My journey in Mediation is as yet, short. But in my short journey, I have recognised the power that Mediation can have and it is heartening to know that there are so many who are passionate about it to make it widespread and be imbibed within our culture. After my grandfather and my father, I am the 3rd generation lawyer in the family. Litigation has been imbibed in my psyche, my culture since childhood and for me to approach Mediation required a change in the mindset.
The theme of this International Symposium on Mediation is “Mediation in Our Culture and Traditions” and my endeavour shall be to discuss the existence and the prevalence of Mediation in the Indian culture. I have gone through some of the other talks that the other speakers have given during the course of this Mediation Symposium and the different speakers have taken different approaches to this topic. With the vast amount of experience that the speakers on the symposium have, I feel really privileged to be speaking on the same platform as them. Beginning with the keynote address by Mr Ken Cloke, it has been an extremely enlightening journey so far. The topic of this symposium being “Mediation in Our Culture and Traditions”, I wish to first address the concept of culture. Mr Ken Cloke while discussing the topic of 'culture' mentioned a crucial aspect of culture in our identities. He said that an individual can identify with multiple cultures and they form a part of his identity, and consequently, how he or she acts as a Mediator. The question of what culture actually is and what it means to people is a much-discussed topic and I do not intend to touch upon that. What I intend to discuss is how the different cultures in the normal sense that we understand this concept, impacts the way we approach Mediation. Mr Ken Cloke also gave an example of a Mediation that he was a part of, wherein he involved the different family members of the disputing couple. He also said that throughout his journey as a Mediator, he has had to adopt different methods in order to adapt to the cultural nuances of a particular country.
India is identified as a land of rich cultural heritage that is deep rooted in every aspect of Indian life. India is a country with more than 1.2 billion people and hundreds and possibly thousands of small and micro communities. It is my understanding that all the major religions of the world find representation in India. There are hundreds of languages and their dialects. So, one can only imagine the complexity of communicating with someone from a different mother tongue. Each community has different traditions and the sub or micro communities within those communities have further differentiated customs and traditions. With such tremendous diversity, disputes have a fertile ground to grow abundantly.
There are some nuances about disputes in India that I have come to notice, especially being a litigation lawyer. People want to resolve their disputes and want to fight for their rights. However, the intimidation of court procedures, the cost involved and the time taken for the dispute to come to a finality has deterred people from approaching the formal establishment of Judiciary and people have, either let go of their rights or have adopted extra judicial and even illegal methods, including using coercion, threats, etc. to enforce their rights. There have been numerous instances when I have been asked for my opinion on a given issue and after hearing that it would involve going to the Courts, people have dropped the idea of pursuing their rights. It has also happened that well intentioned citizens wanting to file a Public Interest Litigation have let go of the idea to file it after learning about the process. A few months ago, in January 2021, the Hon’ble Bombay High Court asked the Petitioner in a Public Interest Litigation, an environmental NGO to deposit an amount of ₹60 crores, which is equivalent to about $9 million, without which, they declined to hear the Petition. (https://timesofindia.indiatimes.com/city/mumbai/mumbai-pil-against-tata-garden-tree-cutting-dismissed/articleshow/84003801.cms ). Such instances in litigation deter the common citizens to approach the Courts to enforce their rights. This example was about a Public Interest Litigation but there are instances where the 3 problems that I have listed above about deter the common man in approaching the Judicial establishment.
It has been argued by many that Mediation has been an integral part of Indian culture since time immemorial. In fact, examples are given of the incident in the great epic Mahabharata, where Lord Krishna goes as an emissary of the Pandavas to the Court of the King of Hastinapur to try and negotiate a settlement between the Kauravas and the Pandavas. It has also been put forth that the Panchayat system and not necessarily the Gram Panchayat practises Mediation helping to resolve disputes in villages and even in large communities everywhere.
If I take this argument on the face of it, I would have to agree that Mediation is a part and parcel of Indian culture, so much so that everyone is aware of it and understands how it functions. However, my agreement with this argument would be misplaced when I consider what Mediation actually is.
So, before I go further, I think it is important to understand how Mediation has been defined in the Singapore Convention on Mediation. The full title of the Singapore Convention on Mediation is the United Nations Convention on International Settlement Agreements Resulting from Mediation and it defines “Mediation” as a process, irrespective of the expression used or the basis upon which the process is carried out, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (“the mediator”) lacking the authority to impose a solution upon the parties to the dispute.
Having gone through this definition, there are 3 points that my attention is drawn to. First of all, the main objective of the Mediation process is to reach an amicable settlement of the dispute. The second aspect is, in trying to reach this amicable settlement, help is sought of a third person; and the third aspect is that this third person lacks the authority to impose a solution, or in other words, give a decision.
Considering all these 3 aspects, that what is put forth as Mediation as an integral part of the Indian ethos is a difficult argument to digest. The Indian culture is inherently a close-knit family structure with a generally accepted and respected hierarchy. This hierarchy exists not just in the family but also in the community that the family belongs to. And, as communities go, we have community leaders. These community leaders may either be structured in the form of an Association, where these leaders are either elected or selected or these community leaders can simply develop in an organic manner through their actions. The role of teachers, priests, doctors and in general, highly educated people is significant when it comes to moulding the psyche of a particular community. This last set of professions is what is referred to as ‘opinion leaders’ in marketing, where the influence of these ‘opinion leaders’ is used to market either a service or product.
In preparation for giving the talk on the ‘Mediation Symposium’, when I asked around, about whether people thought that Mediation exists in the Indian culture, the unanimous opinion was that Mediation exists in the Indian culture. Not just that, I also received comments that it is extremely prevalent in all the communities in India. Most were not able to give me a particular example, but they relied upon hearsay. The few that were able to give me some examples, were of the Kutchi community, the Bohra community, the Muslim community and the Parsi community. I admit that there is a more structured form to Dispute Resolution in these communities. However, even with the structured form, the requirements of the definition of Mediation are not fulfilled.
With the community interconnections and the bonds that exist between the members and the members and the community leaders or their representatives, the Mediation that supposedly happens is not actually Mediation, according to my understanding.
Another aspect of Mediation that cannot be ignored is that the amicable settlement that is arrived at through Mediation is usually written down in the form of a Mediation Agreement and for this Agreement to be enforceable, there should not be any kind of undue influence on any of the parties. Now, if this Mediation is being conducted by a community leader or more so, a religious leader, the existence of any undue influence cannot be denied. If this undue influence exists, then the question arises whether the written agreement arrived at the end of this Mediation process would be legally enforceable? In India, this Mediation Agreement can either be treated as just a regular contract or it could be filed as a Consent Decree or it can also be filed as a Consent Award. Either of these 3 methods being adopted could face the situation where there is an agreement or a decree or an award is challenged on the ground of undue influence and then the entire objective of going through Mediation gets defeated.
Further, where an opinion is given, particularly by a religious leader based on the holy scriptures, it has been the experience that those who had sought the intervention of that leader do generally follow that advice. At times, a settlement was forced upon the disputants in order to ensure harmony in the community without really ascertaining whether the parties had found the settlement acceptable or not. It is also the experience that the disputants follow the advice of the community elders simply out of deference to them.
Therefore, it is my contention that although extra-judicial dispute resolution in different communities of India exists and has been prevalent throughout the centuries, it is not really Mediation as it is understood today and that the Singapore Convention attempts to regularise.
A few years ago, while I was representing my client in an Arbitration, it came to a point where the opposite party wanted to meet me and have a discussion. Surprisingly, he did not want his lawyer to be present in the meeting. When he directly reached out to me, I immediately asked him to inform my client that he had reached out to me and that he wanted to speak to me directly. My client called me sometime later and said that he was ready to meet with the opposite party to have a discussion about the situation. During the course of this meeting, the opposite party kept asking me for my suggestion on how this dispute could end. I told him that it was not my place to decide how this dispute could end but if he and my client wanted, they could come to an agreement. As this discussion advanced beyond the initial pleasantries, I asked the other party if he was sure that he did not want his lawyer to remain present during the discussion. He was comfortable with his lawyer not remaining present and said that he wanted to see if an agreement could be reached and the dispute be settled. The outcome of this entire discussion was that the two disputants reached an agreement and the arbitration came to a conclusion with the passing of a consent award. This discussion happened at a time when I was not at all aware of the process of Mediation or the nuances of it. But, I was aware of the fact that these two disputants would be well served if the dispute comes to an end amicably and that during the discussion with my client and the opposing party, it was my job to remain neutral and yet not be in a position that would betray my client’s confidence. It seems that I was successful in this situation.
However, in another situation that actually transpired only about 3 to 4 days ago, a new client approached me to discuss a family dispute that she is having with her brother. During this meeting, she informed me that a mediator, who is a member of her extended family, was already playing a part in this dispute. Unfortunately, as the discussion progressed, I realised that the person that she was referring to as the mediator was not actually mediating but was intervening in the dispute to help end it. The details given by this lady clearly demonstrated an unfairness to her. However, the details also demonstrated an unshakeable faith in the family ties that she has with this so-called mediator.
In the several discussions that I have had for this talk, one of the conversations that I had was with one of my uncles who retired from a very senior position in a large multinational corporation. He was involved in different aspects of the operations of this corporation. I tried to pitch the concept of mediation to him in order to understand whether he would have been open to mediation to resolve any disputes that his company had had, either in the workplace or with any external entity. To answer my question, he gave the example of a non-binding arbitration that his company was a part of in the USA, where the arbitrator suggested that his company should reach a settlement or that if the dispute goes to the court, in the opinion of that arbitrator my uncle’s company would not fare well. They ultimately settled the dispute before the dispute went to the court and according to my uncle, it was fortunate that it did. Otherwise, the time and the money spent in litigation would have been enormous. My uncle said that he actually preferred that the arbitrator gave his opinion and made them see sense. An arbitrator giving his opinion seemed beneficial to that company at that time. However, after explaining the concept of mediation, the idea that the Mediator would not really give his opinion on the legal standing of anybody’s case was not palatable to him. It seemed to him to be a futile exercise where the Mediator would not really help them understand the legal consequences. I do not know whether it was my inability to explain the concept of mediation properly to him or whether it was a case of some ingrained cultural approach to dispute resolution. I think it was the latter and I will come to that shortly.
In another conversation that I had with the owner of a manufacturing company over the last week, about the upcoming mediation at the end of this month, I was trying to explain to them the concept of mediation and what kind of preparations they need to make. Despite explaining to them that a mutually acceptable agreement would be arrived at, at the end of the mediation proceedings if they go well, the said owner was of the firm opinion that even if the mediation fails, the mediator should pass an award.
Now, because the topic is to discuss the existence of mediation in our tradition and culture, I realised from the few conversations that I have had with people from different communities of India, the understanding of mediation is not well developed. I had even more conversations and I came to a realisation that mediation in India is more or less understood to be a form of extrajudicial method of dispute resolution, where the court procedures are not observed and that the dispute is attempted to be resolved through discussion and that at the end of it, the mediator passes an order. Even in the ‘mediations’ that take place in a religious backdrop, have some form of advice or order given at the end of the process.
In one particular instance, I spoke to the mother and daughter of the Bohra community. The mother was of the firm opinion that the opinions given by their religious leader were followed almost as if they were a law or an order. However, the daughter was of the opinion that the current generation is moving away from following these opinions without giving it much thought.
As for the effectiveness of the dispute resolution taking place at community levels, it has been my finding that it has gone down over the last few years. The nuclearization of families and the subsequent loosening of ties with the community as a whole, has played a huge part in the effectiveness going down. These community level dispute resolution mechanisms usually take place in business-oriented communities in India. The reduction in the effectiveness of these dispute resolution mechanisms has taken place also because of the fact that some of the newer generation of the family run businesses have shifted out of that business and are now employed somewhere in following their passions or are doing jobs in some companies. Further, the COVID-19 pandemic has wreaked complete havoc in all the business communities. People are complaining about the loss of business and more troublingly so, the non-existence of any business. It has now become a moot point, whether there is any intention of any disputants to comply with the order of the panchayat. So many people are in such difficulty that they are simply unable to comply with that order and there is no formal mechanism in place to ensure that compliance, like there is in ensuring compliance of a Court order or an Arbitral Award. This, according to me, can possibly result in a breakdown of this traditional dispute resolution mechanism. The Supreme Court of India has constituted a committee to bring in a law on Mediation and it is fervent hope that the law shall bring in such measures as to regulate the entire process and put in place a mechanism for enforcing mediation agreements without approaching the Courts. The reason for which Mediation is adopted will certainly be defeated if parties have to knock on the doors of the Courts to ensure compliance of Mediation agreements.
The sense of pride in your own self and that in your community, I have found to have a major impact in India on the decision to approach the court for any dispute. It is seen by many that approaching the court is tantamount to lowering your own dignity in society. I have actually heard someone say that since they were civilised and educated people, they will not approach the court to resolve their family dispute. They consider it similar to washing their dirty laundry in the public. In such cases, Mediation would be ideal.
One more important aspect particular to Mediation in India is – language. Language, I believe, is the bond that builds a culture. In the book ‘Sapiens: A Brief History of Humankind’ Yuval Noah Harrari talks about how the cognitive revolution of our species was aided specifically by our ability to communicate complex ideas and more importantly, fiction. This unique ability as compared to other species has helped humans develop their culture, however it may be defined and whichever one, that someone identifies with. With a culture as diverse as India’s, with its multiple languages and the dialects, opportunities of miscommunication are endless. Having a high EQ is not enough but a high CQ – Cultural Quotient is also important. How much ever we try, there is always going to be a gap.
For example, we lawyers live by our own language seeped in Latin and French and really intimidating words. We use them sometimes to show off or sometimes, they come off so naturally that we don’t even realize that they could mean something else to the other person. There was an incident with a lawyer I know, who asked his client to come to his office the next day for ‘execution’ of an agreement. When the client arrived at the office the next day and signed all the documents, she asked the lawyer about the ‘execution’. The lawyer then explained to her that signing the document was executing it. She got upset with that lawyer and told him that she had been up all-night thinking of the word ‘execution’ and what it could mean and that the lawyer could have simply told her that she needed to come and sign on the documents.
The culture of lawyers is a different ball game altogether. Our bread and butter rely on the efficient and effective use of our vocabulary. The more eloquent that a lawyer is, the more impressive he is, and his eloquence can be reliably used to measure his success in the profession. This eloquence, however, will not necessarily translate into a successful negotiator or a successful mediator. The approach is different. Using the skills as an orator efficiently enough so that these skills could be used in mediation is a definite challenge. More so, there is also a general lack of understanding of the concept of mediation among lawyers. Mr Panchu, in his talk on this symposium discussed the progress of mediation in India from the 1990s and now the Judges ask the question 'why not mediation?'. This same question should be asked by all lawyers to their clients before filing any case in any court. The step taken by the Supreme Court of India to constitute a committee to bring in a law for mediation is a much welcome step. Mandatory mediation would get rid of all arguments against pre litigation mediation. Even if someone does not agree that a certain case is fit for mediation, they would have no choice but to go for mediation and only after the mediation fails, could they approach the court. The culture among lawyers today to directly suggest litigation or even arbitration to their clients needs to change if mediation has to be successful. But for this change to be brought about, there needs to be a better understanding of the concept of mediation and how the process is carried about. It is no doubt that to achieve expertise in the field of mediation, experience is necessary. However, with the help of training programs, trained mediators can be made available for small to medium value disputes in commercial matters in particular and that caseload can be reduced from the courts and disputes can be resolved much quicker and, in a cost-effective manner. For more complicated and higher value disputes, trained and highly experienced mediators shall always be available. Mediation is a relatively new concept in India, and I mean, the form of mediation that we are looking at, that is, interest based facilitative mediation and not mediation as has been understood in India for a long time to mean a third party deciding a dispute after hearing both the parties but without following court procedures. I would just like to repeat that the change that has been brought about among the judges in their approach towards mediation should be brought about among lawyers as well, who are actually going to be instrumental in bringing about this change.
I would like to end my talk by discussing two concepts. The first concept being that of ‘zabaan’ which literally translates to ‘tongue’. The actual meaning of this ‘zabaan’ is that of giving somebody your word. Many large business houses in India run their businesses or conduct transactions worth huge amounts of money based on somebody’s word. They do not enter into any written contracts. Although an oral agreement is a valid contract in India, of course, subject to the provisions of the contract act, the specific performance of such an oral agreement is a terribly uphill task. For these kinds of transactions also, it is my firm belief, that Mediation would be an ideal form of dispute resolution. The underlying faith in the value of somebody’s word is what gives strength to these transactions and the involvement of court proceedings has the potential to damage this entire system.
The last concept that I would like to discuss here is that of Dharma & Karma. In order to briefly explain what Dharma is, I would like to recite a few lines from a book called “Legal and Constitutional History of India” written by Justice M. Rama Jois. The opening paragraph of this book reads thus –
The Hindu jurisprudence or the legal system is embedded in Dharma as propounded in the Vedas, Puranas, Smritis and other works on the topic. Dharma is the Sanskrit expression of the wildest import. There is no corresponding word in any other language. It would also be futile to attempt to give any definition to that word. It can only be explained. It has wide varieties of meanings. A few of them would enable us to understand the width of the expression. For instance, the word Dharma is used to mean Justice, what is right in a given circumstance, moral, religion, pious or righteous conduct, being helpful to living beings and things, duty, law and usage of custom having the force of law, and also valid Rajashasana (royal edict).
Further, the author gives the example of a verse from the great epic Mahabharata, where the verse reads thus –
It is most difficult to define Dharma. Dharma has been explained to be that which helps the upliftment of living beings. Therefore, that which ensures welfare of living beings is surely Dharma. The learned rishis have declared - that which sustains is Dharma.
Although the common man of India probably does not know of this verse from the Mahabharata, the essence of this verse is generally followed.
In another one of our ancient texts, it is stated that when a decision is reached on the basis of the letter of the law, it should be considered as a decision taken on the merits of the case. Moral considerations are overruled by it.
The author of “Legal and Constitutional History of India” states that this rule incorporates the principle of justice according to law. If the law was clear and applicable to a given case, the case was required to be decided according to it and no moral consideration could be allowed to override the provisions of law. This principle holds good also under modern legal and judicial systems. Rules of moral or natural justice cannot override or supplant the law made by the legislature but can only supplement it.
Considering these excerpts from the book, the ethos of Indian culture would actually support Mediation as we understand it today. The concept of Dharma essentially being the upliftment or the welfare of living beings goes hand-in-hand with the concept of Mediation. As for the second reference, a mediator tries to address the interests and needs of the parties rather than look at the legal aspects of the dispute and helps the parties arrive at a mutually acceptable and hopefully a mutually beneficial agreement. These considerations do not hold much value in litigation.
The concept of karma also ties in with the concept of Dharma. Karma is the action that any individual takes and the sum of all the actions taken by any person is what decides the fate of that person, either in the afterlife or in reincarnation, according to Hinduism. Addressing the aspect of karma in mediation would also play an important role in helping resolve disputes through mediation
And, this is where I shall leave you to form your opinion about whether you agree or disagree with me.