Wiping Every Tear from Every Eye.. Forget Courts…Transform from Litigation to ODR

cji_2During a recent meeting of Chief Justices of High Courts, the Chief Justice of India, Mr T.S.Thakur broke down emotionally with the burden of a perceived guilt of the Judiciary in not being able to reduce the pendency of cases.

While this brought out the frustration of an honest Chief Executive of the system, I could not miss a feeling that the solution is staring at us and we have not perhaps identified it.

The solution lies squarely in an aggressive promotion of the system of ADR (Alternate Dispute Resolution). Being from the IT enabled legal services industry, it was natural for me to immediately feel the increased need for the use of ODR to accelerate the ADR process itself.

Afterall, the Modi Government passed the Amendment Act to the Arbitration and Conciliation Act 1996 on 31st December 2015 enabling the use of electronic means for conducting ADR. The amendment also contained what may be considered as revolutionary proposal to fix specified time limit for completion of Arbitration and incentives and disincentives for variations.

Now all those Advocates and Professionals who have the necessary legal and domain experience and the “Urge to Resolve Disputes” should consider setting up their own “Dispute Resolution Centers” (also identified as Arbitration and Mediation Centers) so that in the next couple of years, we have a huge capacity build up in Dispute Resolution which will at least ensure that there is no further build up cases in the overworked Judiciary.

Naavi’s ODRGLOBAL.IN proposes to provide the technical infrastructure to enable and empower such professionals so that they can conduct online dispute resolutions and apply their arbitration and mediation skills to good use.

Ofcourse, skills in Arbitration or Mediation are to be nurtured. They are different from what advocates learn while acquiring LLB or practicing in a Court of Law. Perhaps we may consider that Mediation is more an “Art” than a tought and learnt skill. However, efforts are to be made by professionals to polish their dispute resolution skills before they plunge full scale into this new profession.

The first thing an “Arbitrator” or an Advocate participating in Arbitration proceedings or even the Litigant parties need to understand that in a “Litigation” it is more often a “Win-Lose” fight where as Arbitration and more so the Mediation is a “Win-Win” negotiation.

Further, the Judge in a litigation is strictly constrained by the inefficiency of the counsels and cannot go beyond the evidence and argument provided by the counsels even if it is inefficient and incorrect. Arbitrator has a greater freedom to find a solution and can intervene more pro-actively than in a litigation.

In a mediation, the emphasis is driving towards a mutually agreeable conclusion and not being correct to a point of law.

If this principle of “Win-Win” is understood and implemented, then the society will be lot better in the next decade when the pending 3 crore cases are resolved by Courts since they will not create 3 crore dissatisfied losers trying to take revenge on other 3 crore winners,  rather than having 6 crore happy resolved formerly disputing parties.

(P.S: I agree that all disputes are not amenable to a Win-Win solution. But the principle needs to be appreciated). 

If we agree, the question then arises….

a) If I am a professional advocate or a domain specialist

Should I become an Arbitrator?

Should I ask my clients to include an arbitration clause in the agreement providing for “Online Arbitration on the technology platform of www.odrglobal.in”?

…. perhaps it is time to consider.

b)  If I am a Consumer facing organization, say a Bank or a White Goods manufacturer or a Service provider, or an e-Commerce player,

Should I start incorporating the ODR clause into my contracts?…..(with odrglobal.in as the technology platform)

…. perhaps it is time to decide

This transformation from a “Litigation Mindset to ODR Mindset” could be an innovation in the dispute resolution industry that can wipe “Every tear from Every eye”….an evergreen mission for all nation builders.

Whenever we discuss an “Innovation” with established  industry practitioners, we come across a dilemma.

They often ask….

Should I be the first to try out? Are there some unknowns which I cannot identify?.

Most of the conservative practitioners come to the conclusion, let me not be the first..  Let me wait for others to implement the innovation and then come in.

No doubt this is a common human trait and we need to respect the cautious attitude of such “Safety First-Innovation Next” kind of professionals.

But behind this attitude lies the quality of management .. “Should I be a Leader or Am I content being a “Follower”.

The entire “Start Up ” industry is built on this premise that “Innovation is the Key to Success”. No doubt some or even many innovations may fail. But as long as the innovator hedges his risks to the extent that he will not go down with a failed innovation, there is no reason for not trying to be an innovator.

In fact it is the few innovators who succeed who turn out to be the industry leaders and icons.

Today, I would like to ask a question to all the Legal heads of companies including the Infosys, Wipro, Flipkart , as well as the Toyotas, Whirlpools, Citi Bank or State Bank etc, or for that matter any consumer facing Company why they should not take the lead in using ODR as a dispute resolution mechanism between themselves and the Customers.

It would be an “innovation” that may distinguish them as a leader rather than a follower. Will these companies who are known leaders in their respective fields bogged down by the thought “Let others try…then I will follow..”. I hope not.

I call upon all the legal heads and business heads of companies to step into this new world of ODR and contribute to the vision of “India as a Global Hub of ODR”.

I request all readers to forward this post to any of their known legal contacts in the industry and seek their response and feedback which may be sent to Naavi



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“Even when my client is negligent, the liability can be on me”- Lesson from TCS-Epic dispute

The US$ 940 million penalty imposed on TCS by a US district Court (Wisconsin) is to be considered as a watershed moment in the history of data security management in India since it involves one of the most reputed IT companies of India and what could be  a silly information security negligence.

What is also important to note is that the kind of contravention that TCS has been accused of is some thing many other companies in India are also indulging in as a matter of routine.

Some times these incidents of information security negligence arise out of ignorance of individual employees but when it goes undetected and even supported by several employees and their team leaders, one wonders ..

…”How come none of these people were aware of the basic information security routine?”

It is possible that TCS may fight it out in the court and get the penalty reduced. But there are many lessons Indian companies need to learn from this episode including,

” Even when  my client is negligent, the liability can be on me”

To understand the reasons how a Rs 6000 crore liability arose on TCS (Bigger than the Satyam liability in the case of UPaid patent infringement in rupee terms), we need to look at the details of the case well explained in this article in wire.in (Article in wire.in ).  Another  article in business Standard debates on the amount of the penalty.

Essentially, the incident involves employees of TCS accessing confidential information on the information systems of Epic Systems, a health care software company which has accused TCS and Tata America International Corp (American arm of TCS) of “Brazenly stealing trade secrets, confidential information, documents and data”. One of the allegation is that TCS built a competing software called “Med Mantra” using stolen intellectual property of Epic Systems.

According to the details now available, the case involves three (possibly four) parties namely the TCS, Epic Systems and Kaiser Pemanente,  a health care organization, one of the subsidiaries of which is includes a chain of Kaiser Foundation Hospitals. In view of this there is a HIPAA-HITECH angle and possible health data compromise which could lead to more damage claim on Kaiser and may be through Kaiser, on TCS. There is a previous client of Kaiser who may also have a role to play in this game of negligence.

Kaiser was using a software of Epic for hospital management since 2003 and TCS was a consultant to Kaiser and had also signed an agreement with Epic stating “Epic’s program property contained trade secrets of Epic protected by the operation of law”. In 2011, TCS was engaged by Kaiser to test Epic Software through approved off shore development centers in Chennai and Kolkata where certain data security measures were to be in place. Such data security measures  included simple things such as web access being blocked, USB ports being blocked etc.. essentially to ensure that the employees donot get unauthorized access to Epic’s data.

(It may be noted that the testing environment ought to have also taken measures to be “HIPAA Compliant” since there was an exposure to the data compromise risk involving individually identifiable health information of US citizens though this point is completely missed in the discussions so far).

It appears from the records that TCS failed to have adequate information security measures in place in the development centers.

Additionally, during the testing process, TCS employees regularly required access to some internal documents of Epic since it was the essence of the testing process. Such documents were available in Epic servers and ought to have been selectively released to the TCS employees under authorization of Epic whenever required on a need to know basis.

To make the process simple, it appears that when required, access was granted  to the Epic’s proprietary data such as “Release Notes” which were the foundation documents for the testing process directly to TCS employees.  While one process was for the request to be made by TCS to a Kaiser employee for the relevant documents and for Kaiser personnel to download the document and provide access to TCS employees, a work around was initiated where TCS employees acted on behalf of Kaiser, accessed and downloaded the documents directly.

It is here that we can say that Kaiser was negligent in allowing such access but TCS could have refused to take such access as offered and raised the flag of potential breach of information security principles.

One of the employees who was earlier working with another Kaiser client and who had at that time given access to Epic system (UserWeb) then joined TCS and started working on the project. But this time he felt that not having a direct access to Epic system was delaying things and therefore checked if his earlier access to UserWeb was still working. Since to his surprise, neither his past employer nor Kaiser nor Epic had disabled his access, he felt happy and continued to use the old company’s access to do work for TCS. He also shared this access credentials with other members of his team and they all used it to access and download documents from Epic, impersonating themselves as the ex-employee of another firm without understanding the gravity of the situation.

The fact that these TCS employees are unaware of the risk of sharing passwords that too of a different firm indicates a complete failure of the training provided and the security culture prevailing in the team.

Here again there was gross negligence of the earlier employee of that erring employee, Kaiser and Epic which contributed to the unauthorized access.

While it remains a matter of debate if TCS or its employees can be charged of bad intentions or misuse of the IP for developing a competing product etc which are allegations in the course of a legal trial, the fact that there was an information security failure at TCS, EPIC, Kaiser and the unknown Kaiser Client where the erring employee was earlier working, is apparent.

Who has to take how much of the blame and how much of loss is a matter which the Courts can decide.

Will the Courts be able to appreciate this as an “Information Security Failure” and not “Hacking” depends on how mature are the Judges and how efficiently lawyers present their case.

Before I end, I cannot but express my feeling that it would have been better for all the parties concerned if this dispute had gone to an arbitration where technology and information security experts had sat in judgement rather than the Juries and Judges who may be more conversant with Computer Abuse law than the nuances of Information security governance.

Perhaps here is a case for TCS and the like to consider odrglobal.in as the dispute resolution mechanism at least in future. Of course odrglobal.in is only a technology platform and the adjudication of liabilities have to be assessed by experienced arbitrators who need to be appointed.

I call upon the IT industry in Bangalore to set up an “International IT Arbitration Council” and invite NASSCOM and STPI Bangalore to to take up the necessary initiative.



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Challenging Arbitration Awards under the new Arbitration Act

One of the important changes that the new Arbitration Act in India (Arbitration and Conciliation Act 1996 as amended in 2015 or ACA 1996/2015) has brought in is in the matters relating to the Finality of Arbitration Awards.

Under the replaced section 36 of the Act on “Enforcement”, it is now stated that

” Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.”

This provision means that unless a stay is specifically granted, mere filing of an application for setting aside an award shall not result in the arbitral award being enforced like a decree of a Court.

As a result of this provision, it becomes necessary for the objecting party to satisfy the Court that a stay is necessary and there is a substantial case under Section 34 for the award to be set aside.

Under Section 34 of the Act, an arbitral award can be set aside only if the party furnishes proof that

a) A party was under some incapacity

b) Arbitration agreement is not valid under law

c) Party was not given proper notice of of the  Appointment of the Arbitrator or of the Arbitral Proceedings or that he was otherwise unable to present his case

d) Arbitral award was beyond the scope of the submission to arbitration

e) Composition of the Arbitral tribunal was faulty

Readers will appreciate that the procedure adopted by ODR Global (www.odrglobal.in) for Virtual ODR, effectively captures evidence that can be used to prove or disprove any of the above points when a Court sits in judgement. In the absence of the CEAC certified recording that ODR Global provides, it would be difficult to prove only with the copy of the Award that the point such as “was unable to present the case” can be proved.

Another factor under which the award can be set aside under Section 34 is when the award is in conflict with the public policy of India. This is a clause which is subject to interpretation and debate and could be a difficult aspect to prove.

The points that constitute conflict with public policy are

a) award induced by fraud

b) award induced by corruption

c) award was in violation of Section 75 (Confidentiality clause in a conciliation)

d) award was in violation of Section 81 (Production of evidence used in a Conciliation)

In connection with the above, it must be pointed out that the Virtual ODR process includes a role for an intermediary and the protection of confidentiality of a Virtual Conciliation proceeding rests with the confidentiality agreement that the Administrator of the ODR (eg: ODR Global) signs with the parties to the conciliation.

This view is recognized by the UNCITRAL Draft law on ODR which is in the final stages of being approved by the UN which states that the ODR Administrator shall follow a “Code of Ethics and The ODR administrator should adopt and implement appropriate confidentiality measures”.

Also the application under Section 34 should be made within 3 months after the receipt of the award.

Further the application shall be made only after serving a notice to the other party.

With all these conditions, the Court is expected to dispose off the application within one year.

The above safeguards indicate that getting an arbitral award delayed or over turned is not easy in most cases. In genuine cases, where the award needs to be challenged, the evidence that supports any of the requirements of Section 34 is very important.

A further appeal of the setting aside or refusal to set aside an award under Section 34 can be appealed in a higher Court and could be a possible means of delaying the award by one of the parties. But in view of the fact that “Stay” is not a presumption, the decree can be enforced even if the appeal is being discussed in a higher Court.

Parties entering into Arbitration must be aware of the finality of an award and ensure that at every point of the arbitration such as appointment of the arbitrator, meeting the deadlines in notices, placing its claim or defense, providing evidences before the Tribunal, or pressing for oral hearings and arguments etc, sufficient care is exercised so that they donot lose an arbitration by virtue of the laxity of the disputing party or his counsel. This adds an extra sense of responsibility on the Counsel as well as the choice of the Counsel by the party.

Despite a long history of Arbitration in India, with the new Arbitration Act there is a need for all Arbitrators as well as Counsels to study the material changes that have occurred in the Act an ensure that they donot contribute to any fault or error in the award.

In this connection it is also necessary for the Counsels and Arbitrators not to be mis-led by past Case laws which might have been decided under the old Act and apply it blindly to the new Act. In this connection, we may recall the Sundaram Finance Ltd V NEPC India Ltd  judgement in Supreme Court where the Court observed,

“… The Act of 1996 is very different from the Arbitration Act of 1940. The provisions of the Act of 1996 have, therefore to be interpreted and construed independently and in fact reference to the 1940 Act may actually lead to  misconstruction…”.

The above words hold true in the context of Act of 2015 modifying the Act of 1996 rendering most of the Case laws of the past being rendered not applicable in the current context. Legal professionals by force of habit should not simply quote past decisions and assume that the precedence would be acceptable even under the new law.

It is for this reason that this website tries to discuss the new law in great detail so that we can understand the difference between what the advocates studied and practiced until last year and what they are now confronted with.


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Multi Member Arbitration Panels will be the order of the day

One of the aspects of the Arbitration Amendment Act 2015 is on the reference to the “Regime For Costs” under Section 31A of the amended Act.

Some of the Judicial professionals have not been happy with the “Model Fee” as suggested in the fourth schedule which is reproduced here below.

THE Fourth SCHEDULE (See sections 11(14))

Sum in Dispute Model Fee
Up to Rs. 5,00,000 Rs. 45,000
Above Rs. 5,00,000 and up to Rs. 20,00,000 Rs. 45,000 plus 3.5 per cent. of the claim amount over and above Rs. 5,00,000
Above Rs. 20,00,000 and up to Rs. 1,00,00,000 Rs. 97,500 plus 3 per cent. of the claim amount over and above Rs. 20,00,000
Above Rs. 1,00,00,000 and up to Rs. 10,00,00,000 Rs. 3,37,500 plus 1 per cent. of the claim amount over and above Rs. 1,00,00,000
Above Rs. 10,00,00,000 and up to Rs. 20,00,00,000 Rs. 12,37,500 plus 0.75 per cent. of the claim amount over and above Rs. 1,00,00,000
Above Rs. 20,00,00,000 Rs. 19,87,500 plus 0. 5 per cent. of the claim amount over and above Rs. 20,00,00,000 with a ceiling of Rs. 30,00,000

In the event, the arbitral tribunal is a sole arbitrator, he shall be entitled to an additional amount of twenty-five per cent on the fee  payable as per the table set out above

The above is a “Model” fee structure and the High Court may modify it to the extent required as indicated in the section as under:

(14) For the purpose of determination of the fees of the arbitral tribunal and the manner of its payment to the arbitral tribunal, the High Court may frame such rules as may be necessary, after taking into consideration the rates specified in the Fourth Schedule.
Explanation.—For the removal of doubts, it is hereby clarified that this sub-section shall not apply to international commercial arbitration and in arbitrations (other than international commercial arbitration) in case where parties have agreed for determination of fees as per the rules of an arbitral institution.’’

However, it can be implied that without a specific enhancement granted by the Court, the schedule fee may be considered as the “Upper Limit” of what the law considers as “Reasonable”.

We may also note that the schedule mentions that if the Arbitral Tribunal is a sole arbitrator, he shall be entitled to an additional 25% of fees. This confirms that what the schedule represents is the total fees that has to be shared by all the members of the Arbitration Panel.

Some of the major Arbitral Instutions  in India used to specify a schedule of fees in their rules and indicate that the scheduled fees would be applicable to each of the members of the Arbitration Panel. This used to discourage the parties in going for multi member Arbitration Panel which is good to enhance the credibility of the Panel. Now that the schedule mentions that the fees mentioned in the schedule is for the total panel, it actually encourages setting up of a multi member panel for all arbitrations.

However, if any Arbitrator or an Arbitration panel decides to charge a fee lower than what is specified, there is no reason for any Court to object.

One should appreciate that today there may be some lawyers who charge lacks of rupees as fee for their appearance but Judges do function under a fixed salary basis. But the salary regime does not incentivise quick disposal of cases and few judges who quickly dispose off cases are actually frowned upon.  The Arbitration fee regime is however based on “Per Case” basis and if an arbitrator can handle multiple cases, he will make reasonable money as compared to a Judge. In case of small ticket arbitrations where the fee may be low, the arbitrator has to complete the arbitration in one or two sittings or without any oral hearing so that his remuneration would  more than compensate for the time, effort and expertise he brings into the proceedings.

It may also be noted that the amended act provides that Arbitrations should be completed within 1 year unless an extension is agreed upon by the parties (upto 6 m0nths)  or granted by a Court and if an arbitrator completes an arbitration within 6 months, he can claim an additional fee with the consent of the parties at the time of appointment.

Another interesting aspect of the Amendement is that if a Court is extending the time allocated for an Arbitration and the reasons for the delay is attributable to the Arbitrator/Panel of Arbitrators, the Court may reduce the remuneration by 5%.

Thus the Act now incorporates a fixed time for completion of arbitration and a possible incentive for early completion and a possible disincentive for delays caused by the Panel. This is superimposed with a model fee structure which could define an upper limit for the fees.

These measures have not been to the liking of some of the Arbitrators who are presently active but are considered as a “Consumer Friendly” move of the Government and reasonable in the context of reducing the cost of dispute resolution in general.

The business community should welcome these moves.


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Procedural Flexibility in ADR

Alternate Dispute Resolution (ADR) focusses on delivery of justice free from the complexities caused by the age old processes under which “Litigation” system works in our Courts.

An attempt to improve the litigation process has always been at the heart of any judicial reforms. One example for such attempt is Information Technology Act 2000 (ITA 2000) which introduced the system of Adjudication, as an “Enquiry” process and both Adjudicator and the Cyber Appellate Tribunal were freed from the procedural binding of the Civil Procedure Code while conferring the powers of the Adjudicator and the Cyber Appellate Tribunal equivalent to a Civil Judge.

The system of ADR introduces a whole new paradigm of Dispute Resolution where all desirable innovations can be introduced by an Arbitrator or an Arbitral Institution. No doubt that even these innovations can be challenged, but such objections are difficult to sustain unless it was proved to unfair. In the light of the systems like ODRGLOBAL.IN where the proceedings are recorded and would be available for proving whether the proceedings were conducted in a fair manner or not, objections on the ground of unfair treatment of one of the parties would be almost impossible.

We can therefore say that ADR in general and the unique process used by entities such as ODRGLOBAL.IN in particular, provides for innovation on the party of the Arbitrator that is within the legal process but would provide better convenience, quicker completion and lower cost. The Arbitrator should however take care that the provisions of Arbitration and Conciliation Act 1996 as amended in 2015 (ACA-1996/2016) should be followed diligently. We shall therefore examine some of the key requirements of the Act as regarding the conduct of the proceedings.

The parties to an arbitration first agree on the choice of the Arbitrator (or an arbitral institution which may finally appoint an arbitrator) and a process for appointing them right in the agreement. Once an Arbitrator is appointed to the satisfaction of the parties, the responsibility for the fair conduct of the proceedings pass onto the Arbitrator.

According to section 18 of the ACA-1996/2015, it is the responsibility of the Arbitrator to treat all parties with equality and give full opportunity to present their case. The Arbitrator is neither bound by the Code of Civil Procedure 1908 nor even the Indian Evidence Act as long as the principle of fairness can be proved.

In order to avoid any charge of improper procedure it is desirable that the Arbitrator follows a structured procedure which is also made known to the parties. This is done by arbitral tribunals by developing a set of “Rules of Arbitration” which is applicable to all arbitrations conducted under the aegis of the tribunal by its members.

Such procedure includes the following principal issues

1. How Place of Arbitration is fixed
2. How notices are served and acknowledged
3. How Counsels participate
4. How documents are exchanged
5. How the hearings are held
6. How arguments are presented
7. How witnesses are produced
8. How costs are split
9. How much time is allocated
10. How the award is delivered etc.

Where the parties usually live in different places and the Arbitrator is located in a different place, the choice of the Place of arbitration itself can be a point of contention since it does impose an extra cost of time and money on outstation parties. Unless both parties are located in the same town or they adopt the neutral venue as in the case of an ODR (Online Dispute Resolution) process, the choice of any town is bound to add an element of cost.

Some times, “Experts” are sought to be brought in as “Witnesses” and “Expert Counsels” are sought to be appointed if the subject matter of dispute needs technical or subject matter expertise for satisfactory resolution. If such experts are to travel and stay in the place of arbitration, the party using their services have to meet such costs. In small ticket disputes, these influence directly on the delivery of justice and the ability of the parties to have a satisfactory resolution.

Similarly, the number of hearings in which different parties need to assemble at a particular place multiples the cost unless solutions are found to either rotate the place of hearings between cities convenient to different parties or use of ODR is resorted to.

Also the procedure by which notices are delivered without loss of time and integrity and without providing excuses to any parties to claim non receipt is also a point to be considered while designing the procedure.

While the Arbitrator may be neutral to the way the costs are split between the parties which is a matter to be settled in the contract, he may define his fees as well as the cost of administration, cost of the meeting place to be paid if it is hosted by the Arbitral Institution, cost of travel and stay of the Arbitrator etc. and load it first onto the person who invokes the Arbitration and later based on the award.

If an Arbitrator wants to act as an independent entity not affiliated to any Arbitral Institution, then he needs to develop his own set of Arbitration rules which are reasonable and suit both the convenience of the parties as well as the requirements of the ACA-1996/2015.

In this context, it may be of interest for readers to study the “Model Rules of ODR” that are being formulated by the Global Forum of ODR Professionals working with ODRGLOBAL.IN which needs to be not only in conformity with ACA-1996/2015 but also the Information Technology Act 2000/8 as also the principles of the UNCITRAL Model Law on Arbitrations under development.

The Arbitrators can make use of the Model Rules as a template and tweak them with modifications that they find it necessary for their own Arbitration proceedings. If properly constructed, conveyed to the parties and consent obtained, the risk of the awards being challenged can be substantially reduced and the objective of fair and quick justice delivery which is the core theme of ADR will be realized.



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Why all Arbitrators cannot be Effective Mediators

Arbitration and Mediation are often spoken off in the same breath as if the two are closely related. Though Arbitration and Mediation belong to the family of “Alternate Dispute Resolution” (ADR), it is to be recognized that the processes are widely different and requires different skills. All Arbitrators donot make good Mediators and need to accept the situation and live with it.

Where as in a Mediation, the intervening neutral party namely the Mediator tries to bring about a settlement between the disputing parties by using his “Behavioural Analysis Skills”, without the legal authority to issue a mandatory order, an Arbitrator has the authority given to him by the parties themselves to issue a binding award.

There is a third type of ADR process called Conciliation which is similar to Mediation but where the Mediator is a person with some authority and respect and therefore can nudge the parties to come to a settlement though his legal authority is not more than that of a mediator.

An Arbitration is more suitable when the disputes are likely to have legal issues to be interpreted. Mediation/Conciliation is more suitable when the issues to be settled are technical in nature or involve emotional issues.

When a legal practitioner is called upon to assist in a Mediation process as a Counsel or act as a Mediator, the legal practitioner has to understand the nature of the dispute and whether he should accept a role in the resolution.

When we try to resolve an “Emotional” issue through a judgement of a Court, even if the judgement is given by an authoritative Court, the parties may end up dissatisfied. Similarly issues in which lot of technicalities are involved may easily be mis-interpreted even by experienced Judicial authorities.

If the objective of “Dispute Resolution” is to bring about an amicable settlement or what we call as a “Win-Win” outcome, there is a need to explore the Mediation and Conciliation options more than Arbitration and Litigation.

An advocate by nature is trained to look at issues from the point of view of a legal provision and earlier Court decisions. Similarly, when a Judge acting as an Arbitrator looks at a dispute, his primary focus again is on what the law says.

Mediation on the other hand works on bringing about a settlement between the disputing parties in a fair manner without any party being mislead about their rights or not being given a fair opportunity to assert their rights.
Some times a resolution which both disputants agree upon may not find a direct provision in law or it may even appear to be different from an earlier Court decision. A trained advocate would find it uncomfortable in accepting it as a proper resolution even when it is the informed choice of the parties.

The Mediator as well as any advocate who participate in Mediation to assist the parties should be able to fully digest this difference between the litigation and arbitration process on the one hand and Mediation on the other and discharge their responsibilities.

In behavioural science, there is a term called “Role Set”. It is a tendency to behave in a set role pattern even when the person has moved onto to a different role responsibility. In a simple example, when a subordinate “clerk” is promoted and pushed into a decision making “Officer” role, he often continues to behave more like the Clerk than an officer, He often is reluctant to take decisions, and expects some body else to take the decision which he may efficiently implement. This has nothing to do with inefficiency but because of a habit formed in the earlier role with which he is comfortable. But in an organizational environment, this “Role Set” behaviour is dysfunctional since any person promoted to a higher responsibility fails to get over his behavioural traits of the previous position and therefore becomes less effective than what he should otherwise be.

In the same manner when a good Judicial person or a Good lawyer moves into a Mediation room, they may have a tendency to replay their litigation experience and bring in the known CPC procedures and Case laws to settle the mediation. They may not realize that their role in the mediation should be only to maintain an informed decision making environment in which the disputing parties come to a settlement in a manner which will retain their friendly relationship with which they entered into the earlier contract so that they can move on in life after resolution as if the dispute is a thing of the past.

There is no doubt that this is difficult for established advocates to appreciate and accept that a “Win-Win” solution is better in mediation than a “Win-Lose” situation which is the average norm in litigations.

It is for this reason that subject experts and non advocates become more effective Mediators as we see in the field of “Marriage Dispute Resolution”. In an emotionally charged situation such as a “Divorce”, it is the spirit of reconciliation which is a better option to be invoked rather than what is the “right” under law. Successful divorce advocates are therefore more “Counsellors” than advocates and should be able to switch roles easily.

Though business disputes need not be as emotional as a divorce, Advocates and Mediators who engage in Mediation must consciously avoid the “Role Set” problem and be able to think differently.

Probably, Mediators or Advocates in Mediation need to undergo a “Behavioural Training” to understand the problems of “Role Set” and how to overcome them.



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