Lawyers' teamwork in Mediation.

"Samadhan’s the mediation Centre at Delhi High Cour's reputation as a successful mediation centre has been built over six years through team work among lawyers. It is the only mediation centre in India that is run by lawyers though it is attached to the High Court and a supervising committee includes four sitting judges." says Sudhanshu Batra, senior advocate and organizing secretary of Samadhan.

Read Here.http://www.civilsocietyonline.com/pages/Details.aspx?162

Lawyers spearhead Mediation.

"Lawyers have taken up mediation in a big way. Litigants realize that this is a good thing. It is cheaper than litigation." says Jitender Pal Sengh he was the first organizing secretary of Samadhan, the Delhi High Court’s Centre for Mediation and Conciliation. A slim and energetic man who used to be a competition-level sportsman, Sengh has more than 20 years behind him as a lawyer. He spoke to Civil Society on how mediation came to be introduced in the High Court and what can be done to make it more established as a means of delivering justice.

http://www.civilsocietyonline.com/Archive/jun10/jun103.asp

Frequently Asked Questions (FAQ'S)

1. Is Mediation counseling?

Answer. No, its the most misunderstood concept that Mediators are trained counsellors and help people through personal problems.
In fact, A Mediator is a neutral third party who simply FACILITATES any dispute or a disagreement. Often when two or more people, parties on a common ground have a dispute between them it is mostly because of lack of communication, high emotions, hurt feelings and closing channels of talking things out. This is mostly in cases of recovery of money, or a dispute between neighbors, property matters and most importantly disputes between the married couples.
Worst damage happens when these unresolved feelings turn into anger and result in filing of cases in a court. Such cases amount to a huge percentage of pending cases in courts.
Even if people find themselves wanting to settle issues later they are unsure of how it will be received.
In a mediation process it is a continuos endeavor of the mediator to first identify the common wants of the parties and help them reach it. The mediator does not advice nor counsel.
Read more on the role of the mediator in this blog posts.



2. My friends are planning to go for a divorce should I refer them to Mediation? Will the mediator help them patch up?

Answer. Yes, to the first question and No, to the next not always.
Yes, surely refer them to a mediator. If a case is already filed the parties could file an application in the court and request the Judge to refer the matter to Mediation under section 89 CPC through there advocate.
There could be a number of reasons why your friends want a Divorce. You may not be the best judge. It is best if a neutral third party (mediator) makes a dialogue happen. The mediators are trained to help people in expressing themselves in a calm and congenial atmosphere.
No, the mediator's do not insist on patching up but surely give the parties an opportunity to explore that option creatively before going ahead. The mediator only assists the parties to reach the conclusion amiably, to close the case so that they tread well in future relationships if at all they have to Divorce. If the parties have a good session where they are able to sort out their issues and patch up then the mediator would help them towards it.

3. Is Mediation expensive?

No, it is not expensive. Mediation is a part of the court proceedings and is FREE. And if a decree results out of it then the entire court fee paid by the parties is returned back. !! :-)


You could leave a question here.

Cases on Mediation in India.

The following are some of the cases where the courts had Mediation under section 89(c) CPC was applied.





1. M/S Afcons Infra. Ltd. & Another vs M/S Cherian Varkey Constructions.
Justice R.V. Raveendran.
2. Salem Bar Association vs Union of India.
3. Jagadish Chander vs Ramesh Chander & others.
4. Ramesh Kumar Jain vs Sandeep Jain & others.
5. Mr. Khub Chand Tyagi vs Delhi Development Authority.
6. West Bengal State Electricity vs Shanti Conductors Pvt Ltd.,
7. Sukanya Holdings Pvt. Ltd vs Jayesh H. pandya & Another.
8. Gajendra Singh vs Durga Kumari.
9. Mallikarjunadu Setti vs Lingamurti Pantulu and valliappa.
10. Penmetcha Subbaraju vs Penmetcha Venkataramaraju.


I will be adding many more cases to this list along with the brief case histories.

Parents Mediation.

One of the "off the rulebook " mediation that took place was that of the mother of the lady whose divorce case was  just settled and the mother was not taking it well.
The father and the lady who went through the mediation process for annulling the marriage requested the mediator who they had come to trust to help them by having a session with the mother who was very disturbed that her daughter actually went through a divorce.
 It disturbed the mother that in her whole family no one had had a divorce and it shameful that 'her' daughter had to be the first one.
Added to her agony was that she had a younger daughter of marriageable age. It would be difficult to get her married in a good family as the reputation of the family is "spoilt" because of the elder daughter. The mother started having psychological problems and was on sleeping pills.

It is very typical situation the women face in India as the marriages take place between the families and not the couple. Even though there is a huge change in the scene in the cities. But even education has failed to uplift the thoughts of people as a whole. Its changing conversation to dwell deeper into this matter. However, this particular case was a tricky one as the mediator had to be a councilor.
The mediator who comes across as a warm friend shared with me that "I can only be a friend here.. this no one teaches but it is the attitude that we do everything to restore harmony in a family without intruding".
She gave her a patient hearing. The wisdom and experience of the mediator was evident as she asked the rest of the family to stay out of the mediation room. The mediator assured her that no one even her family if she wanted will know about the interaction.

The mother started speaking. I thought that probably for the first time in her life (mother) someone asked her her feelings, her thoughts her identity became important, valued. At first it was all about how - reputation of the family and - would people say. After getting assured of the confidentiality of the interaction the mother spoke of her own story again probably for the first time ..where she compromised all her life for the marriage that she did not want, to the carrer she gave up and how her life has been only a series of compromises in a huge joint family. She even said that she had opposed her daughters' marriage which fell on deaf ears.

The mother looked relieved after having talked her heart out. Here the mediator gently asked her if she would want her daughter to have a similar life. Whether she wants a daughter to be happy or suffer consequences of what is not her doing. Whether she would give her daughter what her mother could not. The mediator made the mother realize that she had to support her daughter more than before. If she ensures that her daughter stays happy and goes on well in life that very attitude will help the family in taking wiser decisions in future where the lives of both the daughters are concerned. This made a lot of sense.
She guided her to take steps to take charge of her own life by taking up some meditation classes or join friends groups. She also told her to avoid those relatives who will make her feel guilty in a nice casual Kannada. The tone of the mediator was kind and soft. It soothed the mother a lot.

When the rest of the family stepped in they were happy to see a smiling mother. I as an observer was wondering if such a thing was possible in the court halls. How many lives would have been saddened if the mediation option was not available.

Divorce by Mutual consent

In another case which was referred by the family court to the Bangalore Mediation centre was for Divorce by mutual consent.
The parties were a young couple working in the IT Industry. They had a son of 8 years. The new job that the mother took up needed her to travel. They were all set to manage between them. The trouble started when the relatives staying around them started interfering. The wife was made to feel guilty for leaving the husband and the son for days.

Matters would not settle down and situations kept worsening to such an extent that they ended up filing for a case for divorce by mutual consent in the Family court. What was a house hold dispute would get discussed before the an audience in the courts. This did not help the parties in anyway. At this stage the Judge of the family court referred the matter for Mediation.
The parties at the mediation table were very uncomfortable, hurt, angry and very apprehensive. they had not had a discussion face to face for years. This the mediator sensed and from the word go she (a very experienced lady who is a grandmother) made the atmosphere light. The most important factor for the parties in a case in a mediation is to have faith in the mediator. In India people are not aware of what happens in a mediation proceeding. The parties expected that they will be counseled into staying together. Thus the opening statement is very crucial.

The mediator assured them that the entire proceedings would be completely confidential, and at any time they wanted they could stop the proceedings. She gave them the space, time, warmth needed for a relationship to heal. It was apparent that trust was absent between the parties. Both had moved on with their lives.
The mediator without preaching made them to understand the importance of a proper closure of the current relationship. So that they do not look back and regret, or nurture guilt or any anger which may pass on to the next relationship.
This made sense to the couple and they spoke to each other. Of course strong words and rage followed but the expertise of the mediator was apparent when she cooled the tempers and the couple could actually apologize to each other. Misunderstandings were getting cleared. But it was too late. Both knew that. A few joint and a few private sessions took place.
The couple did not get back but they were free of any emotional or psychological baggage that they might have carried. They parted as friends with maturity and grace. Simply because they talked it out.

If this matter would have been in a family court the parties would not have got an opportunity to speak there mind. Because the legal provisions in such cases have no such clause. The case would have gone on for at least 2 to 3 years. All the discussions, abusing would have happened in open court.

The mediators undergo rigorous training in various skills required and the centre at Bangalore has on going programs which help them to enhance there skills and learn newer techniques. (Will post more on the mediators role in subsequent posts.)

Not many are aware that cases can be handled the way they need to be. When its about relationships a lot of respect, care and compassion is needed. This the mediation provides.

A partition story.

There was a family of 8 brothers and sisters in a village.They grew up in the lap of luxury in the acres of lush green fields and farms owned by there father. They grew up had families and wanted to have share of there own in the property.

This led to disputes as to who gets which part and how much. What resulted was a case in the trial court.

All communication broke down, the family functions became dreaded affairs. What was a huge family of laughter and fun resulted in fragmented small units. No one was happy.

The children grew up and flew to more peaceful cities away from home. The court cases dragged as they do for years.

This case was referred to the local mediation centre. It was for the first time in decades that the siblings actually sat together in one room even if they stayed in the same village. The children who grew up together were aging grand parents. Years of bitterness took away any traces of smiles from there faces. The mediation room was pregnant with the hardness inside the hearts of the people sitting across. Eye contact between the siblings was the most difficult.

The Mediation started. The mediator (a very experienced and sensitive person with years of experience as a lawyer) eased the air with an opening statement which assured them that nothing they speak here will be held against them. That they could speak out all they wanted unlike in a trial court where there lawyer and Judges alone speak. They all shared a joint view of the case with a lot of hesitation. The talks between the parties led to abuses, fights, accusations, rage, bitter words all that were pent up in each of them for years started coming out.

The mediator very intelligently guided the parties to have another session on another appointed day decided by the parties themselves but not very late.

In the private sessions where the parties are encouraged to speak one-on-one with the mediator, one of the kids shared that if our parents were not at war with each other we would have had more property and estates. We cousins would not have moved away from the village. He pleaded with the mediator "please do something so that our parents in there last few years live in peace with each other. They need each other at this stage of there lives. They are all ailing and old". This touched the mediator and encouraged him to communicate this to the parties and there lawyers at the next.

At the next session he communicated this plea of there children to the whole family. What resulted was nothing short of a happy movie ending. The mediation sessions started to become more easy. A few smiles started appearing on the faces, they started talking, apologizing, warmth started engulfing the cold room. The elders found that it was actually easy to get back...the others too were waiting. The matters sorted well. The divisions were made wisely with the lawyers advice.

The post mediation was a scene I will not forget in a hurry. All the siblings with the lawyers and the grand children were sitting calmly listening tot he agreement being typed out.

The women folk gathered outside typically were busy planning out the thread ceremonies of one of the grand son and it was unanimously decided to be held in the village.

The mediator later shared with me "I have spent many years at the courts, earned a lot of money, have a great reputation, but never have I felt this content as I do each day at the mediation centre. Today I am so satisfied looking at this huge family come together. No amount of fees could give me this. Like others I too believed that such scenes happened in movies. Here we see them happen every day."
The lawyers too echoed the sentiments. We have never thought that these families whose cases we were handling for so many years could come together like this in such a short time. Its like a miracle.

In our country a huge percentage of pending cases are that of Partition suits. Not only will the cases come down in the courts many family's will come together.

Litigation Free village.George Pulikuthyil.

Mediation in Action. George Pulikuthyil.

Georges's story caught my eye in a very fine book called "Unsung" written by Anitha Pratap, and her real life stories in the book got a certain depth in stunning black & white photographs by Mahesh Bhat. 

I loved the fact that the book is dedicated to the children of India. I hope it finds a place in the libraries of our schools.
www.bookadda.com/books/unsung-anita-pratap-8190453505-...

Here is a story of George Pulikuthyil who is a hero in his own right.

He says, "My mission is to make justice administration a mass movement. Protection of human rights should be a part of peoples culture". 

He steps in where nobody will. There are many feats of Fr.George who dropped his prefix.  

He says "priesthood is a service not a designation. I believe in Gandhi's philosophy that the best way to worship is to oppose evil.I don't believe in religion anymore I believe in God".   

He works for many causes like Human rights abuses, gender injustice, caste discrimination, Domestic Violence, Dowry cases and protecting the rights of HIV patients, handicapped persons and children. 

He started the NGO called Jananeethi, to provide justice to the poor. It offers free legal aid and even fights cases in court for people who cannot afford. 

Few know that he took up investigations against Coca Cola's factory in Plachimada in Palakkad. Jananeethi published a report that exposed how toxic slurry was being used as fertilizer, poisoning the land and underground water. This was noticed by an Environment magazine from Delhi called Down to Earth.This followed a major expose by the BBC and other media. It led to the Kerala Government banning the sale of Coca cola.

George Pulikuthyil and Mediation.

In 2000, Thichur in Thrissur was declared India's first litigation free village. Teachers and students of Thrissur's Government Law College went around compiling all the disputes and court cases filed from the village. Thereafter, a committee of eminent persons heard the cases and resolved them by mediating between the parties. Almost ALL of the 264 pending cases were settled. People found it cheaper, quicker and less troublesome to settle disputes this way, instead of taking the police-lawyer-court route. Says George: "This is how disputes were resolved in olden days. It works because the whole community functions as a team."

Jananeethi provides legal support to people in the village whenever they need and imparts behaviour training and makes them sensitive socially and culturally.

www.jananeethi.org/jananeethi/directors/biodata/cvofcp.pdf

When we meet.

When we the people meet, let there be a swarm of spices, plates stretching with scrumptious, our desires manifest as prayers and union over a perfect meal. 

When we the people meet, let there be a room for ourselves, a room for others, and a bridge that goes both ways so that we confuse ourselves and others and find our dreams richer for confusions. 

When we the people meet, let us be turbaned and bald, flowing in shawls and silks or denims, looking up at the same stars and unexplored planets. 

When we the people meet, let us revolve into the first revolution, that one that bites the bullet and brings hands clasped, upraised, or saluting the stars and our own neverending shine alongside us.~

@Purvi Shah

https://www.facebook.com/purvi.shah.125

Disputes for Mediation.

List of Disputes where Mediation can be useful.

Disputes,
1. Arising out of contracts.
2. Relating to Specific Performance.
3. Between Suppliers & Customers.
4. Between Bankers & Customers.
5. Between Developers /Builders and Customers.
6. Between Landlords & Tenants.
7. Between insurers & Insured.

All cases strained or soured relationships,

1. Relating to Matrimonial cases,Maintenance, Custody of children conducted with dignity.
2. Relating to Partition/Division among Joint families etc.,
3. Relating to Parnership among partners.

All cases where there is a need for continuation of the pre existing relationship in spite of the disputes like

1. Between Neighbors.
2. Between Employers and Employees.
3. Between Members of societies/Associations/Apartment owners associations.

All cases relating to Consumer Disputes,

Where the trader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or product popularity.

This list is not exhaustive or rigid.It has some exceptions too.

The Mediation process

The Mediation Process

In a mediation the mediator meets both the parties and their Advocates in a joint session, where firstly the parties are made to feel at home then,
1. An opening statement. This is the most important part of a Mediation process as the parties are made to feel comfortable to speak.
2. Then an explanation of the mediation process is given by the mediator.
3. An opportunity for ALL the parties having an influence, directly or indirectly in the matter at hand to express  and 

discuss related issues.

Private Sessions.

1. To help the mediator understand the needs of each participant and the obstacles to settlement.
2. Explain to the party the strengths and weaknesses of there case.
3. Assist parties to priorities their interests in the dispute.
4. Explore confidentially with each party the possibilities of settlement.

The mediator spend adequate time with the parties (jointly or privately) to explore all options of settlement. The role of a mediator is that of a neutral facilitator and is NOT to be confused with that of a counsellor.
In a mediation a process is facilitated between the warring parties while in a counseling the parties are individually addressed with matters that may or may not concern the case at hand directly.

When the cases are settled they are referred back to the courts for a decree with the written agreement in hand. And if no settlement is reached the cases are referred back to the courts with the appropriate written explanation.