Settle for More: The Why, How and When of Mediation

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THIS BOOK charts a different way of resolving legal disputes. It takes us to the world of mediation, which helps disputants arrive at solutions by consensus and saves them time, money and relationships. Starting with an analysis of the problems of adversarial litigation, it demonstrates, with several examples, the remedial features of mediation. The voluntary and confidential process enables parties to participate actively, retain decision—making power, and have their agreements enforced by courts. A detailed chapter on how mediations are conducted is illustrative and instructive.

The book does not negate litigation. Instead, it develops criteria "by which cases can be earmarked for the most suitable form of redressal — adversarial or consensual. This harmonising principle of appropriateness provides the benefits of both these methods, and saves us from the problems of indiscriminate application of either. This powerfully new paradigm also widens the dimensions of law practice and the role of the courts. Adding to their traditional roles, lawyers can become peacemakers and courts can house rooms for consensus. The message is that all of us, sufferers and resolvers of conflict, will benefit.

Necessity and feasibility converge. A blueprint for reform focuses on possible changes in the educational and legal system. It also stresses that mediation is not confined to disputes in courts; the world of private mediation is large, with application in business, personal and community issues at any stage of the conflict. A look at wider perspectives rounds off this exploration, whose ordered flow starts with the need for mediation and closes with its indispensability.

About the Author

SRIRAM PANCHU, Senior Advocate, graduated from the Elphinstone and Government Law Colleges, Bombay, and enrolled at the Madras High Court in 1 976. His area of practice spans constitutional and commercial law. As a founding trustee of the Consumer Action Group, he has also appeared in important public interest cases. His interest in mediation began at the A Salzburg Seminar in 1991, following which he mediated a number of cases, and started writing and speaking on the subject. A spell of teaching at New York University’s School of Law in 2000-01 enabled him to delve into it further and commence this book. In 2001 he founded the Indian Centre for Mediation. In 2005 he was instrumental in creating India's first court—annexed—mediation centre, the Tamil Nadu Mediation and Conciliation Centre. He functions as its Organising Secretary, an honorary assignment he performs in addition to law practice. He works with several institutions including a number of High Courts to spread mediation in the country. This is his first book.

The author’s share of the proceeds from this book will be used to promote mediation in India.

Foreword

The Indian people have great hope in, and give great respect to, the judiciary of the country However, an oft—mentioned criticism is that cases take too long a time to be decided. While this criticism may be partly justified, it must also be pointed out that many people do not know the very difficult situation in which the judiciary of India is working today. There has been a litigation explosion in the country over the last 25 years or so, and the load of cases is simply impossible for the judges alone to carry. The dockets of all the courts are overloaded and the situation has become desperate.

This being the position in our country, alternative dispute redressal mechanisms have become urgently necessary and in my opinion the best of such mechanisms is mediation, which is widely practised in USA and in some European countries but is new to India. Since it is new some people initially thought of it as a gimmick. However, people are gradually realising its utility and are increasingly resorting to it. To give an example, in the Mediation Centre in the Madras High Court the daily cause list of the High Court has in addition to the cases listed for hearing in Court, a c couple of pages of cases listed for mediation, which is usually done after the court hours in the Madras High Court. The mediators are often Senior Advocates of Madras High Court who do this work voluntarily free of charge. The Delhi High Court Mediation Centre also is now flooded with cases referred to it.

There are many matters which should ordinarily not go for adjudication but should go to mediation. By going for adjudication many family business concerns have been ruined, whereas had the matter gone for mediation they could have been saved.

Since mediation is now increasingly catching on as people have realised its utility, there is pressing need for a good book on the subject.

It gives me great pleasure to contribute a foreword to this book, by one of the foremost mediation experts in the country. Mediation is the need of the hour. It brings relief to disputants, helps courts to reduce their backlogs, and adds to the professional capacity of lawyers, apart from giving them the great satisfaction that they are being of service to society. Section 89 of the Code of Civil Procedure, 1908 envisaged referral of cases by judges to mediation. However, there were hardly any referrals for some time since there was no proper scheme in place. During my tenure as Chief Justice of the Madras High Court we set up the Tamil Nadu Mediation and Conciliation Centre, the first of its kind in the country. It is run by the Bar, supervised by the judges and has proved both popular and successful. Its success is largely due to the competence and commitment shown by the team of mediators, led by Mr. Sriram Panchu as the Organising Secretary of the Centre. At my request, this team has trained mediators for the High Courts of Delhi and Allahabad, and similar Mediation Centres have been set up there.

The author, a practising Senior Advocate, is one of the pioneers in this field in our country. He has received training from world- renowned experts, done research on the subject and conducted a range of mediations. He has made it his mission to develop mediation in India by training and mentoring mediators, writing and speaking on mediation, and working with courts and other institutions. He is well suited to write this book. The book displays a conceptual clarity in its analysis of the problems and in advancing suitable remedial measures. It strikes a chord of harmony in envisaging the co—existence of consensual and adversarial methods of dispute resolution. The several examples illustrate the features and processes of mediation. Both theoretical knowledge and practical experience are on display. Of particular use is the chapter on how to conduct a mediation.

There is a dearth of writing on this subject in our country. I commend this effort which comes at a time when mediation is getting underway in India. This book will assist our judges, lawyers, technical experts, businessmen, community leaders and the general public in understanding and practising mediation.

Preface

The practice of law is both heartening and disconcerting. One is proud of it as wielding the sword of justice to uphold the right. But it has also left me with the feeling that something is wrong with a system which often made matters worse for disputants in terms of cost, time and relationships. You lost if you lost; and sometimes lost even when you won. In 1991, thanks to an introduction by Dr M. S. Swaminathan, I attended the Salzburg Seminar’s Session 291 on Harmonising Environment and Development. Lawrence Susskind and Christopher Moore, expert teachers, introduced me to the world of mediation. It was my first exposure to resolving disputes by consensus in an organised manner, with skills and techniques that could be learnt and used. I quickly realised that this was the missing component of law practice, the approach that was kinder on people, and stressed problem solving rather than verdict giving.

Back home, I tried out mediation in a variety of disputes. My legal friends were curious, and hid their skepticism well. Parties ventured warily and soon warmed up to a process that was disputant friendly. The results were encouraging. One reason I could be that the facts of the cases lent themselves to mediation, another that the parties were reasonable people. Perhaps it was just beginners luck. In any event, we found good solutions and reached agreement in most of our cases. And parties shook. Hands when it was over.

As I moved to the next step of writing about the possibilities of mediation, and speaking about it to different groups, I touched responsive chords. I would see faces light up in recognition, in much the manner we do when we hear something that we have always known. People were examining their past or current conflict situations, and wondering how this method may have served. But, when asked the inevitable question, "Where do we find mediators?” I didn't have an answer. We, simply put, didn't have them. A couple here and there, but not in the numbers that would make a difference.

Thought then started on how to bring mediation into the legal system. This needed an exposure to, and a study of prevailing systems and practices. Fortunately New York University's School of Law, principally because of Norman Dorsen, offered me a teaching position in 2000—01 and I combined that with exploring the use of mediation in the United States, where it is most prevalent.

Norman, John Sexton, Oscar Chase, Frank Upham and Peter Schuck provided encouragement, support and friendship. Charlie Halpern mentored, and he and Susan continued their warmth and affection. Margaret Shaw was available for discussion and offered access to her library. I could have no complaint about lack of reading material — NYU gave me an office on the library floor, and thus thrust scholarship on me. I met mediators, judges, lawyers and court administrators. Donna Stienstra of the Federal Judicial Centre provided valuable advice and friendship. Research for this book got done; but the writing did not proceed beyond an unwieldy first draft. The charms of New York City were somewhat superior to that of the University's library.

Shortly after my return, we set up the Indian Centre for Mediation in July 2001. It has held workshops, published articles, and worked with the Court, with lawyers and the Confederation of Indian Industry. Justice Jayasimha Babu and Jonathan Marks inaugurated it, and an impressive array of judges and lawyers agreed to serve on its advisory board. Aparna Mukerjee Vasu works closely with me in this venture. Many thanks are due to Geetha Ravindra who came more than once from the US to train and advise. The experience gained here helped a great deal in formulating the ideas for this book. Law practice and mediation work gave little time for writing, but vacations did. My thanks to the Theosophical Society and its President Radha Burnier for the use of a house in the quiet woods of Adayar, and to Shanthi and Ajit Thomas for similar generosity with their place in Coonoor. Here, I would also like to mention the peace and tranquility at the Arunachala Ashram at New York, for which I am indebted to Dennis Hartel and friends.

Come 2005 and we were launched into a different orbit. The Chief Justice of the Madras High Court, Mr. Justice Markandey Katju welcomed the idea of mediation. He created the Tamil Nadu Mediation and Conciliation Centre, India's first court- annexed mediation centre, and made me its Organising Secretary. The Centre trains lawyers and former judges as mediators, and administers a scheme by which courts refer cases for mediation. His successor Mr. Justice A.P. Shah strengthened the Centre with several innovative measures. The Chief Justice of India, Mr. Justice Y.K. Sabharwal provided constant encouragement. With other High Courts replicating this model, mediation seems to have moved into the official world.

So perhaps it’s an appropriate time for this book, which seeks to explore why, how and when mediation should be used. It is written in the Indian context but has application elsewhere too.

Several people helped in starting and seeing the book through. Radhika and Hans Herzberger were the first to urge me to write. They, and Nandini Rao, helped to bring clarity to a basic concept note. Fali Nariman responded enthusiastically to it and urged me to take some time off (which I did) and finish it soon (which I didn't). Aparna, Rammanohar Reddy and Dipa Swaminathan offered comments. My junior G. Swaminathan did much research, aided by Suchindran and Krishna Srikanth, interns from law schools. My secretary Uma Chowdhury cheerfully churned out drafts while controlling chaos in the office. My cousin Rekha Mahadevan came up with the title in a matter of minutes, trumping several predictable bald formulations. And Mr. Justice Katju agreed, at short notice, to contribute a foreword, for which I am very grateful to him.

I owe special thanks to Ravi Dayal and Gita Gopalkrishnan. Ravi went through the draft painstakingly, made corrections and offered helpful advice. His reassurance that this effort was worth making meant a lot to me. I am sad that he is not with us. Gita did the detailed editing, gave insightful comments, and some lessons in grammar and syntax. However, residual mistakes are, as per custom, solely that of the author.

I had little difficulty in choosing my publishers. Mr. J.S. Padmanabhan of East West Books chose me a while ago; he urged me to write, and prodded me from time to time as well. I hope his judgement will be affirmed. I thank him and the members of his team, including Mr. J. Menon and Mr. L.V.S. Vasu, designer and printer, respectively. First—time authors need to be handled with care, and they did exactly that.

The customary references to sacrificing family members will sound rather odd here, because this took so long to get written. My mother Meenakshi and my son Jayant did forgo some of their claims to my time during vacations; but I am not sure if it was much of a sacrifice. I thank them for being the accepting and loving souls that they are.