To read Sriram Panchu’s response, click here.
On June 13, Sriram Panchu wrote an article for The Wire, captioned, ‘Thanks to Our Judges, Darkness Now Clouds India’s Mediation Playing Field’. Mr. Sriram is truly a shining star in the mediation firmament; dark clouds cannot still dim his effulgence. He writes with compelling logic and if he alludes to the higher judiciary casting dark clouds, it cannot be brushed aside easily.
Normally, one would believe that he has cross-checked the facts about what he writes and therefore, there is no reason to suspect any misinformation. He was the first one to speak about mediation as a strong and viable tool of dispute resolution; he got the then Chief Justice of the Madras high court to set up court-annexed mediation in the court campus – the first of its kind in India.
He has the growth of mediation closest to his heart. Personally, I look up to him for guidance whenever I have a knotty problem to confront and I find my inner reserves inadequate to help find a solution.
He is not given to sweeping comments without adequate reasons and if he says now that the International Arbitration and Mediation Centre (IAMC) is “ill begun, and wrongly run and should be shut down”, either there has been too big a blunder in founding the institution; or a rash statement, made not recklessly but with a genuine concern that the lofty cause of mediation be not besmirched by a shaky edifice.
Also read: Thanks To Our Judges, Darkness Now Clouds India’s Mediation Playing Field
For a single time, perhaps, my friend Sriram is far too mistaken; the lesson to be learnt is that ‘every storm falters; every sun breaks’.
Is setting up a mediation centre with infrastructure matching the best in the world a problem simply because the Chief Justice of India (CJI) is the author of the Trust which established the institution; or because judges of the Supreme Court, past or present, are in the governing council? What do we expect the judges to do outside courts and court hours, if not associate with matters of law – only visit places of worship or attend weddings of lawyers’ sons and daughters?
If the CJI could be a patron of the International Centre for Alternative Dispute Resolution in Delhi or the Chief Justice of the Delhi high court could set up the Delhi International Arbitration Centre and be the patron-in-chief, what is wrong with the CJI setting up the International Arbitration and Mediation Centre? Should international prefixes be available only to institutions in Delhi?
A professionally-run institution is seldom a state-run body. State patronage, however, is the most desired appendage to evoke institutional credibility and increased public responsibility. But setting up a mediation initiative, offering commercial dispute resolution for a fee, is a big no-no? What hypocrisy is it that mediation services rendered pro bono are the only way to promote mediation?
If the IAMC had assured that all its services would be free, could it have corrected the wrong that Sriram sees? How many readers know that the fee scale prescribed for mediators by the IAMC is Rs 7,500 at the lowest and Rs 1,00,000 at the highest, for multi-crore disputes? It is a fraction of what lawyers charge their clients for guiding them in mediation sessions.
Do all know that even the lawyers who work pro bono as mediators at High Court Mediation Centres are paid an honorarium for every case conducted by them? If, instead of making the available property worth several crores to a trustworthy body of individuals, the government of Telangana had itself set up a mediation centre at Hyderabad and appointed an IAS officer or a judge brought on deputation, could we guarantee that it would run successfully, even for a few years? Do we not have examples of government-run institutions with lofty ideals that become decrepit by inept bureaucratic approaches and poor upkeep?
The state government has done what the Sri Krishna Committee recommended; that it shall come forward to promote institutional arbitration by facilitating the building of infrastructure.
Sriram sees the danger of judges using judicial office to benefit former colleagues, or themselves, with post-retirement benefits, but has he not been the beneficiary of referral through the IAMC, as I was, for cases referred through the same institution?
If his response would be that parties chose their own mediator and they were not appointed by the IAMC, are we not proving just the opposite; – what Sriram wants – that parties have the autonomy to choose their own mediators and are not forced to suffer mediators thrust on them?
It must be remembered, in court-annexed mediation where referrals are made through courts, parties have no choice in the appointment of a mediator. Why, in arguably the biggest dispute of the century; the Ram Janmbhoomi-Babri Masjid tangle, did the parties not choose Sriram or any of the other two mediators; not all of them had formal training in mediation. Indeed, they were bigger than the formally trained ones.
Some persons have some fanciful thoughts that the NCLT is prevailed on to extend patronage to the IAMC. There is no truth in that, as I have come to know. Only two major cases have been assigned to the IAMC by the NCLT, Hyderabad Bench – one to Sriram and the other to me!
Neither of us is doing the cases for free. We are not governed by the fee restrictions that the Rules prescribe. As specialist senior mediators, we have been allowed the benefit of prescribing our own fees to parties. Even the recent reference by the Supreme Court in the dispute involving two prominent public personalities, to the IAMC is reportedly for the use of its online facilities only, and not for the choice of arbitrator or mediator.
Is there a breach that the Board of Trustees has any role to play in the appointment of mediators/ arbitrators? As far I can gather, it is the Registrar, in consultation with the Governing Council, that makes the appointment. There is a specific Article in the Governing Council Constitution that prohibits the appointment of any of its members to be a mediator or arbitrator.
None of the three judges named in Sriram’s article could be arbitrators or mediators in any case; none of the trustees is paid any remuneration. I have cross-checked the facts to know that the life trustees of the IAMC have spent their own time, money and energy on the tireless development of the IAMC and have never accepted any reimbursements for their efforts, travel to and accommodation in Hyderabad.
There is an editorial note to Sriram’s article as if to suggest that the IAMC not being a government body but one founded by a trust deed consisting of Supreme Court judges, is a matter of concern. We need judges, sitting and retired, whom we trust and who can found institutions of everlasting glory and not government bodies that have proclivities to decay in corruption and nepotism.
To read Sriram Panchu’s response, click here.
This article was first published on Live Law.
K. Kannan is a Senior Advocate and Mediator. He is also a former justice of the Punjab and Haryana high court.