One of the most important phrases that I have heard which applies across situations is- listen to understand, not to respond. This six-word, neatly packed sentence has a lot to unpack. I remind myself of this every now and then when I feel I am not sticking to this principle.
As of August 2020 the Bar Council of India (BCI) has made ‘Mediation (along with Conciliation)’ a mandatory course which has to be offered to all students (both 3 and 5-year law courses). The course is supposed to be 9-14 weeks long, spanning 45 hours.
The main reasons which the Bar Council of India has cited are:
- Mediation can untangle complicated cases. If cases go for mediation, it will also reduce the backlog of cases. Having a culture of mediation would also make parties use the court as a last resort.
- As COVID-19 has resulted in the suspension of physical courts, mediation as a tool of conflict resolution could be immensely useful.
Benefits of the course
The move by BCI is a welcome one. The module focuses on areas that would be useful for any person, especially lawyers.
As Chriss Voss, a former FBI hostage negotiator talks about in his book ‘Never Split the Difference’ that negotiation doesn’t only happen when you sit across the table, but it also takes place in your everyday life- when you buy a car, when you negotiate salary or rent. It might also if you are a student convincing someone for a ‘student’s discount’.
Understanding where conflict stems from, and how to de-escalate a situation would not only result in a better understanding of legal issues but also help you to get through situations you would encounter outside work.
The need for trainers now
The Bar Council highlights that now there would be a need for having an adequate number of trainers.
While the specifics are to be decided by the Bar Council, currently it says that trainers could be the following:
(1) lawyers with at least 10 years of practical and theoretical knowledge in these subjects;
(2) trained mediators/conciliators; and,
(3) persons having 2 years LLM Degree in these subjects.
BCI has stated that they will be arranging training sessions for training the trainers as well. As of now, there are multiple 40-hour training programs being conducted by institutes for teaching mediation and negotiation. These could be useful for both professionals and students to work on, as negotiation skills are a useful tool for your arsenal. However, the cost could be prohibitive for a large chunk.
If one wants to check out the institutes offering these courses, they are listed below:
- Indian Institute of Corporate Affairs (link)- for approx. Rs. 43,000
- ADR-ODR International (link)- for approx. Rs. 25,000
- Indian Institute of Arbitration and Mediation (link)- for approx 45,000
Where does the training requirement come from?
The Supreme Court Mediation and Conciliation Committee had stipulated that any person who has undergone a 40-hour training (as per guidelines framed by them), and had at least 10 mediations (which resulted in a settlement) or 20 mediations in total (including non-settlements as well) can be accredited as a qualified mediator.
The Online Aspect
It is also important to note that the BCI has mentioned that the course must focus on online dispute resolution (ODR) as well. The recent Draft NITI Ayog Report on Online Dispute Resolution also heavily emphasizes the need for training, not just lawyers, but even law students, on the know-how of ODR.
The advent of COVID-19 has acted as a catalyst to the shifting focus to Alternate Dispute Resolution (ADR) mechanisms. The changes which would be coming in these times would likely be here to stay for long. Thus, students must equip themselves with the skills required to navigate the coming times.
For example, BCI also talks of ensuring that internship opportunities are available for students who want to specialize in mediation.
Lawctopus Law School’s course on ODR too can be a good starting point if you are interested in the subject. Check the course here.