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By Tara Ollapally, November 7, 2023

A Peep Into Mediation in India

Last month CAMP had the privilege to travel to multiple cities in the country with a senior delegation of international mediators from Foundation for Sustainable Rule of Law Initiatives (FSRI) who have started and led mediation movements in their country. 

These mediators have spent many decades learning, teaching and reflecting on collaborative dispute resolution and in my humble opinion are probably amongst the most experienced minds in this field. Some of them were visiting India for the first- others have come several times and have seen the evolution of India’s mediation story. Some of our thoughts on the State of Mediation in India today:

1. Mediation is here to stay in India: The passage of the Mediation Act has been a significant boost for the mediation movement in India. There is real interest in this process. While we still have a long way to go in terms of adoption, the fact that the Act gives the process legal validity and enforceability, has spiked the interest of the disputant and legal community to learn more about the process. There is also a collective understanding that our justice system needs more avenues to facilitate resolution. There is hope that mediation can meaningfully support our justice system in bringing resolution to our millions of disputants. Our system needs mediation – its just a matter of time before this process is adopted as much as the other dispute resolution processes.

2. Buy-in of lawyers: Lawyers are curious about the process but don’t really understand it. The nuances of the mediation process and the different role that they play in this process as compared to the role that they play in arbitration or litigation is yet to be unraveled by the Indian lawyer. Active and meaningful support of lawyers is critical for mediation in India to find its impactful place in our dispute resolution eco system.

Additionally, lawyers have very real concerns about the process – diminishing revenues, suggesting mediation to a client without the client losing faith in the lawyer’s ability to win in court or proposing mediation to the other side without appearing weak. These concerns need to be addressed openly so our lawyers are equipped with the information and knowledge to confidently use mediation. 

Well designed, experience-based workshops and training on Mediation Advocacy are necessary for lawyers to adopt mediation. For every 1 mediator that is trained, our ecosystem must train at the very least 2 lawyers in Mediation Advocacy. Building familiarity and comfort of Lawyers in the mediation process is critical for this movement to grow effectively.

3. Re-building our collective collaborative muscle : The Indian disputant is hesitant to try mediation. While there is no philosophical objection to the process, disputants are worried about a process that could make them look weak and doesn’t promise an outcome. The mediation eco system must invest in highlighting the strength in a process that preserves party autonomy in decision making and ensures party participation.

Our disputant community must be reminded that Mediation is not new to our culture. Before the British brought the formal court system to our country, collaborative dispute resolution was embedded in our culture. The respected village elder(s) mediating disputes was commonplace. Today, after nearly 300 years of the formal adversarial system, our people seem to have forgotten that they have the intuitive capability to collaboratively resolve. When reminded of this capability as well as the strength of a collaborative system that emphasizes better understanding and party autonomy in decision making, the Indian disputant comes alive and is willing and interested to actively engage.

4. Role of Judges: As gatekeepers of dispute, who are held in very high respect by the Indian disputant, our judges can profoundly impact the culture of mediation. For mediation to grow in India, Judges need to better understand the process to effectively refer cases to mediation, to help parties find the right mediator, to ensure good faith engagement in the process and to instill confidence in the disputant about the process.

Judges are working hard to address the overwhelming caseload. While there is philosophical support for the process, systemically our judges are unable to effectively use the promise of mediation to promote resolution.

5. Time for professional mediation services to grow: Court annexed mediation programs have been set up all over the country and have played a very important role in introducing mediation and offering pro bono services to the Indian disputant. The Mediation Act has triggered the interest of many experienced, qualified professionals to train in mediation and offer their professional services outside the court mediation system. To push the standard of practice to the next level and sustain the investment of these qualified professionals as mediators it is imperative that the ecosystem – disputants, lawyers, judges – support the practice of private mediation in India. Similarly, professional mediators offering their services at a fee must build skill and offer quality services to ensure positive user experience. Mediation will grow only with positive user experience.

Mediation in India is at a very exciting place and offers real promise to be embraced and adopted by our disputant community. To ensure that this movement heads in the right direction it is imperative that the movement is supported. For me personally, I am finally beginning to see shoots emerge after years of sowing the seeds. I feel a deep responsibility to nurture these shoots so it may grow into strong, healthy trees…..these trees of resolution that our planet so badly needs!

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