Khaitan & Co, and CAMP webinar: Commercial mediation: Simply the smarter way

What a new legislation could mean for India's mediation scene.

With courts in India currently overwhelmed by a backlog of cases and the number of disputes expected to rise quickly in the next few months due to Covid-19 disrupted contracts, industry pundits suggest that international commercial mediation may finally get a much-needed boost in India.

Mr. Sriram Panchu, President of Mediators India, said it was high time for mediation to go into “Phase 2” where it was not just used for court-annexed cases but moved to include private mediation and ensure the settlements are enforceable by court.

He weighed in on a potential new legislation that would give legal sanctity to disputes settled through mediation. The legislation, which could also drum up the momentum on mediation in India, will consider ways to improve training of mediators, certifications, ethics, safety and confidentiality.

He added that a comprehensive legislation which brings together and improves upon existing acts was much needed to meet India’s evolving needs. 

While the demand for mediation among legal users in India has largely been driven by court-annexed mediation, there is still a need for greater awareness on alternative dispute resolution mechanisms across the country, said Ms. Laila T Ollapally, founder of CAMP.

Mr. Panchu and Ms. Ollapally were part of the committee, appointed by the Mediation and Project Conciliation Committee (MCPC) of the Supreme Court, to firm up this draft legislation. They are both also on SIMC’s International Panel.  

Mr. Panchu and Ms. Ollapally made these points at a webinar on July 9, jointly organised by Khaitan & Co., CAMP Arbitration & Mediation Practice Pvt. Ltd (CAMP) and SIMC. 

The distinguished panel also included Justice A K Sikri, international judge of the Singapore International Commercial Court, and Mr. Chuan Wee Meng, CEO of SIMC. Mr. Raj Panchmatia, partner of Khaitan and Co. moderated the session.

Panelists further discussed how mediating complex cross-border commercial disputes was simply the smarter way as the process is flexible, confidential, and time- and cost-effective. 

During the session, the organisers put forth a poll to test the reception of mediation for the participants that tuned in that day. Towards the end of the session when asked whether participants would consider using mediation for commercial disputes, an overwhelming 83 per cent answered yes. 

Here are some selected questions and answers from the panel discussion. You may wish to catch the recording of the entire session here.

Question: Why is mediation important as far as business communities are concerned? 

Justice Sikri said, “Business circles would prefer mediation as it helps to not only preserve but rebuild and even form new business relationships even when a dispute has arisen between parties. In addition, in most circumstances I believe the access to justice and the solution achieved through mediation is mutually beneficial to all parties involved.”
 

Question: Is there scope for mediation to be conducted virtually? 

Mr. Chuan said “Due to Covid-19 SIMC has facilitated several mediations online with parties. Often our parties are overseas and they are not able to fly in because of travel restrictions. Virtual mediations have become even more necessary in such a time as this. At SIMC we believe that virtual mediation is a trend that will continue to grow. 

We currently provide hybrid mediation as an option for our cases where some parties join remotely through Zoom and others join in person. We also provide end-to-end support to our mediators, counsels and parties throughout the entire process.”

Question: What can be done to further promote mediation in India? 

Mr. Panchu said, “There is a need to incentivise law firms to consider offering mediation seriously to their clients. In India, lawyers are usually paid according to the hours spent on a case, which prompts some lawyers to stretch a case. We should bring about new fee structural arrangements, such as egging law firms to encourage clients to find expedited resolutions to their disputes through mediation. 

I’ve suggested to the International Mediation Institute that we should certify law firms as mediation compliant. The certification can be provided to law firms, based on their capacity to provide mediation services. This will enable law firms to show their certification to clients as they approach them for disputes.”

Question: What are some ways SIMC promotes mediation and does the centre offer training for mediators?

Mr. Chuan said, “As a not-for-profit institution SIMC plays an important role in promoting mediation in Singapore and also overseas—including India—through our partners such as Khaitan & Co. and CAMP. 

As far as training on mediation goes, we conduct a specialist mediator training workshop once every year in India for C-level executives and senior legal professionals. 

The centre also works towards promoting the use of mediation for commercial disputes by addressing any hesitations users might have towards mediation. As a neutral party, the centre can introduce mediation to companies in an objective manner. We also provide our parties with the confidence that mediation is fully confidential and that our mediators uphold a high level of conduct and ethics while conducting the sessions.”