June 2002: Volume 10, Issue 2
Institutionalizing Mediation in India
The use of mediation can be traced back thousands of years to the far corners of the world. For many centuries, the mediative approach has been the primary means of dispute resolution in China, Japan and India, where personal responsibility and responsibility to the community are highly valued. In these cultures, the adversarial system of justice is the "alternative" dispute resolution system. For example, in India, the Panchayat system in which a respected village elder(s) assists in resolving community disputes has long been an accepted method of conflict resolution. The more formal integration of mediation as part of the judicial system, however, has not yet occurred.
The Indian Arbitration and Conciliation Act of 1996 provides a legal framework for the process of mediation. Much like Virginia's mediation statutes, the Act allows for the voluntary use of mediation with protections of confidentiality and the ability to develop legally binding agreements. In July 2001, the Indian Center for Mediation and Dispute Resolution (ICMDR) was established as the first organization in the country to further the development of mediation as an appropriate method of dispute resolution. The Center, headquartered in Madras, has the support of Judges and senior attorneys of both the Supreme Court of India and the High Court of Madras. The Center's goals include providing training to those interested in serving as mediators, offering seminars for judges, attorneys, and corporate entities on ADR, providing ADR consultancy services, and instituting a panel of highly qualified neutrals to assist in the resolution of court- referred and privately-referred matters.
I had the privilege to be invited by ICMDR to train the first group of neutrals to serve on the Center's mediation panel in April. The group of 24 participants included retired High Court Judges, senior attorneys, retired high-ranking government administrative officials, and corporate leaders. The training was a three-day Basic Mediation Skills course. It was held in a beautiful convention center with access to advanced technology and was conducted entirely in English. I was assisted by Ms. Aparna Vasu, Director of ICMDR and a practicing attorney, as well as Mr. Sriram R. Panchu, a senior advocate and one of the founders of ICMDR. Both Ms. Vasu and Mr. Panchu had received mediation training in the United States and were instrumental in making the training a huge success.
While I have worked in the field of ADR for ten years and have provided mediation related training to attorneys and judges in the United States, this opportunity was one of the most challenging and rewarding in my career. As I am of Indian origin, it was a tremendous honor to be invited to my motherland to provide instruction on a subject so close to my heart. I simultaneously felt excitement and immense pressure to do an exceptional job. I was also anxious about how responsive the audience would be to this new concept and wondered whether as a trainer I would be accepted by this hand selected, highly esteemed audience, being a relatively young, American female. With a great deal of collaboration with Ms. Vasu via e-mail and the support of Robert N. Baldwin and Melanie Rinehults, I was able to custom-design a Basic Mediation Skills training in just a few weeks.
To my delight and satisfaction, the training went beautifully and the audience was amazing. I was impressed by how quickly the participants grasped the new concept of mediation and how eager they were to apply it. The depth of the questions asked, the open and insightful discussions, and the uninhibited sharing of issues and ideas spoke volumes about the caliber of the participants and their interest in the subject.
As a trainer, there were some culturally unique issues I became aware of during the training that I found quite interesting. For example, Indians tend to be and expect others to be accommodating. When completing an instrument to assess conflict style, most participants were avoiding, compromising or accommodating. All participants were, however, very familiar with the more competitive approach and could appreciate the value of the collaborative approach. Also, in contrast with the fundamental expectation in the United States that the mediator be neutral, Indians prefer working with a known and respected third party whom they trust to assist in the resolution of their dispute.
A third distinction has to do with communication. Indians hesitate to use direct eye contact, particularly with an individual of the opposite sex, in an effort to show respect. As a result, I observed different non-verbal communication styles. It is also difficult for Indians to open up completely to a third party about issues of concern to them. It is not customary in Indian society to share feelings openly, much less with strangers. The participants could anticipate difficulties with this when mediating real cases. Another observation related to communication has to do with "I" statements. Mediation trainers in the U.S. often suggest to students that the use of "I" statements will facilitate clearer communication. In India, the use of the word "I" is associated with ego or self. In the Hindu religion, we are taught not to identify with our material body, but with our soul. As a result, many participants were uncomfortable making "I" statements.
Balance of power issues were a major concern for the participants as class, caste, status, wealth, position, education and gender are more clearly distinguished in India and can easily lead to challenges in mediation. As many of the participants were former judges, it was difficult for them to make the transition from adjudicator or arbitrator to mediator, but through the training and role-plays, they appreciated the need for the mediator to remain neutral and to explore the underlying needs and interests of the parties.
While in Madras, I was also invited by the US Consulate to speak to the Bar Association and business leaders about ADR program development. There again, I was pleased with the interest and well-informed discussion. I am extremely grateful for the wonderful opportunity to be involved in planting the first seeds of the institutionalization of mediation in India. I know now how the founder of ADR in the United States must have felt twenty-five years ago. Words cannot describe how personally gratifying it is to be an agent of change and how even more rewarding it is to be that agent in your mother country.
(Geetha Ravindra, Director, Department of Dispute Resolution Services)
This page last modified: December 9, 2002