In conversation with AJ Jawad on his Journey as India’s Leading Full-time Mediator

Mr A.J. Jawad is a leading mediator and trainer in India. Mr Jawad has been a mediator since 2007 and a passionate promoter of mediation in India from its earliest days. He works as a mediator and trainer with the Mediation and Conciliation Project Committee of the Supreme Court of India and is a global faculty with ADR ODR International UK. He is also a SIMI accredited mediator and has recently joined KD Lex Chambers as a Partner and Head of ADR Services. He is interviewed by Vanaj Vidyan, final year student and convenor of ADR Cell, Legal Aid Committee at RML National Law University, Lucknow.

1. Please tell our readers a little about yourself. What motivated you to become a mediator and how did you acquire the necessary training and qualifications?

I enrolled as an advocate with the Bar Council of Tamil Nadu and Pondicherry in March 1988. In those days, except choosing criminal or civil litigation, no other options existed, unless of course you wished to work on a 9 to 5 job as in-house legal adviser for a company. So I started practising on the criminal side under Mr Karpaga Vinayagam who went on to become a Judge of the Madras High Court and later the Chief Justice of Jharkhand High Court. After a year, I realised that criminal law was not my cup of tea and switched to a civil law practice working under various seniors.

The Tamil Nadu Mediation and Conciliation Centre was started in 2005. I became curious about it and visited the Centre sometime in 2006. I met Mr Sriram Panchu and was motivated by him to get trained as a mediator. Luckily for me, my meeting with Mr Sriram Panchu coincided with the commencement of a training programme that was organised by the Centre with Ms Geetha Ravindra of the Virginia Supreme Court. That training was a turning point in my life. All along, as a litigating lawyer, I rarely found satisfaction in my work due to the various uncertainties that bogged litigation cases and the general unhappiness of even the winning clients due to delays and dissatisfaction with the outcome. In mediation I saw the promise of an effective and expeditious alternative to the cumbersome process of litigation. I took to mediation like a fish to water. Sometime in 2010, I decided to opt out of litigation practice and get into mediation completely. Though my friends perceived it as professional hara-kiri, I was motivated to take this call as I felt that litigation and mediation operate on two contrary paradigms and it was difficult to litigate and mediate at the same time. You cannot be adversarial the whole day and suddenly become collaborative in the evening; you cannot be biased all the time as a lawyer in favour of your client and then suddenly become neutral with the participants in your mediation; you cannot be advising and evaluating as a lawyer and then become facilitative and non-judgmental as a mediator.

It was a difficult decision to make as I had absolutely no idea how I would be earning my livelihood. Fortunately, I had also become a trainer in mediation and there was some meagre revenue in training. That apart, I continued as a legal consultant for my clients, referring cases to my friends and colleagues. I also continued with arbitrations to keep the kitchen fire burning. I have no regrets whatsoever and there has been no looking back and I am glad that I took the decision.

2. How do you explain the concept and process of mediation to lawyers, Judges and law students who may be unfamiliar or sceptical about it? The proponents of mediation often say that mediation is the future of dispute resolution. Do you agree with such characterisation?

I always tell lawyers that they should be “problem-solvers” and not “problem-inflamers”. When I enrolled as a lawyer, my father gave me a plaque to hang in my office. It contained a quote from the Lebanese philosopher and poet Kahlil Gibran. It read: “The greatest trust between man and man is the trust of giving counsel”. As lawyers, it is our duty to offer solutions to our clients. Litigation should always be the last resort. Clients end up losing precious time and valuable resources fighting cases which do not really provide a closure to their problems. It is common knowledge that the travails of a successful litigant start only after obtaining the decree, as executing the decree is more complicated than obtaining it. Therefore, succeeding in a litigation is only a pyrrhic victory with no meaningful closure. Lawyers have to apply their minds to their clients' cases and advise them to settle the cases where settlement is possible.

Most civil and commercial cases have a scope for quick resolution. What is needed is good faith negotiation. Now negotiation is a skill that not everyone possess. Direct negotiations have their own pitfalls as parties are unable to overcome their cognitive biases and develop mutual trust. A trained neutral third party like a mediator is able to guide them through the negotiation by addressing theirs fears, concerns, build trust in the process and in each other, enable them to identify their underlying interests and needs and guide them to a resolution that is in their best interests. Lawyers need to approach mediation with a collaborative mindset. Sadly, our training as lawyers teaches us only an adversarial, fault-finding approach. Mediation advocacy itself is a skill and lawyers need to get trained in it so that they can offer valuable guidance to their clients during the mediation process and assist and support the mediator in the process. I have seen in most cases that, where lawyers play a positive role, resolution becomes easier.

Lawyers need not worry about loss of revenue as they will be increasing their portfolio instead of decreasing it. I recently read a NITI Aayog report that says that an estimated 75% to 97% of justiciable problems never reach the courts. The question is, why? This is because people are scared to spend their time and meagre resources pursuing a remedy that is at best unsatisfactory and at worst illusory. People prefer extrajudicial means like police stations or political heavyweights to enforce settlements, or, they simply live with the dispute. If a legitimate process like mediation is promoted by lawyers, they will be enlarging their portfolio of cases and also earn the gratitude of their clients.

3. What are the advantages and disadvantages of mediation as compared to litigation and arbitration in terms of time, cost, outcome and satisfaction?

In terms of time, cost, outcome and satisfaction, mediation is definitely advantageous. The only disadvantage, if at all it can be called as that, is the fact that the mediator has no power to enforce an outcome. It depends on parties to decide the outcome and the mediator has no other power than to regulate and guide the process. If parties decide not to settle in spite of the mediator's best efforts, there is precious little that the mediator can do.

I once had a belligerent landlord storming into the mediation room and asking me “What power do you have sir? My lawyer tells me you cannot decide anything! So why should I waste my time here?” I smiled and asked him, “Sir, before you came here who had the power to decide your dispute?” He replied, “The Judge!” I said, “Well, the Judge has handed over to you this power and has sent you here so that I can assist you and your tenant in using that power to resolve the dispute. Now, the choice is yours. You either use that power, stay in control and decide on how you want to resolve your dispute. Or, you can go back to the Judge and return this power and tell the Judge to decide.” Not surprisingly, he sat down and participated in the process. Most people in conflict do not realise that by opting for adjudication of the conflict they are losing control and losing the power to resolve it in an efficient and expeditious manner. On the other hand, mediation enables them to stay in control and decide an outcome that is in their best interests.

4. What are the type of cases that you mediate and what are the criteria that you use to determine the suitability of a case for mediation?

Though in other jurisdictions mediation is highly specialised, in India we still do not have that kind of specialisation. Since most mediators here do court-referred mediations, the bulk of the cases that are referred to mediation are family disputes. However, I have been lucky to have had the opportunity to mediate not just family disputes but also civil, commercial and cross-border disputes. I have had the opportunity of doing private mediations, in addition to court-referred mediations, and this has given me an opportunity to deal with a wide variety of cases of all genre.

As regards suitability, I am of the view that all disputes are amenable to mediation, except perhaps, where there is a statutory restriction or the issue needs a judicial ruling or there is a need to set a judicial precedent.

It is widely believed that criminal cases are not fit for mediation. I have a different perspective here. With the discoveries made in neuroscience, the world is veering towards reformative justice (from retributive justice) and this is where the scope for mediation lies. Our jurisprudence needs to move from the “state being the offended” paradigm to a more victim-oriented jurisprudence. If that is done, it widens the scope for mediation, for instance in determining compensation for the victims. This is a subject that would need voluminous discussion and cannot be summed up in a short interview.

5. How do you handle complex and sensitive issues such as power imbalance, cultural diversity, emotional distress and confidentiality in mediation?

This is again a question that needs a voluminous answer. Suffice to say that mediators need to have a high emotional quotient and need to be emotionally intelligent to deal with strong emotions that find expression in the mediation process. This is perhaps the only conflict resolution process that is participant-centric and provides scope for participants to articulate what is important for them. In litigation and arbitration, it is all about the law and decision-making, on the fault-finding paradigm, by a person who is not party to the conflict. Litigants lose control once they walk into the court and the dispute takes a life and trajectory of its own where they are merely plaintiff or defendant, petitioner or respondent instead of being A, B or C. What they feel about the conflict, their experiences, their fears and concerns and their views do not matter except to the extent permitted by the law. That does not happen in mediation where it is all about them. It is the human factor that is pivotal in mediation — who the participants are, how they feel about the conflict, their deepest fears and concerns, their underlying interests and needs, their need for validation and so on are all factors that are not merely relevant but also critical to move towards a holistic resolution.

Mediators are trained to deal with emotions, not only the participants' emotions but their own. Empathy and self-restraint are essential qualities of a good mediator. Remaining omnipartial (which I prefer to “neutral”), maintaining confidentiality, dealing with strong emotions, listening actively and patiently to the concerns of the participants, effectively using communication and negotiation and the process skills to understand the real interests behind the asserted positions, are all skills that are taught to mediators. Once you do a mediation, you realise that adjudication is much easier. I find that being an arbitrator is much easier than being a mediator.

I usually put parties at ease by asking them to address me on a first-name basis and by striking up a more casual conversation before delving into the issues. I clarify my role as a facilitator and not a Judge and that I may be playing the devil's advocate occasionally just to help them look at different perspectives. I explain to them the process and that they can use private sessions to share confidential information. I sensitise them to the need to have a civilised conversation, to look beyond seemingly normative ideas, beliefs and notions, to explore different options, to look at the issues as common issues that need to be resolved collaboratively rather than looking at each other as the problem and to be willing to have difficult conversations. What I am mentioning above is what all mediators do, or at least supposed to do, and nothing exceptional that I alone do. Therefore, it is par for the course for a mediator to make an opening statement to bring the parties to speed about the process and what they can expect out of it.

6. The prevailing narrative is that a career in mediation is, as yet, not financially viable as a career option for lawyers. What would be your response to such critics of mediation as a career? Do you think this would change in the future, and mediation would follow the steps of arbitration in becoming a career alternative?

I am very positive about it. Humans desire for peace and harmony, to live a conflict-free life, to empathise and understand and to peacefully coexist. Humans are hardwired for this and it is against human nature to live in conflict for a long time. We Indians lose no opportunity to claim that mediation is our culture. If that is so, it begs the question, why are we clinging on to the colonial legacy of the court system to resolve our disputes? Therefore, what we need to do is to search for our own cultural identity and use a process that reflects our ethos more. This is not to say that the courts should be shut down. The courts have their role to play in upholding the constitution, protecting citizens against arbitrary executive action and uphold the rule of law. But when it comes to interpersonal conflicts involving disputes between people who are connected with each other either personally or commercially, why should the courts waste their time?

A colleague of mine once said, “Mediation is an idea whose time has come”. The youth of today have no patience to indulge in semantics and pompous arguments. This is an age of artificial intelligence (AI) and technology. The youth want quick solutions and they are embracing mediation much faster than the older generations. Therefore, I feel that a career in mediation holds a lot of promise. When I am coaching and training young students, I find them quite fascinated with the concept and wanting to take up mediation as a full-time career option. It is now our duty to create the ecosystem to enable them to do that and to ensure that we have a better world in the future.

7. Another argument raised by critics, is that mediation, even if mandated by law, is a mere formality before litigation. Even though high-profile cases such as the Ram Janmabhoomi dispute have been referred to mediation by the Supreme Court, there are not much statistical metrics on how many of such disputes were finally settled. Based on your profound experience, do you feel mediation will attain the status of first and final method of dispute resolution?

That is because we are still invested in a legacy given to us by our colonial masters. We are so wedded to a system that has time and again proven short of meeting our needs. It is buckling under the pressure of increasing demands made on it and it needs to be relieved of at least some part of that burden. Mediation is perhaps the only answer. The sooner we mainstream it, the better for society. Courts have realised this and that is why we have a robust court-annexed mediation system that is working quite well, though it has some inherent challenges and bureaucratic wranglings.

The transition from an adversarial framework of dispute resolution to a collaborative framework is a work in progress and demands a change in our outlook, mindset and culture of dealing with conflict. All along we had no other options. As the Zen saying goes “When the only tool you have is a hammer, every problem looks like a nail”. We have got used to a culture that uses the hammer of the court system to nail down every conflict. All we need to do now is look around and see that there are other tools around and not all problems are nails that need to be hammered. Such a transformation will of course take time.

8. How do you evaluate the quality and impact of your mediation services and what are the indicators and methods that you use to measure them?

I normally avoid looking at success of a mediation from the prism of a “settlement”. The most fatal mistake that a mediator can make is to take on the responsibility of finding a settlement for the participants. A mediator's job is to guide the participants through a process of introspection and understanding. Settlement is the participants' prerogative and responsibility. A mediator has to understand that the conflict is a problem of the participants and they own the problem. Therefore, the resolution of the conflict also has to be owned by them. There have been many cases where a mediation before me has failed but I am informed by the lawyers later that the participants have settled the dispute. This means that the process had helped them to look at the problem from a different perspective and had set them on a journey of recalibration of their interests and needs. That itself is the success of the mediation. There is no point in reaching a settlement if the participants have still not come to terms with their underlying interests and concerns and found their own means of dealing with them. Therefore, the only yardstick that you can perhaps use is to see if the participants have come out of the process with a different outlook from the one they had before they entered it.

9. What is your view on the debate, as far as the institutionalisation of mediation is concerned?

Insofar as institutionalising mediation is concerned, I strongly believe that institutions are essential as they ensure quality. Institutions have to preserve their reputation and therefore, invest in offering a qualitative service. End users would have better faith in an institution rather than an individual as institutions would be more accountable for any malpractices. Arbitration in India suffered due to lack of an institutional base and its ad hoc use. Mediation should not go the same route. Institutionalising mediation will also promote a healthy competition where the end users will be assured of a good service and this will increase the use of mediation.

In the United States mediation grew organically without the aid of any legislation. But in India, we give a lot of importance to legislation and for mediation to have the necessary gravitas and be taken seriously, it would be necessary to have a legislation. There will of course be some challenges but those challenges can be dealt with over time.

10. Today, if a law student or a new lawyer wishes to make a career in mediation — where would you recommend them to start?

Why should mediation be the exclusive preserve of lawyers? I believe that everyone should undergo mediation training to at least understand that there are skills that we need to learn to be good, emotionally intelligent people. That is the first step to becoming a mediator. I would prefer to call a mediator a “conflict resolution specialist” who has the skills to manage conflict and resolve it. There is so much conflict in the world that needs to be managed and resolved. Conflict resolution is a career that has a huge scope. There is no right way or wrong way of doing it. But there are some basic skills that you need to be able to do it effectively. So, my suggestion would be to first get trained and then start practising the skills and keep honing them. The rest of it will be to do what you would do to promote yourself in any other career.