We had an insightful conversation with Dr. Vinay Koparkar (VK) where he spoke about his personal and professional journey while sharing some great insights about mediation which still remains an unpopular topic in the dispute resolution process in India.
Hello Dr. Koparkar. Thanks for taking the time today to have this conversation on the topic of mediation as a means of dispute resolution. Before we start, we would love to hear about your rather unconventional professional journey so far, and what made you take up mediation as a professional career choice?
Hi Vaibhav, thanks for having me as a part of this conversation. If I look back to my 32+ years of professional experience, the one common thread I can find is that I have always been a person with an entrepreneurial mindset. Even though I studied MBBS and have been a practicing medical doctor since 1986, I decided to start a totally innovative concept of Men’s Beauty Salon way back in 1988 when Hair Cutting or Hair Styling was not at all considered a science. I got myself internationally trained from some of the topmost institutes, learned it as a science, and have been running it as a successful business for the last 25 years.
From my experience of looking at people’s problems – personal as well as professional, I realized that I have a special skill set of understanding people and their needs which had always helped me create win-win scenarios. This is when I started looking at getting into mediation as a profession and got myself trained from Harvard Law School. It’s interesting that in India, mediation is still at a very nascent stage and there is tremendous scope to add value in solving disputes, in a scientific way. So here I am!
When we talk about mediation, a common question that comes up in the mind is how is this different from other legal remedies such as arbitration?
The biggest difference between arbitration and mediation is that in arbitration or in a lawsuit, generally only one party can be satisfied, whereas in mediation both parties create a mutually agreeable settlement, and thus both get an agreeable share of the disputed value. Through mediation, the parties can solve the dispute and can do an amicable settlement creating a win-win position for both parties. Moreover, this process is quite inexpensive and requires comparatively much less time to arrive at a conclusion.
Does mediation have legal status in India?
Yes, absolutely. Mediation is legally allowed and recognized as one of the alternate dispute resolution mechanisms under the Arbitration and Conciliation Act 1996. The mediation settlement agreement is enforceable by law and once approved by the court has the equal status of a court decree.
Do lawyers participate in the mediation process, or is it strictly meant to be led by the disputing parties?
We always encourage the legal advisers of both parties to be present during the mediation process. The important legal points can be discussed right across the table, in front of, and in immediate consultation with the legal advisers. Since the legal advisers help in making the final draft of the settlement agreement, it is always very beneficial if they are present during some or all of the mediation sessions.
What are the binding elements of the mediation process just like a court proceeding?
Any of the disputing parties can quit mediation at any point of time, before signing the final settlement agreement. This makes mediation an entirely voluntary process with the parties having the freedom to quit at any point in time. The parties are free to exit the process at any stage of mediation if either of the party is not happy with the process or with the probable outcome. But from our experience, every invitation to attend a mediation process is normally accepted by the other party. Even if the other party does not turn up, it is an advantage to initiate mediation first, as after the completion of mediation or on the receipt of the mediator’s completion report, a mediation status report is shared with both the parties. This is done even if the dispute is not resolved or if mediation could not proceed due to the absence of one of the parties. This becomes a valuable document when the initiating party approaches the court.
Who decides the agreement terms in mediation?
This is the first question in the minds of most of the disputing parties. The mediator does not take any decision or does not pass any judgment during the mediation process. In fact, he does not have the authority to do so! The mediator facilitates a common ground between both parties, often by thinking outside the box, but it is the parties who then decide the exact terms of the settlement agreement in mediation.
How long does it take to resolve a dispute through mediation?
Usually, we have seen that it takes anywhere between 30 to 90 days to complete the entire mediation process in a dispute. Obviously the actual time taken will depend on the complexity of the dispute and the willingness of the disputing parties to cooperate.
Is mediation only meant for disputes that have not entered a court case? Or can it be applied for a case that is before a court?
Mediation can be initiated at any stage of the dispute, either at the beginning or when the matter is before the court. The sooner mediation is initiated, the better it is as the parties are less hostile towards each other. India’s judicial system also encourages mediation as an early opportunity to resolve disputes.
Once the mediation process gets over and the parties agree to a settlement, how is it enforced?
When the disputing parties reach a settlement through mediation, the terms of the settlement are written and signed by both parties. This agreement then forms a binding contract. If the case is pending in a court, these mutually agreed settlement terms are filed in court for approval and a court decree is passed, which is final and binding for both parties. In the case of pre-litigation mediation, several options are available to obtain enforceability and the parties with their lawyers may choose the most suitable option.
Once the settlement agreement is signed, is it legally binding?
The mediation settlement agreement is a binding contract and can be enforced like any other enforceable contract in the court. If the settlement agreement has been signed in a case that was already pending in the court, then such an agreement is considered as a court decree and the party not following the terms of the settlement can face legal consequences.
If a party initiates mediation, would it not be considered as a weakness by the other party?
This can’t be further from the truth. In fact, mediation is an interest-based dispute resolution mechanism where the resolution is arrived by the parties through a collaborative process to maximize mutual gains. Internationally, initiating mediation is considered as an expression of best governance and social commitment. Many companies have signed the ‘Pledge to Mediate’ expressing their commitment to resolve disputes amicably with their potential business partners and clients.
How much does the process of mediation cost to the disputing parties?
This is one of the key highlights of mediation. While litigation can cost anywhere between 10% to 40% of the dispute value, the cost incurred in a mediation process is in the range of 0.5% to 2%.
What are the different kinds of disputes that can be solved through mediation?
Mediation For Dispute Resolution can be used for wide range of situations. These include business & commercial disputes, housing & property disputes, shareholder/partnership disputes, intellectual property disputes, family/divorce disputes, medico-legal disputes, labor & industrial disputes, etc. The principles of conflict resolution in mediation remain the same across the range of disputes.
What are some of the key differentiators of your offering?
Apart from the founding partners, we have a panel of mediators and subject matter experts who follow Harvard’s interest-based approach to negotiations & mediations called ‘principled negotiations’. This has helped us achieve very high success rates in our engagements. The professional backgrounds of the partners and our subject matter experts, coupled with the scientific approach to mediation is what makes us unique and special.
Dr. Vinay Koparkar is the Principal Mediator at Catenon India and a Partner at Papillon Mediation & Negotiation LLP. He is a medical doctor by profession and holds an advanced certificate in Mediation from Harvard.
Vaibhav Agarwal is the Vice President for the Consulting & Intelligence practice at Catenon India. He holds a BTech from IIT Guwahati and an MBA from ISB Hyderabad.