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Sustaining A Viable Mediation Advocacy Practice

Ekta Bahl and Sahil Kanuga
29 Nov 2021 8:30 AM GMT
Sustaining A Viable Mediation Advocacy Practice
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It is not uncommon to find lawyers and litigants who are suspicious and sceptical about Mediation. On the other hand, there are lawyers and mediators who believe in the power of Mediation. It was a privilege to engage in a discussion moderated by Tara Ollapally (Co-Founder & mediator at CAMP) and having Sahil Kanuga (Head, Commercial Disputes; Nishith Desai Associates), Ganesh...

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It is not uncommon to find lawyers and litigants who are suspicious and sceptical about Mediation. On the other hand, there are lawyers and mediators who believe in the power of Mediation. It was a privilege to engage in a discussion moderated by Tara Ollapally (Co-Founder & mediator at CAMP) and having Sahil Kanuga (Head, Commercial Disputes; Nishith Desai Associates), Ganesh Chandru (Partner, Dua Associates), Rahul Kothari (Founder, Squarely Legal) and Ekta Bahl (Partner, Samvad Partner) as the panellists on the topic of "A Collaborative Lawyer: Sustaining a Viable Mediation Advocacy Practice" as a part of #WinThisTogether – a series on the various aspects of Advocacy in Mediation organised by CAMP Arbitration and Mediation Practice and IDEX Legal.

Victor Schachter, founder and president of FSRI (The Foundation For Sustainable Rule Of Law Initiatives), set the tone with his keynote, where he not only explained as to why his law firm practice made the decision to develop a mediation practice but also highlighted that this decision greatly enhanced and expanded the scope of the litigation practice. Vic mentioned that this translated into more happier and satisfied clients which then resulted in greater client satisfaction and more business with better overall results for the clients. A true win-win situation.

Building on the keynote of Vic, the panellists shared their thoughts on how mediation could not only be integrated as a part of a disputes practice and also on how the same can also enhance the value of a disputes practice of a lawyer.

Below are some of the key take-aways from the discussion on developing a viable mediation practice:

Action points for transition and build a mediation practice

During his keynote, Vic shared 6 key action points that lawyers could bear in mind when looking to transition and build a mediation practice. These 6 key action points included understanding how mediation works and learning how to effectively represent clients in mediation, developing the art of persuading clients for mediation without losing credibility as to the willingness and credibility to litigate, identification and selection of good quality mediators and developing a fee schedule that is both practical and feasible.

Need for lawyers to embrace mediation and integrate it as a part of their litigation / disputes practice

While the Singapore Convention, to which India is a signatory, put mediation on the centre stage at an International level, Mediation has already made its way into the statute books in India. Given that there is new mediation legislation being proposed, lawyers need to be prepared to embrace mediation and make it a part of their practice area. Sahil stressed that if a lawyer does not embrace mediation, the lawyer would run the risk of being left behind since mediation would be an integral part of dispute resolution.

Mediation can be used an effective means of dispute strategy

Rahul highlighted that while mediation is a powerful mechanism and can be incorporated as a part of a dispute strategy, it may not always be fruitful to use mediation at the very beginning of a dispute. The panellists were in agreement that given the voluntary and flexible nature of mediation, it provides lawyers and parties the opportunity to engage in mediation at any point of time and they need not be limited to only engaging in pre-litigation mediation. Sahil mentioned that a lawyer who understands mediation and how it works would be in a better position to use mediation as an effective tool in determining the overall dispute strategy while keeping in mind the clients' commercial interests.

Mediation practice does not translate into an Alarming Drop in Revenue

The Government has been evaluating judicial reforms to reduce the pendency rate of litigation in courts. Even with arbitration, amendments have been introduced to fix a time limit within which the arbitrator is required to pronounce an award. Additionally, even in litigation matters, lawyers run the risk of early dismissal of proceedings or parties settling the dispute without involving the lawyers. Therefore, the comfort that lawyers had that a litigation matter in hand would sustain a lawyer for years is a myth. Ekta mentioned that mediation and litigation practice areas of a disputes practice should be seen as complementary and that mediation should be regarded as a new and specialised practice area that would supplement the existing litigation or disputes practice area.

Need to think of workable fee structures

Ganesh mentioned that clients are extremely cost conscious and as a result there is a constant pressure on lawyers and law firms to look at alternate fee structures instead of hourly and per appearance billing methodology that was traditionally adopted. The panellists discussed various strategies that lawyers could consider while discussing fee options with clients. Ekta mentioned that there is no one size fits all when it comes to fee structures and that lawyers could consider factoring in both their potential time spend and the client considerations while designing the same. Ganesh also highlighted the importance of there being clarity in the fee proposal on how the fees would be payable if the mediation is successful and also when it fails and the parties move back to litigation. Rahul mentioned that the fee structure should be structured such that the parties do not feel that the cost of mediation is additional cost that the parties need to be bear.

The panellists agreed that as far as a client is concerned, the only thing that matters is an efficient and inexpensive solution to the problem that they are facing. Existing dispute resolution mechanisms are slowly being found to be complex, time-consuming and expensive and the need of the hour is to provide a solution that ensures that a client's commercial interests are not prejudiced. To that end, mediation as an additional weapon in the quiver of arrows probably provides the best opportunity to achieve this goal, for a large number of disputes.

While mediation in some form always existed, with the advent of the proposed law on mediation and the global acceptance and recognition of mediation through the Singapore Convention, the stage is set for mediation to attract larger acceptance and become a mainstream dispute resolution mechanism.

Ekta Bahl is a partner at Samvad Partners. Sahil Kanuga co-heads the International Dispute Resolution practice at Nishith Desai Associates. Views are personal.

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