Mr. Sameer Shah
Advocate/Arbitrator/Mediator, Council Member- Alliance for Equality in Dispute Resolution
“In court we get law, in mediation we get justice”
A very good morning to all of you. In the world cup season, I am here as the first opener. And I’ll try my best to leave the team to success. The following sessions I am very sure would be equally interesting for you and you would learn something very important to take it back. Now before I start I would like to state a statement by late Benjamin Franklin and he said that an ounce of prevention is worlds, a pound of cure. If you try to analyse this statement in light of today’s session, they can gel very very well. That’s the importance of mediation. Mediation fits very well into this word ‘prevention’. How many of you has actually participated or had some experience on mediation but as was explained by the two eminent speaker in the morning session, it’s a process of dispute resolution alternate to the traditional court litigation.
Where two parties put a third party into neutral lose called a mediator to try to settle the dispute. The question here is not that they want to adjudicate; these are legal terms and try to understand what happens in court. The court, gives down a verdict or a judgement, a yes or a no. Right or wrong. However in mediation this is a major difference that there is no wrong no right. Both the parties are right. That’s the beauty of this process. It’s the most confidential process because in the court of law, there is public involved. Here, there is only two parties and the third neutral who is involved and is discussing basically, a very facilitative discussion takes place. I tell you what happens and it really is like this: two parties come and sit in a room and they just start discussing the issues. And during that discussion itself many times the trained mediator, the parties themselves allies as a solution. This is what solution is. The mediator is not going to suggest any solution. That’s his duty, he’s not supposed to suggest any solution. Not to lead you to something. But discussing with you the mediator is showing you a path towards resolution of the dispute. Now what is your purpose, ultimately from an SME purpose or from any other litigant perspective, what is your purpose? The purpose is the dispute is resolved and you go on. But this doesn’t happen in traditional court system. Again I will echo the thoughts of the two eminent speakers and this is because of our mind set. Our mind set is so traditional now, that if we are respondent then we will try to delay the things. We will try to see that the resolution or solution is delayed. You know, more so when there is an imbalance between the parties statuses. like what Mr Garg said , that these is a big entity and again there is a small entity, definitely the pressure is like that –the big entity will try to have pressure on the small entity to compromise on some terms which are against the interest of the small entity. That is what our traditional practice is going on. Thanks to our colleague lawyer also because we, also are not trained that way. We have this kind of a mindset. There is a big cycle that goes back to the legal education because even in our legal education we are not taught to have this kind of vision.
So anyway coming back to this, the importance is or the advantage is, that it is the most confidential process for any disputant to resolve the dispute. Second, it has the best of the party autonomy in the sense that it’s the party themselves that are arriving at a solution, nobody else is there to tell them wrong or right. Parties themselves who will finally say that this is what we have agreed upon. So this is all a party driven process. Again second aspect in our country is that we don’t have a law as such on mediation. We have rules, rules means we have procedures. That if parties are agreeing then this is the procedure which has to be followed. So again this is an important aspect that since there is no law, then there as such no said procedures to follow except that the parties should be given freedom to speak out and this is the forum that actually bring their hearts out and bear it. Now in process of mediation what we have is called private caucuses. What is private caucus? Private caucus is that mediator would meet privately each of the party. There must be certain information, certain discussion which one of the parties may not initially want to discuss out with the other side. So this process gives you that freedom to talk privately with the mediator and tell him/her that this is my problem. This is what is hindering my solution. So why don’t you discuss it with the other side? Then, the mediator would, with the permission of that party whether he/she should be discussing with the other side or not, disclosing the facts to other side or not. If the other side agrees, then the mediator will call the other part, will again have a private caucus and try to make them understand the situation of the other side. So it’s a very very facilitative discussion which is going on nothing like a court room, very informal and like I said you can bring out all you want to say during this process and come to a solution. Because as again echoing the thoughts of the earlier sessions, it is again ego which stops you. You know this is right or this is wrong, but your ego stops you. In this process, you can just do away with that. Openly you can say this is what I think, this is what I want, both the sides. And then, it is the job of the mediator to see that a balance is arrived between two litigants. But at the same time with giving an impression to the parties that it is the party themselves who have chosen this settlement. That’s the beauty of this process. Cost-effective definitely because it is less time consuming. I will just refer you the rules which have come up by the government- 3 months is given under the Commercial Court Act. Now, under the commercial court Act , now as the new rules have come up, if in a suit the parties or the court feels that there is no urgent remedy to be given-what we say is the stay orders, then the law says that you have to go and mediate first. 3 months is given to the parties to try and resolve out of mediation. So the government is also keen on infusing this practice, for the betterment of th e society as such, for the litigants as such. We have now rules adopted in the companies Act also, so when the government is also focusing on this, I think the time will come very soon when this will become the most sort after area of process. Then arbitration. Obviously, Arbitration has its own drawbacks but I am not making any comment which is good which is bad, but the fact remains that yes, arbitration has some drawbacks which mediation can definitely cure and the most important difference here, is what disputes can be referred to mediation? Mind you, in arbitration there are limitations. Under law, not all disputes can be referred to arbitration. However in mediation there are no such limitations. Any dispute, for that matter, can be mediated. As we say there is no law on mediation. So, there is no bar. Any dispute, you name your dispute as an SMEs, they can be referred to mediation. Why? Because ultimately what is happening. You are simply discussing it out. Simply sit, there is a discussion happening and through that solution you are coming to a solution. You see, try to understand why disputes occurs. You take in your normal life, in your personal relations. Dispute arises because there is a lack of communication-one party or two party stops communication. That’s when the dispute happens. Here, you are communicating. Actively communicating, discussing it out, what ever you feel, and discussing it out. And then arriving at a solution. Because that is why this is the most effective tool for an SME to resolve a dispute. Maybe against any party for that matter. Now as I said rules are there, government is also focusing on this particular process, you must accept this as your primary process of dispute resolution. Whether you adopt it through your contract which is most advisable because as per current laws if two parties are agreeing then only it can happen. If the other party is not agreeing then, it is a nonstarter, then matter goes back to the court. Therefore to overcome this lacuna as such it’s better to have a clause built in your contract that first, any dispute happening between the parties will be referred to mediation. You can set rules as who will be the mediator, where the mediation will happen, within which time will the mediation would happen. You can discuss all this in your clause. And then you can say failing, because as I said it is not necessary that mediation gives you a solution because you’re not actually adjudicating those solution there. So , it may happen that mediation fails, therefore you don’t land up in court, therefore if the mediation fails the dispute will be referred to arbitration. Finally, it will be decided in arbitration because in arbitration one way or the other a dispute has to be decided. That is the main difference between arbitration and mediation.
So therefore a short answer to the session I have been given is that any problem can be referred to mediation. Any and every problem, you name it and you can resolve. Because as I said, what are you doing. You are simply discussing it out and sorting it out. You are just opening that communication that stopped again to resolve it out. Now that’s what mediation is. Now I am ending it here, because this is what mediation is . Just to give you one example – 138 cases cheque bouncing. Daily it is happening and we have a law which states that it is criminal, still it is not decreasing it is increasing. Day in day out the number of cases are increasing- why ? Inspite of this deterrent that you can go to jail,it is increasing. So what is the problem? Problem is that if this is not working then there has to be some major issue. But in my view why this should land up in court in the first instinct. Because ultimately the law states that if you have a liability to pay somebody and your cheque bounces the offence is proved. There’s nothing more to do. Then why this much time? In more than 90% of cheque bounce cases, it is resolved through settlement. This way or that way. Maybe through the court , may be through the parties, they come out and say I will pay you in instalments, you do away with the interests and so end and so forth. Then why do you waste time in court? This can very well be mediated. In one session, I won’t even say a session. In one meeting , it can be resolved. Why? Again the issue of ego, lack of communication – you stop communicating because you issue a notice and then it lands up in a legal field and matter ends. Don’t do that, let’s try to mediate on that. So if these type of instances you work out, any place, any dispute can be mediated. So I will end with just one statement saying that, in court, you get law and in mediation you get justice.