Welcome move by BCI to make mediation compulsory

Dual Benefit: BCI’s decision will encourage foreign investment in India. The active encouragement to mediation given by Justice Sharad Arvind Bobde, CJI, Justice Suryakant, judge, Supreme Court and Justice A.K. Sikri will be remembered.

In a news that comes as a breath of fresh air for the legal sector in India, the Bar Council of India (BCI) has made mediation a compulsory subject. All universities, centers of legal education have been directed to incorporate medication as a compulsory paper from the academic session 2020-21.

BCI has made mediation subject both for 3 year and 5 year integrated courses of law, both honours and non honours. The students would have to be provided practical skills apart from theory by the colleges and learning centers, says the directions issued by Srimanto Sen, Secretary, Bar Council of India. 

Justice Suryakant, even while serving as a judge at the Punjab & Haryana High Court, had encouraged the practice of mediation to reduce pendency. He also gave his wholehearted support to programs and gathering that encouraged mediation.

Justice Arjan Kumar Sikri, the then sitting Judge of the Supreme Court had told me that over 90 per cent of cases in America are settled through mediation. This ensures that the courts there have low pendency of matters. Plus unlike in litigation, whatever happens in mediation is confidential and helps maintain relationships. Commercial disputes are best cases for mediation.

Over the years I have observed that even the best of the law schools teach how to argue better or pin the other side down on an issue. Now that is that not the circumstances demand, today, industry, individuals, disputants are expecting a solution oriented approach, rather than a win lose approach. The definition of justice stands fairly blurred, pertaining to matters which are civil, commercial or any other matter which are not criminal in nature.

Parties are slowly adapting European and American way of dispute resolution whereby giving more emphasis to conflict resolution approach through existing Alternative Dispute Resolution (ADR) mechanisms including arbitration, mediation and conciliation possibly keeping this in mind and realising the importance of conflict resolution approach the BCI has made it mandatory as a part of the course curriculum for three years and five years LL.B programmes across the nation, which is a good step towards positioning India as a global leader and hub for mediation and conciliation. Given the fact that India is among the 50 plus nations which has signed the Singapore Convention on mediation, this is not just with this dispute resolution domestically but also will allow foreign investors to have Indian lawyers and counsels will be trained in the process of conflict resolution by undergoing the mandatory mediation training and practice curriculum across various law schools in the country.  

Various media reports and statistics have been repeatedly suggesting that global investors used to stay away from investing in India out of the fear of backlog in the courts and time taken for hearing the matter and closure of the same in India. To gather data around dispute resolution in India, Legally Speaking along with Gujarat National Law University (GNLU), Centre for Mediation and Conciliation (CMC)and Bridge policy think tank are conducting a detailed survey which will give an idea of what disputants think before approaching a particular dispute and how the wish it to be addressed for timely and effective resolution.

Recommended books for Mediation by Bar Council of India

The BCI has recommended books like Mediation Practice & Law: The Path to Successful Dispute Resolution by Shriram Panchu; Wishbone, Funnybone and a Backbone by Aunroop Omkar and Kritika Krishnamurthy; Mediation Training Manual of India by Mediation and Conciliation Project Committee, Supreme Court of India; Getting to Yes: How to Negotiate Agreement without giving In by Roger Fisher and Willian Uryan and Bruce Patton; An Asian Perspective on Mediation by Joel Lee and Hwee Hwee Tech; The Mediation Process: Pratical Strategies for Resolving Conflict by Christopher Moore and Introduction to Non Violence by Ramin Jahanbegloo on the subject of mediation.

Authors of recommended books by Bar Council of India say

Shriram Panchu, whose book has been recommended by BCI, said, “The growing importance of mediation in India as an effective method of dispute resolution has now been recognized by the BCI which has directed all the law schools in the country to introduce a 45 hour mediation component in the 3 year and 5 year law programmes. Mediation is a novel idea of dispute resolution, which is cost effective, time saving, consensual, party-centric and confidential. Introduced in 2005 in India’s court system, it has met with substantial success and is very much a part of official legal system as Court Annexed mediation. Now it is moving to be used in private professional mediation practice in a wide range of personal, corporate, commercial and civil litigation.”

While Anuroop Omkar, whose book also have been recommended by BCI said, “Mediation in dispute resolution is Aaatmanirbharta. As a mediator my mantra is keep trying, keep trying and be resilient. With closed, clogged courts and increasing disputes in these times, disputants, Bar & Bench have finally acknowledged the importance of mediation as a mainstream dispute resolution tool. My Years of advocacy, capacity building and awareness efforts have finally borne fruits”

“When I first went for my mediation training and internship to the USA and then to Europe, my worldview towards dispute resolution took a 360 degree turn. Large number of the contractual and debt recovery cases that come to my firm are resolved through mediation. M&A and private equity deals are curated not just for documentation and due diligence but collaborative and objective negotiations and if required, conflict coaching. Now the future lawyers of India can view their profession through a new lens. I hope they benefit from the practice of mediation as much as I did.  A new era of legal practice is on the horizon,” said Anuroop.

“Disputants are presently wrongly informed that mediation is an unenforceable compromise. The move is going to finally bring a culture change in the next generation of lawyers, jurists who will advice disputants that opting for facilitated negotiations through mediation before escalating to arbitration or litigation is the obvious first practical step. Taking inspiration from a quote Jyotirao Phule, if a mediator is trained, only a mediator is created. But when a law student is trained, the entire ecosystem of future dispute resolution and social consensus building is educated. This is going to ensure that not just lawyers or judges but future bureaucrats, political leaders, policy and developing professionals, representatives of India at international organisations, social workers and influencers are equipped to use mediation as a dispute resolution of first resort,” said Kritika Krishnamurthy, Co-Author of Wishbone, Funnybone and a Backbone.   

In times of pandemic and Covid-19, when physical hearings in courts are suspended and norms of social distancing are required to be maintained, Mediation as a tool for conflict resolution has come to the fore. Litigants have been drawn towards Mediation and have begun to realize it’s immense benefits. Mediation and Conciliation has been seen to lead to resolutions without undergoing arduous trials and moreover resolutions/solutions are arrived at, in a relatively lesser time. The Hon’ble Chief Justice of India is also keen that the art of Mediation is taught to LL.B students as it will go a long way in reducing the backlog and flood of cases. With litigants, students and Lawyers being more aware and keen about Mediation, this will be looked upon more as an option instead of filingsuits/casesstraightaway, says the BCI order.

With the introduction of Section 89 in C.P.C. alternative dispute resolution was sought to be invoked and used more, and courts have often started referring many matters under this provision. However, what is required is that students of LL.B and Lawyers are also trained in the art of Mediation and Conciliation to understand it’s true benefits and reap it’s true fruits which will pave the way for a great reform in the Indian Legal System, which will lead to reduction of burden on courts and quick and efficacious resolution being agreed upon by parties in disputes having varied points of conflict

This will lead to blending judicial and non-judicial dispute resolution mechanism and bring mediation to the centre of the Indian Judicial System. The long-drawn process of litigation, the costs incurred by both parties for the same have made Mediation an important aspect of the Judicial system to ensure swifter and speedier justice.

The purpose of Mediation and Conciliation is to provide amicable, peaceful and mutual settlement between parties without intervention of the court. In countries all round the world, especially the developed few, most of the cases (over 90 per cent) are settled out of court. The case/ dispute between parties can and should go to trial only when there is a failure to reach a resolution.

The teachers for such programs must be trained adequately. The qualification of teachers required to teach Mediation with Conciliation shall be decided by the Bar Council of India in consultation with any authority/institution as it may deem fit including U.G.C. For the moment, applications may be invited from the lawyers having at least 10 years of practice with theoretical knowledge and practical experience in these subjects, inclusive of trained Mediators/Conciliators, and from persons having 2- years LL.M Degrees in these subjects. Trainings will also be introduced by the Bar Council of India, in the near future and subsequently, such certificate/ Diploma holders would be preferred for being appointed as Teachers for teaching the subject of Mediation and Conciliation.

The Legal Education Committee of the Bar Council of India, while considering the letter of Hon’ble Chief Justice of India, Shri S.A. Bobde wherein it was desired that Mediation be a compulsory subject and BCI should take necessary steps in this regard, had resolved that Mediation should become a compulsory subject, which would enable students passing LL.B to become experts and proficient to enable parties to reach upon a successful conclusion.

Tarun Nangia is host & producer of Legally Speaking.