The Legal Leadership Conclave on Challenges & Future of Arbitration and Mediation in India with its stimulating and thought-provoking ideas and suggestions drew to a close with a valedictory address by former Chief Justice of India, Justice S Rajendra Babu. The highlight was a special address by Union Minister for Road Transport and Highways Nitin Gadkari.

Former union law secretary PK Malhotra also spoke briefly, observing that India is really heading to become a hub in Mediation. “Mediation is the future for settlement of disputes. The challenge is how best the implementation can be done,” he said. 

Union Minister for Road Transport and Highways Nitin Gadkari, like previous speaker, also recalled Mahatma Gandhi’s quote: “I had learnt the true practice of law. I had learned to find out the better side of human nature and to enter man’s heart. I realized that the true function of a lawyer was to unite Parties riven as under. The lesson was so indelibly burnt into me.”

Citing real life examples from his own experience, Gadkari said, “As Transport Minister, I am facing many problems for delays because of land acquisition, forest clearance and banking problem – projects get delayed. That creates lots of complications for completing the projects… Then litigation starts.”

He said by itself “litigation is not the problem, but ‘Time’ is the most important factor; it takes years to resolve the issue.” The delays destroy contractors who never get justice and this is causing economic crisis in different fields in the country, Gadkari said.

He said there is need for independent, impartial, fair arbitration to settle all the disputes.

“I always say I like people who can get the things done. “That’s the reason, keeping in mind time factor, I request everyone to resolves issues keeping the time factor,” said Gadkari.

Addressing the practitioners of law, he said, “I feel that, in many litigations that are pending,  your intervention as arbitrators will really resolve the  issues and create wealth for the country.”

Former Chief Justice of India,S. RajandraBabu referred to the grand old days when not a single dispute went to courtsand matters were settled through mediation or arbitration between disputants locally.

Moving on to talk of some problems that have crept into the process of mediation and arbitration in India, he said that Arbitration was originally was supposed to settle issues in 4 months. Then, he said, “some judges dragged on some cases even to four years in recent instances.”

He said that the sole purpose of alternative dispute resolution or Arbitration – whateverthe name may be –is to reduce the time, reduce the cost. It has to be time efficient, cost efficient. However, he said, “In personal experience, in Arbitration, both the purposes were not fulfilled.”

He remarked on the trend of retired judges being appointed as arbitrators to say that is “one thing to be taken care of”.

Finally, he said efficiency of Arbitration depends on the people involved – the parties, the representatives, and the arbitrators themselves. While Arbitration is not expensive, the behaviour of the people involved can make it expensive and inefficient, he said.The flexibility in Arbitration can thus be a blessing or a curse.

Editor-in-Chief, India Legal magazine, InderjitBhadwar congratulated all speakers at the conclave for their engrossing observations.  “We had Star power in keeping the audience till the last minute,” he remarked.

Thanking all honoured guests, who participated fully in spirit of mediation and Arbitration, he said, “We must sit together and reason together, which is ultimately, the only way out of conflict.”

The need for trainers, training of mediators and some essential infrastructure and legal framework was emphasized by speakers at the second technical session of the Legal Leadership Conclave on Arbitration & Mediation organised by India Legal magazine and ENC group at Bengaluru today (Saturday, August 17).

The session was chaired by former Supreme Court judge, Justice RV Raveendran with Karnataka Lokayukta Justice PV Shetty as the co-chairperson.

Justice BV Nagarathna, speaking on Mediation: Achievements and Challenges, referred to Justice P V Shetty  as “a progressive judge” to say “we have progressive judges on the bench, there will be progress in the bar also.”

She said the Father of the Nation Mahatma Gandhiwas an effective mediator who, before coming to India, spent most of his professional life in South Africa, more as a mediator than as an advocate speaking for one side only.

To make a point on the importance and relevance of mediation, she quoted from his autobiography, “after a successful mediation, but both were happy over the result, and both rose in the public estimation. I realized that the true function of a lawyer was to unite Parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.”

“This should be an inspiration for us in Mediation,” said Justice Nagarathna, “restricted not only to the learned mediators, message is more to our advocates – give Mediation as a process of alternative dispute resolution.”

Giving a little background of mediation in India, she said Section 89 of the court procedure, under which Mediation is recognized as the alternative to settlement of disputes between the parties, was there in 1908, but was deleted in 1940 and re-inserted in 2002.

Now SC has exhorted the state government and central governments to take action for bringing into effect alternative disputes resolution.

She said, “Legalfraternity talks of two concepts – Docket explosion and Docket exclusion. Today’s conclave is about Docket Explosion, how to curtail the Docket explosion in courts. One of the remedies found by legislature is Alternative Dispute resolution – by Mediation.”

She spoke of recognition of Mediation as an effective tool of dispute resolution, noting that the core challenge is to encourage the litigant public to mediate the disputes.

The second aspect relates to infrastructure for the mediation of disputes, which has two fold aspects: (i) software – we should have trained mediators and (ii) hardware – facilities and amenities.

Among other points she made were:

Training of the mediators and providing corresponding facilities to the trainers, the mediators and the litigants is a challenge.

Emphasis should be not only training mediators but updation of legal knowledge too is important.

Parliamentary recognition of Mediation is an achievement.

Corresponding implementation is a challenge.

United Nations Convention on International settlements, agreements resulting from mediation know as Singapore Convention on Mediation are only for international commercial disputes. This is a Pre-Arbitration Mediation proceedings but implementation is a challenge as far as India is concern.

Emphasis is on the need for a Pre-Arbitration Mediation.

Challenges of Mediation

1. Lack of trained mediators: content, schedule of training
2. Lack of trainers
3. Lack of referrals
4. Lack of infrastructure particularly in district levels.
5. Absence of suitable legislation – central/ parliamentary legislation on mediation
6. Resistance amongst basic actors and stake holders namely judges, lawyers and litigants towards mediation.
7. Lack of mediation managements.
8. Lack of adequate funds

Ending on a secular note, she said, “We are all warriors seeking justice, resolution of disputes, we want there should be peace in society and peace is now guaranteed through mediation because relationship is restored. “

Senior advocate Shiv Kumar spoke on “Med-Arb : Need for Statutory Reforms and Trainings” and talked about the gaps in the system.

“We do not have a definition of ADR we do not even have a definition of Arbitration, we also do not have a definition for Med-Arb or Arb-Med,” he said.

He said we need a definition “because in this country a lot of us believe that ‘khaap panchayats’ and ‘honor killings’ is also Alternative Dispute Resolution methods. “

What we really need, he said, is to recognize and accept Med-Arb (mediation-arbitration) as a form of ADR.

“So, the first Statutory Reform that we need is the amendment of section 89-1 which will record in addition to what is already recorded the concept of Med-Arb, Arb-Med and neutral evaluation as a form of dispute resolution,” he said.

He said what is needed as a Legislative Reform is a comprehensive Code not on Mediation but on ADR.

He ended by stressing that “what ae need is creation of an independent autonomous body outside of government control  on the lines of the ISO 2000-2001organizations that certify quality, and also the creation of a Dispute Resolution Ombudsmen who will have  powers to supervise and receive and deal with complaints against this process.” 

Senior Advocate Sriram Panchu had as his topic “Arbitration and Mediation: strange bed fellows or harmonious partners “.

Panchu started with the observation that “In every litigation, relationship goes for a toss.”Mediation respects relationships, promotes them and tries to save and salvage every bit of harmony left.

Panchu quoted Chief Justice Menon of Singapore on the question of choice of mediation as dispute resolution mechanism – “What’s not to like about it?”

Pointing out a distinction between Arbitration and mediation, he said Arbitration is result oriented. “Combining mediation and arbitration has one hurdle – confidentiality of mediation proceedings is breached in arbitration. So, one way is a mediator should never become the arbitrator in the same case,” he said.

He suggested that the structure of contracts should be such as to place mediation clause before arbitration. Courts can then enforce the contract terms and contribute in effective dispute settlement. He said it was his experience that parties would want to mediate at any stage of arbitration.

He said an effective tool is the mediator sits with arbitrators while all arguments are put forth and gains complete knowledge of the case. And then, before the arbitral award is arrived at or declared, mediator speaks with parties to arrive at a mutually accepted decision.

He said mediation considers human factors like equity, fairness, family relations, emotions and sentiments that have no room in the adversarial process of litigation or arbitration where the binding verdict necessarily puts one party at a disadvantage. The basic philosophy underlying conflict resolution is “Consensus before adversarial”.

“Training is essential for mediators. Not every good arbitrator is a natural mediator. Mediation should be a professional career option.  Else it will never flourish. It has always taken a backseat, which it shouldn’t. We must focus on supply of well-trained mediators as it will also bring down the case pendency scenario in India,” said Panchu.

“Then it is going to be Appropriate Dispute Resolution instead of Alternate Dispute Resolution,” concluded Panchu.

Prof. (Dr) Ashok R Patil, spoke on “Online Mediation: the Future Technique of Mediation”. He noted that as per the Supreme Court, access to Justice should satisfy four essential elements: (i) Effective adjuratory Mechanism (ii) Reasonable accessible in terms of distance (iii) Must be speedy (iv) Affordable

Online mediation is a better method to achieve justice with these elements.

Online Dispute Resolution (ODR) is of two types:  i) Synchronized interaction – like teleconferencing, and ii) Asynchronized – text based chatting.

All three parties have to be present at the same time in the first interaction, which is not so in Asynchronized interaction

An advantage of ODR is that information can be shared online, so that all privacy is ensured.

Also Read: Legal Leadership Conclave on Arbitration & Mediation: the need and the problems

Prof Patil said there is huge scope for ODR in India. Citing a Government of India meeting last year, he said 3 crore pending cases can be solved by online mediation.

Deepak Sharma, Managing Director of North-Starcom MediaVest Group, talked about branding India as an International Mediation hub.

He started by noting that branding India in any way when our methodology and technology is still developing, could only result in failure. “Since the rise of consumerism, the aim of branding is to evoke response and engagement, mapping India on the global platform as an arbitration hub may not be best right now,” held Sharma.

The need for autonomy of Arbitration and Mediation process and keep it free from interference or intervention by state and judiciary was stressed upon by judges and lawyers who spoke in the first technical session of the Legal Leadership Conclave on Challenges and Future of Arbitration and Mediation in India organised in Bengaluru by India Legal magazine and ENC group.

The session was chaired by former Chief Justice of India,  Justice TS Thakur and co-chaired by former Supreme Court judge Justice M Shivraj Patil.

Speaking at the session, former Supreme Court judge, Justice BN Srikrishna talked about “Challenges and Reforms in Indian Arbitration and Mediation System – Way Forward”.  He emphasized on the need for arbitration process to have autonomy.

The lesser the interference by the state authorities the better is the spirit of Arbitration, he said. “Unfortunately in this country arbitration scenario is dominated by judges,” said Justice Srikrishna. The council should be independent in the sense it should not be dominated by any court or judge.

Mediation and Arbitration are the ideas whose time has come. Now if ultimately all resolution of dispute happens as result of Artificial Intelligence, the only place where natural intelligence can play is the human touch which is why arbitration must be as informal as possible.

AS Uday Holla, former Advocate General of Karnataka, spoke on Global trends in institutional arbitration and what are the challenges.

Arguing against judicial intervention in arbitration, he said, “Why do people go to Singapore Arbitration centre or Paris? It is because the judicial interventions are very meager and very less.”

“It is in this context that the chairman very rightly said, there is a need of change of mindset among the judges. Yes there are cases where arbitral awards are absolutely bad but then not in every case can the arbitral awards be set aside,” he said.

Also Read: Legal Leadership Conclave on Challenges and Future of Arbitration begins in Bangalore

He spoke of the need to adapt to new technology and said Arbitration is a process where technology can be used more abundantly than in courts.

Observing that ultimately the need of the hour is justice at the earliest, he said “it is this context that arbitration is a forum which all of us think is the most efficient and most time efficient forum for dispensation of justice.”

Justice Alok Aradhe, speaking on Challenges to Arbitral awards – Commercial courts and need for Training of judges, pointed out the cost of commercial dispute resolution has gone down from Rs 10 lakhs to 3 lakhs.

He said arbitration jurisdictions like Singapore and Stockholm are most successful because of sufficient support from the government and a skilled panel of arbitrators, besides the time-bound approach in the dispute resolution process.

Also Read: Legal Leadership Conclave on Arbitration & Mediation: the need and the problems

Speaking about growing trend towards mediation and arbitration, Justice Aradhe said it has been seen lately that parties directly approach arbitration centres. He said It is a positive outcome as it reduces case overload in the judiciary besides the individual dispute getting resolved amicably.

He said Mumbai’s international arbitration centre opened in July and a lot is hoped to be achieved through it.

He also had a word about courts intervention in arbitration process, sayinh, “Judges must consider the adverse implication of modifying or interfering with an arbitral award as it plays into the ethos of the ADR mechanism. Our country should be in sync with global standards. Arbitral awards thus should be upheld with the same sanctity as a judgment from the courts.”

Justice V Jagannathan, speaking about Arbitration as an effective tool for ADR process , pointed to the massive pendency of cases in judiciary. “According to National Judicial date published recently, 3 crore cases are pending in India and 65 lakh cases pending in the last 5 years. If this trend continues, the system itself will collapse like building collapsed in flood recently in Uttarkhand,” he said.

To address the issue, arbitration as the means for alternative dispute resolution  has come as a boon for the people of India and particularly for investors who want to make investment and make India economically very strong.

He stated some reasons why the Arbitration Act needs to be implemented forcefully:

Dependency and pressure on the courts are so much that the courts are unable to dispose cases within a short time.  To address these pending cases and make people enjoy the fruit of their litigations, Arbitration consideration Act 1940 was modified and comprehensively made into 1996 Act which made many provisions to curtail the cost. As of now, 2019 Amendment Act was passed only on August 8. He said there are surely some loopholes in the act which needs to be changed.

If the country is to improve, all stake holders – lawyers, judges and arbitrators and all concerned will have to take serious steps to ensure people of the country get access to justice and justice is delivered in time.

Also Read: Mediation will find pride of place as a tool to allay Injustice: Ex CJI Venkatachaliah

“We have witnessed Industrial Revolution, green revolution in the country; we are now in for Arbitration Revolution. This conclave/ conference should be the beginning of Arbitration Revolution to alter judicial scenario of the country and let people enjoy the fruits of going to courts and let foreign investors come to India – make India a Hub of Arbitration,” said Justice Jagannathan.

Avinash Ambale, an expert on Artificial Intelligence,  spoke about  Use of Artificial Intelligence in conflict Resolution. He pointed out that Artificial Intelligence (AI) does not understand language. It understands codes. AI can do a semantic search, or a statistical analysis of words, much like the Google translate. In the legal system, AI can function through the LKIF(Legal Knowledge Interchange Format).

At present, he said there are gaps in data collation due to an absence of an exhaustive law lexicon, or a legal semantic dictionary that will tell the AI a single meaning attributed to each word. The AI can capture the literal meaning. “However, there is pre-eminence of content that has interpretative value which will be lost in translation to the AI system<” he pointed out.  The single biggest thing lacking in AI is “adversarial inference”.

“AI presents a one-sided forward probability, but gets stumped if asked to judge between two opposing probabilities with opposing bulk of evidences and opposing bulk of arguments pitted against one another. That can be called the AI logic of tomorrow, as technology is continuously evolving to reach there,” he said.

AI today is capable of deriving causal inference, he said. Citing an instance of application of AI in legal process, he mentioned “Heneghan v Manchester Dry Docks” where all factors were presented to the courts in a fair trial process and to the AI to arrive at a judgment simultaneously. The compensation awarded was nearly the same and it speaks for AI’s efficiency in the judicial system, said Ambale.

However, he said in conclusion, “AIs are hyper-rational agents and “arbitration with a human touch” is something that AI hasn’t attained yet. Currently, AI is incapable of “equitable distribution to all” which an ADR forum intends to achieve. AI is completely data driven and can be fully relied upon for objective reasoning. A lot is still left for AI to achieve.”