Chitra Narayan is a lawyer and an accredited mediator with the Tamil Nadu Mediation and Conciliation Centre annexed to the Madras High Court since its inception in 2005. She is a co-founder of Foundation for Comprehensive Dispute Resolution (FCDR), an organisation providing mediation training and mediation services in Chennai.
As a lawyer, Chitra has over 20 years’ experience in corporate commercial law – both in transaction advisory and dispute resolution, which she brings to support her work in mediation and conciliation.
Chitra has been a partner with leading law firms prior to setting up independent practice. She was a partner with J.Sagar Associates, and before that, a founding partner with Vichar Partners, a Chennai based law firm.
She is a graduate of the National Law School of India University, Bangalore, and has a Masters in Law in Development from the University of Warwick, U.K., which she attended as a Chevening Scholar. Chitra is a specialist editor of the 18th Edition of A. Ramaiya – Guide to the Companies Act (2015), C.R.Datta on the Company Law, 7th edition (2016), and Pollock and Mulla – The Indian Contract and Specific Relief Acts (2017).
Chitra lives in Chennai and is frequently called upon to mediate border disputes between her four cats.
JOINT SESSION – Neither Private nor Confidential (JOINT SESSION) is an interview series which is hosted on www.indianmediationlaw.wordpress.com (INDIAN MEDIATION LAW BLOG). JOINT SESSION will see INDIAN MEDIATION LAW BLOG collaborating with Peacekeeping And Conflict Resolution Team Forum for Ambassadors of Mediation (PACT FAM). In this interview, Ms. Chitra Narayan answers some perturbing questions about mediation law.
1.Why is FCDR a mediation platform and not a conciliation platform?
Ans: By way of introduction, FCDR or Foundation for Comprehensive Dispute Resolution is a private mediation services provider based in Chennai.
Mediation and conciliation have been distinguished on the basis of the responsibilities of the neutral in the settlement discussions – the conciliator evaluates the issues and proposes settlement terms, while the mediator is facilitative. A further distinction has been approved between mediation and conciliation in the Salem Bar Association (II) case – mediation is court annexed mediation; while conciliation is as conducted under Part III of the Arbitration and Conciliation Act, 1996.
In substance, mediation and conciliation are processes, where a neutral assists parties in arriving at a resolution to their disputes, with the parties retaining the autonomy on whether, and how the dispute will be resolved/ settled. In FCDR, we use the expression mediation since this is a more familiar expression. The processes prescribed by Part III of the Act are followed by FCDR. As such it has the status of an agreement arrived at through conciliation.
2.What is the status of a settlement agreement in an FCDR mediation?
Ans: Since the processes under Part III are followed, the agreement comes under section 30 read with section 74 of the Arbitration and Conciliation Act, 1996. Hence it is deemed to be an award on agreed terms.
3.With respect to the Public Contracts (Resolution of Disputes) Bill, 2015, can conciliation sufficiently address the specific nature of disputes in public-private partnerships?
Ans: Yes. For instance, the NHAI has adopted conciliation as a part of the dispute resolution mechanisms in disputes with its contractors/ concessionaires.
4.How practical is private mediation, considering the present legal position in India?
NOTE: This question is in the context of the judgment dated 18.05.2009 in Shri Ravi Aggarwal versus Shri Anil Jagota, of Hon’ble High Court of Delhi. The said judgment can be perused here.
Ans: In the judgement in question, a mediated settlement agreement was not accepted as a conciliation agreement since the processes under Part III were not followed. The judgement emphasizes the need to ground mediations and conciliations outside of the court annexed centres in the processes set out in Part III of the Arbitration and Conciliation Act. This does not render impractical private mediations / conciliations in India, in my view. Part III prescribes the processes for initiation of conciliation, safeguards during this process, and the steps for evaluating and arriving at a settlement agreement. The judgment restates its compliance.
5.Should the legislature, in its wisdom, consider it appropriate to provide for a mediation settlement privately arrived at to be enforced as a decree de hors Part III of The Arbitration and Conciliation Act, 1996?
Ans: There is a need for a separate law governing mediation/ conciliation to address several issues, not limited to the issue raised in this question. Whether the process to be followed is mediation or conciliation (the expression is used here in its functional aspect) should be a matter for parties and the mediator to determine. One of the issues that underscores the need for a separate legislation in India is the present treatment of mediation/conciliation and arbitration similarly on various aspects, when the processes are different and distinct.
6.How does the Arbitration and Conciliation Act, 1996 apply to private mediation?
Ans: The Act applies to private mediations (expression used in its functional aspect) that follow the processes stipulated in Part III. The mediation is evaluative, and the mediator will propose settlement options on her assessment of the issues and interests of the parties.
7.What are the benefits of resorting to conciliation instead of private mediation?
The advantages are to be seen in the context of specific disputes, where the conciliator who is experienced in the issues in dispute could help parties assess their strengths and weakness under the law, should the parties request this. This would be an effective assessment of their BATNA.
8.What in Indian law prohibits a conciliator from being facilitative?
I think your reference in the question is to Part III of the Arbitration and Conciliation Act, 1996. I do not think that Part III of the Arbitration and Conciliation Act, 1996 prohibits a mediator from being facilitative. Part III of the Arbitration and Conciliation Act sets out the process of conciliation, and the rights and obligations of the parties and the conciliator in this process. The courts have emphasized compliance with this process, and if the parties want the benefit of the status given to the conciliation agreement (arbitral award on agreed terms) under the Act, and enforceability on its terms, this procedure is to be followed.
9.Do you think that the present legal environment is conducive to mediation? What needs to be done to create a legal environment which is conducive to mediation?
While we have laws governing and supporting mediation, there are uncertainties and inconsistencies. There is a need to have a separate and comprehensive policy on mediation, and a statute setting out the rights of parties in mediation, and on the outcome of mediation. In using the expression mediation here, I include conciliation. The policy supporting mediation will also need to take into account the impact of other laws, which tend to exclude mediation as a dispute resolution process – for instance the time limit on arbitration (Section 29A) recently introduced in the amendment to the Arbitration and Conciliation Act, 1996 dissuades resort to mediation by parties because of the time limit, and, is in fact inconsistent with the policy in section 30(1) encouraging settlements by arbitrators. Another instance is the issue that the time spent on mediation, where a settlement agreement is set aside by court, will not be excluded for the purposes of limitation in filing a suit or other proceedings. There is no provision for suspension of limitation when mediation is undertaken. These and many issues can be clarified only when a policy is framed for mediation in India.
Indian Mediation Law 