Salem Conference 2018

Salem Conference 2018

Strategising at Salem: Lawyers ‘key’ in facilitating fair & speedy access to justice

The city of Salem in Tamil Nadu has had a long tryst with Mediation in India and visiting the city for a national conference allowed me to witness and network with some bright and enthusiastic minds in the field of ADR in South India. Hosted by Central Law College, Salem, and titled ‘Contemporary ADR Systems: Constraints and Strategies’, the two-day event ignited a spark in the minds of dozens of law students from across Tamil Nadu. 

Around 75 students, law professors, academics from nearly 24 law colleges across the major cities of Tamil Nadu and neighbouring states walked up the stage and delivered their take on various themes, ranging from the general concept of ADR to the emergence of ODR; from mediation advocacy to ADR’s influence on the criminal justice administration; from it’s use in cases involving young offenders to it’s responsibility in creating the right atmosphere for persons with disabilities.

A consistent suggestion that concluded most of the presentations was that “ADR has the potential to reinforce constitutional assurances of speedy and fair trial”. Though most presenters took the liberty to include, both, mediation and arbitration under ADR, we can interpret “trial” as the opportunity to be heard. It is true that arbitration and mediation provide for a “confidential hearing” and the elements of voluntariness, flexibility, neutrality and document-less procedures ensure that the hearing is “efficient” if not speedy.

So, the question is – why does the Indian litigant still prefer the “court hearing”?

“It’s the lawyers, they are the biggest constraint. We must find a way to rid them of their insecurities and help them understand their role in ADR,” said a rather scandalised senior law student from Central Law College, Salem.

A judicial officer from Madurai echoed similar sentiments, stating that the entire profession has lost its integrity and has turned into a ugly business. “You have appellate lawyers who force small court counsels to push their client to consider appeal. The reasoning is not even legal, it is pure business. If soliciting is unethical, then this absolutely wrong on all fronts,” he said.

Many of the dignitaries gathered in the room for tea agreed that more specialised trainings and awareness about ADR needs to be created in the state and across the country, however the discussion kept redirecting towards “ethics” and “standards” of legal practice in India. “The client will blindly listen to what his or her lawyer says. In times of vulnerability, clients gobble any legal advice to feed their anxiety. The shift to ADR doesn’t start at the courts, its begins at client consultation,” suggested a former judicial officer and academic from Coimbatore.

I asked, “How do you convince the legal community that ADR is not here to take away their livelihood and ruin their lives?”

“But, being a lawyer is not about fetching for your livelihood. What happened to it being a noble profession?” asked a former Madras High Court Judge.

Reminiscing about the past, a professor of constitutional law and jurisprudence from a Chennai-based law school said, “Earlier, lawyers would never think about money while taking up a case. They had a little money pouch at the back of their robe wherein the clients would drop in whatever they could afford or however much they wanted to reimburse their lawyer for the services.”

“Things will change and the profession will regain its lost integrity. The shift to ADR will come but it will need a whole lot of convincing. Peer pressure must be used positively so that lawyers begin taking cue from their contemporaries who are pro ADR and leading their clients to platforms such as arbitration, mediation, conciliation or any other platform that encourages dialogue,” he said.

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Highlights from the paper presentations at the conference in Salem – 

  1. On “application of ADR in the criminal justice system in India” –  L .S. Sathiyamuthy says, “…crime has to be not only considered as an issue of public policy and an unlawful act against the state, but the real party is the person who physically and mentally suffered from it must be given due recognition. In cases of theft, burglary, verbal abuse or defamation, before the commencement of trial, victim-offender dialogue must be encouraged. On par with section 89 of the CPC, a new provision must be introduced in the CrPC empowering trial courts to mandatorily refer deserving criminal cases to plea bargaining forum…”
  1. On ‘Mediation in domestic violence and cruelty cases”K Indira says, “…In matrimonial disputes, in order to heal relationships and repair emotional damage, mediation would be the best mechanism. However, cases posing serious threat to a woman’s and child’s life must not be mediated. Though under section 14 of the Protection of Women from Domestic Violence Act, 2005,  there is a mention about the magistrate referring the matter to a counselor, there should be a provision for mediation to avoid unnecessary and vexatious criminal litigation. This is not to dilute the provision of the law, but to safeguard the institution of marriage…”
  1. On “ADR in resolving insolvency cases” – D. Kiruthika says, “…ADR can be used to peacefully settle cases between debtor and creditor, and to reconcile the principle interest in insolvency cases. I would suggest the creation and maintenance of a rooster of insolvency arbitrators by jurisdiction and to forma a model insolvency procedure for arbitrators and thereby encourage the use of ADR in insolvency cases…”
  1. On “Pre-trial mechanisms in India”Kela Jyothi Jagdish says, “… In India, the system of pre-trial hearing is not clearly identified as a distinct feature in the case management process. The objective of pre-trial conference is to identify the issue clearly so as to facilitate expeditious disposal of cases through proper case management and to promote amicable settlement of the dispute…”
  1. On “The Integration of Mediation in cases involving Young Offenders”Lipi Parashar says, “… successful mediation programs (restorative facilitation) provides increased attention to the young offender, allows victims to express their feelings. It helps achieve restitution and other forms of reparations, to the victims and the society. There is need to humanise the criminal justice experience for victim and offender. The characteristic of individuality, which is inherent in Mediation reassures one that is a practical and potentially highly successful approach to juvenile justice…”
  1. On “ADR and legal sanctions”N. Gowthaman and R. Darshini say, “… just like the khap panchayat and katta panchayat in TN, there are others like nattu and Patti panchayats which the locals refer to as ‘out of court’ mechanisms but these are held “unconstitutional and illegal in the eyes of the law. The panchayats were supposed to empower the people and the gram nyayalaya was proposed to be set up, but the government doesn’t recognise its legality. ADR mechanisms must be introduced and their operations broadly explained to prohibit unauthorised practices in the name of law…”
  1. On “the productivity of Lok Adalats as an ADR platform’’Sonali Badi says, “… success rate of Lok Adalats is higher than the courts and it helps take forward the constitutional mandate of article 14 which provides for equality before law, and equal before law which can be interpreted as affordable justice to all…”
  1. On “ADR as a tool for Social Justice”D. Vaidya Shanker says, “… Speedy disposal of cases and delivery of quality justice is an enduring agenda for all who are concerned with administration of justice. The hallmarks being inclusiveness and transparency, through ADR, the decision making power is redistributed to the disputing parties. ADR in India needs structural and operational changes…”
  1. On “Arbitrability of Intellectual property disputes in India” – Anirudh A. Kulkarni says, “… the Indian legal framework lacks the competitive will to effectuate the arbitrabliity of intellectual property disputes in India. While there exists contradictory opinions within the judiciary, it becomes necessary for the legislature to incorporate the same through a well framed legislation or an amendment to the Arbitration and Conciliation Act and other laws pertaining to IPR…”
  1. On “ADR in protecting the interests of persons with disabilities”A. Deivendram says, “…to maximise the involvement of a person with a disability, it is important to make the ADR process sensitive to the person’s needs. Avoid abstract language, deal with one issue at a time if the person has memory problems. For those with cognitive disability, make the meeting room informal and free of distractions…”
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Only Dialogue Can Save Kashmir

By Jonathan Rodrigues

Originally published in Kluwer Mediation Blog

Link: http://mediationblog.kluwerarbitration.com/2018/07/30/dialogue-can-save-kashmir/

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The Kashmir valley in India is a stressed region and though older generations have ‘lived’ through some tense winters, this generation is not ready to ‘survive’ through the silence and indifference. Deaths are on the rise and if this constantly raging battle between the militants and the Indian administration is not addressed appropriately and immediately, these spells of violence could blow up into a bloody civil war. Having worked with law students and young lawyers from the valley, in this time of terror and anxiety, I can safely say, “Kashmir doesn’t need our pity, but it deserves our empathy”.

Mediation versus Militancy

Militancy in Jammu and Kashmir has claimed over 41,000 lives in the past 28 years which means an average of 4 deaths per day in the state or 1,519 casualties every year, according to the latest available government data. The casualties include over 14,000 civilians, 5,000 security personnel and 22,000 militants between 1990 and May 2018. In all, there have around 70,000 militancy-related incidents during the period; that’s like the state witnessing nearly 2,600 militancy incidents every year. The above statistics on the expansion of militancy in the valley sound too academic to the non-believer. Why would youth from such a peaceful place take up arms and resort to violence?

“Have you returned home from school to see the body of your father embalmed for the funeral? Have you screeched in horror at the sight of your friend being shot dead while she tried to board the school bus behind you? Have you been asked to open your tiffin box every morning to prove you weren’t carrying a bomb or a grenade?” asks a young Kashmiri lawyer.

“I appreciate you introducing mediation to us and it works fantastic in theory. Sure, you can try and get into our shoes and empathize, but you can’t get into our blood stream to feel our hurt…Militants are not born, they become. Humiliated and harassed – physically and virtually, hatred and aggression grows in a human heart. Do you think it’s possible to bring a hurting person to the table for talks?” asks a very bright and independent law student from Kashmir University, where I have visited over the last two years to promote mediation and conflict resolution.

Earlier, alighting from our plane at the airport, a little misunderstanding turned into an argument between two passengers. Then, the local Kashmiri looked straight at the domestic tourist and said, “Be careful here, don’t you raise your voice at me. You are not in India, you are in Kashmir”. Now, you can either get angry and call the person an “anti-national” or other racially derogatory terms or you can choose to understand the deeply brewed anti-India sentiment that makes people say what they say in such emotional moments.

Yes, there is a very strong ‘Azad Kashmir’ (Free Kashmir) sentiment among many locals and instead of trading insults and raging verbal battles over social media, we must try to understand ‘why do they feel that way’. Why do Kashmiris feel antagonized by India? Why do they feel they don’t belong to the country? Why do they feel so much hate that they paint the Indian flag on the road, so that they can conveniently stamp it?

If India considers Kashmir ‘family’, it needs to reach out to its people and try and address these negative feelings. Accepting the existence of conflict is key to resolving it, and we in India have chosen to live in denial. If a teenager was always considered to be a black sheep of the family, how would he/she behave? By being overprotective and authoritarian with the state, we are only losing out on the love and respect of the people of Kashmir.

As part of any training module, we prescribe that negotiators must be ‘soft on the person, hard on the problem’, but “In Kashmir, the person is treated to be the problem and that makes it difficult for a Kashmiri to dialogue,” said the young litigating lawyer who hopes that someday mediation will win over militancy.

“Mediation is a fine concept, but do you know who the parties are to the dispute in Kashmir?” asked a final year law student, while I was there this summer. We had briefly touched upon how mediation champions the mission of consensual dispute resolution and even illustrated the key elements through a roleplay simulation. “I love the fact that it is an empowering platform where the outcome is self-determined, but if the parties at the table are not genuinely interested in the people and the place, and rather lust for power and possession, then you have the wrong people at the table, right?”

The rhetoric was not unexpected, and rather encouraging, because these were thoughts of a patriotic ‘Sangbaaz’ (stone pelter), and he seemed like he was open to the concept of dialogue.

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A generation split between dialogue and dissent

On a cold summer morning, a group of local student leaders gather to share their stories with young Kashmir expats who were visiting them from the UK. They spoke of suffocation and liberation, pain and optimism, struggle and grit, life and death. ‘Freedom’ had a whole different meaning for youth in the valley. They asked their more fortunate friends – “Why can’t we wake up every morning knowing we will be back home in the evening? “Why can’t we speak our mind and feelings”, “Why can’t we decide our lifestyles?”, “Why can’t we choose our future?”, “Why can’t we walk the streets without fearing a breeze of pellets”, “Why can’t we sleep at night without fearing we won’t see the sunrise?”.

Minutes of extremely gloomy narratives and then suddenly they looked at me, “the certified mediator” from the peaceful shores of Goa, and for the first time I felt I had nowhere to hide. I was being an empathic listener all this while but, under pressure, the instinctive problem-solver took center-stage. I looked at them, straight into the eye, and said, “We can fix this, can’t we? We can be the change, our generation. We can dialogue.” They all looked at me back with tired faces and said in chorus, “Dialogue is a two-way communication. It doesn’t work in Kashmir as no one listens to us. Aap nahi samjhoge (you won’t understand).”

Once again, just like the student who had resorted to violence, their pessimism has a silver lining – they haven’t completely rejected dialogue. They only see it as a tried and failed experiment. Maybe, through renewed and more efficient communication channels, there is a possibility that dialogue can be achieved.

“Sir, how do we get a person who doesn’t want to talk to the negotiation table?” A smart question towards the very end of the workshop and a very tricky one too. I knew the student was leading me to something bigger, but as a mediator who was on a mission to promote dispute resolution, I explained that “convening a dialogue between disputing parties is the toughest stage in dispute resolution. We need to first convince them of the existence of the problem rather than tag them as the cause of the conflict. If you can’t do it alone, maybe you need to get a neutral party to convene and then facilitate the dialogue”.

Then came the next question – “Would you mediate this issue? And if yes, who would you support, India or Pakistan?”. Let’s rewind to some history of attempted mediation talks on the Kashmir issue. The United Nations have repeatedly tried to bring both India and Pakistan to a neutral table and, with the UN chief himself, Ban Ki-moon, even offering to mediate between the two countries, and the UNHRC insisting to send its observers to check on human rights violations in the valley – all turned down by the Indian administration and ignored by Pakistan. Some academics argue that it benefits both countries to keep Kashmir labelled as the ‘disputed territory’, but the truth is Kashmir doesn’t want to, not anymore at least, be the shoulder on which India and Pakistan rests its egos and ammunition.

Kashmir is the innocent child that suffered from the India-Pakistan divorce, but now that it has grown up, it wants to speak for itself. The more we listen, the faster we can bridge the communication gap that has manifested into violence. India needs to give Kashmir a chance and Kashmir needs to give India a chance – guns down, stones out. Only dialogue can save Kashmir.

“If I would be invited to mediate this case, I would accept it without thinking twice. However, as a mediator, I cannot support any party and I can’t make decisions. I can only assure that every voice would be heard. And, in this case, India and Pakistan have spoken enough, it’s time for Kashmir to be heard,” I said, only to be met with a huge round of applause and cheering. In the front and at the back of the classroom, there were heads that nodded in silent approval.

2017 – An emotional beginning, a confident start!

2017 – An emotional beginning, a confident start!

 

Sprouts of success, yes! But, more earth needs to be dug, more seeds need to be sown.

2017 has been an exciting ride and it would not have been possible without each and everyone who has worked closely with PACT over the course of the last 12 months. PACT owes the giant strides it has taken to YOU, mediation in India owes its growth and development to YOU.

To every Friend of PACT, Ambassadors of CDR and every member of the PACT FAM group, your generous giving and sincere support is deeply cherished.

When we walked into St Xavier’s College, Goa, in December 2016 to host  our first negotiation boot camp, we never realized how much of an impact would that experience have on PACT’s activities. It still remains one of my favourite batches – they were mischievous, but equally smart and skilled. Their grasp over the subject improved every passing hour and watching their progress made us believe that we need to invest more time and resources into such programmes and reach out to as many as we can, across the country.

Thus, began the journey of our Mediation Boot Camps.  In twelve months, we have conducted 12 boot camps / workshops in 9 cities, engaging with over 1,350 students of law and business. We have worked with around a dozen young and dynamic mediation professionals as co-trainers, with whom we have flown nearly 6,382 nautical miles and spent 180 hours in classrooms and conference halls.

We have worked with around 400 students during Mediation Musings sessions at India’s two most popular mediation competitions – in Goa and Bhopal. As co-hosts, supporters or knowledge partners, we have travelled across the length and breadth of the country, covering approximately 11,880 kilometers to reach out to as many as we can. In doing so, we have been able to appeal to over 2,500 mediation enthusiasts on PACT FAM, an interactive Facebook platform which is just three months old.

These statistics mean little compared to the warm hospitality and genuine love we have been showered. The generous helpings of local cuisine, comfortable accommodation and honest conversations have enriched us.

Our module has undergone changes and modifications, but the core essence has remained constant – change the approach from ‘reacting’ to conflict to ‘responding’ to conflict. But, much before we address or respond to conflict, we must understand how conflict manifests itself in different situations. We were fortunate enough to have worked with students who expressed their true concerns about mediation as a tool of resolving disputes in this country. They spoke of “credibility” as the major deterrent to the progress of mediation and we heeded their cry (Check ALSD-PACT Indian Symposium on Dispute Resolution).  We were continuously hounded for internships, lectures and coaching, and we hope to say ‘yes’ to more of these opportunities in the coming year.

And, it wasn’t always textbook conversations. We were fortunate to have some intellectual banter on sensitive topics, while discussing conflict. We reviewed the Padmavati dispute while we were in Banasthali and addressed cross-border conflict in Kashmir. We addressed community conflict in Noida and workplace disputes in Telangana. We discussed conflict arising from demonetisation when in Mumbai and debated animal vigilantism in Gujarat.

PACT owes this year to all such frank and productive conversations, where we conversed, listened to each other’s perspectives and resolved to respond to the most controversial and sensitive matters with maturity and empathy.  To dialogue when in dispute in the first step to reaching a common ground. It is our mission to keep the dialogue on, to make sure communication never stops, no matter how tough it gets.

The aim of course is to keep getting better – to never be complacent with what we have managed to create so far. The goal hasn’t changed – to create a market for mediation to thrive in this country. PACT will keep dreaming and wake up to chase those dreams.

#MissionMediation #DialogueInDispute #Choose2Resolve #PACTFAM

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Winter winds blow hot & cold in Kashmir

Winter winds blow hot & cold in Kashmir

Forced identity, bruised memory, political treachery, dilapidated history these are a few amongst many terms that come to one’s mind while trying to undertake possibly one of the most difficult and painful task of writing about ‘conflict’.

By Ayshia Zehgeer

Conflict that has nurtured every thought process and driven every aspiration of the people who see, feel and breathe it every day. If a conflict is as everyday as that, why must it be difficult to write about it? One may be compelled to ask? 

The most difficult part of any conflict narration is not having to state different shades of truth which must rightfully find their expression. But, in all its likelihood, an almost given consequence of failing to measure up to the pain that entails a conflict. The conundrum which a conflict presents will have different meaning and significances for people. The prisms a conflict is viewed through will not be the same for the ones who experience it and the ones outside it. For the latter, prisms being simplistic and reductionist and for us as the ones experiencing it, the truth and history will always be too sacred to be viewed so narrowly.

The packaging of a conflict and the attached disclaimers are such that make any “Peaceful breakthrough” a far-fetched dream. For the uninitiated, carefully manufactured guise of the conflict makes it easy either to bracket everything done by the state apparatus as a reaction to acts that endanger high sounding platitudes: ‘Sovereignty, Security and Integrity’ or an even more reductionist approach of peddling developmental or economic narratives. Every such diversion, from the most fundamental truth amounts to surreptitiously par taking in everything required to keep a population deprived of their basic right to choose their future. This perpetual denial of identity is reminiscent of a mindset of colonial inheritance.

Politically, historically, geographically the state never really belonged to India. Everything done to usurp the territory of the state of Jammu and Kashmir, including complete reorientation from its principled position of holding a plebiscite is where the entire Kashmir question commences. Rooted in the understanding of Kashmir, is this fundamental truth. Every solution, therefore seeking to resolve what stands today as sub-continent’s longest outstanding dispute must flow from the acknowledgment of this truth.

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Today, India stands averse to such acknowledgment because it will necessarily serve a consequent admission of all the wrong doings, strategically inflicted upon the people over the time. A fight that manifestly is against the occupational power structure of India and its collaborative offshoots mustn’t be seen as an attempt to push the entire country off a cliff. Which by no means is the intent of the people fighting for their basic right to self-determination.

Thus, morally as a people, who inherit a rich history of freedom struggle, of overthrowing the British colonial rule, Indians must affect a critical distance from the power apparatus of their state. For, seeing the state as all just and fair, which by all our past experiences it never has been, would tantamount to collusion in all misdeeds, committed with impunity by the self-righteous state..

Etched in the memory of every Kashmiri are events that refuse to leave some corner of our mind. Partly because of the nature of the crimes committed by the state. Their gravity puts all human values to shame. And partly for the reason of knowing that justice will continue to elude us. Justice among in-equals they say is all that the powerful take and the weak must surrender. Your law is my jail, your order my chaos.

Last year (2016) saw an uprising of unfathomable spread and magnitude. A culmination of seething discontent and anger against India’s systemic oppression. Naturally, the response of the state akin to its previous record was repressive and marked by such excessive use of force against unarmed protestors that left no stone of brutality unturned. Over a 100 people were slain by the Indian Armed Forces, another hundred blinded by the use of ‘non-lethal’ pellets, thousand left maimed, and a significant number of people arrested and put behind bars under archaic laws of colonial descent. While all of this was happening, everything required to keep the muck covered and truth unexposed was done. From blockade of internet to the banning of local newspapers. Not contrary to our expectations, Indian media like true patriots on their part ensured the best misrepresentation of facts and allowed a tirade of anti-people propaganda thrive.

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 A few days back in the backdrop of Jallikatu agitation, there was a renewed debate about the discrepancy in the method and manner of crowd control. It was said that similar eruptions in Kashmir were dealt more severely. Such parallels are however erroneous to draw. Firstly, anyone versed with the Kashmir conflict would know why repression is inflicted upon the people. It is never really about the stone in the hand of the protestors. It was never about the gun in 90’s. It was always about ‘Azadi’. Self-admittedly, repression will always be an answer to any method used as a reminder to honor all commitments made by India to which UN resolutions stand a testimony.

Life in a conflict happens alongside conflict. No aspect of life is untouched by it. As far as peace goes, no one would in their correct frame of mind oppose peace. But again who decides what peace means. Does peace mean living in denial? Does peace mean not seeking a closure? Does peace mean absolving the state of all blame? If all of that brings peace then I for one don’t want it, don’t vouch for it. Peace must be preceded by political will to put an end to the dispute. An enforced peace, a façade of peace created at the behest of close to a million troops hounding the population to submission has not helped break the resolve of the people.

Every reconciliation, solution, attempt of pacification, every make believe campaign at diluting the political nature of the Kashmir dispute has fallen flat on the face for the lack of political will and correct intentions. As long as that doesn’t happen, we will see Kashmir continue to rise, continue to simmer and continue to fight. Because, ‘Sorry’ doesn’t sweeten the tea anymore for us.

Barrels of loaded guns may have aided India in holding on to Kashmir, but no colonizer in the history of the world could make theirs what was not theirs.


Editor’s comments:

It is always cold in Kashmir. But, its more than the weather on the outside, rather its the hearts of the people of Kashmir. The killings and the war warm up the region for the wrong reason, and when it’s over, its cold again. There is little we can do, may a little warmth telling them we care…

Kashmir 5.pngThis is Ayshia’s opinion on The Kashmir of her dreams. It is her story, unedited, untouched, raw to the core and we respect that. I was part of a fortunate audience to have met this girl in Goa for Lex Infinitum 2016, a mediation event where she represented Kashmir University. We had a session ‘mediation musings’, where she opened up about her childhood in Kashmir, cried and sent a chill down my spine when she asked members of a panel discussion, “Mediation seems to deal only with business. Can it actually help repair a community as destroyed as Kashmir?” She was hurting then, it was genuine and it probably was one of the reasons why I stuck to ‘Mediation Musings’ as a name for this blog. It is unfair to the people of Kashmir, when many of us Indians sit in the comfort our homes with the best of internet speeds and tweet or post on Facebook our opinion of what is good for Kashmir. What right do we have to judge what is good for a community that lives on the edge every second of their life.

As far as I understand (and this is from conversations I have had with people from J & K at different times), the people of Kashmir simply want to be free, they want to just be themselves, roam freely, eat and drink what they like, wear what they wish to wear, watch what everyone else watches, speak without being censored – all that they want is the basic human right TO BE… Beyond all the political, economical, religious bullshit, there are human beings living there who go to sleep at night, not sure if they will wake up to see the sunrise.

It is not for India or Pakistan to decide the fate of Kashmir, Kashmir deserves the right to decide for themselves how they want to govern themselves, whom they want to be friends with and where they wish to build their walls. This slow death of a community and its rich culture must end now, before it’s too late and more blood is lost. Dialogue between the two bordering nations and the people of Kashmir is the only way forward – Jonathan

(Courtesy: All pictures sourced from the Facebook page of UOK, University of Kashmir and Kashmir University Students’ Association)

 

 

 

 

 

Of Infinite Possibilities…

Of Infinite Possibilities…

When you have a tagline that reads … “Mixing business with pleasure”, then you got to deliver on both accounts, and right there lies the challenge – finding the right balance for a risky cocktail.  

If the first edition was anything but a surprise that a brand new concept, driven by students, was so rooted in the principles and values of mediation, the second edition was a testimony of its growing recognition within the global mediation community and the countless possibilities it can consider venturing into, as V M Salgaocar College of Law and the World Mediation Organization begin prepping for the third edition.

Many participants and professionals, who witnessed the second edition of Lex Infinitum in January 2017 swore that it was one of the best academic events they had ever attended in India, and everyone involved in putting it together, over the last two years, deserves credit for that compliment. However, when we conceived the idea in the winter of 2015, a few months before it premiered in March 2016, we never aimed at being the ‘best’ or the ‘biggest’, our goal was keep getting ‘better’ – and I strongly believe we are getting there.

It was quite evident that the 2017 edition brought together a more diverse mediation community, not just with international students of law from Poland, Singapore, Germany and Czech Republic, but also Indian students from 14 different states of the country. Considering that India is not simply a country, but a civilization, there was a vibrant atmosphere all through the competition rounds and the camaraderie stretched up to the hotel lawns.Lex 3.jpg

“The conversations we had, the people we met and the places we visited will be etched in our memory forever. Will I revisit? Most certainly. It was like a festival. There was learning, mentoring, competitive stares and friendly hugs, and when the sun went down, the music came on. Couldn’t ask for more,” says the ever-so-approachable and generous Paul Mason, who we hope would be inspired by his visit to Goa, to draft more of those fascinating mediation-related problems.

It was heartening to see participants respect the universal principles of cultural sensitivity and business negotiation mannerisms while holding on to that competitive strategy in the mock simulations. Every assessor agreed that the ‘curiosity’ and ‘openness to learning’ levels of the participating students were commendable. This attitude even rubbed off on seasoned professionals like Judith Ittig (USA) and Greg Bond (Germany), who admitted to have learnt a lot from the exchange and would probably use a trick or two from India in their practice and teaching.

 

The first few rounds on Day One were little overwhelming for the first-timers, but after some strategy twists at midnight, Day Two brought out the best in the participants, who channeled all their resources in presenting some exciting negotiation and mediation skills. For many to assessed and observed, it wasn’t surprising that two Indian law schools – from Jodhpur and Raipur – made it to the final round.

Taking on the well-polished and thoroughly-drilled German and Polish teams in the semi-finals was no cake walk, but the Indian teams whom I had the pleasure to mediate between in the finals, in my opinion, demonstrated great maturity during the facilitated negotiation. Their mannerisms and poise, usage of language and gestures, arguments and counter-arguments upheld the sanctity of a mediation process, even if it was a mock simulation. The performance was a reflection of their genuine understanding of what the process expected of them.

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Mediation professionals from nine countries (check website for details), had their task cut out to decide who would go home as winners. On the first day, some experts were involved with the participants, fine tuning their skills and clearing their doubts before the rounds begin. Others were lecturing law students on different subjects related to mediation and conflict resolution. With the knowledge series lectures running parallel to the competition rounds for four days, for many students, it was as good as taking an International crash course in mediation. It is not always that you get to learn an Aussie point of view from Natalie Birt (Australia) or take away a Dutch tip from Kitty Duell (Netherlands).

Many students later admitted that it was an overwhelming experience to listen to all the possibilities that lay before them in the world of dispute resolution. “It is rather depressing for us as law students to witness what really goes down when it comes to law and justice in our country. We may be studying at the best of colleges, attending every lecture, and reading at the finest libraries in the country, but when he see first-hand how “justice” is bartered for “livelihood”, then we feel hopeless. But, I now know for sure, there is another way,” said a student delegate at Lex Infinitum.

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This year, the event saw a bigger contingent of Indian professionals from the big cities and many of them were surprised to find out that the hurdles faced by them in practicing mediation are not just restricted to India, instead are part of a universal headache. The idea of the ‘Experts Lounge’ in the competition venue served just right for mediators from different cultural and professional backgrounds to find common ground to share ideas and woes. Being put up in the same hotel, breakfast every morning also turned out to be more engaging than usual. These chats would be the beginning of cherished friendships and even business relationships, we hope.

Having co-founded PACT. with Gracious Timothy, and playing a different role this year around, we introduced a couple of new elements to the competition, that would involve mediation experts in lead roles, including a mock role play on Day Zero (Orientation day) and light-hearted, yet fiery debate on Day Three (Final day) of the competition. Both these events brightened the mood of the delegates, let professionals break the ice with students and provided for some witty intellectual entertainment.  The debate ‘Is there a gap between Mediation and Justice’ produced a spirited effort from all participants, with Greg Bond (Germany) and E O Mendes (India) being the ‘stand out’ performers.

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During the experts’ mock role play, even a seasoned mediator like Nazareth Serpa (Brazil) found it tough to facilitate a negotiation between two dynamic professionals such as Rafael Probst (Germany) and Shashank Garg (India), who demonstrated great skill and composure at the mediation table.  Shraddha Bhosale (India) played her role as a lawyer to perfection too, intervening at the right time to tackle the right questions posed to her client. Tom Valenti (USA) then surprised the audience by providing the experts some feedback on their performance, giving the students a glimpse of what was to come in Inthe competition rounds.

Lex Infinitum was blessed to have a richly experienced problem drafting committee (check official website: http://www.lexinfinitum.in, for details) that posed some interesting problems to the competitors. The organizers might heed to certain advice about keeping the problems to maximum one A4 page, considering that participants to get entangled arguing about the facts of the case during the role play and miss out on directing the negotiation towards a resolution. The policy of a separate problem per round works well for this competition structure. Lex Infinitum also received healthy advice from the Guidelines Committee (check website for details) in fine-tuning the structure and rules of the competition for the second edition.

No grand event in India is complete without a VIP touch to it. But, to have the head of state of another country visiting the premises during the event took it to a whole different level. The security barriers, the ensuing silence and the diplomatic rituals that stole the attention from the event was a spectacle of sorts as Antonio Costa, the prime minister of Portugal, dropped by for a completely unrelated programme in the college campus.

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I believe as long as Lex Infinitum stays true to its original goal of ‘getting better’ each passing year, there are countless possibilities that can be explored to maintain its reputation as an event that’s grounded in the theory of mediation, but is flexible to experiment with new ideas as fringe activities. There is a lot to build upon, plenty of scope for growth and improvement. Mediation, as we all know, is all about creativity and open-mindedness, so let’s wait and watch what the 2018 edition has in store for us all.

Who would believe me if I said Charles Middleton-Smith (UK) would be grooving to some funky Konkani songs at the popular O’Coqueiro restaurant in Porvorim or Paul Mason and Nazareth Serpa (Brazil) would be letting their hair down to some soft rock at the famous Reis Magos Fort. Old friends like Tom Valenti (USA) and Claudia Winkler (Austria) were like a warm blanket when things got tough, while we found new fun buddies in Pascal Comvalius (Netherlands), Barbara Sunderland-Manousso (USA), Joel Lee (Singapore), Catherine Davidson (Australia) and others. We missed some old friends, and we hope to see them and a whole lot of others in 2018.

*Visit Lex Infinitum and The PACT. Facebook pages for pictures and more…

Until next time, Mog Asum (‘Loads of Love’ in Konkani, the regional language of Goa)

Cheers!

Just another day ‘Being Sikkimese’

Just another day ‘Being Sikkimese’

By Younita Pandey

“Smash and Grab”, as historians would call the annexation of Sikkim as the 22nd state of the Indian Union on 16th May 1975, Sikkim, today, is one of the fastest growing states in terms of GDP and education.

We aren’t just proud of our rich culture, our giant mountains, sacred rivers and beautiful landscape; we are also equally gratified by the fact that we are the most peaceful state in the country.

Does that mean our lives are simple? Not really. If there was anything that led us to experience contradictory feelings, it probably surfaces from internal identity crisis we suffer.

“Where are you from?” I get asked often, when I travel,

“I am from Sikkim,” I answer proudly.

“Ooh! What a wonderful place. I’ve always wanted to visit Sikkim,” comes a reply from a newly-acquainted educated Indian

Other literates ask, “Do we need a passport to enter your country?

It isn’t just me encountering these ignorant people, but you could ask any Sikkimese living in any part of the country be it Delhi, Bangalore, Mumbai, Goa, Hyderabad, one in three of us has definitely been asked this question, “Is Sikkim in India?”

I recall an incident with a tailor who asked me where Sikkim was. Finding it too hard to help him form a geographically precise map in his head, I said Sikkim is near Tibet, which is near China.

The tailor replied, “If Sikkim is near China, why do you look like Paki?”  Initially such incidents sound funny, but after a certain point of time, it gets really frustrating to explain that Sikkim is an amalgam of different communities, predominantly Bhutias, Lepchas and Nepalis.

Of the Nepali community, the chettris and bahuns, defy the usual ‘north-eastern’ look and hey presto! We happen to have big eyes.

“So you are from Nepal then!” comes the prompt response from a smug face which unmistakably adds, “I knew you weren’t from the north-east!”

There is a phrase in Nepali which goes, “Bhalu lai puran sunaunu”, which translates, “Explaining things where ignorance persists perpetually is similar to reading out the holy books to a bear.”

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So how do we deal with issues such as these?

Well, we happen to be peace-loving people and hence, we simply ignore questions like that. Usually we take then with a pinch of salt and either ignore it or reply politely. We have been brought up in a region, nurtured by the hospitality of our ancestors, who were and wish us to be liberal people who celebrate all festivals with equal fun and frolic, beyond religion, caste and community.

We won’t deny that our state has been ruled by the same leader for around twenty years now, and political uprisings occur every now and then during and before elections of any kind. But, citizens are never under any real threat during a political crisis.

Of course, it isn’t always sunshine and rainbows, we do have conflicts and differences when it comes to property, ancestral land ownerships, etc. However, from what I have observed, any form of conflict in a society is resolved through meetings held by concerned members.

History books talk about how tribal wear has evolved in our region. We used to share similar clothing with the hunting tribes that exist in the north-eastern lands including Bhutan and Tibet. But, our ancestors chose to wear longer forms of clothing which restricted the movements needed for such purposes. These very small details lead us to infer that our people were inherently peace-loving and resolving conflicts came more easily than expected.

Coming back to our identities, when Sikkim was added as the part of Indian Union, two groups of identification emerged – the ones who hold the certificate of identity, commonly known as the COI, which is basically the Sikkim subject, and those that possess a residential certificate. The former identifies the Sikkimese, the indigenous people who enjoy multiple basic rights in terms of jobs, education, land, etc., while the latter comprises the business community, mostly the Marwaris and Biharis, who settled in our state while it was still a monarchy.

Therefore, the identity within the state is very much balanced and secure and this difference in documentation is essential in protecting the rights of the indigenous people, lest they be encroached upon by those settling in Sikkim. Being landlocked on three sides by three different nations has not really bothered us. Often, when the only highway we have running through our state into West Bengal is blocked for some reason, we do turn outrageous, but that is because we are denied of basic rights of food and freedom to travel.

Apart from the minute political issues and communal conflicts, that occur in many other parts of India too, we are an open-minded, respectful community that doesn’t discriminate. This of course is a subjective opinion of life, as it is in Sikkim. Anything contrary to this is always a possibility and must be duly respected as a point of view, too. But, as a Sikkimese, I can proudly say that our home – Sikkim – has treated everyone on her soil as one.

Like myself, many of my generation have briefly left our motherland to build our careers, see the world, live a little more, but despite all the novelty we experience elsewhere, most of us return for the kind of solace only Sikkim offers.


The author is a student at Goa College of Engineering and is very much interested in learning and understanding new cultures. This is Sikkim, according to her. Racism is an excuse many of us use to draw geographical outlines in our heads, but these biases based on culture or colour sometimes gets manifested in inhumane expressions that are bred in a hostile and fanatical neighbourhoods in many cities in India. People from the north-east of India continue to be victims of racial prejudice, and more often than not we don’t realize that we have unconsciously been a part of this behaviour. Most of us don’t mean any harm and are openly racist for the sake of humour. The lesson though is that what words we choose to use in a conversation with someone from a different region. The tone of our voice, the questions we ask, the opinions and views we share – we must rehearse most these in our minds before we say it out loud to them, thus preventing awkward, sometime tense situations. Building a rapport and drawing a line is essential while engaging racism for humour, highlighting a need for us Indian’s to imbibe for people skills. – JR

 

Beyond bars: In pursuit of sweet revenge

Beyond bars: In pursuit of sweet revenge

Arrested for selling drugs as a teenager, Sanju talks us through the two times ‘Mary Jane’ influenced his destiny. First, it got him into prison and then, motivated him to survive it

“Revenge is good for the human spirit, as long as it’s positive. When behind bars, I dreamt of the day I would be free and could walk straight to those responsible for imprisoning me and put a bullet into their heads. But, all that would be too easy and too short-lived. Instead, I thought it would be sweet revenge to work hard, stay focused on re-scripting my life, and someday, drive my fancy car, with my lady by my side, in front of those inhumane beings who left me to rot in jail.

It was December 31, 1999, a few minutes before 12, the millennials were dressed in their suits and flowing gowns, impatient to usher in the 21st century, while 19-year-old Neil Wilfred Fonseca was selling party-goers the buzz to spike up their New Year’s night.

And, at the stroke of midnight, as couples kissed below the fireworks in the night sky, Neil found a strong set of arms around him, his hands folded and pulled to the back, his wrists handcuffed.

He felt himself go numb, his mind turn blank and feet grow cold. He was arrested for illegal possession of drugs under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

“Neil was my street name, and in many ways, my alter ego. I thought to myself, this was an intelligent crime I had committed. They called me a peddler, a criminal, and let out a barrage of the choicest swear words as I was convicted and shifted to Aguada jail. For what? Possessing a few grams of naturally-grown greens? Selling marijuana was more like a white-collar crime. Fine, I was a cheater, but I hadn’t harmed any person in particular. Why did I have to share the cell with hardcore criminals like murderers and rapists?” asks Sanjeev Singh Rawat aka Neil.

Born in Mumbai, he was just one-year-old when he was sent to a boarding school in Thane. He then kept jumping schools as he was regularly rusticated for bad behaviour or attendance problems.

“They incarcerated me and left me there with no hope,” says the school drop-out, who began experimenting with drugs when he was 17, not knowing he would be jailed at Aguada in a few years.

He saw his fellow inmates kill themselves out of frustration and depression, but he didn’t let the failures to get bail or a reduced sentence deter his confidence. “I began to look out for positives. Your cellmate is your stepping stone to communication—an essential to keep you sane. You begin to adjust to people, their sense of space, their ideas of religion, their views on politics and football. Then, something beautiful happened,” he says, eyes lit-up, as he begins to explain the influence of the prison ministry in his life.

“Sr Mary Jane was an amazing soul. My favourite time of the day was when she came to visit us. She would teach us songs of nature and life, painting and writing and would encourage us to read.”

“Some extremists accused her of evangelizing, but I shut them up saying this is our only chance to get out of our cloistered spaces and meet someone from the outer world,” says the 37-year-old, who recalls how the prisoners had nicknamed the beloved Christian nun, ‘Sister Marijuana’.

Rawat, inspired by the late social worker, began learning English, took up reading and even considered completing his SSC while in prison. “Sr Mary Jane used to be insulted and mocked many times. I used to watch her from the corner of my eye, standing among 50 criminals and crying. But, she never gave up on us,” says the Siolim resident, who now spends his time teaching handicraft skills, meditation and yoga to locals in the village.

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Sanju learned to play the guitar in prison and today, jams with musicians on the beach

One of his first jobs after being released nine years ago from jail, was as a librarian at the Pandrata Circle Association Library, a French association in Gokarna, Karnataka. He hopes to revive old abandoned libraries in remote villages. “These are the rich resources of local literature and people, for some reason, have stopped visiting libraries to read. The atmosphere of a library cannot be compared to any other reading experience,” he says. Determined to start afresh, he paints, creates art installations and paper bags for a living. He also conducts mandala-making sessions at beaches along the Konkan coastline.

 

“No regrets,” he says, “Everything happens for a reason. But, I wouldn’t do the things I had done then. I wish I didn’t have to waste my youth in jail. There was meditation in prison, I wish there was mediation too. I was branded a drug dealer, but thanks to the prison ministry supported by Caritas Goa, I came out thinking only about music.” Rawat, who now sports a Rastafarian look, learnt to play the guitar in prison and often frequents cafes and resto-pubs along the coastal belt to play some jazz on the flute. Shy by nature, he is, today, a more confident man and speaks at seminars and workshops across the country.

Sanju, as he is popularly known among friends, is neither a saint, nor does he consider himself a sinner. Achieving his idea of ‘revenge’ may take him a lifetime, but for now, he is content with his modest lifestyle. “The legal system of being innocent until proven guilty works only for the rich and influential in this country. People like us are always guilty, until proven innocent. This must stop as it simply contributes to the vicious circle of crime,” he concludes.

 

(Originally published in the Sunday Times of India on October 23, 2016. Link: http://timesofindia.indiatimes.com/city/goa/Beyond-bars-In-pursuit-of-sweet-revenge/articleshow/55006413.cms)