Y.K. Sabharwal

NEW DELHI: The former Chief Justice of India Y.K. Sabharwal said here on Wednesday that the time for pre-litigation mediation was not far away in India even as court-referred mediation began showing positive results.

Committed counsel

Releasing a book on mediation titled `Settle for more — the why, how and when of mediation' by senior advocate Sriram Panchu, Justice Sabharwal said that mediation required committed lawyers and judges, and the litigants' interest in this mode of dispute resolution would depend on the projection by the legal fraternity.

"A good number of contracts these days are found to contain clauses saying that before approaching an adjudicatory body, efforts would be made to reach conciliation between the parties," Justice Sabharwal said.

The former Chief Justice said that experience with mediation showed that the Indian trainers were goodand efficient.

"An art"

However, Justice Sabharwal added that mediation was "an art and a science" and not all cases could be referred for mediation.

"The Chief Justice of the Supreme Court and the Chief Justices of various High Courts must be careful in nominating a team that is committed," Justice Sabharwal said.

Former Chief Justice of India J.S. Verma said that there was no victor or vanquished in mediation. Arbitration, as an alternative dispute redress mechanism, had not produced the desired results and, instead, created situations where a judge claimed that he earned more in one arbitration case than during his entire career.

Justice Verma said that the legal fraternity should not worry about losing out on their earnings as mediation would only increase their remuneration. "Mediation also does not worsen the relationship between the two parties but improves it."

Increasing dependence

Elaborating on the benefits of mediation, the former Attorney General of India Ashok H. Desai said the book was timely and important. "Mediation in the form of panchayats in villages has existed for long in our culture. Meanwhile, arbitration and the adversarial process have failed. It is, therefore, natural that there would be more and more dependence on mediation."

Mr. Desai said that the Indian litigant would not like to lose a case until he tested it in the highest court. The Government also too entered into too much litigation at the cost of public money, he said.

"In the United States, many government firms seek mediation. It is not about somebody making a decision to be challenged in the highest court but an advice that can help both parties reach a solution to their satisfaction."

"An alternative"

However, mediation was no substitute but only an alternative that would reduce clogging of the ordinary litigation procedure.

Speaking about his book, Mr. Panchu said: "In the adversarial approach, which is the current guiding principle for jurisprudence, you lost if you lost and you lost [even] if you won."

Mediation should have been prevalent earlier.

"A solution"

Mr. Panchu said that he focussed only on the basics of mediation in the book — brought out by East West Books (Madras) Private Limited and distributed in Delhi by Research Press — when he began writing it in 2001.

"It is neither a handbook nor a compendium. It just focusses on a problem and offers a solution. Mediation is about finding common grounds rather than highlighting the negatives," Mr. Panchu said.

Printer friendly page  
Send this article to Friends by E-Mail