)

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