A Superior Formof Dispute Resolution
Settle for More: The Why, How and When of Mediation
by Sriram Panchu; East West Books , Chennai, Mumbai, etc, 2007;
pp xi+98, Rs 250.
B N SRIKRISHNA
E
ADR is essentially an attempt to have legal disputes resolved by private efforts as opposed to their resolution by courts or other public authorities. ADR appears in incipient forms in the cultural history of several countries. In India we have had the system of village elders called ‘panchas’ chosen by the villagers resolving disputes by common consent. The Native American tribes had peace councils which resolved disputes by a process remarkably similar to present day ADR techniques. George Washington’s will is said to have contained a clause that disputes touching the estate should be resolved by arbitration. In Europe, the roots of ADR go back to the 13th century when community disputes were resolved by ADR techniques in medieval France. The Chinese used mediation to resolve personal disputes for nearly 2000 years.
There are well over 16 distinct ADR processes currently in use. Many of these processes have been developed as hybrids from three basic models:processes involving only the disputing parties (negotiation), processes involving a neutral, non-decision-maker (mediation), and processes involving a decision-maker (arbitration). All methods of ADR, including arbitration, are consensual in nature – the parties must have consented to the procedure before they can be compelled to participate in the procedure and before public courts will defer to the procedure and outcome.
Merits of Mediation
Mediation as an ADR has several merits. It avoids the adversarial process and preserves the confidentiality between the parties. The mediator is an unbiased neutral who does not impose his solution on the parties but enables them to ventilate their concerns. He merely rephrases their concerns in focused language free of emotional content. This process enables each party to clearly appreciate the viewpoint of the other. Without actually participating in the resolution of the dispute, the mediator catalyses the disputants to become more accommodating towards each other and helps them discover commonalities in their opposing stands. This enables the disputants to arrive at a mutually agreeable solution. During the process the parties and mediator are free to withdraw and walk out without having to give reasons for it. There is no pressure, no fear of adverse consequences failing an agreement; the resolution of the dispute when arrived at would result in an abiding long-term resolution of even a festering dispute. Mediation enables the parties to keep confidential, facts disclosed to the mediator from each other, and others. The fact that there is a dispute subjected to mediation can also be kept confidential.
Unlike resolution of the dispute by the court, which must of necessity be done within the rigid framework of legal rules, the mediator can act innovatively and enable the parties to reach creative solutions to the dispute. This creative resolution of the dispute makes mediation an acceptable alternative to the litigation process. It also helps in preserving relationships, business or personal. Businessmen realise that the time spent on mediation is worth the effort in terms
Economic and Political Weekly July 28, 2007 of money and business. Particularly in disputes relating to intellectual property rights, where the shelf life of such a right itself may be shorter than the average time taken in litigation, mediation appears to be the ideal solution.
Mediation scores over litigation in another important respect. Litigation in courts is adversarial and the judge is merely the umpire to ensure that the combatants follow the rules of the game. Court cases are decided more often than not on the “sporting theory of justice” as Roscoe Pound and others before him said. The judge hardly has scope for rendering improvisations or creative solutions. A court may decide a case on a legal issue like limitation or jurisdiction in which case the losing party gets the feeling of not having been heard on the merits of the case. The decision may terminate the proceedings but not the dispute.
Impact on Legal Community
What will mediation do to the legal community? First, the harassed and overburdened judges get respite from the pressure of the unchecked flow of litigation into courts; second, a working knowledge of mediation process may enable judges to spur settlements in court; third, if judges can change their mindset, it will provide post-retirement work in abundance. For lawyers with the ability to learn newer techniques, mediation provides great opportunity to do professional service to society by satisfactory resolution of conflicts without sacrificing remuneration. It was for these reasons that Abraham Lincoln said: “Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” According to Mahatma Gandhi, the true function of a lawyer is “to unite parties driven asunder”.
With long experience at the bar, and his special interest and training in ADR techniques, Sriram Panchu is eminently qualified to adjudge the comparative merits of litigation as against mediation for resolution of disputes. His book makes an excellent and in-depth analysis of the methods of resolution of disputes by mediation. Several case studies are given to drive home the point as to how mediation scores over the normal process of litigation. The author rightly opines that mediation is ideal and would work best when there is a relationship between the parties which needs to be preserved at all costs. Mediation is most suited in such cases because litigation ruptures relationships as disputants indulge in allegations and counter-allegations once they descend to the arena of courts; law suits arising out of relationships are the most bitterly fought and protracted.
However, the process of mediation is not confined only to such cases. The author catalogues a number of other areas amenable to the mediation process such as business transactions, contracts, financial disputes, real estate and construction disputes, consumer cases, employment disputes, banking and insurance disputes, insolvency cases, accident cases, doctor-patient disputes, landlordtenant disputes, partnership disputes, family disputes, matrimonial disputes and public disputes. He enumerates several instances of cases which permit no remedy other than a court. Some such instances are: where the sanction of a court is needed by law (e g, probate cases), where an authoritative exposition of law is required, where a declaration in rem or against third parties is needed, where there is need for a binding precedent, where the issues with regard to the State’s liability or power arise, declaration, extension or abolition of a social right is sought (abolition of slavery, bonded labour, sati, dowry, etc), where urgent interim orders are required, criminal cases, where there is serious imbalance in the negotiating power between parties and where there is lack of faith or trust or demonstrable motive to delay matters to dishonestly gain thereby.
The book points out the qualities a mediator should possess: the patience of Job, tenacity of an English bulldog, wit of the Irish, endurance of a marathon runner, agility of a football halfback, guile of Machiavelli, skills of a psychiatrist, confidence retaining ability of a mute, hide of a rhinoceros and the wisdom of Solomon. Though these are said to be enumerated partly in jest, they are indeed the required qualities of a mediator if he is to be successful in practising mediation.
Though the law provides for court annexed mediation, the author enters a
Economic and Political Weekly July 28, 2007
note of caution against too much of annexation to court. In his view, considering the informality involved in the process of mediation, it is preferable that it should be applied outside courts. His suggestion is for developing institutions which specialise in handling internal and external conflicts. He reasons that at an institutional level the mediation process signals a willingness to look at the opposing point of view and a desire to reach an amicable solution and retain relationship. The book advises industry federations to sensitise their members to the process of mediation for conflict resolution by creating cells for awareness, training and handling disputes.
Other Mechanisms
Despite the focus of the book on mediation, there is also reference to minitrial and arbitration as other forms of alternative dispute resolution mechanisms. A comparative evaluation of these processes as against mediation (pp 69-70) shows that the emphasis is on the mediation process. The subtle distinction between “conciliation” and “mediation” has been explained, though, as the author says, “both are processes of leading the parties from conflict to solution by informal and consensual methods focusing on shared interests, stressing the benefits of harmonious solutions with active participation of the parties”.
The book is written in a lucid style and gives an insight into the subject of mediation. It fulfils the long felt need for a primer on the subject of mediation. The get up of the book is excellent and makes for easy reading. In the short span of 98 pages the book gives the reader valuable details on the process of mediation and serves as a practical guide to the “why, when and how” of mediation.
It is time for lawyers to realise that a dispute is a problem to be solved and not as a contest to be won. Hence, the author rightly observes that a holistic approach to resolution of disputes, without their categorisation as “orthodox” and “alternative”, may lead to the term ADR itself being redefined as “Appropriate Dispute Resolution”.
Mediation is a powerful idea whose time has come.
EPWEmail: bnsrikrishna@gmail.com
Economic and Political Weekly July 28, 2007
