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Tara Ollapally is a lawyer and an experienced mediator at CAMP Mediation. In this interview with Anuj Agrawal, she talks about the benefits of mediation, whether lawyers would become good mediators, and why one needs to invest time and effort to become a successful mediator.
Not too long ago, you come back to India and CAMP Mediation.
I kind of stumbled into mediation. It wasn’t a planned next step. My mother was a pioneer in the mediation movement. She was one of the co-founders of the Bangalore Mediation Centre. And she felt the need to take this next step in mediation – private mediation.
To get into the commercial dispute resolution space, we needed to get into private mediation, where parties have access to high quality mediation services. That is how we conceived the idea of CAMP.
It must have been difficult to sell mediation in the beginning.
We started CAMP in January 2015 and we would actually get calls asking, “So, when are your meditation classes?” – that is the environment in which we started. (laughs)
We have definitely moved from there.
I am convinced that people will see the value of it. We are working in an environment where people want and need options. What is being provided to them is not optimal, they are not happy with it.
Mediation has found legislative backing, but you have noted that more needs to be done.
So the amendment mandates disputes to go into mediation before they can be filed in the commercial court unless the parties are seeking interim relief. This is a fantastic step to try and get parties to sit down and resolve their dispute.
[But] what the law has not thought through are the details with respect to how this is done. For example, the body that has been given the mandate to administer these mediations is the legal services authority. Which really does not make sense.
It is not thought out that a commercial dispute and legal aid cannot be clubbed together in the same forum. If you have the legal services authority administering commercial mediation, you are setting yourself up for disaster.
Do you see commercial establishments recognising the benefits of mediation?
What do businesses want? They want to find a quick, cost-effective and appropriate way out, a business way out.
Mediation is not process-heavy. We don’t have pages and pages of process that needs to be followed before an application is filed. There are no applications that need to be filed. The objective is to be able to understand what are the interests of the parties, what is it that the parties truly want.
Cost effectiveness, speed – these were some of the touted benefits of arbitration. How is mediation better?
I would not use the word “better”, but “different”. Arbitration is still an adversarial process and by that I mean there is a winner and a loser. And there is a third person who is going to decide who the winner is, who the loser is.
In mediation, the whole concept is different. It is not about right or wrong. It is about differing perspectives, and helping the parties understand each other’s perspectives, and getting them to decide on what the solutions are.
Do you think lawyers make good mediators?
If a lawyer is able to switch hats from adversarial to collaborative, a lawyer is fantastically placed to be a mediator. Because the lawyer knows the law better than any other neutral would.
The law plays a very important part in mediation, because a large aspect of the negotiation hinges on what your alternative is. And, what is the alternative? Typically, it would be arbitration or litigation.
Now how is this going to play out in arbitration or litigation? What are the strengths and weaknesses of each party’s case? A lawyer is very well positioned to be able to help parties go through the alternatives, the reality test.
But aren’t lawyers trained in an adversarial system?
I have met so many lawyers who love the law, but hate the adversarial aspect of the law. They want to be part of the dispute resolution process but they don’t like the way the dispute resolution process has been managed.
Now these people make fantastic mediators.
They are part of the dispute resolution process, they have the logical way of thinking, they understand the law, and they have the ability to structure and facilitate mediation in a very effective way.
Is India working towards a more conducive environment for mediation?
It is not like we have a choice. If lawyers want to keep up with the way lawyers are practicing law in several aspects of the world, this is an aspect that you just cannot look away from for very much longer.
Italy had a similar issue of pendency which is what motivated them to pass mandatory mediation legislation – essentially mandating the parties to sit, with their lawyers, with a neutral third party mediator. You can opt out after [one session] and go back to courts.
Just one session.
That is all it took. I don’t remember the statistics, but a large number of disputes that went through mediation ended in settlements.
So, mediation makes business sense, and there is money to be made. Yet?
Businesses in India are still not buying into mediation. They are still using arbitration because that is what is familiar.
Our purpose right now is to make businesses include mediation in their dispute resolution clause. Today’s dispute resolution clause is we will sit and negotiate, if negotiations fail, we will arbitrate. And that has to change.
It has to be, “We will sit, negotiate. If negotiation fails, we will do a facilitated negotiation and if that fails we go into arbitration.”
If a lawyer is interested in mediation, what advice would you give her?
For a young lawyer to enter into the field as a mediator would be challenging. But, my advice is go out, join a law firm, litigate, go in-house but start pushing disputes into mediation.
Through that aspect, you start exposing yourself to the mediation process, you start understanding the mediation process differently. Build the skills to be an effective advocate in mediation.
Skills such as?
Such as being able to figure what your client really wants. [Learn to] drop the posturing, prioritise options. Start listening to your client.
These are the skills that a mediator builds – listening to understand. Bringing down the emotional aspect of it by reframing, by summarising, by connecting to your client. Be an empathic lawyer in mediation.
To be an empathic lawyer is a huge skill that we have to build.
But nobody teaches you this as a law student.
Not at all. These are skills that you have to learn. So when I am listening, how am I listening? Am I listening to fully understand what you are communicating to me, or am I listening from a perspective to figure out what my response to you is? And then of course to be able to weed out the emotion from what my client really wants.
That seems like quite a time intensive practice.
Absolutely! It is actually about investing [in the client]. About understanding who my client is, why my client feels this way, what has motivated my client to be in the position that he is in.
Lawyers deal with people in conflict. But we have no concept or idea of what a human being is when in conflict. How is that person responding, how is her brain functioning when in a conflict situation. Because neuroscience will tell you that when you are in conflict, your brain is working differently.
These are concepts that we have not even thought about as professionals in this conflict space.
Final question, what is a good legal education? Or have you just answered that?
I think I may have. We are dispute resolvers. We are here to be able to find appropriate resolution for clients who come to us in a distress situation. They are frustrated, they are angry, they are helpless. They want a way out.
But the only thing that they know is to strike.
And we, as lawyers, are trained to help them strike harder. We just take them up this conflict path but we do not realise that our objective should be to get this person out of this mess in the quickest, safest, most respectful kind of way.
We don’t even think of it that way.
It is critical that our law students are exposed to this way of dispute resolution. The mark of a civilised society is in our ability to manage conflict. Conflict is inevitable, it is a result of progress. We cannot stop conflict but we have to find better ways to manage conflict so that conflict is opportunity.