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
Lack of trained mediators: content, schedule of training
Lack of trainers
Lack of referrals
Lack of infrastructure particularly in district levels.
Absence of suitable legislation – central/ parliamentary legislation on mediation
Resistance amongst basic actors and stake holders namely judges, lawyers and litigants towards mediation.
Lack of mediation managements.
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.
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.
Delhi deploys 25,000 personnel, installs CCTV cameras ahead of CJP march
More than 25,000 police and paramilitary personnel have been deployed in Delhi ahead of the CJP’s planned protest march at Connaught Place. Authorities have also imposed restrictions and stepped up CCTV surveillance.
Delhi has stepped up security ahead of a planned protest march by the Cockroach Janta Party (CJP), with more than 25,000 police and paramilitary personnel deployed and additional surveillance measures introduced in parts of the national capital.
The planned “Lehra Do Tiranga” march is scheduled to take place at Central Park in Connaught Place on Friday, October 16. Authorities have also imposed prohibitory orders in Connaught Place and surrounding areas as part of the security arrangements.
Security tightened across Connaught Place
The security arrangements include the deployment of police and paramilitary personnel, along with the installation of additional CCTV cameras at Central Park and Rajiv Chowk Metro Station.
Prohibitory orders have been imposed under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in Connaught Place and nearby areas. Central Park is also scheduled to remain closed for two days, with authorities advising the public to avoid the area during the arrangements.
A high-level meeting chaired by Delhi Police Commissioner Anurag Kumar, attended by senior police officers, was held on Thursday to review preparations ahead of the planned demonstration.
Why CJP is planning the march
The CJP has called the march to protest the arrest of its leaders Saurav Das and Ashutosh Ranka and to demand the resignation of Chief Election Commissioner Gyanesh Kumar over alleged irregularities in voter rolls.
The party’s protest is centred on its allegations concerning the electoral roll revision process. These are the protesters’ claims and should not be treated as independently established findings.
With Jantar Mantar no longer designated as a protest site, Central Park in Connaught Place has emerged as the proposed location for the fresh demonstration. The protest has also received support from the Aam Aadmi Party and the All India Students’ Association, according to the report.
Traders raise concerns over business disruptions
The heightened security measures have also prompted concerns among traders in the area.
Traders at Palika Bazaar have expressed concern about disruptions during the festive season, pointing to losses associated with previous protests. The concerns reflect the potential impact of repeated demonstrations and security restrictions on commercial activity in central Delhi.
Delhi Police has said it will facilitate peaceful demonstrators selectively while maintaining public order and protecting property.
Mallikarjun Kharge’s ‘Your Friends’ jab at Rahul Gandhi over congress exits
Congress president Mallikarjun Kharge took a dig at Rahul Gandhi after the Leader of the Opposition reportedly described former party leaders Jyotiraditya Scindia and Ghulam Nabi Azad as among those who had left the Congress.
Congress president Mallikarjun Kharge made a pointed remark about former Congress leaders after Rahul Gandhi reportedly described some of those who left the party as people who had been driven by personal interests or fear. The exchange took place during an informal interaction involving young Congress workers, according to a report published on October 15.
Rahul Gandhi, the Leader of the Opposition in the Lok Sabha, reportedly referred to former Congress leaders Jyotiraditya Scindia and Ghulam Nabi Azad while discussing people who had left the party. Kharge responded with a quip that drew attention to Rahul Gandhi’s earlier association with the leaders.
What Rahul Gandhi said about leaders who left Congress
During the interaction, Rahul Gandhi reportedly said that the Congress was now left with committed workers, describing those who remained in the party as ‘babbar sher’ or lions. He alleged that people who were greedy or afraid had left, citing Scindia and Azad as examples.
His reported remarks referred to people who, he suggested, had left because of the attraction of positions and security or fear of investigative agencies such as the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI).
These were Rahul Gandhi’s political characterisations of the leaders who left the Congress, rather than independently established explanations for their departures.
Kharge’s response to Rahul Gandhi
Reacting to Rahul Gandhi’s account, Kharge remarked, “They were all your friends.”
The comment referred to the association Rahul Gandhi had previously shared with some of the leaders who later left the Congress. Rahul Gandhi responded by saying that his sister, Priyanka Gandhi Vadra, was present and knew that Scindia was not his friend.
He subsequently reflected on the difficulty of identifying friends and opponents in politics, saying that people who appear to be friends may not necessarily be so, and the reverse may also be true.
Why Jyotiraditya Scindia and Ghulam Nabi Azad were mentioned
Jyotiraditya Scindia left the Congress in 2020 and joined the Bharatiya Janata Party (BJP). His departure was followed by a political crisis in Madhya Pradesh that resulted in the fall of the Congress government led by Kamal Nath.
Ghulam Nabi Azad, a veteran Congress leader, resigned from the party in August 2022. In his resignation letter, he criticised Rahul Gandhi’s leadership and the functioning of the party’s internal decision-making process.
Both leaders subsequently became prominent examples in political discussions about senior figures leaving the Congress, although their reasons and circumstances differed.
Rahul Gandhi’s message to young Congress workers
The interaction also focused on protests and political mobilisation. Rahul Gandhi reportedly told young Congress workers that demonstrations and struggles were part of their political training and encouraged them to explore new and creative ways of protesting.
He also suggested holding protests at Jantar Mantar, according to the report.
Congress president Kharge and Priyanka Gandhi Vadra were present during the interaction. Rahul Gandhi also claimed that the government led by Prime Minister Narendra Modi was dependent on the next eight to 10 months, though the report did not establish this as an independently verified assessment.
The exchange between Kharge and Rahul Gandhi offered a glimpse into the Congress leadership’s informal discussions, while bringing the departures of Scindia and Azad back into the political conversation.
Delhi Police offers 11-person limit for CJP’s Connaught Place protest
Delhi Police has offered to facilitate a group of 11 people at Central Park in Connaught Place for the Cockroach Janata Party’s October 16 protest, while warning that violations of prohibitory orders could invite legal action.
Delhi Police has proposed allowing a group of 11 people to carry the national flag and sing the national anthem at Central Park in Connaught Place on October 16, ahead of a protest called by the Cockroach Janata Party (CJP) over alleged electoral fraud.
The police said it could facilitate the group at a suitable place in the park, while appealing to the public not to join the proposed gathering in large numbers. The offer comes amid prohibitory orders in Connaught Place and adjoining areas under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
CJP founder Abhijeet Dipke has called on people to assemble at Central Park at 5 pm on Friday with the national flag. The proposed demonstration, named “Lehra Do Tiranga”, follows the detention of CJP members Saurav Das and Ashutosh Ranka during an earlier protest.
Why Delhi Police proposed limiting the gathering
In its statement, Delhi Police cited the prevailing security and law-and-order situation in the area. It also referred to information from the New Delhi Municipal Council (NDMC) that Central Park would remain closed on October 16 and 17 for administrative reasons.
Deputy Commissioner of Police Neha Yadav said the NDMC had informed the police about the closure and had asked that no gathering be allowed near the park.
The police also cited representations from trader and market associations in Connaught Place and surrounding areas. According to the police, the associations had raised concerns about unlawful assemblies and their impact on businesses, particularly during the festive season.
Police warned that violations of Section 163 BNSS would invite appropriate legal action. It also stressed that the national flag must be displayed and carried, and the national anthem sung, in the prescribed manner with due respect and dignity.
Delhi High Court declines to stop CJP protest
The proposed gathering reached the Delhi High Court after a vendor sought intervention over concerns about disruption to businesses and public movement in Connaught Place.
On Thursday, the court declined to restrain the CJP from holding the protest. It recorded the police’s assurance that all possible measures under the law would be taken to regulate the gathering and maintain peace.
The petition was filed by a vendor at Palika Bazar in Connaught Place, who raised concerns about the potential impact of the demonstration on traders and others working in the area.
Additional Solicitor General Chetan Sharma, appearing for the authorities, told the court that steps had already been taken to regulate the proposed protest.
CJP’s protest call follows detention of party members
Dipke’s October 16 protest call follows earlier demonstrations over alleged electoral fraud. CJP members Saurav Das and Ashutosh Ranka are in jail on trespass charges after raising the national flag at Jantar Mantar earlier this week, according to the report.
The party has been protesting over alleged electoral fraud and has raised questions about the Election Commission.
Dipke has urged people to gather at Central Park with the national flag, arguing that raising the Tricolour should not be treated as a crime.
The police’s proposal to facilitate a group of 11 people came as the authorities sought to prevent a larger gathering at the site. The CJP’s response to the police’s offer was still awaited in the report published on October 15.
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