In conversation with Thomas P. Valenti on the scope of Mediation and Arbitration in India

Thomas P. Valenti is an Attorney, Mediator, Arbitrator Facilitator and Trainer. He has been extensively trained and trains others in all aspects of Dispute Resolution.  He has judged numerous International Legal, Negotiation, Arbitration, and Mediation Competitions. He has travelled to UK, Dubai, India and Europe to train and teach courses in Negotiation, Mediation and Arbitration. 

1. Since, you have been in the field of mediation and arbitration for quite some time, so according to you what are the skill sets required to be successful in this field?

For each, I believe in a dedicated training, and advocacy experience in advance of taking on the responsibility that comes with sitting as a neutral in either capacity. The specific skills that one may include when describing a mediator are : listening, patience, ability to withhold judgment, empathy, critical thinking, ability to communicate clearly, specifically in a way that helps people assess and identify their real interests relative to the matter at hand. For an arbitrator they are: listening, patience, critical thinking, ability to communicate clearly both orally and in writing, ability to assess and insure procedural fairness, and finally the ability to decide matters based on evidence and law, and not just enter compromise awards to avoid true decision making.

2. So, at the first place what made you choose a career in mediation and arbitration?

I was sitting as an arbitrator for some time even while practising as an advocate. At some time, attorneys who were adverse to me in matters in the past, came to me and asked me to mediate current cases they had with others. I took to it, and eventually decided to take some formal training. At some point, I found it to me more satisfying than litigating. So, it was my decision to forgo advocacy entirely and sit only as a neutral.

3. Since you are a member of various global arbitration and mediation associations, in your opinion how different is their individual working scenario and is the required level of expertise different at different organisations?

I really do not think that I can give this answer in a short format that would be useful to your readers. Each stands on their own, have their own requirements, qualifications and commitments. What is universally true is that from each, there are opportunities to learn, network and contribute to the profession.

4. So, in your opinion, in this very field how much does “exhaustion of research” really have an impact?

In arbitration, we have the luxury of asking the parties for submissions on topics that are relative to the dispute, so research becomes a bit easier. In mediation, many do not think of research, but in certain disputes: we are asked to consider matters of complexity, sometimes involving quantum issues; at other times involving intricate societal or cultural backgrounds that impact the dispute; and even we may be addressing environmental issues. So mediators must not look at mediation as such a soft profession that we do not “research” these varied issues that make us better at what we do.

5. How important is doing proper legal research and how should law students equip themselves with legal research skills.

For students, legal research is the number one skill you can bring to a place of employment. Research task will occupy a very high percentage of your time in the beginning of your career. Your senior, your opponent, and ultimately the court will ascribe a reputation to you based in great part on your thoroughness in research, attention to detail, critical thinking, and analytical skills.

6. Now, since you are also an executive committee member at the Indian Bar Association, with your professional insight into the current legal scenario of India, how much do you think arbitration and mediation will flourish in India in the next couple of years?

For India, we have been waiting for some time for mediation to flourish. Arbitration has had a foothold. Recent amendments to the law have given hope that mediation will flourish, and that some recognised drawbacks in the arbitration field will be remedied. But only time will tell.

7. What in your opinion is the biggest challenge that Indian legal system incorporates that impediments the growth of the mediation and arbitration culture in the nation, and what do you feel will be the most effective way to tackle that problem?

In the Indian arbitration scheme, there needs to be the recognition that arbitration can function quite well without interference by the courts. This cannot happen, however, without a robust administrative body who manages the cases, appointments, process and entire scheme, much like you see with International Criminal Court  (ICC), London Court of International Arbitration (LCIA), Vienna International Arbitral Centre (VIAC), Singapore International Arbitration Centre (SIAC), or Hong Kong International Arbitration Centre (HKIAC). The credibility provided by institutional arbitration is needed, as are arbitrators who can efficiently manage complex cases in an expeditious manner. This will enhance domestic cases, and will ultimately have the potential of bringing back to India the many international disputes that are lost to other jurisdictions.

For mediation, once the legal community does not see mediation as an economic threat, things may change. Also, for some reason, there is a concern about enforceability of a settlement. In fact, given its voluntary nature, we rarely see enforceability as an issue. So once the Bar gets behind mediation, it can flourish. I come from a country where somewhere near 95% of all cases settle, so there is a mindset at play as well. India sees nothing like this. We need to look at dispute resolution first as a problem solving exercise, not as a litigation.

8. So, what are your set of do’s and don’ts to any student who wants to pursue a career in alternative dispute resolution (ADR)?

Do: realise that dispute resolution at a firm includes all available mechanisms.

Do: learn all of the available mechanisms.

Do: volunteer in community mediation centre to gain experience.

Do: take as many courses to add mediation and arbitration skills to your toolkit.

Don’t: think you are going to be able to make a career as a mediator when you graduate.

Don’t: think you are going to be able to make a career as an arbitrator when you graduate.

Don’t: miss opportunities to improve your skills.

Don’t: forget to make time for your personal well-being.

9. There are a lot of ADR competitions organised in law schools throughout the globe, so in your opinion how much do these competitions really help the students who want to pursue ADR as a career?

Competitions are used primarily as a resume builder.  Looking at this with this myopic view is not useful. Competitions are a great opportunity to learn, practise skills, get feedback and to network. In light of my earlier answer relating to careers, a student should not look at successful or numerous competitions which are going to help secure employment. Rather, they should be prepared to demonstrate to the recruiting firm, what specific skills and learnings were achieved in the competition(s), and what those added value items may make the student a viable candidate for employment at the firm.

10. So outside work, what keeps you occupied and what are the activities that you undertake in your leisure time?

For me reading, continued learning, mentoring, volunteering, travel and cooking keep me very busy.

11. Any parting message to our readers?

I encourage everyone to find what motivates you, your passion and pursue that. I know the stress that families put on children to pursue certain careers. Reject that, and fight for doing what will make you happy and will be of service to others.

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.