Mediation takes a front seat

Congratulations flowed in when Chennai-based senior advocate and mediator Sriram Panchu learned that he had been appointed as one of the three mediators in the Ayodhya-Babri Masjid controversy which has been plaguing the nation for decades. The appointment by the Supreme Court of India was a confirmation that mediation has now a firm footing in the justice system of India. It was also honouring Sriram, who has been called “the high priest of mediation”, for his untiring work of promoting mediation to resolve conflicts, replacing lengthy, costly and often bitter court cases. Sriram founded India’s first court-annexed mediation centre – The Mediation Chambers – in the Madras High Court in 2005; assisted the Supreme Court and other High Courts to create similar centres; trained over a thousand mediators; and has authored three books on mediation, including a comprehensive manual, Mediation: Practice and Law.

It was therefore not surprising that on the evening of March 16, the auditorium of the Chennai International Centre overflowed with eminent people from the legal fraternity. It included Justices of the Supreme Court of India, justices of the High Court of Chennai, other eminent jurists, public personalities and many personal friends. The formal occasion was the launch of Sriram’s newest book, The Commercial Mediation Monograph. The informal one, doubtless, was to express gratitude and appreciation for Sriram’s work.

Sriram has gained a special place in Auroville. Not only has he offered invaluable legal advice countless times, he has also been instrumental in setting up Auroville’s own mediation group in 2007, which is now known as Koodam. For mediation, coming jointly to an agreement which is acceptable to all, is a concept which is close to Auroville’s spiritual ideals. In various messages, Mother stressed the necessity of harmonious collaboration. “The important thing is to find the point on which you can all agree – and after this is firmly established each one must be ready to yield his personal will in order to keep this point of Harmony.”

His newest book, The Commercial Mediation Monograph, Sriram shows the depth and breadth of the mediation process, and the creative and innovative solutions that can flow from mediation. At the book launch, he stressed the benefits of mediation – “Mediation introduces a consensual concept where the parties need to come to an agreement themselves. They are not at risk as they can step out at any time” – and the limits of litigation: “Litigation in court or in arbitration brings in an adversarial mindset and imposes the risk that one party loses as the decision is in the hands of a judge or arbiter.” He explained that mediation allows for a far wider participation than is possible in litigation. “Family dispute mediation can involve more people than the two parties; it can include an extended family, many of whom have no specific part to play in the conflict. As participation gets wider, the potential for conflict resolution becomes larger. Mediation can also be a powerful tool for healing and improving broken relationships. Commerce too can benefit from mediation. While courts and arbitration go by process of law only, during mediation the mindset and the feelings can get involved and issues can be brought up which are not central to the case but are important to the individuals – and in this way a solution can be reached.”

He stressed an important part of mediation, the art of listening. “We often don’t do that. But understanding that each one in a dispute comes from somewhere, and has something to say, even if what they say is incorrect, opens a door. As a mediator, you don’t say ‘yes’ or ‘no’, you just listen. And you listen as long as they want to speak. For it is important for that person to vent that feeling. And unless you allow that feeling to be vented, the person will not move to the next step in the conflict resolution. The litigant does not necessarily want you to agree to what he says. He wants to be understood. And to give him that, you listen as long as he speaks.”

In the open discussion that followed the book launch, the question was raised if mediation could be used when there is a mismatch of power, a negotiation imbalance, between the contesting parties, such as when a government is involved. For “settling” means giving something up, and that often is a problem in government circles where bureaucrats are held accountable and could easily be suspected of having taken a personal advantage for allowing the settlement. Sriram offers a solution. “I have suggested a high level clearance committee, to which the outcome of the mediation is presented for its approval: is it acceptable, is it not, is a modification required? Once that clearance committee has approved it, the individual bureaucrat is cleared from all suspicion.”

Sriram not only advocates that mediation becomes part of the curriculum of law and business schools and of the All India Services training academies, but also that the government passes legislation that makes pre-court mediation mandatory. This, he says, is the only way to resolve the enormous backlog of cases now pending in Indian courts.

One question highlighted a lawyer’s concern. “There is a crying need for more trained mediators, but wouldn’t more mediation reduce lawyers’ fees?” Sriram disagreed. “Mediation lawyers need to put in a lot of work preparing for the mediation and assisting and helping the party through. This work has to be professionally remunerated.”

“Mediation is a concept whose time has come,” writes former Supreme Court judge B.N. Srirkrishna in his foreword to The Commercial Mediation Monograph. “Its greatest advantage is that, since the parties are themselves entering into an agreement (with no more than the encouraging presence of the mediator) there could be no further litigation, nor appeal against such instrument.” Sriram stresses the beneficial aspect for the persons involved. “No matter what the complexity and stakes of the dispute, mediation helps. An amicable settlement is, after all, the best way to end a dispute.”

The Commercial Mediation Monograph by Sriram Panchu, 108 pages. Available from Amazon.in. Price in India Rs 270.