As the post-pandemic era dawns, CAMP Mediation is observing 2021 as the year of #CALM (Celebrating Advocates & Lawyers in Mediation). Often unaware and uncertain of their role in private mediation, lawyers and advocates, who haven't first-hand experienced the benefits of pre-litigation mediation, could be missing out on opportunities to #settlesmart for their clients. Via a series of articles, Jonathan Rodrigues aims to highlight the developing trends of private commercial mediation in India, through the lens of lawyers and advocates who have skilfully and strategically offered counsel in a collaborative, yet competitive environment.
"One of the most underrated benefits of mediation is that it can contribute largely to preserve any relationship, be it business or personal, that would likely get destroyed by being dragged through years in litigation. As it is a collaborated effort to reach an amicable solution rather than the adversarial process, and the fact that mediation is not inherently a win/lose process, important relationships can often be saved," says Mithu Jain, Advocate-on-record, Supreme Court of India,
Her counterpart counsel, Srishti Agnihotri, Advocate-on-record, Supreme Court of India, echoes similar sentiments, stating, "In commercial/ property matters, we (lawyers) lose sight of the fact that there are human relationships and motivations behind why people take a certain stand. Contrary to our belief, people don't always behave like rational actors. In comparison to litigation and arbitration, mediation gives enough room to explore these motivations and craft solutions to preserve relationships."
Both counsels recently represented their clients in a transnational virtual mediation, managed at CAMP, spanning across 5 cities in three different time zones in the US,UK and India. These Supreme Court lawyers claim that mediating in a virtual setting made their life easier. Mithu admits that being a litigation lawyer, she missed the thrill of representing her client in an in-person mediation, but is quick to point out how the virtual setting saved time and money, besides avoiding unnecessary travel.
"Mediating in a virtual setting also gave us the opportunity to spread out the process over a few weeks, and have shorter sessions and more discussions amongst each other," says Srishti, who frequently checked-in with her clients, both before and after a mediation session, to "ensure that everyone was comfortable" with their progress in the mediation.
Asserting the fact that mediation addresses the element of relationships, Mithu suggests that the "informal process allows the parties to be more engaged than they would be in a court-driven process where the complexities of rules and procedures tend to further instigate parties". The flexibility of a mediation process is not the only aspect that facilitates frank and honest discussions on personal or business relationships. "The confidential and voluntary nature of proceedings allows parties to open up and explore options that are truly out of the box," says Srishti.
Shifting approaches from 'adversarial' to 'collaborative'
Mithu and Srishti regularly represent their clients at the Supreme Court of India, but were not shy to try mediation despite an existing lawsuit between their clients. "In mediation, there is no winner or loser, no admission of fault or guilt, and the settlement is mutually agreed upon; and, therefore, parties are typically more satisfied with mediation," says Mithu. "Mediation, in certain kinds of disputes, can be in the best interests of all parties as it often allows parties to mentally shift from a zero sum game to collectively brainstorming creative solutions," says Srishti.
Nevertheless, mediation is not an easy walk in the park and is characterised by multiple moments of tense standoffs. As a lawyer who is always up for a challenge, Srishti believes that it is important for lawyers to brief their clients that "there will be a bit of give and take. No one is going really get everything they want. However, the results are far quicker and more certain than what is achievable in litigation".
Both counsels here maintain that the results are certainly "satisfying" to themselves and their clients, but as Srishti testifies, the road to settlement requires "perseverance". "It took a lot of one on one correspondences with the mediator to try and solve issues and help her understand my client's apprehensions and situations," says Mithu, suggesting that working with the mediator is crucial to overcoming an impasse.
Many lawyers fear that engaging in mediation would be a waste of resources as the other side comes across as 'unreasonable' and 'stubborn' – and, ironically, that's the exact reason why lawyer's should try mediation for their clients. "Sometimes victory in a litigation may end up being illusory, due to delay. Further, in most cases victory for a side is never a matter of complete certainty. Even if victorious, a party may end up remaining in a conflict over a long period of time till the litigation is finally over," says Srishti, indicating that opening a window for dialogue may not be a bad idea.
Mithu believes some litigating lawyers are "simply reluctant to try something that is new to them or whose outcomes they have not yet seen. Many lawyers do not want to resort to mediation since court rooms are more familiar to them." She suggests, "more workshops pertaining to mediation would encourage lawyers to try out mediation as an equally effective system of dispute resolution."
How do lawyers prepare to represent in mediation?
Lawyers representing their clients in mediation have to work hard to prep their clients to use a "solution-oriented" approach, but Mithu believes that self-preparation is equally important. She says, " I prepared myself by learning about the mediation process, thinking about the issues, understanding what is the best result for my clients and what is the minimum they would be willing to settle for. Also, I had to consider the age of my clients and the years of litigation they had already put in." Srishti believes discussing best case and worst case scenarios with her clients helped them make calculated decisions.
Below are a few more insights from their preparation notebook:
Mithu: Since ours was a family dispute over property - I needed to understand the client's and the parties' emotions, plan how to communicate the issues and apprehensions, think about whether you need to take someone with you and gather documents and information"
Srishti: For the mediation, each side prepared a very detailed mediation brief based on a template provided by CAMP. I think it really helped to have all of our issues written down, and supporting case and evidence collated together in one place. Both sides shared their briefs with one another, and in the initial mediation session, we spent time presenting our case to one another.
Mithu: Working on my soft skills while conveying proposals to the opposite side is something I learnt during this mediation at CAMP. All these things don't normally matter in litigation/arbitration hence making it a different experience altogether.
Srishti: The mediation process can also be extremely fact-oriented, while a litigation at the appellate level usually turns on broader questions of law. One of my key learnings in the mediation process was that a complete mastery over the facts of a case is essential to ensuring a smooth mediation settlement.
Not every relationship in dispute can be preserved, and some need to be amicably dissolved – another reason why mediation makes complete sense. Litigation lawyers who have taken the effort to prepare, represent and settle matters for the clients through private mediation admit that the skill set as mediation lawyers is different but undoubtedly acquirable . Short trainings/crash courses in mediation advocacy can surely enhance a lawyer's capability to represent their clients in mediation. Write to us at [email protected] to discuss more on mediation advocacy.