Judge - Mediators in the Indian Court-Annexed ADR Schemes

Years back I happened to meet two particular lawyers after a long time. They were both from one of the Mediators’ Training Courses where I was a Co-Trainer. One of them excitedly mentioned that he had already gotten an opportunity to be a Mediator and surprising, it resolved in 2 hours’ time. On hearing this, the other lawyer with him joined the conversation by exclaiming that 2 hours was quite a long time and that his first mediation settled in under half an hour. Though I kept an excitedly happy front, I started wondering where I had gone wrong in the imparting of the mediation training. It was hence relieving to understand during the conversation that in both their cases the parties were quite desperate to settle and the respective lawyers too were supportive. All that had stopped them from settling earlier was the opportunity to get to the talking table – they already had alternate solutions in their minds, one or the other of which would, with some tweaking, be acceptable to all concerned.

I was reminded of the aforesaid ‘2 hours and less’ conversation with my colleagues at the Bar, when I got the understanding that nowadays that is sometimes the length of time the Judges take to get a case settled when they sit as Mediators. Considering the short span of time in which most settlements take place, one wonders whether the whole of the Mediation Process is being followed or just a few steps are cursorily gone through and then a settlement is suggested like in Conciliation - an evaluative form of mediation. In some matters, where parties are yearning for a closure, certainly two whole hours may also seem long. However, that does not seem to be the case as in that event they would have agreed to Conciliation, where they would have gotten the benefit of some sound neutral suggestions. The very fact that the matters going for ADR under Section 89 are taking the Mediation route indicates that the parties are not readily willing to consider settling their differences with the other side.

It must be appreciated that the compulsion to refer matters to Mediation rather than Conciliation, Judicial Settlement or judicial settlement through Lok Adalat – the other three resolutionary processes - is that the Honourable Supreme Court has clarified in its 2010 judgement in the matter of Afcons Infrastructure Ltd. v Cherian Varkey Construction Co that consent of all parties is necessary for referring matters to other ADR mechanisms, however, no such consent is necessary for referring the matters to Mediation. And that raises the question that if parties are not consenting to consider ADR in the first place, how is it that they are able to settle through Mediation in just a few short hours.

The practicality in preferring Judges for doing the mediations is that there are no funds available to pay outside mediators and, in any event, the eminence of ‘Judge-ship’ lends its own weight to the speed of the process.

There is now a thought mooted in some jurisdictions that Judges should have at least two settled cases per month. This seriously puts the pressure on Mediator-Judges to somehow or the other achieve a settlement for the Referral Judge who refers the case to them for Mediation. And they want to do it equally for themselves too, for both - the Judge referring the matter to Mediation, as well as the Judge Mediating the matter - get one ‘Point’ each, which ‘Points’ aid in gauging the performance of the Judges.

Here, now, is created an Ethical issue of grave proportions. A Mediator is a ‘Neutral’ person and is hence required to not have any stake in the outcome of the Mediation he conducts as a Mediator. Due to ‘Points’ being awarded for successful mediations, the Judge-Mediator loses the garb of ‘Neutrality’. Hence this is an issue which must be seriously and urgently considered by the Courts while continuing with, or chalking out, their strategies for Court-Annexed Schemes under S.89.

The greater concern emanating from the above-mentioned scenario is that the way the table is set – the pendency is high, there is pressure to reduce it, the Mediation process is confidential and points are being awarded for a disposal through ADR – there is a very good chance of an emerging competition amongst the judges to get the maximum disposals in some way or the other whether as referral judges or as mediator-judges.

In lighter vein, allowing this state of affairs to emerge will certainly reduce the pendency twice over – one, directly by getting a sizeable amount of cases settled through mediation by judges; and two, thereby discouraging others from approaching the Courts of law, for it robs the litigants of even ‘procedural justice’ which requires that if the case is referred to mediation, all the stages of the Mediation Process are patiently gone through.

One view is that they are small matters in lower courts in which this system has been implemented. In reality, small or large is a perspective – a matter worth a few Lac (Hundred thousand) Rupees may be small for the rest, but for someone who can never earn that much in a decade or who has invested all of his emotions, equity and efforts in that matter, it often is his life!

And that is not the end of the saga. The paramount concern may be understood thus: Busybee, a very popular journalist of his time, noted in his regular column ‘Roundabout’ that he had by now consumed so much ‘local Scotch’ that if anyone were to offer him genuine Scotch, he would probably spit it out as if it were spurious stuff. Similar is the concern for Mediation. If Judges continue to do what they do in the name of Mediation - do a quick conciliation or have a settlement conference instead of going through the whole Mediation Process - people will get a wrong notion about this wonderful dispute resolution mechanism. And the disservice thereby done to the ADR movement down the years will never be able to be justified by whatever gains made in the Court-Annexed ADR Schemes.

The Scotch scenario is virtually guaranteed for Mediation in India, as another point being mooted is to have these very same Judges, who are successful in settling matters quickly, to be the Trainers for future Mediators! And therefore more and more Mediators will be trained and coached in the same mould - to be effective Settlers rather than Facilitators of a conversation, a resolution, a healing.

The irony of the whole situation is this that S.89 was introduced in the CPC keeping in mind that the Court dockets are burgeoning and we do not have enough Judges to take care of the work-load. And it was to ease the pressure on the Judges that a wide array of ADR mechanisms was introduced vide S.89. And now, the burden of handling that very system is gradually being made to be shouldered by the Judges, who were supposed to be given some respite with the introduction of S.89!

Conclusion

One way forward would seem to be to arrange government funding to pay for the mediators’ services. However, that is not only a long-drawn, uncertain process, but unrealistic too from one point of view: ‘Why should the government first pay for your quick redressal and then return the court fees paid by you at the time of filing the case in the event of you settling your litigated dispute under S.89 as per the amended law?’

Thus, the most just and fair approach from the point of view of the litigants is to refer them to their Court’s Mediation Centre where they can go through a roster of Mediators maintained by the Centre which stipulates the respective mediators’ credentials and fees, wherefrom they may select their Mediator and pay him/her in equal proportion. In fact, it is part of the Mediation Rules in most, or probably all, jurisdictions that Parties are to be first given an opportunity to “agree on the name of the sole mediator for mediating between them”.

Hence, appointment of judges as mediators is not to be preferred as a matter of course. Even the Supreme Court has stated in the aforementioned judgement of Afcons Infrastructure Ltd. v Cherian Varkey Construction Co that “Where the facility of mediation is not available or where the parties opt for the guidance of a Judge to arrive at a settlement, the court may refer the matter to another Judge for attempting settlement.” The roster of Mediators may therefor also include the names of Judges who are trained and mentored for doing mediation and who are ready & willing to go through the whole Mediation Process in letter and spirit.

In spite of the Indian Judiciary being held in very high esteem internationally for its almost consistently sound judgements down the ages, it is suffering a bad reputation for the delays in dispensing justice thanks to the burgeoning court docket. Whereas it has thus far been held guilty of delayed justice, it could soon be held responsible for denial of the procedural justice, due to several stages in the mediation process being skipped by the mediator-judges. Interactions with lawyers having attended mediation sessions before Judge-Mediators make this reality seem a routine state of affairs. This must stop forthwith – all Mediators, even if they be Judges, must follow the mediation process as imparted to them in the 40-hour training.

As long as the mediation process is adhered to, it matters not whether the mediator is a Judge or any other person. However, it is essential that the said person, by virtue of getting parties to settle, should not have any personal benefit clubbed to that settlement. And where a referral judge chooses the mediator for the parties, he too should not be awarded ‘Points’ for such successful referrals as he may then get inclined to force parties to appear before mediators who would somehow ensure a settlement, thus guaranteeing the referral judge the desired ‘Point’. It is hence necessary that the ‘Point’ system MUST be withdrawn forthwith from the Court-Annexed ADR schemes nation-wide to prevent unsavoury practices from entering the system.

Author:  Prathamesh D Popat – Counsel, Bombay High Court, LEADR Accredited & IMI Certified Mediator – prachimediation@live.com