The Amicus Podcast: Ep 04 with Tara Ollapally (CAMP Mediation)

Tara Ollapally talks about her own experiences as a law student, first at ULC Bangalore and then at Columbia Law School. She also discusses the urgent need to push mediation, especially in commercial disputes. And lastly, she talks about how lawyers can make good mediators, and whether our legal education equips today’s lawyers with the skills required for effective mediation.

 

You can also read edited excerpts from the podcast here and here.

Tara Ollapally, CAMP Mediation

The Amicus Interviews: Tara Ollapally, CAMP Mediation (Part 2)

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.

The Amicus Interviews: Tara Ollapally, CAMP Mediation (Part 1)

Tara Ollapally, CAMP Mediation

Tara Ollapally

Tara Ollapally is a lawyer, and an experienced mediator at CAMP Mediation. In the first part of an interview with Amicus Partnerds, she talks about her days as a law student, human rights at Columbia Law School, and the future of mediation.

(Edited excerpts)

Amicus Partners: You worked with a human rights clinic as an undergraduate student at University Law College in Bangalore. How did that experience shape you as a lawyer?

Tara Ollapally: As a law student, I was so motivated in setting right the wrong. I interned at the National Human Rights Commission, and one of  my projects was to understand the mental health situation of women prisoners. I spent a fair bit of time in prisons across the country. Keeping aside the mental health aspect [which we] really don’t address, was the fact that so many of them had no legal representation.

In my final year of law, I was driven to try and find a way to address that gap. We created a little clinic of final year law students; we could not represent them directly but tried to fill that gap, working with junior lawyers on a pro bono basis.

It was a fantastic concept, and as a student I was so motivated and charged to do something like that, as were the other students. But there were so many hurdles. Change requires constant perseverance and effort.

AP: Are these experiences what prompted you take up the masters in human rights from Columbia Law School?

TO: I think from very early on, I knew that I wanted to be in the social rights aspect of the legal profession. As it happened, I was moving to the United States and so it seemed a perfect opportunity to make that transition into moving to a new country.

Reflecting back, I would perhaps not have done a master’s course at that point [of time]. I would have perhaps worked for a certain period of time and then done a master’s.

AP: Why?

TO: Because I think it gives a lot more context to your master’s program when you have a little bit of practical experience. You go to law school for five years and you have minimal exposure to the practical aspects through internships. But, you have to sink into it as a full time professional for a couple of years before being able to make full use of your master’s degree program.

AP: How was your LLM experience?

TO: For me it was fantastic. I was lucky enough to get the human rights fellowship at Columbia Law School. So again I was fully focused on human rights for that one-year program.

Before the LLM, I was ingrained in domestic issues. [After the LLM] I switched to the international practice of human rights law which was very exciting.  But I did miss the cultural identification, the drive that comes with being able to understand a local issue.

AP: What were some of the big changes you noticed in the learning experience?

TO: Oh it was completely different!

Remember I came from University Law College Bangalore where most of my legal education was from framed through moot courts, through internships – it wasn’t really classroom education.

And suddenly I was put into this environment where you had Professor Louis Henkin, who was the name in international human rights law, as my human rights professor. [We had] top notch academics who knew their field. It was intensely rigorous.

AP: How did you manage?

TO: I had to. Perhaps I burnt the midnight oil for the first time (laughs) But that was all so exciting, and it was such an enriching experience. Because, whatever said and done, the American university system is so systematic, it is so up to date, they get the best out of you, they give you the best.

AP: How?

TO: Just the course load, the course expectation, the number of papers you had to write, and the quality of the papers. The way they were critiqued, the feedback, the expectations, and if you have not done your research you are going to get caught out right away.

Moving your research from a grade F to a grade B or B+ was incredible, and they would be handholding you through that as much as they could.

AP: What was the job market like when you graduated?

TO: Oh it was tough when I graduated because 9/11 happened when I had just moved to New York. And of course you had the downfall of the American economy. So it was a tough job market for international students.

I was lucky because I did not have immigration issues, and perhaps that was one of the factors that helped me in getting me a job. But I was one of the few who did manage to get a job.

AP: Not too long ago, you come back to India and CAMP Mediation.

TO: I kind of stumbled into mediation. It wasn’t a planned next step. It appealed to me. I come from a human rights background, I come from an access to justice [perspective].

My mother was a pioneer in the mediation movement. She was one of the co-founders of the Bangalore Mediation Centre. And she felt the need to take this next step in mediation – you needed to start private mediation.

AP: When you say private, you mean not court-mandated mediation?

TO: Exactly. So at that point in time, the only way you could access mediation was through centres that were attached to the courts where the judge would refer the matter to mediation.

But not that many commercial mediations [took place] because the commercial world avoids the court as much as possible. To get into the commercial dispute resolution space, we needed to get into the private mediation where parties have access to high quality mediation services.

That is how we conceived of the idea of CAMP.

I had no exposure to mediation, other than having done a 40-hour programme on mediation. But purely from the perspective of an access to justice issue, it kind of rationally made sense to me.

AP: How?

TO: What is our pendency? Thirty million cases are pending in our courts. Ten to fifteen years is the average time it takes [for resolution]. And if you look at it from the perspective of “justice delayed is justice denied” then you are talking about access issues, you are talking about rule of law issues.

And we are working along the lines of a legal system that approaches rule of law only through adversarial or court-based methodology to dispute resolution. Which in today’s world is one of the means, not the only means [of dispute resolution]

AP: It must have been difficult to sell mediation initially?

TO: We started CAMP in January 2015 and we would actually get calls asking, “So, when are your meditation classes?” – that is the environment in which we started.

I would go to some of these incubation centres to talk to the start-ups and people seriously thought that we were there to talk about meditation. They had no clue about mediation.  (laughs)

We have definitely moved from there.

I am convinced that people will see the value of it and bite into it. Because we are working in an environment where people want and need options. What is being provided to them is not optimal, they are not happy with it.

AP: Mediation did get legislative backing recently through the changes in the Commercial Courts law. But, you have noted that more needs to be done.

TO: This amendment mandates disputes to go into mediation before they can be filed in the commercial court unless the parties are seeking interim relief. This is a fantastic step to try and get parties to sit down and resolve their dispute before you access the adversarial process to dispute resolution.

[But] what the law has not thought through are the details with respect to how this is done. For example, the body that has been given the mandate to administer these mediations is the legal services authority.

Which really does not make sense.

It is not thought out that a commercial dispute, and legal aid cannot be clubbed together in the same forum. If you have the legal services authority administering commercial mediations, you are setting yourself up for disaster.

AP: Do you see commercial establishments recognising the benefits of mediation?

TO: Mediation makes so much sense for commercial disputes.

What do businesses want? They want to find a quick, cost-effective and appropriate way out, a business way out. They don’t want to mull over the dispute for 15 years. Mediation is not process-heavy. We don’t have pages and pages of process that needs to be followed before an application is filed. There are no applications that need to be filed.

The objective is to be able to understand what are the interests of the parties, what is it that the parties truly want.