In the second part of the interview, Tara focuses on the benefits of mediation, whether lawyers would become good mediators, and why one needs to invest time and effort to become a successful mediator.
Amicus Partners: A lot of what you said, cost effectiveness, high speed- these were some of the benefits of arbitration. So how is mediation better?
Tara Ollapally: I would not use the word “better” but “different”. Arbitration is still an adversarial process and by that I mean there is a winner and a loser. And there is a third person who is going to decide who the winner is, who the loser is.
Now that is a huge responsibility that is placed on that third person. And that third party, the neutral, has to go through volumes of information, has to be confident and convinced enough to be able to make that award in favour of one and not the other.
As a result of which, it takes the time that it takes.
In mediation, the whole concept is different. It is not about right or wrong. It is about differing perspectives, and helping the parties understand each other’s perspectives, and getting them to decide on what the solutions are. As a result of which, it is not about convincing the third person, it is about convincing each other.
AP: Do you think lawyers make good mediators?
TO: If a lawyer is able to switch hats from adversarial to collaborative, a lawyer is fantastically placed to be a mediator. Because the lawyer knows the law better than any other neutral would.
The law plays a very important part in the mediation because a large aspect of the negotiation hinges on what your alternative is. The way the process works is that you must first understand why this mediated settlement makes much more sense that the alternatives.
What is the alternative? Typically, it would be arbitration or litigation. Now how is this going to play out in arbitration or litigation? What are the strengths and weaknesses of each party’s case?
So a lawyer is very well positioned to be able to help parties go through the alternatives, the reality test.
AP: But aren’t lawyers trained in an adversarial system?
TO: I have met so many lawyers who love the law, but hate the adversarial aspect of the law. Ten years ago you really didn’t have so many options if you graduated from law school, you had to litigate. But litigating does not come naturally to them, they do not truly believe that that is the only way to resolve a dispute.
They want to be part of the dispute resolution process but they don’t like the way the dispute resolution process has been managed. Now these people make fantastic mediators, right?
They are part of the dispute resolution process, they have the logical way of thinking, they understand the law, they have the ability to structure and facilitate mediation in a very effective way.
AP: Are we in India working to create a more open environment for mediation?
TO: It is not like we have a choice. If lawyers want to keep up with the way lawyers are practicing law in several parts of the world – this is an aspect that you just cannot look away for very much longer.
Italy had a similar issue of pendency which is what motivated them to pass mandatory mediation legislation – essentially mandating the parties to sit, with their lawyers, with a neutral third party mediator. That is the mandatory aspect of it; you can opt out after that and go back to courts. Just one session.
AP: One session?
TO: That is all it took. And in that one session, I don’t remember the statistics, but a large number of those went for mediation and a large percentage ended in settlements.
You are not really giving up on anything. Just one session, which through the Italian experience has shown, leads to a large number of settlements.
AP: Why aren’t we doing this?
TO: We will. So if you look at the laws – the commercial laws are going that way, the consumer protection bill is also looking at mandatory mediation. The NCLT does not mandate mediation, but does give NCLT members the power to refer matters to mediation.
Where we slip is in the administration of it.
AP: So, it makes logical sense for businesses to seek mediation, and there is money to be made in mediation. Yet?
TO: Well businesses in India are still not buying into mediation. They still have not understood the value of mediation. They are still using arbitration because that is what is familiar.
And that’s where we are trying to break the cycle. Of helping businesses understand that there is another way to do it, and to get them to start endorsing the process.
Our purpose right now is to make businesses include mediation in their dispute resolution clause. Today’s dispute resolution clause is we will sit and negotiate, if negotiations fail, we will arbitrate. And that has to change.
It has to be, “we will sit, negotiate. If negotiation fails, we will do a facilitated negotiation and if that fails we go into arbitration.”
AP: If a law student or a lawyer is interested in mediation as a profession, what kind of advice would you give her?
TO: For a young lawyer to enter into the field as a mediator would be challenging. My advice is go out, join a law firm, litigate, go in-house and start pushing disputes into mediation.
Through this, you start exposing yourself to the mediation process, you start understanding the mediation process differently. Build the skills to be an effective advocate in mediation.
AP: Skills such as?
TO: Such as [being able to identify] the real interest of your client. What does your client really want? Drop the posturing. Prioritise options. Start listening to your client.
These are the skills that a mediator builds – listening to understand. Bringing down the emotional aspect of it by reframing, by summarising, by connecting to your client. Be an empathic lawyer in mediation.
To be an empathic lawyer is a huge skill that we have to build.
AP: But nobody teaches you this as a law student.
TO: Not at all. These are skills that you have to learn. So when I am listening, how am I listening? Am I listening to fully understand what you are communicating to me, or am I listening from a perspective to figure out what my response to you is.
And then of course to be able to weed out the emotion from what my client really wants. What part is driven by what the emotions my client is feeling, how do I address those emotions.
AP: That seems like quite a time intensive practice.
TO: Absolutely. You cannot practice from a perspective of, “I will do a 10 minute meeting, I will get a simple understanding of what the case is about, what the law is about, and then go defend in court.”
That is not how it works. It is about investing time. About understanding who my client is, why my client feels this way, what has motivated my client to be in the position that he is in.
We, as lawyers, deal with people in conflict. But we have no concept or idea of what a human being is when in conflict. How is that person responding, how is her brain functioning when in a conflict situation? Neuroscience will tell you that when you are in conflict, your brain is working differently.
These are concepts that we have not even thought about as professionals in this conflict space.
AP: It is not even a topic of discussion.
TO: No, never. In my twenty years as a legal professional, I did not even think of it until I entered the mediation practice.
What is the mental framework, what is the emotional framework of a person in a conflict situation? If I can understand that then perhaps I would be able to find solutions that better addresses who he is in that situation, and then go into the details of that dispute.
But we don’t even take that into consideration.
We approach it from such a specific aspect of what is the law on this particular situation, and that law will have some three hundred interpretations. So that is the framework within which we operate – this is an aspect but just one aspect of the conflict as whole.
And you are right, there is no way you can engage in a conflict without being ready to invest a good amount of time.
AP: Final question: what is a good legal education? Or have you just answered that?
TO: I think I may have. We are dispute resolvers. We are here to able to find appropriate resolution to clients who come to us in a distress situation. They have come to us because they are in a situation where they are unable to sit across the table with other side and find a solution. They are frustrated, they are angry, they are helpless. They want a way out.
But the only thing that they know is to strike. And we, as lawyers, are trained to help them strike harder. One blow becomes ten blows. We just take them up this conflict path but we do not realise that our objective should be how do I get this person out of this mess in the quickest, safest most respectful kind of way. We don’t even think of it that way.
It is critical that our law students are exposed to this way of dispute resolution. The mark of a civilised society is in our ability to manage conflict. Conflict is inevitable, it is a result of progress. It is because there are interactions, relationships, business that there is a conflict.
We cannot stop conflict but we have to find better ways to manage conflict so that conflict is opportunity.