Let me do a little time travel into my past. Now, we are in 2006; its been 18 months since my graduation. I am working in a leading law firm in New York. Needless to say, I am loving it! What I don’t know this morning is that my perspective towards litigation is going to change forever in the next few days. I have been assigned a pro-bono matter for a 9 year old girl. Let’s call her Amanda. In between the due diligence for the highly discussed and talked about light-cigarettes matter, I squeeze time to meet with her. When I walk into the room, I meet a lovely young girl along with her grandmother and younger sister. As I sit down to listen to their story, I am told Amanda and her sister lost their parents in a tragic accident. The grandmother has no job; she lives on social security benefits. So bringing up these two girls is proving to be difficult as it is. To make matters tougher, Amanda and her sister are both special needs kids who require the State to grant them intensive assistance of a small special education class-room. Looking at the children’s psychological and medical assessments, it’s clear that without this grant, which includes a certified special needs educator, small class-room setup and extra classes, they both don’t have the possibility of getting mainstreamed at some point. It’s been five months since the State withdrew Amanda’s special needs education grant; during this short period of time, Amanda has already fallen behind noticeably from her classmates. The grandmother doesn’t have the means to arrange for paid help outside the State school. The matter has already been rejected by the State Department of Education (DOE). What next? To go to court?

In the next couple of days, as I go through all the papers, one point keeps nagging me – how much time will it take in the court and what will happen to a child who is already falling behind. I decide to discuss it with a senior who advises, “mediate it with DOE! Don’t try to litigate this”.

I took his advice and revisited the matter with DOE and to my surprise they were willing to go in for the mediation option. From there on, it was all about showing the matter in a fresh light with the help of a mediator. In two weeks from the time I first met Amanda, we had settled the matter with DOE with a full grant of special education status for Amanda. It was a life changing moment for all of us, as we digested the fabulous resolution that mediation got us. During our ride back to mid-town – the grandmother couldn’t control her happy tears. And, I was in a conundrum – on one side, I kept marvelling over the mediation outcome and hoping that Amanda would now get the education she deserves. And, on the other side,  my thoughts kept creeping back to the light-cigarettes litigation I was working on, and I kept wondering, how that litigation had been made bigger than life for everyone; the company, the petitioners and everyone in between.

When I now think of the whole case in retrospect, I can truly say, that this was the beginning of my mediation journey. Today, we use it for not only pro-bono matters but also for settlements in family and matrimonial disputes, as well as high stake commercial disputes in India, US and cross-border. And I can confidently say, mediation works wonders compared to litigation!

Over the years, the top five reasons for suggesting mediation to my clients include:

1. Self determination. Ability to manage and tailor your own settlement. This to me is the game changer compared to litigation where you are handed a verdict. The verdict is always a win-lose situation, can be a lose-lose situation too, but almost never a win-win for the parties involved. Mediation on the other hand is always a win-win. So if you ask me what is a win-win, let me share a very simple example – say, someone is separating from her husband and wants no money. Her only demand is that when they communicate in future for their children, the husband use a better tone in his voice and messages. Can the court get her a divorce in this matter? Yes, sure. Can it get her a better tone in her husbands speech? In my decades as a lawyer and mediator, I have never seen such a judgment. But have I seen this in mediation? Yes, numerous times. I have seen parties wanting nothing except an apology sometimes, which also goes to show how humans have some very basic needs, but litigation can make disputes become larger than life and engulf our very sanity. Unfortunately, courts do not go into what is the actual settlement that the parties need and mostly psychological needs are completely ignored. In fact, the best of the mediators would involve a trained psychologist or financial expert, if and when a matter so demands. The settlement in the end then is not only legally sound, a win-win for both parties, but also the process addresses other aspects of a clients holistic requirements and well-being. So overall, the parties at dispute are able to communicate through a mediator to arrive at a self-tailored mutually acceptable settlement.

2. Confidentiality. No one I have met wants to wash their dirty laundry in public -neither a business partner or contractually disputed parties nor, a family member / spouse. Mediation offers complete confidentiality in this respect. In fact, it goes a step further and what one shares with their mediator in a caucus (individual session) is not shared with the other party by the mediator, until and unless the mediator is directed to do so. Nothing you say in mediation is admissible in court or can be brought forth as evidence. The final outcome/ settlement can also be made confidential, if the parties so prefer.

3. Outcome is definite and certain. This is literally the most important aspect of mediation – No appeals and no further court cases on your mediated settlement. This is very different from an outcome in a litigation matter as there are several ways and forums to appeal this in. And for anyone to truly reach the end of litigation is either the exhaustion and fatigue of the parties or frustration over having spent money and time going from one court to the next in appeals and reviews, or a combination of both.

4. Fast, economic and in a friendly environment. Let’s imagine a litigation – the client shells out heavy amounts for lawyers, evidence collection, drafting, expert witnesses and then finds themselves in a super unfriendly and stressful environment of the court, where verdicts can be unexpected, drastic and that too after many years or decades. Compare this with mediation, where the neutral comes to a brief analysis of feasibility of settlement within a handful of sessions and, all sessions are carried out in a friendly environment. Since mediations are quicker as compared to litigation, the costs involved are also way lower than litigation in terms of money and time spent. People report a much higher degree of satisfaction and much lower levels of stress with mediation as compared to litigation.

5. Restore and maintain on-going relations. In most disputes that involve relationships, whether contractural or matrimonial/family, it’s of utmost importance for the disputing parties to be able to carry forward these relationships or at least a working relationship for the sake of their business or family/kids. When parties mediate their disputes, they are more likely to come to a settlement which serves their very specific needs at that point – whether it is getting more time with the kids as part of child custody or whether it is understanding that despite the dispute the vendor should fulfil the contract peacefully. This chance of being able to restore or maintain an on-going relationship is invariably lost in litigated outcomes.

Indian Courts are hugely overburdened and backlogged despite the judiciary working to the outer limits of its capacity. Entering a courtroom with the thought of winning a grand outcome is most likely to leave the aggrieved party frustrated and demotivated. I find this line by Max Lucado carries within it the essence of mediation, “conflict is inevitable, but combat is optional”. 

About The Contributor:

Prachi Mehta founded TAG – The ADR Group to realise her passion for Alternate Dispute Resolution. Her 17 year journey provides her clients with a simpler route to settling disputes. Prachi has been awarded the prestigious title of ‘Weinstein JAMS fellow’ to recognize her commitment to ADR.