Breaking The Mediation Monopoly-A Reply to Senior Advocate Sriram Panchu

Yet, this rank amateur is compelled to put fingers to the keyboard because the tenor of Mr Panchu's contributions has taken it above and beyond a simple issue of dispute resolution to a much more serious attack on institutional integrity. Coupled with his other piece in the Hindu on 22^nd June^[1], his words have formed a most extraordinary assault on the Supreme Court as well as the reputations of some of its finest sitting and former judges, and regrettably displayed a complete discomfiture with fact and evidence.

The first sally

On 13^th June, writing in the Wire^[2], Mr Panchu expressed his reservation about retired judges taking to mediation, claiming simplistically that "the latter issued commands while the former facilitates" and then proceeded in a patronizing tone to tell us that "we mediators welcome them" but that they have to earn their spurs "as the rest of us who have been in the field for long". He complained that retired judges with little mediation experience are referred cases by their sitting colleagues as post-retirement benefits and asserted that these fortune hunters are "foisted" on unwilling litigants. Mr Panchu's greatest error in this entire narrative is his abject naivete in understanding a judge's role and philosophy. Unlike advocates, judges have spent years devoted to resolving disputes and as any bencher will tell you, their first instinct in most cases is to look for a peaceful resolution. Among the various communities keen on becoming mediators, it is the judge who would need little or no training. Hundreds of judges across the country have carved out reputations as "mediation judges", the most prominent of course being the avuncular Justice Kurian Joseph, who has demonstrated the true force of mediation at the highest levels and set an example for how effective a tool it is. I need scarcely point out that Mr Panchu refers to no instance to anchor his allegation that former colleagues are being given financial favours, but as one reads further, it is clear that the guns are trained elsewhere.

The big bugbear as far as Mr Panchu is concerned is the establishment of the International Arbitration and Mediation Centre (IAMC) in Hyderabad. He is critical of the role of sitting Supreme Court judges in setting up such an institution which includes an erroneous statement about it offering "post-retirement sinecures". In addition, and this appears to be the motive for the poison pen, the fact that the institution has made great strides in such a short time with substantial success signifies the "end of India's mediation movement, for the process will end up being captured by retired judges" and would "create a monopoly". I would have thought that one who has presided over precisely such a monopoly in the mediation space would be happy to cede that to others – eventually, the mediator's interests are less important than that of the disputing parties, and if their issues are sorted out consensually and economically by judges or lawyers or psychologists or football players, such a monopoly ought to be a most welcome one.

But, I am getting ahead of myself.

IF there are "judicial stratagems" at play. IF there is such a "monopoly" at the IAMC. And IF this is a self-serving financial mechanism for Supreme Court judges.

The Facts

Despite Mr Kannan counselling Mr Panchu to check his facts, it is obvious from hisrejoinder piece that he did no such thing. I, on the other hand, did. And here they are:

1. The IAMC is set up as a public trust in accordance with the 2017 Report of the Justice Srikrishna Committee which said that infrastructural support ought to be given by the Government without any interference in the actual functioning of ADR centres. A parallel was drawn with Maxwell Chambers in Singapore as a reference to Pages 81 to 86 of the Report will show^[3]. One may note that the members of this Committee included Justice Indu Malhotra, Justice Ravindra Bhat, Justice P.S.Narasimha and the Attorney General Mr K.K.Venugopal.
2. Clause 4 of the Trust Deed provides that there will be two Life Trustees (Justice R.V Raveendran and Justice L.Nageswara Rao), two Ex-Officio Trustees (Chief Justice of Telangana and the Law Minister) and three 3-year Term Trustees (of which Justice Hima Kohli is one). None of the members of the Trust have any role to play with the selection of arbitrators and mediators and none of them can be appointed as Arbitrators or Mediators by the IAMC.
3. No Trustee receives a sitting fee or remuneration for their work nor receives compensation of any sort from the IAMC. I may add that as I have known both the Life Trustees personally, I reached out to them and confirmed that even their many flights to Hyderabad for the purposes of the Trust were funded out of their respective pockets.
4. Chief Justice Ramana has no role to play in the Trust apart from being the initial author, and so any parallel with Mr Bharadwaj and the ICADR is wholly misplaced.
5. Clause 7 of the Deed stipulates that the Governing Council comprising reputed professionals shall have the final say in all matters of the IAMC and that the CEO shall be charged with day to day affairs. With the likes of international leaders like Toby Landau QC and Bernard Eder QC, as well as our very own Nakul Dewan, Promod Nair and Chitra Narayan, it is refreshing that younger stalwarts have taken the reins on this, and it ought to have been encouraged by the elders in the practice.
6. Mediators are appointed only with the consent of parties, and if this is not possible, only then is a panel proposed by the CEO in consultation with the Governing Council – the Trustees play no part.
7. A quick glance at the official website of IAMC [www.iamch.org.in] would show that apart from the truly world class facilities and technology available at nominal rates, the entirety of the administration fee payable to the Centre for an entire mediation (no matter how long it takes) is one lakh. And the maximum mediator fee (unless parties choose outside mediators) is Rs.20,000 per session!.
8. Mr Panchu relies on an IAMC quarterly report about 22 matters to refute Mr Kannan's remark that there have only been 2 references to mediation by the IAMC. It would behoove Mr Panchu to admit his error that in fact he and Mr Kannan were the only beneficiaries of the 2 mediation references, which together consisted of a batch of 21 cases (and not 22 references). The remaining 1 was an arbitration reference.
9. Not a single judge has been appointed as a mediator, contrary to the phantom spectre outlined by Mr Panchu of their veritable monopoly.
10. Even in these two mediation references, it was the parties that chose their own mediators, and these were in fact confirmed by the IAMC with independent fee schedules which were almost 15 times that of the IAMCs roster.
11. IAMC has begun conducting refresher and training courses for ADR candidates at around Rs.2,500 for a 15 hour course run by pre-eminent trainers like Mr JP Sengh and Ms Uma Ramanathan. This is also a source of disgruntlement for those who have been running similar sessions for Rs.75,000 and more.
12. There has been no mediation reference by the Supreme Court under the rules of the IAMC.

The Restatement of Values of Judicial Life

After having looked at this swathe of irrefutable evidence, would it be accurate to say that this is a "misuse of judicial office to receive largesse from government and to carve out post-retirement sinecures and benefits"?

The five principles of the Justice Verma Restatement that Mr Panchu alludes to repeatedly have absolutely no application here, as there are no gifts, business or funds which undermine the people's faith in the judiciary. However, by the same meter, it seems odd that such norms are being quoted by one who has received such largesse courtesy the IAMC. It would have been more appropriate to have no truck with an entity for which one harbours such hostility.

The Unkindest Cuts

"Instructions appear to have gone out to judges of the NCLT to refer cases to this newly established centre, and they have obliged" says Mr Panchu off the top of his head.

"Similar referrals have been mooted in the First Court at Tilak Marg", he adds, making it seem that the entire Supreme Court is subject to such dictates.

These ad hominem attacks are quite shocking, and are echoed in another piece by him in the Hindu on 22^nd June^[4], where he shares a distasteful rumour concerning Justice Lalit and Justice Chandrachud which implies Governmental preferences among our seniormost judges. I find it difficult to reconcile all these careless observations with the respected professional that we have all known and admired these many years.

Winston Smith, that tragic protagonist of 1984 famously described DOUBLETHINK as "To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it."

It is inevitable that innovation divides people – it changes things around, upsets the status quo and invites debate. It is understandable that it invokes emotions from those who are most affected and that they will be exercised by the probable consequences. But even in that moment of vexation, one must reflect on the great damage that can be caused to beloved institutions and reputations when an impassioned response turns impetuous.

The author is a Senior Advocate, Supreme Court of India