Monopoly And Underlying Interests – A Response To On Going Mediation Debate
The article "Breaking the Mediation Monopoly– A reply to Senior Advocate Sriram Panchu" by Gopal Sankaranarayanan, carried in these columns on 28-06-2022 made very interesting reading. In mediation, we learn about the concept of "positions" versus "underlying interests". Though Sriram Panchu and K. Kannan appear to have taken seemingly conflicting positions on the aspect of judges monopolising mediation, their underlying interests are clear – that the integrity and credibility of the mediation movement should not be compromised. What could possibly be the underlying interests of the author of the above article? I have a few comments on some of the points made by the author in the above article which may, perhaps, help us to explore that and clarify his misgivings.
"Coupled with his other piece in the Hindu on 22nd June, his words have formed a most extraordinary assault on the Supreme Court as well as the reputations of some of its finest sitting and former judges, and regrettably displayed a complete discomfiture with fact and evidence."
The reference to the Hindu article dt. 22-06-2022 reveals the reason for the author's vehemence. The author is a senior advocate of the Supreme Court. His urge to defend his turf is understandable. But he needs to understand that people are concerned that "all is not well in the state of Denmark". Someone decided to set aside his bread and butter considerations and had the spine to point this out. The impugned article only points out the constitutional position and asks that it be restored in letter and spirit to protect the institutional integrity and credibility. References to individuals are contextual and by no means impute any motives to any of them. So why is the author incensed about what Sriram Panchu wrote? There is a thin line separating loyalty from sycophancy and it can easily get blurred.
"Mr Panchu's greatest error in this entire narrative is his abject naivete in understanding a judge's role and philosophy. Unlike advocates, judges have spent years devoted to resolving disputes and as any bencher will tell you, their first instinct in most cases is to look for a peaceful resolution. Among the various communities keen on becoming mediators, it is the judge who would need little or no training."
Obviously the author is ill-informed. It is universally accepted that to become a mediator you need to be trained in certain skills. Traditional judging of cases is antithetical to the concept of mediation. Any seasoned professional would have to undergo a process of unlearning and relearning to mediate effectively. We have the greatest respect and admiration for our judiciary. But attributing superhuman abilities to judges may not be loyalty to the institution. As gatekeepers of the justice delivery system, we should be vigilant and not fall prey to fanboy tendencies.
"Hundreds of judges across the country have carved out reputations as "mediation judges", the most prominent of course being the avuncular Justice Kurian Joseph, who has demonstrated the true force of mediation at the highest levels and set an example for how effective a tool it is."
Again this shows that the author is ill-informed. Justice Kurien Joseph is trained in mediation and he is a mediator par excellence. So also Justice Kannan. Their commitment to mediation as a system of case management and as a tool for providing access to justice is unquestionable. It is no one's case that retired judges should not mediate, and what is wrong in asking them to earn their spurs, like how Justice Joseph and Justice Kannan have? No less a person than Justice Sanjay Kishan Kaul has said on several occasions that mediation training helped him to become a better judge. Mediation training has several facets to it that help us to become less judgemental and more empathetic and better listeners than advisers. I invite the author to undergo mediation training and see the difference. Unfortunately, there have been instances where judges who have never had even a basic training in mediation have been appointed as mediators in private cases fixing exorbitant fees while the poor mediators are paid a pittance as "honorarium". If this is not monopoly, then what is? So what monopoly is the author trying to break?
"In addition, and this appears to be the motive for the poison pen, the fact that the institution has made great strides in such a short time with substantial success signifies the "end of India's mediation movement, for the process will end up being captured by retired judges" and would "create a monopoly"."
It is a genuine concern of those wedded to the concept of mediation that mediation should not go the arbitration route and become the monopoly of any group, including retired judges. In fact the field should open up for people having expertise in different domains.
"I would have thought that one who has presided over precisely such a monopoly in the mediation space would be happy to cede that to others – eventually, the mediator's interests are less important than that of the disputing parties, and if their issues are sorted out consensually and economically by judges or lawyers or psychologists or football players, such a monopoly ought to be a most welcome one."
All are welcome to become mediators, including psychologists, football players, cricketers, community leaders, retired judges et al. No one is claiming a monopoly or enjoying it. The concern is only to avoid such a monopoly and thus protect the interests of the disputing parties. I really appreciate the author's concern in this regard and only hope that he looks at all perspectives with a neutral eye.
The judiciary has made the greatest contribution to mediation. The MCPC has done a great job in spreading mediation to almost all the nooks and corners of the country. This could not have been achieved through private enterprise. All we are praying is that, please continue to do so. Many jurisdictions use mediation as a case management system to reduce the burden of the courts. Pre-litigation mediation is prescribed to provide an opportunity to disputing parties to resolve their disputes amicably and if that fails to come to court. The judiciary's role cannot be understated in both these arenas.
On the IAMC, I would like to borrow the words of an esteemed friend and colleague who said "let us not throw the baby out with the bath water". I have done some training work for the IAMC. It is run very professionally and there are some brilliant people running it. We need good institutions to take forward the mediation movement but at the same time make sure that there is a level playing field for all. That is how I understood the underlying interests expressed by both Mr. Sriram Panchu and Justice Kannan.
The author is an Advocate & Mediator, Madras High Court. Views are personal.