Eating the humble Kilmarnock pie

“Dare to be honest and fear no labor” – Robert Burns.

My first visit to the Kilmarnock Sheriff Court calls for an interesting diary entry. Representing the Strathclyde Mediation Clinic, we walked into a jammed courtroom handling small-claim disputes, only to be reduced to mere spectators, forced to settle for the humble Kilmarnock steak and haggis pie, which, by the way, is absolutely delicious.

After 3 and a half hours of watching court proceedings, the sheriff chose not to refer any cases for Mediation. There were a few conflicts – one involving a disgruntled buyer and a seller of second-hand cars, another dealing with a claim of trespass by a letting agency, and yet another involving two neighbours who just couldn’t agree on splitting the house repair costs – that could have been referred to us, but the sheriff thought it was best to handle them himself – pausing, adjourning and continuing the courtroom drama. The work experience was disappointing, but there were positives along the way to Kilmarnock.

Firstly, I began my bus journey that morning carrying a load of stereotypes of the “notorious” town, which is also host to the oldest football club in the Scottish premiership. I had read articles labelling Kilmarnock as the “crappiest town to live in the UK” and that it was littered with garbage and drug addicts. All this changed when I met the first Killie at the popular Brownings bakery along the Marnock Water.

Wandering around the streets of Kilmarnock on a cold October morning, I stopped to grab a hot latte, before I freeze to death. The gentleman standing in front of me noticed that I was not dealing too well with the weather and offered me his place in the queue. I refused as he was way older, but he insisted – “Oh, don’t worry about me. This is still summer here in Scotland”. We began to chat a little about our backgrounds. He told me tales of the once booming industrial town which had now become a nightmare for business and I shared stories from modern day India.

We spoke about mediation and I told him how we were trying to introduce mediation to the public in Kilmarnock through the sheriff court. “Aye! We need it, don’t we? You’ll have to work hard to make it work here, people here don’t like change, even if it’s good,” he said.

Fifteen minutes on and we were still in the queue, thanks to the surprisingly slow service. “Ah, this coffee is taking bloody longer than the clowns negotiating Brexit,” he said. I was curious and asked, “So, what did you choose? Leave or stay?”

“I chose stay, but I am so fed up of the bloody circus, that it’s better that we leave and end the madness,” he confessed. Valid point I thought, as I finally got my coffee and shook his hand to say goodbye.

“You have a good day son. Leave or stay, Killie gonna be Killie. Nothing gonna change here, not the good, nor the bad. But, that shouldn’t tell you to not try, right? Good luck with the Mediation.”

Introducing mediation service at the sheriff court in Kilmarnock didn’t work out on the first attempt. We will have to go again, even if it means eating another delicious pie.

India’s Internet Citizens can settle online!

Originally published on Mediate.com – https://www.mediate.com//articles/rodriguesj1.cfm

This millennial generation demands quick, accessible and tech-ridden supply of solutions to all its needs – be it food, clothing, gadgets, travel, companionship, etc. A slight delay in delivery of any of these ‘basics’ and the youth waste no time in shamming the service provider on every possible public forum on the internet. How, then, does this generation remain indifferent and accommodating of the traditionally inefficient court system?

Is it a sense of hopelessness and a submissive approach to the existing ones? or the lack of awareness of the existence of more efficient platforms?

Online Dispute Resolution is the way forward for those who prefer to manage conflicting situations from the comfort of their laptops and mobile tabs. Cost effective, time efficient, comfortably casual and confidential settings, a process devoid of baseless documentation, a seamless tech-enabled solution, neutral facilitators and consensual settlements – it can’t get better for those who live digital lives. And, we haven’t even gotten down to discussing how the more frustrating reasons – rising travelling costs, global warming, soaring cost of living – force us to stick to the confines of our internet homes.

We are looking at a whole new approach to managing ‘Disputes’, which includes – not being naive to the possibility of their existence, being prepared to effectively tackle them when they arise and fixing past relationships which have deteriorated beyond repair.

In the hope of rebuilding broken relationships, if the key is to keep the communication on; then, can there be an obligation created to keep the conversation going, during the stages of differences, disagreements and even at the peak of a full-blown dispute? Can we secure the continuance of dialogue even in the most heated moments of a contractual relationship? Can we use the online space to talk things out within an atmosphere of trust rather than talking out loud and washing dirty laundry on public and social forums?

Yes, India’s Internet citizens can finally settle online!

The excuse of not having an opportunity or non-existence of a forum to consensually resolve disputes online is no longer acceptable. A visionary tech-legal startup, Presolv360, has designed India’s first online dispute management platform that provides the user with three unique services to tackle disputes. Besides the millennial trend of wanting quality services in quick time, there is also a burden to be borne. With over 30 million pending court cases, this might just be what frustrated litigators and the exhausted court system have been waiting for.

These services will act as enablers, assisting courts to dispense justice, governments to govern, businesses to flourish and people to enjoy a tension-free life. Now, as individuals with different likes and dislikes, conflict in inevitable; but Presolv360’s services assure citizens in India a less stressful time while addressing these conflicting situations.

Often people ‘react’ to conflicting situations because they feel they don’t have the time to sit back and present a calculated ‘response’. The consequences of a ‘reaction’ are rarely memorable and mostly regrettable. Online Dispute Resolution buys yourself enough time to dialogue and empowers you to make right what went wrong. Bottom line – it encourages a facilitative discourse before going to court or being dragged to court.  Finally, for those existing relationships – personal, professional or business, that haven’t been ‘secured’ and encounter a friction, Netizens in India now have the ‘Direct’ button, where you can choose to either rebuild the relationship or dissolve it amicably, saving face, time and costs.

Two major challenges that have thwarted the progress of mediation in India have also been tackled here –  the fear of antagonizing litigating lawyers & the suspense of closeted mediators. Importantly, this online platform’s services don’t eliminate the lawyer or legal advice, but instead encourage lawyers to be more productive and efficient in their roles. It allows lawyers to find a consensual settlement for their clients in resolvable matters, so that they can focus on more serious issues that necessarily need the guidance of the court.

The platform also serves in bringing the dedicated neutral facilitators into prominence. Disputing parties now have the option to choose their own neutral – be it a mediator, conciliator or arbitrator – after having researched on their background, style and experience – a concept people have only heard about, but never experienced for real, in India.

‘Precaution is better than cure’ is an old, overused cliché, but this trend is bringing it back to life and asking people to not take relationships for granted, not anymore!

 

Negotiating In “Blind” Faith

This article was originally submitted to Kluwer Mediation Blog, and may be viewed here. It has been reproduced with permission.

I was recently witness to a mediation session during which two seasoned negotiators behaved disappointingly. Why? On the other side was a negotiator, who walked in with a cane, accompanied by her lawyer. From the outset, these two experienced negotiators behaved very awkwardly at the table, with one of them even waving at the visually-impaired individual, attempting to gather her attention while greeting her. Without meaning anything of what they said or did, their behaviour was rude and insensitive.

Many strange and embarrassing things happened at the table that day that motivated me to call up a lawyer friend based in Goa, Karleen De Mello. Blinded at birth, Karleen never took to life as a victim or survivor; her approach has always been positive and competitive. Having participated in a few mediation scenarios, Karleen has been kind to share some insights on how to avoid the type of awkward behaviour I recently witnessed at a mediation table with a blind party.

“You speak about trusting the person sitting opposite you? What about the person sitting besides you? I had a situation where the mediator called for a caucus with the opposing party and my lawyer walked out of the room without me. Deeply embarrassed, he then returned to fetch me. I didn’t know whether to curse him for his insensitivity or burst out laughing at the chaos we must have created in the room,” recalls Karleen.

Karleen and I suggest the following guidance for mediation situations where one person at the table is blind.

Familiarise Yourself With Names: this is effective as it gives the conversation direction and a personal touch. Karleen says, “For those of us with limitations, we can’t look the others in the eye; therefore, addressing them by their name makes an effective human connection. It helps draw their attention and ensures they are listening to you at all times. Taking time to learn names and to pronounce them right will make the others believe that you mean everything you say from then on. For everyone else, saying our name out loud and regularly while conversing similarly builds rapport with us and helps to make us feel involved and engaged.”

Handshakes: greetings can be chaotic and awkward if not done well. Setting the right tone is essential to a mediation and therefore these preliminary gestures must be well thought out. Karleen says, “The person escorting the blind party will usually direct the hand of the person who is visually impaired across the table. If we choose to shake, we must make sure it’s a confident one. So much can be deduced from our sense of touch. Having said that, for everyone else, please don’t consider it rude if we forget to shake and keep you hanging. The best option is, with us, you go second. Reach out only if we do first so as to avoid any awkwardness”.

Break the Ice: the first few moments are crucial to creating an amicable atmosphere. Addressing the disability early will allow the process of trust-building to begin. Karleen says, “This is important as not all of us may be holding a cane, wearing tinted glasses or carrying a ‘Brailler’ and therefore our disability may not be apparent to others”. This could work – “It’s great to have finally come to the table to dialogue. I am here with you a 100% despite my visual limitations. Yes, I am legally blind, but what I can’t see, I assure to make up with my listening ears. On a lighter note, my lawyer says you look like fine people, so I hope you don’t go against my counsel’s best judgment.”

Connect via Empathy: eye-contact is key for effective communication. For a situation where one person cannot see, we must look towards another powerful tool – the sense of listening attentively – in order to connect empathically. Karleen says, “For us who rely a lot on our ears, we must try nodding, some mini-acknowledgements (“oh”, “ok”, “yes”, “right”, etc.). Don’t be afraid to smile. Body language is our biggest tool to connect with the other person. I try and not cross my arms at the table and rather place them confidently in front of me. I pull the chair in close and sit deep so that I’m comfortable and do not need to keep shifting my posture”. Karleen says it’s perfectly alright for us (who can see) to look into a blind person’s eyes while talking to them. “Please don’t feel awkward about it and we will know that you are looking at us because the tone and volume of your voice will differ if you don’t. Even if you have to speak to your client/counsel sitting besides you, kindly excuse yourself before you do so. I have faced this before and I think it’s rude if I’m speaking to you, and I can hear you whisper something to someone else next to you.”

Power of Words: we know the same words, said differently, can either kill or heal an existing situation. It is not only about saying the right things but understanding correctly, what the other person is saying. Summarising, reflecting, re-framing are great tools for both ourselves and the other party, so that we are always on the same page.

Take Control: one of the pillars of mediation is that it empowers and encourages the parties in a dispute to take charge of the decision-making and this self-determined nature of the little agreements or the final outcome should never be compromised. Karleen says, “Also, regular check-ups with your negotiating partner could help you understand the mood in the room as you don’t want to be rambling non-stop while the other party is losing interest and turning hostile. When you want to pass on a question to your partner or take the lead in responding to a statement, call out to your partner and announce that you would be addressing the situation, or that you are passing it on. Your decisions, ideas and opinions are yours and should never be narrated through another person, even if it is your negotiation partner. She/he may add to it or advise you privately against it, but that should never take away your independence and ability to apply your mind and creativity in handling arguments, claims or offers at the table. For everyone else, If I am the client/party to the dispute, I am the final authority on the settlement, therefore, do not look for repeated validation from my counsel if I have given my final word, having followed my counsel’s advice.”

As negotiators or mediation counsels, I believe it’s very important we prepare ourselves for a situation where the other party may be facing physiological limitations. The key is to keep the focus on empathy and not shift to sympathy. Through my conversations with Karleen, while co-authoring this piece, I have learnt that people with physiological limitations like being respected and accepted as they are, and I believe, we, who enjoy all our physical senses, have the responsibility in keeping the negotiation or mediation environment inclusive to everyone in the room.

“These suggestions have worked for us in our experience, and this list is most definitely not exhaustive. Every person devises their own means that are unique to their experiences and circumstances. As someone who is sighted, you may need to do certain things differently to ensure you are reaching out to everyone at the table. When the end game is communicating effectively, there can be no hard and fast rule that will work in every situation, except of course, keeping calm and leaving the anxiety behind,” concludes Karleen.

SC’s leap of faith could ruin Ayodhya’s fate

 The Supreme Court’s verdict on referring the Ayodhya case to Mediation is a huge step forward, but sadly, a leap of faith that poses serious concerns with regards to preserving the sanctity of the process. 

By Jonathan Rodrigues

Talks of exploring the process of mediation to resolve the contentious Babri Masjid-Ram Janmabhoomi controversy has been doing the rounds for a couple of years now, and the apex court’s constitution bench, headed by CJI Ranjan Gogoi, must be appreciated for its judicial prudence in this matter. On a cautious note, however, the deadlines set, the mission attached and one of the professionals appointed to the mediators’ panel question the very essence of this collaborative form of dispute resolution. 

Exactly a year ago, Sri Sri Ravi Shankar, one of the members on the mediation committee appointed by the Supreme Court, and presumed to the playing the role of the ‘mediator’ in the proceedings, had reportedly said, “Muslims should give up their claim on Ayodhya as a goodwill gesture. Ayodhya is not place of faith for Muslims…We cannot make Lord Ram to be born in another place”. 

This statement is an absolute breach of Neutrality and Party Autonomy – two of the fundamental pillars of mediation. It not only lends an element of doubt and bias towards the Ayodhya case, but also paints the wrong picture to millions of people in India, who will have the misplaced perception of mediation as a party driven process and the mediator as a neutral. 

Section 89 of the Indian Civil Procedure Code (CPC) clearly defines the role of a Mediator and with India not having an exclusive legislation to govern the process, we can only rely on different legal recognitions and mentions of mediation. In a presentation to the UN general assembly in Vienna, on August 4, 2015, India had presented its definition of mediation as “the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit… by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasising that it is the parties’ own responsibility for making decisions which affect them”. 

In the interview with India Today in March 2018, the spiritual leader had said that the only solution is for Muslims to give up their claim to the site and build another mosque on a five-acre plot in Ayodhya. Going by his intentionally conciliatory, but evidently arbitrary opinions on this matter, which he decided to make public, and the universally accepted ethics of mediation, acknowledged by India, Sri Sri must humbly withdraw himself from the committee, thus maintaining its credibility. 

Considering his charisma and personality, Sri Sri would certainly make a good mediator, but with the above statements he is not qualified to be a ‘neutral’ for this particular case. Even as a Conciliator, the neutral’s role is limited to only making suggestions and providing an evaluative analysis or opinion, but this has to take place in the confidential environs of a mediation or conciliation workplace.

In conclusion, consent to the chosen mediators is voluntary and if either of the parties don’t approve of a particular mediator on the committee, the Supreme Court must make provisions to substitute the professional who brings in a conflict of interest into the amicable workspace. In hindsight, if Sri Sri retains his place on the panel and works in an unbiased manner, but if the mediated settlement tilts even fractionally towards the Hindu community, in the eyes of the general public and the media, the issue of conflict of interest will be brought up and will simply discredit all the hard work put in to resolve the issue. 

Image Courtesy: News 18 (From the web) 

Setting a timeline to find a “permanent solution” to the Ram Janmabhoomi-Babri Masjid land dispute in Ayodhya in “eight weeks” is another treacherous situation. With the general elections on the horizon and political parties using all possible agendas to polarise vote banks, the Supreme Court’s deadline of eight weeks to resolve a 60-year-old sensitive case that can instigate violent reactions, is harsh and hasty. 

Firstly, mediation is a voluntary process and with all the emotional and communal baggage attached to the subject matter, parties involved and affected might need more than eight weeks to resolve this dispute. Secondly, setting the deadline with the intention of finding a “permanent solution” seems more like coercion than an invitation to dialogue.

Referral to Mediation in India can be mandatory, as currently directed by the apex court, but engaging and settling a dispute or agreeing to consider a proposed settlement is still voluntary and the mediators appointed in the Ayodhya case and the Supreme Court must make sure that this fundamental pillar of mediation is respected. If no settlement is reached at the end of the suggested timeline of eight weeks, the Supreme Court appointed mediation committee must follow the 2017 Delhi High Court order (Kansagra v. Kansagra) which states that “a mediation report should only contain one sentence and nothing more, in order to maintain the confidentiality of proceedings”, which means that nothing that was discussed leaves the mediation room. 

On a positive note, by deciding to keep the media at bay with regard to the day to day proceedings of the mediation process, the Supreme Court has rightfully protected the fourth fundamental pillar of mediation – confidentiality. It would also help proceedings if the mediators appointed to the committee do not talk to the media before, during or after the matter is resolved, thus honouring exclusivity and privacy in a mediation setting. 

The general feeling and response towards the Supreme Court’s verdict has been positive, with religious leaders, politicians and intellectuals hailing the decision to mediate. Everyone waits with hope that this issue finds closure and communal harmony is restored in the state of UP. The Ayodhya case isn’t a subject matter that is exclusive to only the litigating parties in the case, but is inclusive of the wider communities represented by these parties. And as much as most of Indian Hindus and Muslims living in other regions might not be directly affected by the outcome of the mediation, they will be interested in knowing how the situation was handled with respect and sensitivity.

With the Indian legal fraternity taking giant strides towards mediation via recent legislative amendments in the Commercial Courts Act and an exclusive law rumoured to be debated in the corridors of Parliament, having the right brand ambassadors as mediators is important. Any compromise on the four fundamental pillars – neutrality, voluntariness, confidentiality and party autonomy – would not only lead to a failed mediation, but also create a negative sentiment among first-time users and observers towards mediation. 

Mediation Advocate’s Alphabet

(Originally published in mediate.com: https://www.mediate.com/articles/rodrigues-mediator-alphabet.cfm)

By Jonathan Rodrigues 

 

Representing a client in a Mediation / Negotiation setting requires a huge change in approach and attitude for a hardcore litigation / corporate lawyer. A ‘Resolutionary’ Lawyer who counsels in a Consensual Dispute Resolution setting requires a whole different skill set, in addition to what he / she possesses as a adversarial lawyer, and therefore, putting on a collaborative hat may seem easy on paper, but the real test is at the table, while facing the other party / counsel. From limited experiences, learnings from mistakes, compliments from clients, advise from mentors and suggestions from peers,  here is a guidebook with some cheat codes for any amateur lawyer looking to rehearse before a Mediation.

A – Authority

Your client, the opposing party, both, must have the authority to settle

Having a client who has the knowledge and authority to make decisions is crucial. If you represent someone at the table who has no authority, or the person with authority remains absent, and you have no power of attorney to represent and make decisions, it would surely suspend settlement proceedings and induce mistrust among parties.

B – Behaviour

Prepare yourself and your client to sit across the table with the ‘other’

Mediation has no scope for sections of the law, court judgements, precedents, and other litigation jargon. A confident pose at the table is crucial, but the language – both verbal and nonverbal, must resonate a genuine willingness to collaborate.  Advise your client against arrogant and defamatory language. Being approachable and available is key to reaching common ground.

C – Caucus

Break into a private session,  engage the mediator if negotiations are failing

Private meetings are great opportunity to persuade the mediator of your client’s BATNA and (sometimes even your WATNA) and ask the mediator’s assistance in moving the other party from his / her positions to interests. Be honest with the mediator about your client’s real interests and be prepared to reveal information you have held back in the joint conference.

D – Disagree!

If you think otherwise, disagree! A successful resolution depends on your advice

Mediation is not a space to decide ‘right’ versus ‘wrong’, rather acknowledge and respect the differences and work towards fixing the friction.  But, if the other party is peddling erroneous facts or levelling false allegations and claims, then you must step in and contest the same. Disagree, set the facts right, get everyone on the same page and move on. Be decent in dissent.

E – Evidence

Use evidence to substantiate your point, eliminate false claims

The key is to use evidence to forward your interests and not to destroy the other’s interests. The approach is important – prove your point, don’t get adversarial. Documents or digital evidence can be used to clear doubts, clarify and confirm facts and misunderstandings. Some revelations may be confidential, these may be introduced during caucus.

F – Focus on the problem

It’s natural your client gets emotional, you need to steer the mediation

Focus on the problem rather than the emotions. Don’t let your client be distracted from his / her interests when mocked / instigated by the other party in an adversarial tone. Always remember why you are at the table and ignore taunts. If the mediation has turned into a sham, and the mediator has lost control, adjourn the session for the day.

G – Give in, don’t give up!

It’s alright to compromise a little, if it satisfies the bigger interests.

Don’t treat it as a step back to agree to some good faith offers and requests from the other party. If it’s letting you get out of an impasse and is moving the negotiation forward, it is certainly a step in the right direction. Evaluate and analyse offers sans emotions, match them to your core interests and take a calculated decision.

H – Humour

If your client can’t hold it together, you gotta lose it before she/he does

Your sense of humour will help you get out of tough situations. If you feel your client is giving in too much or speaking more than he should be, you can always barge in with a joke. Interject with some wit, navigate a break and immediately provide counsel in private.

I – Interests

There will be many, prioritise them.

Prioritising your interests will help you decide where you can go easy and where you need to be tough on what you want out of the mediation. Help your client discover his / her interests in the conflicting situation. Be smart about short-term needs and long-term goals.

J – Justification (Don’t)

No room for screaming excuses for your client’s behaviour

“We regret it, but…” is a terrible way to start. Even worse is blaming your client’s behaviour on someone or something, when what he/she did was unpardonable. An apology goes a long way in breaking down egos and anger. Encourage your client to be honest and accept that there he/she might have contributed to the conflict at some stage.

K – Keep the communication on

Even in chaos, make sure your client is still in dialogue

It is hard to reach common ground (forget resolving) if the parties don’t dialogue. Therefore, don’t cut people off when they speak, avoid interruptions and never fend off an idea – no matter how ridiculous it sounds. Try and bridge the communication gap – seek clarifications, confirm details, clear doubts, address misunderstandings, make changes in communication patters.

L – Legal Issues

Identify and analyse the legal issues in your client’s case

Knowing your client’s legal premises is only the beginning. Understanding the position and anticipating their alternatives out of a mediation setting is the next step. There may be some issues in the AGENDA that cannot be mediated; you may propose to arbitrate those issues. Through delicate questioning and objective reasoning, you can even counsel the other client, if you think he/she is being misguided.

M – Man marking

As much as possible, direct your conversations to the other party’s counsel

Address only those matters which deal with business, liabilities and legalities, don’t get involved in the personal matters. Directly taking on the other client will make the other client defensive and his/ her counsel very aggressive. Leave the emotions to your client, focus on the problem.

N – No Adversarial Jargon

Your verbose must be strictly collaborative without taking away the edge

This doesn’t been you become 100% accommodating and compromising, let your competitive personality stay with you, but avoid adversarial language like – precedents, witness, arguments, issues, objection honourable mediator, opposition party, responding party, defendants, etc.

O – Orientation

Acquaint your client with your role, the process and possible outcomes

It is important to make your client understand that you not his/her litigating lawyer in a mediation session, but a ‘Resolutionary’ one, and so, your role is different. Explain the process and the principles of voluntary participating, confidential conversation and neutral facilitation. This, of course, is something you would do much before you get to the table.

P –  Privacy

Explain confidentiality, extra layer of security during Caucus

It will create an atmosphere of trust and allow your client to be more open with her/his intentions and interests and more inclusive with his option generation. He/She must be reminded that anything said or heard cannot be presented in court and cannot be used as evidence before a judge.

Q – Questions

Question must facilitate dialogue, not curb it

There is no scope for interrogation or cross-examinations, but you may ask innumerable questions. Once again, make sure you direct them to the other counsel and not the client, unless necessary. Close-ended questions make people defensive and nervous, producing dishonest and cautious responses. Open-ended questions allow honesty and frankness.

R – Research

Spend time researching, before brainstorming solutions

You must be careful with the options you generate – check market practices, industry ethics, current business trends, alternatives available, before deciding to make an offer. You must help your client look at his / her strengths and weaknesses and the other party’s too. Check on the different laws applicable before suggesting an offer. You cannot be making illegal / legally outdated deals.

S –  Sign

Before you seal it, check for air bubbles

Be prepared to sign a settlement agreement. Stalling can lead the other party to lose trust or change his/her mind. Check for timelines, deadlines, liabilities, assurances, capability of commitments, and every small detail before signing.  (If it’s a private facilitation session, make sure you begin the session as a conciliation and end it by signing a conciliation settlement, which will be treated as an arbitration award or a court decree, in India).

T – Tough on problem, soft on people

Respect emotions, but don’t lose focus of the job

Cut the person some slack on the emotional and psychological aspects of the case, but don’t compromise on your priorities and needs that you bring to the table. Encourage your client to listen emphatically, acknowledge and reflect good vibes. Summarise and rephrase negative language.

U – Use tact when at Impasse

Sensitivity and skill go hand-in-hand at Mediation

Change perspectives, take a break, move to another issue on the AGENDA, call for a cross-caucus, explain consequences of mediation failing, highlight positives, encourage client to express change in approach, reframe negativity, rework reservation points, prioritise relationship over resolution and if needed, reschedule session

V – Vetted Agreements

Make sure you have it examined by the best in the business

If there are technical pointers in the clauses of the contract, it is very important that a lawyer gets these scrutinised by experts from that field. Do not rush into agreements. If needed, you may ask the mediator and the opposing lawyer, that the expert be present at the mediation session in regard to discussing the particular technical issue.

W – Win-win approach

Move away from the “win at all costs” attitude

Everything you and your client does has to convince the other party and his/her counsel that you two are being collaborative and working in good faith to resolve. The options you generate must be mutually satisfying, therefore adding value and enhancing the appeal of a proposed solution is key to getting the other party to participate in problem-solving. Don’t be afraid to ideate and think out-of-the-box.

X – X-Factor

It’s time to show-off the learnings of law school

You have something your client doesn’t – the understanding of the law. Go well prepared and whenever the opportunity arises, take a break and explain the legal aspects of whatever your client is proposing or accepting or rejecting. Be ready with advice and suggestions and counsel your client in private, which will convince him/her you are working as a team.

Y – Your Role 

Mediation is a self-determined process, neutral party cannot force settlement

Let you client take the decisions, this way her or she will feel empowered and find the process more inclusive. If it’s resolved – you benefit on time and costs, just like your client. You have your moments to shine – in the beginning (your opening statement), when you have to provide the law and facts regarding your client’s position. Keep it brief, persuasive and focused. This is good time to politely let the other party know “the case will be lose-lose in court” and “mediation is best for both”.

Z – Zsilence (The z is silent)

Silence is powerful – it keeps the other party grounded.

Anything that is unknown and unreadable makes someone engaging in it uncomfortable. Remember, you are the sidekick in this battle. Let your client take the lead, and you anchor this teamwork. Especially when things get heated up, try and use lesser words. Budget your words when it gets argumentative. The more you listen, the more information you draw. LISTEN – it makes you stand out from being an adversarial lawyer who only speaks!

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.

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…”

2. 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…”

3. 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…”

4. 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…”

5. 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…”

6. 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…”

7. 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…”

8. 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…”

9. 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…”

10. 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…”

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/

 

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.

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.