Mediation

Mohit Mokal on Introduction to Mediation

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Two ancient cases recently got some public attention due to the media. Dating back to 1914 and 1952 are still at the initial stages and are far from attaining any finality. Both the instances are civil cases relating to separate property disputes which have surpassed generations of original plaintiffs and defendants. It has taken a heavy toll on the parties not just of the piling legal costs and expenses but also their physical and mental health.

The 1914 case was regarding 9 Acres of land originally owned by Azhar Khan. Which the court divided in a maintenance claim; the wife was entitled to 25% while the two daughters were to share 75% together. This is challenged by one Ram Avtar in 1927 claiming to have bought about 3 Acres of said land from Khan before his demise. In 1992 Darbari Singh another local claimed to have bought 3 Acres from the daughters of Khan, who had now with their mother moved to Pakistan. This was also challenged by Ram Avtar and was merged as one case with the other. Atul Singh, the 4thgeneration of Darbari Singh admits even though his great grand uncle was murdered in the course of this dispute, he wants to win the case on merits against the advice of his counsel and the judge to settle the matter out of court since ‘they have been winning all along the way on the evidence until now’ he claims.

In 1950 Dr Keshao Tunkikar bought an adjoining piece of land to his house which measured 800 square feet. His neighbor Zabuji Ingle, in 1952 contested the boundaries of the plot of land in-between their houses. Unimaginably, this is still pending with the last hearing on 19thJanuary 2019 where the judge asked the land department officer to complete the boundary measurement which it had been ordered to do in August 2011 by Judge DM Deshmukh. The judge in the order of 2011 clarified that neither party has claims which are overlapping with the others. It is noteworthy that both the families are still neighbors and their grandchildren once childhood friends, are both lawyers now trying to resolve the case.

This year marks the 105thand 67thyear respectively for the cases pending. It is eminent the parties ask themselves – Could this have been solved differently?

Yes.

Mediation has existed in India since before colonial times through the Panchayat system but was overshadowed by Common Law during the British rule. It is now getting traction owing to the overburdened and paralyzed Indian judicial system with over 33 million cases in backlog as of July 2018. There is precedent in the courts and legislation regulating and legitimizing the process of mediation / conciliation in India. In August of 2018 the government amended the Commercial Courts Act, to include mandatory Pre-Litigation Mediation for all commercial disputes covered under the act. Mediation involves party-oriented negotiation, facilitated by a neutral third party, helping reach a workable solution that is mutually acceptable.

Hypothetically had these disputes gone to mediation, here is how it would have played out.

Parties will together approach the mediator after fixing an appointment convenient to all. At the meeting the mediator will introduce himself / herself and explain the process. He / She will inform the parties that Mediation is an entirely voluntary process from which the parties can choose not to participate at any time, however if they choose to participate must do so in good faith to reach a solution. The Mediator will ask them to consider the costs of mediation both financial and emotional. How it will be fractional compared to the extravagant costs adversarial court litigation or private arbitration. How the conversations during the meetings would remain entirely confidential and we can focus on the real issues to resolve the problems amicably unlike in the courts fighting on technicalities. Once the parties have understood the process and some basic ground rules of dialogue have been established, the mediator might ask them what is it that they want? What is the purpose of their claim? The mediator will assist the parties neutrally without any judgment or favoring either of them, in getting what they want.

In the 1914 case, the mediator might ask them how much of the land is it that you claim? Since both Ram Avtar and Darbari Singh each claim 3 acres of the total 9 of the combined property, the mediator might ask if any specific part of the property is claimed by both. If not, we could demarcate 3 acres for each of the claimants and still have 3 acres of land which remains as is. If claims overlap, the parties could together decide to start a venture (which they could have individually) on their property, which can add value and benefit both the parties. The mediator would remind the parties of the investment they put personally in terms of time, money, emotions and physical labor they invested in this dispute fighting to no solution. He would ask them if you walk away from here how much more are you willing to invest? Another 100 years? Had the 1952 case come to mediation, the parties being long time neighbors could sit down together and discuss what part of the houses are essential and important and could adjust the boundaries of their walls accordingly and if at all any balance can be settled financially. Here they can engage with the real issues rather than technical issues such as where did the land department mark the boundaries in 1940. The mediator might remind them the value of the relationship they could share compared to the costs of the trial. The mediator will ask for all their suggestions and possible solutions to best resolve the dispute.

Upon options being devised, the mediator will help the parties make the solution as practical as possible and note it down in a ‘Settlement Agreement’ that will be signed by both parties and can be enforced as a court decree, however since it is a solution the parties have got by themselves in good faith they tend to enforce it themselves on the terms they can decide without any court interference.

There will always be disputes which need to be dealt with in an adversarial manner in the court of law, but not all disputes. Those which can be solved amicably need not go through the technicalities of the law and struggle to make sense of legalese. After all, why rely on uncertainty which could either go for or against, when you can decide in your best interests exactly what you want, how you want it through Mediation.

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