Have proposed mediation bar in all courts: Bobde

In the second part of his exclusive interview to TOI, Chief Justice of India-designate Sharad Bobde speaks on how alternate disputes resolution (ADRs) like mediation could help the judiciary and litigants to get rid of disputes at the initial stage and also help in not adding to the existing pendency of cases.
According to him, India is poised to adopt mediation in a big way even though there’s still a long way to go. Bobde, who is also the executive chairman of the National Legal Services Authority of India (NALSA), has proposed to establish a mediation bar in all courts with a view to promote its usage.

Due to his efforts, the 17th all India meet of the state legal services authorities, under the aegis of NALSA, was held in Nagpur recently. It was attended by the who’s who of judiciary. It included CJI Ranjan Gogoi, chairman of Supreme Court Legal Services Committee Justice NV Ramanna, Bombay High Court chief justice Pradeep Nandrajog, chief justices of various high courts and other judges from the country.

Excerpts from the interview...

How does mediation work?

It’s an informal but structured technique to resolve dispute. Here, a neutral third party assists warring factions in resolving disputes through various negotiation techniques. Most importantly, it doesn’t go into further appeal once the dispute is resolved. The second vital aspect is that the result of dispute is not imposed on both parties. A consensus is reached only after full consultation and agreement of both factions. A written note with signature of both parties along with a mediator is taken at the end.

What’s the difference between arbitration and mediation?

It’s yet another form of ADR. Here the disputes are resolved by a third party — the arbitrator. Though he remains neutral, he gives the decision just like judges do in courts, which is binding on both parties. It’s a legal technique of resolving disputes outside courts. Arbitration award can still be challenged in the higher courts, it’s still not free of dispute even after results. But, in mediation, the settlement is full and final. It can’t be challenged in any courts. In this ADR technique, all parties are go home happy and satisfied without worrying about getting into long litigations in courts.

The lawyer community is discreetly opposing ADRs as they feel it could affect their earnings.

Mediation shouldn’t affect the lawyers adversely. Unfortunately, the bar and bench are not much aware about benefits of mediation. The lawyers can in fact become trained mediators and earn handsomely, particularly in commercial disputes or those regarding property, which are in plenty. The cost of such disputes many a time runs into a huge amount and mediators can charge fees accordingly.

What’s the difference between a mediator and lawyer?

There’s a big difference between a mediator and a lawyer or a judge. The mediator always looks out for points of agreement in a dispute while a lawyer has a combative approach to fight a litigation in court and is more interested in disagreement. For becoming a mediator, the attitude and mindset of a lawyer needs to be different. Thousands of junior lawyers, who work under seniors, and usually don't have much workload, can act as mediators and earn a decent amount.

What if parties disagree to the mediator and proceedings too are delayed?

They can opt out of mediation and go to the courts at any given point of time. The proceedings can’t be protracted beyond certain period of time. At the most it would take two years, but there will be definite results. Since, there is no decision by a third party like in courts, it’s up to the parties to reach on consensus. The decision of mediation is not imposed on any party.

What’s the future of mediation in India?

This ADR procedure has infinite possibilities. Mediation is a natural skill that comes to everyone. In rural areas, elders use to do this job and even in traditional systems like panchayats, they play a key role. In family disputes, senior persons resolve them by way of discussion with both parties. In community matters, spiritual gurus suggest solutions to them. It’s good for social harmony as well. Section 89 of the Code of Civil Procedure embodies the legislative mandate to the court to refer sub-judice disputes to various ADR mechanisms to enable the parties to finally resolve their pending cases. Some centres like Delhi, Kolkata and Bengalur have really good trained mediators and the dispute settlement ratio is good. But, overall in the country, there’s still long way to go before it becomes popular. It will significantly help in not adding up to the pendency of cases.

What’s the judiciary’s role in promoting mediation?


We would soon be floating a concept of ‘mediation bar’ where trained mediators would be available across all courts. I believe that there should be mediation journals like All India Reporter (AIR) and SCC to report the successful mediation cases with a view to promote it. We’ve talked to the Bar Council of India’s (BCI) chairman who agreed to include mediation in their syllabuses for various law courses. I feel that successful mediation cases should be reported in journals like All India Reporter (AIR) and Supreme Court Cases (SCC) so that it spreads among the legal fraternity.


Can you quote any successful case of mediation.


I remember one case in Gujarat where there is a dispute between a company and farmers, just like what happened in Singur land in Kolkata. The company wanted land for establishing a unit while farmers opposed it. The trained mediators then persuaded the company to scale down its demand for land and also to offer much higher compensation to the poor farmers. Ultimately, the dispute is resolved without going to the courts and where both factions were happy at the end. We need trained and certified mediators to resolve several such unending disputes in the country related to land acquisition.



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