Recently V.M. Salgocar Law college in association with the International Mediation Organization and a National level Mediation outfit organized an International mediation competition, one of its kind in India. Pre and post event discussions with International experts on mediation brought to light how pathetic is the Indian mediation scenario and the Judiciary in addition to usurping on itself the whole mediation process has failed to provide the necessary encouragement and avenue to promote mediation in India.
Mediation many would consider as one of the alternative methods of settlement of dispute, often as the younger cousin of arbitration. Little do they realise that among the three, that is, adjudication, arbitration and mediation, mediation, is the best method of settlement of disputes and most suitable for India. The only method which brings the parties together and results in an amicable settlement, which often restores, bruised relationships and ensures continuity, peace and harmony, besides being much faster than all other dispute settlement methods.
In fact in a society which loves peace and harmony, mediation should have been the predominant and method of settlement of disputes. Buddha said, “Meditation brings wisdom; lack of mediation leaves ignorance. Know well what leads you forward and what holds you back; choose that which leads to wisdom.” There is an often quoted statement of the father of the Nation Mahatma Gandhi, who was a lawyer by profession.” “….that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing out private compromises of hundreds of cases. I lost nothing thereby–not even money; certainly not my soul” Many judges and lawyers are fond of citing these above words, but none ever follows his advice.
Added to this is the well known legal maximum that “Justice delayed is justice denied” often cited, but no thought is spared as to how to speed up our justice delivery system.
Somehow the Indian ‘mind set’ got enamored by the British system and have ingrained in them that British systems are the best, little realising that the British imposed adjudication and the court system, ignoring the various systems of settlement of dispute then existing in India for, their own good and convenience. Now we have judges and lawyers eulogising the system because they are the beneficiaries and are most comfortable, they gaining maximum advantage in terms of their profession and monetary gain, economic and social status.
Mediation as a method of dispute settlement has certain distinct advantages, which the other dispute settlement system lacks, in terms of speedy settlement, it is less expensive and fast, but more than any other reasons, the parties are able to reconcile and continue their relationships, be it family, personal or business dispute. Contrary to this the existing system of adjudication in India is most expensive, dilatory and never rebuilds broken relationship, which is required for any society to sustain.
The backlog of cases in India is something which every chief justice promises to tackle when they are appointed and when they demit their office either keeps silence or meekly admit their failure to reduce the backlog of cases, as they find no remedy, be it putting in extra hours of work, or appointing special courts, fast track courts etc.
Mediation would be an effective answer to this vicious cycle dominated and controlled by judges and lawyers, with the poor litigant having no say in the whole process. None of the participants be it the advocates or the judge, no one seems to take responsibility for the delay, and the anxiety caused to the litigant. A just and fair system of dispute settlement should give primacy to client and his concerns, a system where the client can participate openly (not just in the chamber of his advocate).
The Supreme Court, by setting up mediation training programmes and training willing lawyers as mediators has restricted the whole process of mediation. The judiciary has only ensured that it will be the judges or lawyers who could act as mediator, ignoring the fact that a Mediator requires abilities, skills and attitudes much more than the knowledge of law and procedures. Even these court trained lawyers seems to function most of the time as lawyers participating in the adjudicator process thus giving mediation secondary importance. They having many years of practice and the adjudicatory system having ingrained in their thinking would find themselves, inhibited to act as mediator and therefore continue to be an adjudicating lawyer most of their professional time.
India needs, creative, fair minded, intelligent trained mediators, who do not think mediation as subsidiary or subservient to adjudication. There is need to create a new breed of mediators, who can function beyond and outside the existing court or judicial system and deliver prompt and fair settlement of disputes.
The first and primary task is to produce trained Mediators. It is for the two law colleges in Goa and the State University, iIn the absence of a law University in the State) to design and implement a training programme for certification of mediators either as a certificate or as a Diploma programme
Though the Supreme Court in their training manual has prescribed only 40 hours of training followed by 10 hours of mediation, a University designed programme needs to be much more vigorous, comprehensive , pragmatic and modern. The course design should provide not just the essential steps/stages for mediation, but should provide for development of proper intellectual capabilities, appropriate attitude, mental outlook and emotional maturity, since the first originating principle of mediation is wisdom, reason and prudence.
(The write is a professor of Law and former Dean, Faculty of Law, Goa University.)
