Mar 28, 2022
Building a Career in Mediation and Making it a Success - An Interview with Jonathan Rodrigues
“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln.
Commercial mediation gained recognition in India in 1996 when the Indian Parliament amended the Civil Procedure Code (CPC) and introduced section 89, which empowered courts to direct settlement of disputes by mediation, amongst other means. In India, courts refer a large number to mediation. Even so, litigation remains the most popular mode of dispute resolution.
According to data from the National Judicial Data Grid and the Supreme Court, as of 2021, there were 3.9 crore cases pending in the district and subordinate courts, 58.5 lakh cases in the various high courts, and more than 69,000 cases in the Supreme Court.
Given this, will parties become more receptive to mediation as an alternative method of dispute resolution? Can the Government provide greater support for mediation? Our interviewee, Jonathan Rodrigues answers some of our questions here.
Jonathan was introduced to law by chance, but his background and interest in psychology led him to pursue a career in Mediation. Jonathan is currently set to begin a new professional chapter in the UK, where he completed his post-graduate studies in Mediation and Conflict Resolution from the University of Strathclyde. Back in India, he led the Online Mediation and Corporate Relations verticals at CAMP Arbitration and Mediation Practice, Bangalore. Importantly, he has been instrumental in setting the context and building a momentum for mediation awareness and education in India, through his New Delhi-based firm, The PACT.
What inspired you to pursue law after first having completed your bachelor’s degree in psychology?
My foray into law happened by chance. I had a media job and loved every thrill of being a journalist. I enrolled for a bachelor's degree in law, probably motivated by my background in psychology, to continue working with people in distress. It surely wasn’t the long-winding legislations and their interpretations or landmark judgments and their precedents that inspired me to study law. I always admit that I was quite lost in law school until I discovered mediation. Mediation allowed me to mix my passion for psychology and the search for justice and peace, to study disputes within people and between people. I was always more interested in the person affected by the dispute than the dispute itself and mediation allowed me to pursue a deeper study of this complex world of disputes.
How did you begin your career post your law degree? At what point did you decide to pursue a career in mediation? What drew you to it? How did you go about it?
In my final year of law school, I knew there was only one way forward – to dive into the world of conflict resolution. So, I registered for a couple of trainings in India, and got certified as a mediator. I began coaching and training some juniors and travelled with them to competitions in Vienna and Paris – this allowed me to network and gain visibility in the mediation community. Back in 2015-16, India didn’t have an effective system for mediation awareness and education and so, with a couple of close friends, Nishant Laroia and Gracious Timothy, we founded The PACT ( India’s oldest and widely recognised mediation awareness and education firm). The initial feedback we received encouraged us to knock on more doors and in 24 months, we had visited nearly three dozen law schools across the country. Further, my passion for writing developed as a former journalist, motivated me to keep blogging about mediation and related topics, which once again gave me visibility and the confidence to meet some fantastic professionals and learn from their experiences in the world of mediation.
What is the scope for mediation in India? Is there enough administrative and legal support for it? What does the future look like?
There is tremendous scope for mediation in India. We often quote the figure of 40 million pending court cases to explain the scope of mediation, but I will go a step further and say we have over a billion potential cases that can be mediated, considering we are a highly opinionated population of over 1.4 billion people – and therefore, 1.4 billion differences of opinion. However, we are impulsively drawn to battle dispute in court and it will take a huge cultural paradigm shift to see more Indians embracing mediation as a primary step to resolving conflicts. .
The Mediation Bill, 2021, which is currently navigating the legislative corridors, mentions that parties seeking relief in civil and commercial disputes will have to mandatorily attempt two sessions of mediation before beginning court proceedings. I welcome this statutory obligation as it will surely serve in creating mass awareness about the value of mediation. The Bill also values an authentic mediated settlement agreement on par with a court’s decree, easing enforceability and bringing finality to the dispute.
Let me be honest here – an honourable, skilled, and confident lawyer will refer and counsel their clients in mediation, after assessing that the case is suitable for mediation. However, if the lawyer has unethical orientations towards the profession, the lawyer will dispassionately attend the two mandatory sessions of mediation (mentioned in above para) without any intention to guide the client towards an amicable settlement. Therefore, I strongly believe that the lawyer community and judiciary will continue to be gatekeepers of mediation in India, at least, for another decade. We must keep celebrating the true ambassadors, the legal practitioners who are showing the rest of the fraternity that they can continue to live a handsome, yet moral lifestyle by integrating mediation advocacy practice into their general litigation/arbitration practice. At CAMP, we created a campaign titled #CALM to Celebrate Advocates and Lawyers in Mediation; India needs more of such campaigns.
You are familiar with the mediation ecosystem in India and the UK. What are some of the differences you see between the two?
The populations in both jurisdictions, both disputing parties and their lawyers, love to fight a battle in court, the old-fashioned way. You shouldn’t be surprised to know that in the UK as well, the struggle to professionalize mediation services is real. Nevertheless, there are more established mediation institutes and service providers in the UK, in comparison to India. Further, independent mediators are not shy to market their services and invest in branding exercises that help them generate visibility for the services they provide. In comparison to India, there are more universities in the UK that offer specialized courses and postgraduate programs in Mediation, which not only help nurture a new breed of collaborative lawyers but also invite professionals from other fields to train and be certified as mediators. India is fast catching up and is an inspiration to other developing nations in the world.
In my understanding, the Mediation community in the UK has embraced that the profession is richer when approached from a multi-disciplinary perspective. Look at the folks at TCM London for instance, and what they are able to achieve by promoting formal and informal conflict resolution services through an organic, human approach. TCM has successfully taken mediation to private and public entities by offering considerable attention to the ‘person’ affected by the problem, besides offering experts to resolve the ‘problem’.
How receptive are people and corporate entities to mediation, in your experience? If there is any reluctance in taking the mediation approach, what could be the reasons for such reluctance? What are some of the major challenges you face in this field?
The trends are encouraging. I am seeing many leaders of in-house legal teams and senior management officials of corporates not only growing curious but also daring to explore mediation as a primary tool to dispute resolution. CAMP Arbitration and Mediation Practice in India is working closely to create the demand for mediation by offering webinars and training, besides customizing pilot programs for corporates to get hands-on experience of mediating and settling disputes. One of the biggest struggles is to bring parties to the mediation table and this struggle can be tackled by having standalone mediation clauses or mediation clauses as part of a hybrid mediation clause (with arbitration or litigation) which will allow for parties to explore mediation before opting to go down the adversarial path. Corporates are not wrong to be apprehensive about mediation, considering its novelty. However, I feel these concerns about mediation can only be resolved by awareness – when they learn more about the process and how their peers have benefitted from the process.
What is your suggestion for students/professionals who want to pursue mediation? What are the avenues open to them?
Follow Your Fire! If you believe that collaborative conflict resolution thrills you more than any other practice area or profession of interest, then dive into it. Immerse yourself into the subject – train, read, attend conferences and webinars, network, intern, observe mediations, co-mediate with senior mediators, and eventually get yourself empanelled as a mediator.
More importantly, you have to be willing to contribute to the greater cause of the mediation movement in India. Learning to collaborate with the larger community and build the market for mediation is necessary to keep up the strong momentum that mediation has gained in India. If you treat mediation as an after-dusk hobby, then you will not experience what it really means to be a professional mediator.
Passion, knowledge, and skills are important to consider a career in Mediation, but the daily essentials are the courage to take risks and the resilience to chase the uncertain road ahead.
