MEDIATING MEDIATION IN INDIA
. . . both were happy with the result, and both rose in 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 yea s of my practice as a lawyer was occupied in bringing out private
compromises of hundreds of cases. I lost nothing thereby--not even money;
certainly not my soul.
Mahatma Gandhi
I. INTRODUCTION
A. The Issues
The development of mediation in India holds enormous promise. In particular, the
neutralizing communication skills and powerful bargaining strategies of facilitated
negotiation can strengthen the system’s capacity to bring justice to the society. Despite
the demonstrable value of these techniques, however, several large obstacles block the
path to mediation in India. Exposure to these facilitated negotiation processes, though
spreading rapidly, remains limited. Judges and lawyers harbor understandable
apprehensions about the relationship between mediation and the formal judicial process
and deep skepticism over the application of mediation to a wide variety of Indian legal
.
1
Fulbright Senior Scholar, Indian Law Institute, New Delhi (2003); Associate Dean for Academic Affairs
(effective July 1, 2003); Professor of Law, Director of the Frederick K. Cox International Law Center, Case
Western Reserve University School of Law, Cleveland, Ohio; J.D., Yale Law School, 1990. This essay has
drawn upon several other writings, including Indian Civil Justice Reform: Limitation and Preservation of
the Adversarial Process, N.Y.U. JOURNAL OF INTERNATIONAL LAW AND POLITICS (1998) (with Stephen A. Mayo,
C.J. A.M. Ahmadi (Ret.), and Abhishek Singhvi); Judicial Mediation and Legal Culture, ISSUES OF DEMOCRACY
(November 1999), Reforming Judicial Reform Inspired by U.S Models, 52 DEPAUL LAW REVIEW 351 (2002),
and Emergence from the Dilemmas of Justice Reform, 38 TEXAS INTERNATIONAL LAW JOURNAL __ (2003), as
well as four months of research and presentations, including three regional, two-day workshops on
Mediation in India sponsored by the United States Education Foundation in India, co-facilitated by Mr.
Firdosh Kassam (Mumbai) and Mr. Niranjan Bhatt (Ahmedabad) (two of the leading mediation experts in
the country), and hosted by the national law schools in Hyderabad and Jodhpur and the Bombay High
credits;http://lawcommissionofindia.nic.in/adr_conf/chodosh4.pdf
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