Book review by: Tanu Mehta (Independent Legal Counsel, Mediator, & Arbitrator)
“This is a wonderful addition to the many books that are slowly being published in the pantheon of ‘Mediation’ knowledge. The specialty of this book is that it covers in detail almost every aspect of Mediation. And it can easily be an ideal textbook whether a mediation student or mediation practitioner.
Mediation is a field that requires practice and constant application. It cannot be learned via books and academics. Therefore, when one begins practicing mediation, it would be ideal to go back home and refer to this book to review the knowledge and theory behind a lot of our practice as mediators.”
The chapters of this book are very valuable for each of the categories it represents.
Chapter 1 – ‘Introduction to Mediation and Conciliation in India’ (by Gracious Timothy Dunna, YMI Member) sets the tone of the book via a well-written exposition of the legal environment that surrounds mediation and conciliation in India. It fleshes out the details of the beginning of mediation and conciliation in India. The author points out that ‘Mediation is the new Arbitration’ while quoting the case M. R. Krishna Murthi v. New India Assurance Co. Ltd., where the Supreme Court of India highlighted the importance of mediation in the new era.
The author also highlights that mediators and mediation advocates in India are increasingly becoming visible, and the boundaries between traditional contentious practice and ADR practice are gradually blurring. He makes a pointed reference to the disconnect between theory and practice in mediation and mediation advocacy and concludes that mediation in India is still in its primitive stages compared to international standards or other (more sophisticated) jurisdictions.
Chapter 2 – ‘Role and Approach of a Mediator’ is a straight and clear instruction manual for all mediators from two very well-known exponents of mediation, Jonathan Rodrigues and Joel Lee. This chapter is a basic understanding of mediation approach and process. In this chapter, the authors organize the ‘concept of mediation’ while explaining the three major approaches to mediation namely: Interest, Rights, and Powers.
Chapter 3 – ‘Mediation and Ethics,’ by Sandeep Bhalotia and Anil Xavier, lays down the academic and legislative approach to ethics in Mediation. Building ethics is a very challenging task and having a framework like those mentioned in this chapter can be a good beginning to the discussion of ethics. Mediation is still a law in the making in India. There are certain ethics to its practice which are explained in this chapter. This chapter argues for mediation to be a profession that may be regulated by a governing body to ensure adherence to the highest ethical standards and to ensure the public’s trust in the process.
Chapter 4 – ‘Court Annexed Mediation,’ by Raj Panchmatia and Laila Ollapally, is again a very well-presented chapter about all things good and bad in the court-annexed mediation substratum of India. It gives an observer a great overview of what is happening in India under the court-annexed mediation scene. The chapter has a good discussion on whether judges can be mediators or not. The authors point out that there is no existing practice where sitting judges mediate cases referred to mediation by themselves. On the other hand, retired judges can qualify for empanelment as per the mediation rules. Retired judges bring immense respect, experience, and status, which brings apparent fairness, temperance, confidence, and understanding to their position as mediators. Nonetheless, their lifelong career as judges may pose a barrier in changing their hats from “decision makers” to “facilitators” of decision making.
Chapter 5 – ‘Institutional Mediation,’ by Shashank Garg and Tejas Karia, is a ‘must’ read for all the new mushrooming Institutions that seek to bring mediation into the mainstream in India. It’s a good primer on how they should be building their Institution and running their affairs, especially because it studies and observes the growth and challenges faced by Institutions that have been set up. The chapter gives a lucid structure that deals with various elements that stem from any typical institutional mediation. It also looks at ad hoc mediation, where procedures are not predetermined and agreed upon either at the commencement stage or as the mediation progresses. A comparison of both helps us recognize the challenges of institutional mediation.
Chapter 6 – ‘Mediating Commercial Disputes,’ by Shraddha Bhosale and Sahil Kanuga, goes into all the finer features of commercial disputes in India and their applicability to mediation. Again, a very important chapter where the author explains that just as commercial disputes come in many forms, commercial mediations also come in many avatars. While the dispute is commercial and the process is mediation, the legal framework under which the mediation proceeds have a substantial determinant effect on the Mediation involved, the procedural rules that apply, and the settlement’s enforceability.
Chapters 7, 8, 9, and 10 are chapters dealing specifically with typical disputes that arise in each of the fields – company, insolvency, and bankruptcy disputes (by Anant Merathia), investor-State disputes (by Harshad Pathak and Pratyush Panjwani), or family disputes (by AJ Jawad and Nisshant Laroia). It is important that we recognize that under the large umbrella of mediation techniques there are very many that can require different techniques that are required for a mediator. And certainly, disputes, where Government is the litigator require a completely different set of approaches.
Two very unique chapters are the ones on ‘Community Mediation’ (by Kudrat Dev and Ajay Kumar Pandey) and E-Mediation (by Ishana Tripathi). Both these categories are raring to go ahead, and both have a very bright future in India. The authors make a wonderful exposition of what ails and spurs both these areas, and these chapters make for a great read. In the chapter on community mediation, the author discusses panchayat level mediation practices happening for ages while denoting the time stamps of other local Government authorities of the time. The chapter on e-mediation is a very important chapter that informs us about the digitized format of electronic mediation with the advent of the Covid-19 pandemic. The author outlines its importance and provides an overview of the existing infrastructure, such as digital platforms and the resolution success of mediation through digital means while referencing “use cases” indicating potential dispute resolution through e-mediation.
Chapters 13 and 14 (‘Mixed-Mode Dispute Resolution’ by Gracious and Kabir Duggal and ‘Cross-Border Enforcement of International Mediation Settlement Agreements and the Singapore Convention’ by Gracious and Jatan Rodrigues) are scholarly in approach and good textbook material for all mediation courses.
Chapter 15 on the ‘Law of Conciliation,’ by Gracious and Manisha T. Karia, brings out clarity to the confusion that surrounds conciliation and gives conciliation back its respectability.
Chapters 16 and 17 (‘Ready, Set, Mediate: For the Mediator’ and ‘Ready, Set, Mediate: For the Advocate’ by Judith B. Ittig and Gracious) are very well laid out models of do’s and don’ts for the mediator and the advocates appearing in mediation. This book answers almost all possible questions that arise whilst practicing mediation and answers the doubts that plague any mediator.