'Discourage Litigation, Persuade Your Neighbours To Compromise Whenever You Can'

'Discourage Litigation. Persuade Your Neighbours To Compromise Whenever You Can' -These words quite often echo in various advocate robing rooms, court corridors and stuffy conference rooms. The words are those of Abraham Lincoln and they remain as cogent and compelling today as they were years ago.

For centuries, lawyers in the UK have leaned towards such philosophy when considering the strengths and weakness of potential litigation. Settlements, resolution and finding a half-way house have been ever present factors in a wide range of legal battles. The power of mediation and the art of settling disputes forms a strong backbone in a lawyer's arsenal, whether it be discovered late in the evening at the offices of a corporate Solicitor or plucked from a civil Barrister's brief at the door of a court.

The percentage of cases making their way to trial falls each year in the UK due to the driving force of the Civil Procedure Rules. It is pertinent to note that 68% of cases settled at the Commercial Courts in the UK. In fact, it is evident that this philosophy is not only encouraged but is bled into legal education at a very stage. Law students in the UK are encouraged to analyse strengths and weaknesses of an individual case in order to find the right solution. The art of negotiation forms a central pillar during the Bar finals and is seen to be a core topic. It is regarded as important and essential as being able to draft a high quality opinion or a persuasive ground of appeal.

Membership at the Inns of Court in London is a necessary step for any barrister but the affiliation to The Inns goes beyond the standard requirement to socialise and network. The Inns of Court pride itself on hosting regular mediation events where young Barrister will practice the art of persuasion and dispute resolution. Weekend retreats are organised in order to sharpen mediation as a true craft. Conflict resolution skills have always been seen as important as being able to persuade a panel of Judges at the UK Supreme Court on technical legal points.

Finding a mediator in the UK is relatively straightforward as it can be anyone who encourages parties to sit and talk. It is not seen as a pre-cursor to litigation but as a means to collaborate with the right intentions. Litigation in all parts of the UK is often seen as a harbinger of doom with spiralling costs and the emotional drain and stress that comes with it.

The UK has adopted a socio-legal approach to legal education. The United States incorporate stand alone courses on negotiation, mediation and arbitration. There is a true focus on conflict theory.

India's approach to mediation and dispute resolution has been on a trajectory. Only recently has there been a true shift with the Mediation Act 2023 as the Courts recognize that the situation regarding pending cases is simply untenable. The Supreme Court has imposed mandatory requirement for mediation. The backlog has always been a major gripe amongst the public but it is evident that dispute resolution has never properly featured in the early stages of litigation. There has regrettably always been a cultural block when it comes to settling conflicts.

With India's courts imposing mandatory mediation mechanisms, it will be argued by skeptics that mediation is now seen as a formality. It is easy to forget that the voluntary nature of dispute resolution is what makes it so compelling as closure to a dispute. The imposition of mediation can only be described as myopic where dispute resolution is regarded as necessity which must be completed before the real action begins. Box ticking mediation cannot be seen as a stepping stone but rather a viable alternative to close matters and to avoid swords being crossed. There must be meaningful dialogue and perseverance. Both sides must show a true willingness to find a solution.

India is a country in carved in prestige and passion. It is fair to say that the country carries a strong emotional energy and this is reflected in the legal system. These emotions do seep into conflicts where litigation is seen as the only real solution. There could be a host of reasons as to why this mindset still exists. As well as prestige, it could be individuals seeking revenge, stubbornness, or just a complete lack of knowledge. Lawyers in India perhaps feel duty bound. Litigation culture is deeply rooted and one only needs to look back recently at the rather puzzling case of a 3 rupee dispute over a photocopy transaction which found its way to the Consumer Redress Commission in 2023. Suffice to say, that particular case would never have reached any Judge in any UK Civil Court.

India's lawyers are often protective of their clients' cases and will want to fight to the hilt. There is considerable force in this approach as it is commendable for any lawyer to strive and obtain the best outcome. However, the delay in obtaining justice is simply too significant to ignore. Notwithstanding litigation risk, the costs, delays, stress and endless waiting has resulted in a real despondency. The Supreme Court in India realizes the strength of this storm as there is widespread acknowledgement that who have sought justice by filing claims decades ago do not get to even step inside the courtroom during their lifetime.

Having an adversarial approach carries grave consequences and mediation has never been part of the legal curriculum in India until very recently. Even today, one cannot help feel that mediation is statutory driven with the court mandate hanging over parties' heads like Damocles' sword. That defeats the purpose as mediation must come with free dialogue, good faith and with a clean slate.

Individuals not being aware of alternate dispute resolution is a fatal gap in India's current mediation drive especially in rural and suburban parts. Many people at rural areas express frustrations on not being able to find solutions to age old disputes. From factory workers dismissed for taking one extra lunch break 20 years ago to women unaware of their maternity rights. The substantive conclusion is that many people in India are simply not aware of their options. Court is still seen as the battle ground. Local Panchayats are doing their best with limited resources but some disputes are more involved and complex. Trained specialist mediators are required to help lessen the load of courts bursting at their seams with common land disputes which impact those from suburban areas. Even in villages with a Gandhian legacy of simplicity and resilience, people are still waiting for justice because what is clear is that many people simply do not know that mediation exists as an option.

It is welcoming to see that many institutions in India now offer courses on mediation and there is a growing army of trained mediators. In 2020, the Bar Council in India made Mediation a core compulsory subject for law students. However, fear still prevails amongst Indian advocates. There is a strong argument that Indian lawyers hesitate in highlighting the benefits of mediation as they do not want their clients to believe that their case is weak or perhaps risk losing confidence in their own ability to handle a case. There is a personal and emotive strand which does not feature as strongly in the UK where young lawyers are encouraged to highlight alternative dispute resolution to their clients and it is not seen as a sign of weakness.

One hopes that mediation will become a driving force in India but the approach must change in order for this to be a truly meaningful new dawn.

Author: Susheel Bellara is a practicing Barrister and founder of 5 Points Chambers, London UK. Views are personal.