Ms Veena Ralli-Sr Mediator, Advocate, Organising Secretary, Samadhan Delhi High Court Mediation and Conciliation Centre

Ms Ralli is a well-known name in mediation, as an Organizing Secretary of Delhi High Court Mediation And Conciliation Centre, Samadhan, who is leading the panel of more than 205 mediators. She is an accredited mediator by CIArb, London, SIMI Singapore. Her skills as Mediator go beyond her qualifications and her leadership qualities as Organising Secretary, Samadhan is exemplary and inspiring too.

Indian Law Watch in Conversation with Adv. & Sr. Mediator, Ms Veena Ralli. To understand how disputes can be resolved through pre-litigation mediation and court annexed mediation.

A. PRE-LITIGATION MEDIATION

1. What is pre-litigation mediation? What are the natures of disputes that can be handled through pre-litigation mediation? How many courts in India are actually implementing pre-litigation mediation?

Mediation is a process in which a neutral third Person assists the conflicting parties to find a mutually acceptable solution to their problem and resolve their disputes by using negotiation skills and communication techniques. The mediator facilitates communication between the disputants and helps them to resolve their disputes. Mediation is a unique process whereby the third neutral person aids and assists each party to understand the needs of the opponent.

This is a process where relationships, be it personal, commercial or organisational, are valued and all endeavour is made to save them. Getting room to air emotions makes this process completely distinctive. Mediation helps the parties to deal with deeper issues and focus on the real needs of the parties. A judge may give the most reasoned judgement but may fail to give any reasonable closure to the issues between the parties. Mediation is a process of WIN-WIN instead of traditional WIN- LOSE scenario.    

Pre-litigation mediation is a pre-suit mediation where the parties agree to hire the services of a private neutral third person outside the court process for resolution of their disputes. To begin mediation at the pre-suit stage, there has to be a consensus for a person to be appointed as Mediator over and above making the other person to agree to talk and mediate to find out a solution to the conflict between the parties.

Mediation provides an environment for the parties to resolve their interpersonal conflicts. Family and matrimonial disputes, disputes of child rights and child custody, commercial disputes arising from business contracts, transaction disputes; real estate and construction disputes; consumer disputes; employment and service disputes; industrial disputes; banking and insurance-related disputes; intellectual property rights disputes including trademark, copyright and patents and many more disputes of diversified nature can be handled at pre-litigation stage.

The facility of pre-litigation mediation is available in few court-annexed mediation Centres in India.  At Samadhan,  Delhi  High Court Mediation and Conciliation Centre, a lot of pre-litigation matters are being filed on the recommendation of the lawyers.

Samadhan is a unique example of coordination of the Bar and the Bench, in as much as, the day to day administration of the Centre is managed by lawyers trained mediators under the supervision of the Overseeing Committee comprising Judges and the lawyers. 

Pre-litigation mediation is also being conducted at the mediation and conciliation Centre of the  High court of Punjab and Haryana.

Some State Governments have taken great initiatives and community mediation centres have been opened at various levels.  Delhi Dispute Redressal Society is running various mediation centres at the community level. Recently community mediation centres have been opened in  Madhya Pradesh. Such initiatives are creating momentum in the mediation movement.

2. What are the implications of the settlement arrived under a pre-litigation mediation for a common man understanding? How binding it is for the parties to dispute?

With the signing of the Singapore Convention on Mediation on International Settlements resulting from mediation on 7th August 2019 at Singapore, much is being talked about private mediation and its importance in the process of resolving disputes.  In the absence of any law on Mediation as on date, we need to understand private mediation and its impact on the dispute redressal mechanism.

In court-annexed mediation, the settlement agreement merges into a court order and gets its binding force from the order passed by the court. 

The question arises what is the binding force of an agreement executed between the parties through mediation. This was answered in the year 2009 itself by a judgement of our Delhi High Court passed by a Division Bench in EFA (OS) 19 of 2009 wherein it has been held that it is not the settlement which can per se be executable. 

Pre-litigation mediation settlement is purely a contract between the parties and does not bind the parties by itself.  Non-compliance of any of the agreed terms leads to litigation.

As we know in mediation parties willingly come together to resolve their disputes. Settlements are written with the informed consent of the parties and generally the parties abide by the same as they voluntarily agree to the terms after evaluating all their resources. As a result, there are fewer chances of non-compliances of the agreed terms. But a question arises, “What is the remedy available against the defaulting party?”  It is difficult to answer this question in the absence of any law as on date.

B. PRIVATE MEDIATION

3. What is the scope of development of private mediation in India?

But a question needs to be addressed, “How pre-litigation mediation is being conducted at various centres, private or court-annexed?” To understand this we need to know the difference between the two though both the terminologies are used interchangeably. 

In court referred mediation, the settlement merges into court order and it gets its finality under Order XXIII Rule 3 of the Code of Civil Procedure. All other settlements are merely contracts between the parties unless the settlement is an outcome of Conciliation, a process recognised by Part III of the Arbitration and Conciliation Act. As per Section 74 of the Act, the settlement agreement has got the effect of an Award. 

The process involved in mediation and conciliation is quite similar but has two pivotal differences. In conciliation, the parties appoint a third neutral party for resolving their disputes who can suggest terms for resolution and can draft an agreement for them. In mediation, the third neutral person assists the parties to find a solution to their dispute by themselves. Both, mediation and conciliation are confidential processes. But in mediation, the confidentiality is solely based on trust whereas in conciliation it is the law that decides the extent of confidentiality. In mediation, the confidentiality of the process and outcome is to be maintained unless permitted to be disclosed whereas in conciliation the process and its outcome are to be disclosed unless forbidden by any party and are required to be kept confidential. 

C. PETTY ISSUES

 4. Disputes have become more prominent now and the pandemic has further added a new trigger point. Overall, the trigger point of disputes is too fast now. Disputes that arise in the spur of the moment like parking disputes, road rage, and neighbourhood issues. Then there are petty disputes, where monetary concerns are too small but time to recover by the court is not an option? What role does mediation play in resolving such disputes and how effective it is?

Globalisation and increasing commercial activities across the world, are compelling reasons for the conflicting parties to look at mediation as a process for dispute resolution as it is cost-effective and less time-consuming. Mediation originated in India. Though we lost it during the colonial regime it regained its momentum later when mediation was introduced in Section 89 of the Code of Civil procedure by way of amendment. Since then, a lot is being talked about mediation.

Looking at the cultural context of our society and the value we give to our relations, mediation is going to stay and prosper in India.

D. MEDIATION AS PRACTICE IN INDIA

5. Historically, mediation has been part of our ancient practice, however, we lost it in a period of time only to re-adopt it watching the success of the western model. Do you feel mediation could have arrived at an earlier stage in India?

In the pre-colonial era, a third person was often involved to resolve disputes between the parties. The decision of that third neutral person was generally respected but the process involved by them exhibited mixed features of both mediation and arbitration. During the British Rule, the informal system of justice delivery turned into formal which in fact was experienced by litigants as “just delivered” by the adjudicators based on their understanding of facts and interpretation of the law.  Mediation then got the attention of the judicial system due to the overflowing docket. It would have definitely been better had we continued to deal with our conflicts both, personal and interpersonal, through the process of mediation.  But what is bothering in today’s time is the pace of its growth.

We are still struggling to make the common man understand the difference between mediation and litigation.  Ever since the year of introduction of mediation as a mode of alternative to the existing dispute redressal process in the Code of Civil Procedure we have not been able to see mediation outside our existing legal system. We have been slow in realizing its benefits not only in terms of time, money, energy but also getting the outcome in our hands while dealing with our  conflicts.

6. Domain-specific mediators are not a visible entity in India right now. How would the domain-specific mediator be more helpful in resolving disputes?

There are two schools of thoughts. As per the believers of process expertise, domain knowledge is of no relevance. The Mediator should follow the process of mediation and facilitate an amicable resolution between the parties by using communication and negotiation skills by applying a problem-solving approach.  “Asking the appropriate question” to the parties at every stage of the process helps the mediator in shifting them from their positions to interests, for generation of options and selection of the option best suitable to them but the art of formulating that appropriate question comes from the domain knowledge, is the belief of the other group.

7. How is the mediator: population ratio in India presently?

Mediation as yet has not been seen outside the preview of the existing legal system and so far only lawyers have been trained. Very recently we have seen a shift in the focus and even non-lawyers are undergoing training through organizations. There is no data available on this account but I can say that we are still at a nascent stage.

8. How many practice areas of law have mediation as a compulsory step before commencing litigation?

Due to the matrix of commercial transactions and consequential disputes of commercial nature expanding manifold and with a view to improve India’s ranking in the Index of World Bank and to herald procedural reforms so as to boost the foreign investor’s confidence, the need for legislation espousing expeditious adjudication of commercial disputes can well be seen in the wide definition of commercial transactions as per Section 2(1) ( c ) of the Commercial Courts Act, 2015 which takes within its ambit ordinary transactions of merchants, bankers, financiers and traders, transactions relating to sales, carriage of goods, construction and infrastructure contracts, issues relating to agreements, management and consultancy agreements, joint venture agreements, intellectual property rights relating to registered and unregistered trademarks, patent, design, agreements of sale of goods and such other commercial disputes as may be notified by the  Central Govt. 

A codification of the concept of mediation is found in the Commercial Courts Act 2015 which was amended in 2018 and Section 12 A was inserted that made pre institution mediation compulsory under the Act before instituting any commercial suit. The procedure for such pre-institutional mediation can be found in the Commercial Courts (Pre-institution Mediation and Settlement) Rules 2018. The Rules lay down that to initiate mediation the plaintiff needs to move an application with the State Legal Services Authorities or the Delhi State Legal Services Authority constituted under the Legal Services Authority Act, 1987. Since under the Act the mediation is conducted under the Legal Services Authority in their respective Mediation Centres, it generates public acceptance for the process regarding its impartiality. It also conveys mediation is complementary and not competitive with the court system.

9. Should there be experience criteria to be a mediator? What are your thoughts with regard to it? How do you justify the same for a non-lawyer mediator?

It is an acceptable rule globally that anybody can be trained as a mediator irrespective of one’s age. Any person trained as Mediator can facilitate mediation between the conflicting parties. Of course, experience matters in handling processes while dealing with emotions and writing settlements. But if you are asking about the experience as a lawyer to be trained as a Mediator, then my answer will be in affirmative.  Actually much is expected from a lawyer /mediator. The outcome of the mediation process is a resolution of conflicts which is required to be reflected in a settlement that binds the parties.

As a lawyer/ mediator one is supposed to assist the parties in writing a settlement which is executable in law. Experience of the lawyer/ mediator matters a lot both in handling complicated issues and writing settlement. This has more relevance in court-annexed mediation matters where courts also expect lawyers/ mediators to help the parties to resolve all issues, factual, emotional and legal. For a non-lawyer Mediator, it can be a challenge to get desired assistance from the legal advisers of the parties.

10. Who is more successful as mediators- non-lawyers, judges and lawyers?

Anybody who understands the philosophy of mediation, in its real spirit, can be a good mediator. The magnitude and scale of conflicts in the society require trained mediators in all spheres of life. But so far as Judges are concerned, their hands are full. The overburdening of the judicial system may not permit them to spend the required time in mediation matters. Moreover, it can be challenging for them to shift their role from being evaluative in court to facilitate mediation.      

11. What are important training programs/educational qualifications according to your experience that practising or aspiring mediators should go through?

Mediation is scientific. It is a complexed process and one needs to know negotiation skills and communication techniques along with compassion and empathy with neutrality.  Though there is no qualification required to be a mediator of course there is a  prescribed training for mediation with specific curriculum. But that is not enough. That makes one aware of the concept of mediation.  The techniques required for practising mediation can not just be learnt through training.  They need to be imbibed by practice and experience. 

12. There is a need for the spread of mediation movement to each and every stratum. What has been the emphasis on such concerns for the Delhi region?

 Mediation is the need of the hour more particularly for its specific feature of self-determination and empowerment of the disputing parties who are encouraged to assess their needs and negotiate for their desires.  Due to its unique features of resolving disputes and bringing peace in the life of disputants, a lot of emphasis is being given to mediation. In Delhi, almost all courts have got court-annexed mediation centres; there are centres run by the Govt. There are promos being played on Radio. For general awareness of the public banners and posters have been displayed at prominent places on the roadsides.  Awareness programmes are being held for lawyers, Recently on recommendations of the Chief Justice of India, mediation has been included in the curriculum for the law students and has been made a compulsory subject.

13. Mediation law is about to arrive in India. What would be the impact of the same for a common man?

 So far people have always shown their trust in the litigation system where a judge decides for them based on precedents or the codified law.  So the mindset of the common man is to follow the law, disobedience of which may lead to adverse orders.  Mediation, though introduced in the Code of Civil procedure in the year 2002, has been accepted to the disputants at a very slow pace that too court-annexed, may be due to the absence of law, backing it. So the law on mediation may help people to accept it as an appropriate dispute redressal system than an alternate dispute redressal system at the pre-litigation stage as well. Much is needed to be incorporated in law to give enforceability to private mediation and its settlement. The legislature, so far, has not considered it appropriate to provide for a mediation settlement privately arrived at to be enforced as a decree dehors Part III of the Arbitration and Conciliation Act.  For getting sanctity of law, there has to be an Award and that is possible only in conciliation under Part III of the Arbitration and Conciliation Act.

14. We hear a lot about India as an arbitration hub. How do you see India as a mediation hub? How is the spread of the movement in India according to you?

India has been acknowledged as Arbitration hub but it has been possible after a hard work of about three decades. Mediation is something which originated in India.  A glance at the odyssey of mediation will reveal that in the epic era Angad went to Ravana and Lord Krishna talked to Kauravas as messengers of peace but we lost its worth during  British Era whereafter we left the decision making power to a third person and strictly followed litigation for seeking justice. Due to the overburdening of the judicial system mediation is brought back as an alternative to the existing dispute redressal mechanism but during the last  15 years, since its introduction in Section 89 of CPC and setting up of court-annexed mediation centres,  mediation is being considered as an appropriate mechanism for resolution of disputes because it dissects the past, allows the parties to air their emotions without any blame game and results into creative solutions to the problem which is not possible in the traditional style of litigation. Of course, it will catch momentum with speed once legislation on mediation is passed.    

15. Singapore convention has been signed. What do you see its impact in Indian scenario?

With the signing of Singapore convention on International Settlement agreements, businesses seeking enforcement of a mediated settlement agreement across borders can apply directly to the courts of countries that have signed and ratified the treaty instead of having to enforce the settlement agreement as a contract in accordance with each country’s domestic process.  A committee appointed by the Supreme Court of India has already proposed a Bill for consideration of the legislative authority. Once the Bill is passed, the mediated settlements will attach finality and then more and more people will opt for mediation, the same being cost-effective apart from giving quick relief to the parties.

16. How do you feel the pandemic changed the scenario in the mediation process for a litigant? How accessible was the Samadhan during pandemic for dispute resolution? Do you feel video conferencing in dispute resolution is here to stay? Is the step in this direction commenced?

During Covid 19, more particularly due to imposition of lockdown, the accessibility to the existing legal system became remote for the litigants.  Gradually, the hearing of cases started but virtually. Online mediation, which was a dream till the onset of Pandemic became a reality. Though thrust was on everyone, it is found to be happening smoothly. Virtually mediation has reached everyone’s home. All the parties with their advisors get together in the virtual meeting room without travelling physically. With a click of a button, a caucus can take place and those parties who are not to be involved in the discussions can be put in the web waiting room. Results are satisfactory.  Of course, people are sceptic about confidentiality. But this can be handled by an experienced mediator by being vigilant, using mediation skills, managing technology and reminding people about the adverse consequences in case of a breach. Of course, the underprivileged, who do not have access to technology for whatsoever reason, may be deprived of getting access to mediation. But at the same time, we have seen that a class of people who were not participating earlier due to their location miles away from each other are sitting face to face and resolving their disputes.

17. How can technology be of aid in meditation especially in light of the element of confidentiality required? 

At Samadhan, we started Online mediation since June 27th 2020 and it is working successfully. Samadhan, at present, is conducting, on an average, 50 matters a day of all nature, be it commercial, matrimonial or family where overwhelming emotions create impasse at every stage. Though initially Online mediation was thrust upon us due to the new normal, it is likely to stay as it has made communication possible in many cases where distance was found a roadblock to the interaction between the disputants.  

E. JOURNEY OF VEENA RALLI THE MEDIATOR AND PERSON

18. You have been long associated with Samadhan. Can you please share the experience of this long journey?

I became a lawyer by default.  After doing my graduation I was looking for an administrative job and thought the law would help me in finding that. But as luck could have it, I was not successful in getting a suitable job. So very reluctantly I joined the practice and joined a chamber in the High Court. Gradually I started taking interest in litigation and did not disappoint my senior while assisting him.  Since then I never looked back. I always used to think that once a lawyer, always a lawyer and there is no scope of any change except you can maximum change your field of work. With mediation training which I undertook on the insistence of a friend, having no clue at that time about what it was, I got a chance to change my line of work where my legal knowledge and experience aided my skills of mediation acquired through training.  I did my training in the year 2006 and today after more than 15 years of my experience as a mediator I can say that I am a better human being than what I was earlier.  Mediation is a life skill.  It has helped me in honing my negotiation and communication skills and I quite often use them for resolving my interpersonal and intrapersonal conflicts. 

19.  What has been the inspiration behind becoming a lawyer and then a mediator? How do you describe Veena Ralli as a person? What are your interests and hobbies?

During my journey of mediation since 2006, my experience from learning mediation from teachers to learning mediation by teaching has been quite enriching. I am a person of limited needs. I love to be with my family and work for them. I love cooking and want to take good care of the people around me. 

20. What is your advice to aspiring mediators and lawyer mediators?

I would like to convey to my colleagues and friends that mediation can bring wonders to mankind not only in resolving conflicts but stopping them at the initial stage itself by using communication and negotiation skills.

It just needs patience, patience and only patience.   

Listening and that too active listening. Active listening is to understand the context and content of the conflict and spoken or unspoken language of the parties and then contain the conflict in a way so that it does not burst and does not result in disaster.  It requires empathy and the ability to connect with parties in a particular way, giving the parties the feel that they have been heard and understood. The mediator is required to set an agenda for discussions and hold marathon sessions and steer the discussions to resolution by controlling the process and leaving the outcome in the hands of the Parties. How to separate the problem from the person and bring the person to focus on the problem and not the person is a task in the hands of the mediator. For mediation, one needs to have persistence, perseverance and patience.

Mediation is more affordable and less tedious but there is no law regulating mediation. Pre-litigation, despite its benefits, has yet to gain acceptability as an option to the conventional system of litigation.   Since the onset of Pandemic, communication channels have been limited to electronic modes while maintaining norms of hygiene and social distancing. Of course, we miss the human touch while using virtual mode for communication between the parties but this equally has its own benefit. Now everyone, irrespective of one’s location, can evolve in the process of mediation to find out a solution for mutual gains.

The core element of mediation is the empowerment of the parties. It is a unique process whereby the parties may think outside the box find the solution to their problems themselves instead of leaving them in the hands of the decision-makers.