Mediation: How To Resolve Issues Without Wasting Time and Money
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum
 
These words by Joseph Grynbaum stand true even today. Seeking justice through the process of litigation is a daunting task and inherently expensive. Even large corporates with deep pockets are wary of getting involved in the long drawn legal battles in courts. The judicial system is being overburdened with pending litigation and Supreme Court (SC) is taking cognisance of the need to have professional managers in courts. This is where mediation plays an important role, not only in saving money and time, but delivering justice to both the parties in a time bound manner.
 
Litigation traditionally is an intensive process during which there is a constant back and forth shuttling between the parties and their respective lawyers. Due to the nature of such interactions, cases keep piling up in the High Courts and the Supreme Court. But, with over 33 million cases pending in various court and the average time for resolution as high as 15 years or more, there is a crying need for alternate dispute resolution (ADR) processes. 
 
The textbook definition of mediation says it is a way of resolving disputes between two or more parties with concrete results. Typically, a third party, or the mediator assists both the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters. It also helps reduce the burden of courts, which are struggling to cope with legal pendency.  
 
Mediation becomes a viable proposition the minute both parties to a dispute give some thought to the time and cost involved in litigation. There is also another interesting dimension to mediation, that was brought out at a panel discussion organised to launch the mediation centre of the Bombay Chamber of Commerce and Industry (BCCI) a couple of months ago. One panellist noted that litigation has a finality to it and breaks business relationships; but, often, there are disputes between companies and their contractors or suppliers, that reach a stage where intervention is required for fair resolution but neither party really wants to end the relationship.
Mediation through a neutral intermediary is ideal in these circumstances. 
 
 
This usually involves having a trusted third party to hear both sides and suggest a fair resolution. The mediator may be a legal expert or a domain expert in the subject matter of the dispute. It is important to note that although mediation is a less rigid and informal process, it is not unstructured. It is in fact quite meticulously planned with a clear rule book, albeit with a certain level of flexibility. This is one reason why industry chambers are encouraging their members to opt for mediation as a faster way of resolving issues.
 
The BCCI (Bombay Chamber of Commerce and Industry)’s Centre for Mediation and Conciliation (CMC) was launched in June this year; Sumit Banerjee is its chief mentor. The CMC has been recognised by the Bombay High Court and Indian Institute of Corporate Affairs as a body to help resolve commercial disputes. BCCI’s mediation panel  has retired judges from Supreme Court such as Justice BN Srikrishna, Justice Deepak Verma, Justice VM Kanade, Bill Marsh (United Kingdom), Jeremy Lack (Switzerland), Prathamesh Popat from Mumbai, Sriram Panchu and A Jawad from Chennai and Ekta Bahl from Samvad Partners, Hyderabad.
 
The CMC, envisaged by BCCI, provides mediation services for all commercial disputes- shareholder disputes, board consensus building, supplier disputes, and employment disputes across a wide range of sectors, including engineering, infrastructure, logistics, banking, FMCG, banking, insurance etc. Interestingly, since CMC has mediators who are empanelled by the High Court, disputes that are already being litigated may also be referred by judges to the centre for mediation. In these cases, the terms of settlement would be recorded in the form of consent terms to be presented before the Court, which will record the same as a consent decree and make it enforceable like any other court decree. 
 
The CMC insists that it is committed to provide mediation services at reasonable costs and conduct proceedings with full confidentiality.  
 
There are two major issues that stand in the way of businesses opting for mediation to resolve disputes. One is that the government is often a party to disputes and these invariably land up in courts. In fact, the government — through its various departments and companies — is the biggest litigator in India. And since government is rarely in a hurry to resolve disputes and tends to file appeals even when there is a stinging verdict against it, the pendency in courts due to government itself is huge.  This makes it even more important for business to seek ADR for other disputes that are still within their control. If chambers of commerce take the lead in encouraging mediation and the voluntary acceptance of outcomes, it will go a long way in making business easier to conduct in India.  It is especially important to build awareness and understanding about mediation and its modalities among micro, small and medium enterprises.
 
In an article posted on the CMC website, Mr Banerjee says, while data about the success of mediation in India is sketchy, international experience is very heartening with over 50% success rates in most cases and big savings in time and cost. He writes, "The comparative efficiency of mediation over litigation is well known. For example, an EU report of 2014 found that both average time and cost to arrive at an outcome, came down drastically in most EU nations such as UK, France, and Italy, in mediation cases vs litigations. Most impressive were the efficiency improvements achieved through mediation in Italy, where average time to resolution came down from 1185 days to 66 days, and cost came down from Euro 16000 to a mere 3000 Euros. For a comparison, the average life of a case in India is 13 years, and litigants in the country spend an estimated total of Rs30,000 crore per year towards court hearings.” 
 
He has similar numbers about Singapore as well. The Singapore Mediation Centre (SMC) has dealt with more than 3,600 disputes with a settlement rate of 70% of which 90% of the disputes were resolved in one working day.  In Hong Kong, a court annexed mediation centre records a total of 780 cases in 2017 with a 61% success rate. 
 
 
Various sectors in India are especially amenable for ADR and more extensive use of mediation. The real estate sector, riddled with litigation and multiple stakeholders with diverse interests is one that is especially fit for dispute resolution through mediation, but it requires awareness building and a nudge by industry leaders to persuade stakeholders to opt for it.  The two types of mediation available in India are: 
 
Private Mediation: When mediation is initiated by the parties themselves and is facilitated by institutions which are neutral bodies providing the right environment and impetus for the parties to settle the dispute. These institutions have a varied panel of mediators which include industry experts having a deep understanding and experience in dealing with commercial and technical issues, thereby assisting the parties to understand each other’s position and arrive at a mutual consensus while resolving the dispute.
 
Court annexed, referred mediation: Court-annexed mediation and conciliation centres are now established at several courts in India and the courts have started referring cases to such centres. In court-annexed mediation the mediation services are provided by the court as a part and parcel of the same judicial system as against court-referred mediation, wherein the court merely directs the parties to mediate and settle the matter under the surveillance of a professional mediator of their choice.
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COMMENTS

Satyam Savla

4 days ago

A very interesting article.. also along with mediation a system that's prevalent in UK is jury duty being compulsory for citizens, who hear both sides of the story and express their views so the judge who makes decision knows what most of the people at large are thinking keeping in mind fairnes, prudence and ethics.

Opposition blocks railway in Mumbai
As petrol prices on Monday shot up to Rs 89.97 in Maharashtra's Parbhani - the highest in India - the Opposition Congress staged a 'rail-roko' agitation here as part of the party-sponsored nationwide shutdown to protest rising fuel prices.
 
Parbhani District Petrol Dealers Association (PDPDA) President Sanjay Deshmukh said that while petrol was nearly touching the psychological barrier of Rs 90 per litre, (Rs 89.97), diesel prices stood at Rs 77.92 on Monday.
 
Elsewhere in Maharashtra, petrol was Rs 88 and diesel at Rs 76, said All India Petrol Dealers Association (AIPDA) spokesperson Ali Daruwala, besides various local tax additions.
 
The all-India anti-fuel price hike shutdown got underway in different parts of Maharashtra with all parties, barring the ruling Bharatiya Janata Party and Shiv Sena, joining in wholeheartedly.
 
Maharashtra Congress President Ashok Chavan and Mumbai Congress President Sanjay Nirupam led thousands of activists to stage a noisy protest outside the Andheri station bus depot, and later they got down on the railway tracks, shouting anti-government slogans.
 
Several leaders including former ministers Naseem Khan, Manikrao Thakre, Suresh Shetty, joined the agitation as police maintained strict security at Andheri.
 
However, suburban trains, BEST buses, schools and colleges functioned normally, though shops and commercial establishments downed shutters in many localities, including pockets where the opposition is influential.
 
Raj Thackeray-led Maharashtra Navnirman Sena (MNS) activists also led aggressive protests in Mumbai, Thane, Palghar, Pune, Nashik and others areas of the state.
 
As per preliminary reports, the shutdown has elicited mixed response in urban centres, but widespread support in the semi-urban and rural hinterland which have been badly hit by the spiraling fuel prices.
 
The shutdown has been supported by Nationalist Congress Party, Samajwadi Party, Janata Dal (S), RPI (G), Peasant and Workers Party, Left Parties, Swabhimani Shetkari Party, Peoples Republican Party.
 
Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.

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The Business of Running Business Schools Without Real Education
After my return from the US, my relatives have been persuading me to attend social functions. Since I am not so active in teaching anymore, I take it as an opportunity not to miss any social functions. 
 
It helps that Venkat (my better half) believes in enjoying a peaceful retired life and is only too happy to accompany me.
 
Be it in Pune, Mumbai, Chennai or Bangalore, conversations with my relatives invariably hover around educational institutions. I was in Chennai and Bangalore last week for two weddings. 
 
A sizeable number of my relatives are in the education sector, so when we sit and chat, many interesting things crop up. It also makes me sad that the standards in the Indian education sector have fallen so low. 
 
The Government is merrily scrapping one statutory body and creating another. The rules are more of a joke! God knows who the rules and regulations are meant for! No educational institution ever follows any pay commission diktats and job security in educational institutions is more of a mirage. 
 
The doctorate degree and research in social sciences have become a sham. The All India Council for Technical Education (AICTE) talks big about the performance of educational institutions and accountability, but what about its own performance? 
 
Smriti Irani made lots of noise when she was in the Ministry of Education but nothing of material significance actually happened, except for one controversy after another.
 
That Ms Irani is resilient was never in doubt. However, she really made no real difference to the sector when she was at the helm of the Ministry. 
 
Prakash Javdekar has much less of public rhetoric as compared to Ms Irani,  but he has not done anything worth mentioning either. Now that elections are around the corner next year, it is fairly certain that no major decision will be taken by this government.
 
Engineering colleges in Gujarat and Tamil Nadu (TN) are shutting shop. Students of the Master in Business Administration (MBA) classes are not having any great placements this year. Bengaluru is supposedly a hot market for jobs, but this job market has also been stagnating for a while. 
 
Let us not base our judgement on statistics of what students at elite institutions such as Indian Institute of Technology (IIT) and Indian Institute of Management (IIM) have got in terms of job offers. 
 
Let us look at middle rung business schools where students pay anywhere between Rs6 to Rs12 lakh as fees, only to struggle for a job after completing the course. 
 
Colleges that proclaim 100% placements are only hiding true facts. Placement statistics have, at best, become a red herring to cheat students into enrolling for fast-dying MBA courses. 
 
If Universities are still going to teach 1988's Porter's Five Forces Framework and CK Prahlad's done-to-death bottom-of-the-pyramid theory and if they cannot see beyond Maslow's need hierarchy theory, then you really cannot blame the industry. (Michael E Porter’s work was published in 1979 by Harvard Business Review; C K Prahalad’s book Fortune At the Bottom of the Pyramid: Eradicating Poverty Through Profits was published in 2004). 
 
Unfortunately, the MBA course has become another postgraduate program like MA, or M Com. 
 
A private university in Bengaluru that was in the news for a never-ending fight between two brothers now has a politician from Bharatiya Janata Party (BJP) on board. This year there were only four students enrolled in their MBA program. 
 
One brother has supposedly won a litigation with his sibling, while the other is waiting to fight yet another battle. While Vali and Sugreeva the warring brothers in Ramayana had Lord Ram to solve their problems, in this battle between the brothers, there is supposedly no scope for reconciliation. 
 
One of my relatives living in Lingarajapuram was associated with this University for a while. He says that the campus looks like a ghost town now. Most teachers have left for greener pastures and the University was unable to pay salaries to their employees for many months. 
 
They also have some 400 odd doctoral research students from whom they collected hefty fees and are now demanding more fees. This is strange, because they do not have many qualified doctoral program guides anymore. 
 
The University once prided itself as being "A US-style university in India". It is now paying the price for various management atrocities it committed that left gullible students in the lurch. 
 
But the moot question is, was there any action from the state or central governments? None. 
 
There was a rumour that the state government would take over the University but the matter rested there. Once politics enters University campuses, it is the beginning of the end.
 
Let me touch on one more controversial issue. 
 
We are so used to hearing about secularism in India but what about Christian Institutions that overtly prefer teachers and students from their own community? Their selection procedures are anything but transparent.
 
My niece's daughter secured 92% in the pre-university course (PUC) exams last year and she failed to secure admission to this supposedly famous commerce college near Brigade road. 
 
However, her classmate who secured 86% got admission for the same course. How? No answers are available. 
 
Some of these institutions still bank on their brand name but the reality is that their standards have whittled down to abysmal levels. Christian students with substantially lower marks than others get admission. Some of these institutions receive aid from Government but no questions are asked. Why?
 
Venkat often chides me that I am just being pessimistic. But when facts are on the table in front of you, how can one be in a self-denial mode? 
 
The truth is that the education sector has become an attractive sector for making money. If you can pull the strings and manage to get a few affiliations or get a private university tag and if you have an agent who will fill the seats for you, then you just walk on the road to limitless prosperity and easy access to money.
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