In Conversation With Mediation Expert Sameer Shah

Mr Shah you entered the field of law in 1994, and are today one of the most revered lawyers, arbitrators and mediators of the country with over 25 years of vast experience in the industry.  In the many disputes that you have seen and resolved over the years, what role has Mediation played in settling the disputes? Can Mediation shrink the staggering 3.65 crore total pending cases in India

I would address this question with a very simple answer­­ - YES, definitely, Mediation does play a very important role in settling the disputes. Let me clarify at this stage the difference between Conflict and Dispute with a common example of a buyer seller transaction.  

Normally there are yearly ledger accounts maintained and reconciled at the end of every financial year. It may happen that upon reconciliation of accounts, their respective ledgers do not tally. Thus, there is a difference of opinion and some misunderstanding between the parties. That is to say a conflict between the parties on the account. Let us now assume that one of them makes a demand to the other to make payment on the basis of its reconciled account and the other party denies such liability and in fact makes a counter demand to the first party. Now both the parties have made out their cross demands. However, the moment one party informs the other party to initiate a legal action based on the said demand and the other party refutes the same, the conflict is turned into a Dispute.

During this period when a conflict emerges and till the time it gets evolved into a dispute, it is a very crucial time from the party perspective to address the said issue at that time itself.

This intervening period is also a time when parties indulge in hectic back and forth verbal and written communications. So, if the parties take recourse of Mediation at this stage, it will definitely be in the best interests of the parties for effective resolution. However, even if the parties do not employ mediation at this stage, it can still be relied upon after the dispute arose and before the dispute actually is referred to an adjudicative process of resolution – Arbitration or Litigation.

As such most of the disputes arise either due to ego issues or lack of communication or effective communication and both these issues can be effectively addressed through Mediation. Though I have given an example of a commercial dispute but the principles thereof are equally applicable to other disputes as well such as matrimonial, family and partnership etc.

Mediation is certainly the most flexible ADR process and that is the reason why I support the fact that it plays a very important role to resolve and address the issue of high back log of cases in our country, provided that it is employed effectively with trained Mediators to carry out and conduct the whole process.  At the same time, it is critical to establish a proper public awareness system for the better understanding and appreciation of the benefits of Mediation.

Interestingly, many people think Mediation is only a game of negotiations. To what extent do you agree/disagree and why?

I partially agree to this thinking. Of course, Mediation involves and is largely depended upon back-and-forth communications between the parties along with the Mediator. However, I will term it as an Art and not a game of Negotiation. By Art I mean the process, method and strategy to effectively mould the communications into a constructive and positive resolution of the dispute. To make the parties believe that it is they themselves who have arrived at the resolution. This Art is what a Mediator has to learn. It can be inborn or can be acquired to an extent through proper training. Essentially, it is the parties who are communicating or discussing amongst themselves about the dispute, of course, in the active presence of the Mediator, who as such is supposed to an active listener initially. However, once the parties are through their initial submissions, it is the Mediator who will be taking the Centre stage for thereafter guiding the parties to arrive at a mutually acceptable resolution of the dispute. Even during this process of guidance and active listening, negotiations in form of communications and discussions are still going on between the parties and with the Mediator as well (during Caucus). In a game there is a winner and a loser but in Mediation there is always a win-win situation and therefore I do not agree that Mediation is a game of negotiation but it is an Art of Negotiation.

Which types of disputes are best suited for Mediation? In particular, how do you see Mediation being instrumental in resolving white collar crimes? In disputes arising out of commercial frauds, does the degree of Fraud play any role in what can or cannot be mediated considering  'simplicitor fraud' and 'serious fraud' may impact its arbitrability?

I think that all kinds of disputes can be mediated except the ones that involve harm to the body of a person essentially the criminal offences like Murder etc. because such criminal offences require a proper and effective deterrent action to curb its repetition and also for the general protection and benefits of the society. Otherwise, all dispute are essentially between two persons with certain common reasons and it can very well be resolved through Mediation. In fact I would recommend that all such disputes must be initially be made to be resolved through Mediation only i.e. Mandatory Mediation and why not. It will save a huge cost of time and money for the parties as well as the public funds. Moreover, it will bring a sense of well being and peace amongst the parties and society in general and which is why it must be promoted. Furthermore, most of the disputes involve some element of emotions with it – positive or negative and it can only be effectively addressed through Mediation because the adjudicative process of Arbitration and Litigation are bound by Law thus limiting its scope of appreciation of emotions which is necessary to understand the reason or the root of dispute.  

Mediation goes to find out this root to effectively resolve the dispute. In the end both the parties are happy and satisfied with the outcome of  Mediation since it they themselves who have agreed upon the settlement and the terms thereof, of course, with the active guidance of a Mediator. Furthermore, since Mediation is more confidential process in comparison with Arbitration, therefore also it is more effective to resolve all or any disputes  as it brings a sense of comfort and confidence between the parties that none of their personal information will be made public or be shared with any third party. 

Taking a cue from this I agree that Mediation can be an effective tool to resolve economic crimes such as money laundering or fraud because what happens in such cases that most of the times the dispute is settled by the accused with the concerned authority though a case is filed in the court. In many cases the accused is also punished by imprisonment and the recovery of money is sought to be made up from the property of the accused which of course will never be sufficient to recover the total amount. Therefore, it is better to employ Mediation and to work out a win-win situation for both the accused as well as the Authority since the ultimate purpose is to recover the whole or at least the maximum amount from the accused. 

Therefore, I do not think that the degree of fraud plays any major role in deciding whether such dispute can be mediated or not simply because of the above reason. Even the Hon’ble Supreme Court of India has in recent judgements also held that a simple fraud can be arbitrated. In many other jurisdictions, fraud is an arbitrable issue and I can say that our country is moving towards the same standards by such welcomed judgements from the Hon’ble Supreme Court of India. 

I agree that fraud do adversely impact the economic system and the society in general but we should consider and appreciate the ultimate purpose – recovery of swindled amount at minimum cost which will anyway help the public exchequer. Of course, a deterrent is also necessary to prevent its commission but the reality is that inspite of laid down stringent laws, prevention is not happening. But this does not mean that we should put effective recovery on a back seat. There are ample examples of such high value white collar crimes having being committed in recent time and it is also a fact that in none of these cases any substantial recovery is made. Therefore, what is required is to give Mediation a chance to workout effective resolution in such cases. In my view it is Mediation only that will be able to achieve both the purposes – recovery and deterrent by moulding it in the Mediated Settlement Agreement. In fact, we have been witness to such mediation in our country like Voluntary Discloser Scheme by Income Tax Authority and I welcome such steps by the Authorities. 

What are some of the most promising benefits of Mediation or Med-Arb mechanism of dispute resolution?

Mediation or Med-Arb certainly has immense benefits for effective resolution of a dispute such as Confidentiality, flexibility (in terms of time and procedure), Cost saving, informal, no concept of governing law or seat or venue unlike arbitration, bringing comforts zones amongst the parties, party autonomy in real sense of the terms, to name a few. I think Med-Arb is a lethal combination of ADR process to achieve an effective resolution of a dispute since what cannot be achieved through Mediation can be concluded through Arbitration so as to make it fully binding upon the parties.

In 2020-21, Mediation with Conciliation has been introduced as a compulsory subject in Law Colleges by BCI. You have personally also been involved in many training and coaching sessions to promote mediation in India. Would you please share your thoughts on Mediation and its future in India.

I would like to say that it is certainly a right step at the right time by BCI to make Mediation as a mandatory subject of the law curriculum in India. Infact, to promote and make the public at large aware about Mediation, it needs a complete change of mindset and I think it is the correct thought process to address the young generation so as to change their thinking and mindset towards disputes as such. I think that Mediation as a subject will make the students appreciate and approach a dispute in a more holistic manner rather than as an aggression. 

This approach very essential as it is these young generation who will be making up the coming and future society. Every dispute does not need to be adjudicated upon. It can be still be resolved through peaceful and holistic approach such as Mediation. That is the main reason why I have started focusing on the development of the students in the law university since last 10 years or so to change their mindset towards dispute and also to make them understand and appreciate the actual duty and responsibility and role of a lawyer. I was very impressed by an Article about anti – bias training being proposed to be given to the students in the USA, which in my view is a very important initiative. 

Further,  there’s another concept of Peer Mediation that is evolving in many developed jurisdictions. Similar initiatives are also required to be followed in India as well and I think that making Mediation a mandatory subject in the Law School Curriculum is one such similar step in the right direction. In fact, I suggest that the knowledge of Mediation should also be taught in school children as well say above Grade 7. Since Mediation deals more with emotions then law, it is important the students are inculcated with such holistic understanding from the very beginning itself which will help them not only in professional career but also in their personal life as well. 

What are some of the worst misconceptions that you’d like to dispel about Mediation?

The main issues that are acting as an obstacle in the promotion of Mediation is it being a voluntary process and non binding nature. This has made the party especially the Respondent, not to take it seriously. Many a times I have seen that the parties are participating just for sake of it in the sense that either due to court process or as agreed in the contract. Due to this, people think that Mediation is not effective and this is where the new upcoming law will be able to plug the lacunae.    

Furthermore, People are also not as such aware of the process of Mediation and its benefits as already stated by me. Also, we do not have trained Mediators as well as trained and professionally qualified Mediation Lawyers to promote Mediation.

How do you foresee Arbitration evolving as a practice area with the emergence of legal tech and AI? 

For any process to remain effective and purposeful, it must evolve with the changing requirements of time. This applies to arbitration as well. With the emergence of legal tech and AI, certainly Arbitration as a process must accept it with all openness.  Legal tech will bring procedural efficiency and  time & cost saving to Arbitration. However, I am not so confident about the adoption of AI in arbitration. 

When we are discussing about disputes, we are essentially talking about human being and their interactions with each other. Leaving this  aspect to be adjudicated upon by a machine can play havoc on the system in general. Ultimately, a machine is being made and educated by humans only and it is said that to err is human but, in a case of AI in Arbitration, such an error can be fatal to the outcome of the dispute and thus leading to further proceedings of unnecessary challenge and/or enforcement. We all know, how we have become so much dependent upon machines (computers and IT) for our day to day functions. In many ways, human interaction is much more necessary then leaving it for the machines to tackle and it applies to Arbitration as well. Therefore, in my view a limited interface of legal tech and AI is certainly welcome. Legal tech and AI may be employed for achieving efficiency in record keeping and filing of pleading and documents & evidence.

What are your thoughts on third-party funding in dispute resolution? Do you think it may lead to over commercialization of a noble and dignified legal profession? 

I think that third party funding in dispute resolution has both pros and cons to it. It has been present in our country since long though discreetly. In one way it does help an aggrieved person to seek proper resolution of the dispute and protection of its right without being financially burdened or being deterred from seeking legal recourse due to adverse financial position. On the other hand, it may also lead to unnecessary exploitation of such aggrieved person by the third party funder in form of unilateral terms of negotiation or even threat especially in case of real estate related disputes. Therefore, a balanced approach is required in the form of a proper legislation to promote and regularised it for the benefit of the needy litigants in general. This is also necessary to protect and maintain the nobility of the profession.

What are the key strategies for conducting a successful cross examination in Arbitration and dispute resolution forums? Are there any special points to keep in mind as compared to cross examination in Court proceedings? 

To a large extent the process of Cross Examination in Arbitration is very similar to the Court proceedings. Since the purpose of Cross examination is to defeat the case of the opponent and bring out the facts in ones own favour the strategy as such remains the same. However, since in Arbitration, Code of Civil Procedure and Law of Evidence is not binding, to that extent, the liberty and flexibility is enjoyed in cross examination in an Arbitration. But, the Tribunal has the power to allow or not to allow particular questioning if it feels improper. So both the Counsel as well as the Tribunal enjoys more freedom and flexibility in cross examination in Arbitration then in Court Proceedings.   It should however be noted that one should not take undue advantage of such freedom and flexibility. For example, the cross examination should amount to discovery of facts or documents.

What is your vision for the future of arbitration in India

Our Country has come a long way from the Act of 1940 to 1996 and the amendments made thereto in 2015, 2019 and 2021. However, much more needs still to be done. Though our Courts have laid down many pro arbitration judgments in the recent time but the stakeholders both domestic and international are still vary about the judicial process of our country. The problem lies in the regime itself. We are still fancied by nominating Hon’ble Retired Judges as Arbitrators who may not be an expert in the subject matter of dispute except the law such as Maritime, Construction, stock market etc. If one is so keen on judges than why Arbitrate at all. It is better to approach a Court to satiate the desire to get the dispute adjudicated by a Judge. 

I am not making any adverse aspersions on any Hon’ble Judges but the fact remains that specific disputes should be adjudicated by subject matter experts for effective resolution as it is the norm in all major jurisdictions across the World.  At the same time we do not have a specific Arbitration Bar of practitioners who are actually well versed and exclusively focused on and practise Arbitration. 

Unfortunately, most of the members of the Bar carries this impression that being a lawyer means that knowledge about the essence of Arbitration practice and procedure is a natural and obvious corollary to that.  Furthermore, we have seen that different Courts makes different interpretation of the same provision of law and thereby creating unnecessary confusion and ultimately burdening the Hon’ble Supreme Court to make a final decision, which also many a times , with all due respect, is not the correct interpretation. Special Arbitration Bench/s , at District Courts, High Courts and Supreme Court, that works daily and not on Friday only,  is the need of the hour. Equally important is a pool of trained and qualified Arbitrators to adjudicate different subject matter disputes according to their expertise. In this respect CIArb is doing a pioneering work including through one of its Branch in India. 

Furthermore,  the fact that the law is finally being made up by bureaucrats and Ministers also make the situation more worse. There must be proper coordination, understanding and appreciation amongst the legislative drafter – be it from the Ministry or stakeholders. The apt example of this is the 2015 and 2019 amendments which did not incorporated many suggestions and recommendations of the special committee that was formed for that very specific purpose.    

It is high time that we take proper lesson from country like Singapore that has developed into one of  world's most sought after Arbitration hub and we also know the reasons thereof. Establishing Arbitral Institutions like GIMAC is certainly a welcomed initiative but, it will not be enough to make India a hub of Arbitration. It will need a zealous efforts from all involved – the Bar, the Bench and the Stakeholders to work jointly with all commonality for the purpose. 

Before looking at International, the need of the hour is to make our own backyard in order.

Please allow us a peek into your illustrious journey in law. Where did this journey begin, who were your mentors, and what keeps you busy when you’re not working.

My journey in Law was not my preferred choice. I wanted to go into science field preferably pharma, but, due to the then prevelant policy of my School, I was not allowed to take up the science stream (though was eligible on merit as such) and had to opt for Commerce stream. 

After completing my Bachelors in Commerce from Delhi University in the year 1991,  I opted for Law since I was not so interested in Commerce as well, though coming from a business family ! I completed my Law Graduation from Campus Law Center, Delhi University in the year 1994 standing 2nd overall in the University ! During the course of my Law study, I was impressed with one of my Uncle from Ahmedabad, who is a renowned Solicitor and that made me to persue Law as a career. After completing LL.B. I immediately joined my said Uncle – Mr. Uttam R. Gandhi at his office in Ahmedabad and registered my self with the Bar Council of Gujarat. He was my first Mentor who guided me into non-litigation practise. 

More importantly, he guided me into having a good drafting skill, which is a key for a successful Lawyer. During this journey, I happen to meet my another Mentor – Mr. Sunit Shah, a renowned Trial Court Lawyer in Ahmedabad as my Uncle’s firm frequently used to engage him for litigation work.  I used to attend the court matters with him and he nurtured into me the skills of a litigation lawyer. 

Whatever I am today in matter of my practise, I owe to them. I worked with my Uncle for around 10 years and then started my own law firm in the year 2003. At that time, I didn’t had any office of my own or any major clients. However, with the help and support of my family especially my Mother and Wife, I started working from my home initially. I used to attend the meeting with the clients either at their office or in Restaurants or Coffee shops. With God’s grace, things started improving and I was able to buy my own office in the year 2004 and from then on there’s no looking back. 

Of course, the journey had both ups and down, but today I can boost with proud that sitting in my office at Ahmedabad, I have build up a practise and goodwill that I am able to cater to the requirements of my Clients both in India as well as many international jurisdictions. My foray into Arbitration happened some 10 years back when I happen to meet two very dear professional colleagues – Mr. Shreyas Jaysimha – Founder of Aarna Law, Bangalore and Mr. Inbavijiyan, an Independent Arbitrator from Chennai. 

They guided me into the practise of Arbitration and through them I happen to meet Mr. Chandrakant Kamadar, a very prominent Financial Sector Arbitrator based out of Mumbai.  Mr. Kamdar was the main person who included me on the Board of Chartered Institute of Arbitrator (CIARb) – India Branch in the year 2012 and since then I am actively involved as a Director of CIArb India. This was one of the main stepping stone for building of my career and journey into Dispute Resolution. As an approved faculty, I had conducted various training sessions for CIArb India for training different professionals for becoming professionally qualified and internationally accredited Arbitrators.  

During this period I realised the lack of basic understanding and awareness amongst the students and young lawyers for Arbitration and other ADR processes and that made me focus on the skill development and mind set change of the students in general in the field of ADR especially Arbitration and Mediation. I have conducted several  training courses and workshops and event on ADR, both in person as well as online during the pandemic. I have also mentored and acted as Coach for many teams from India as well as outside for helping and guiding them for one of the premier International Commercial Arbitration Moot – the VIS MOOT, that is organised every year at Hong Kong and Vienna. Infact, I have been accorded as one of the Star Arbitrator by the Vis East Organisation in Honk Kong ! This inspired me to hold one of its kind Vis Pre Moot event this year- Asia Pacific Vis Pre Moot, with the noble theme of – INCLUSIVITY , Arbitration for All. 

The aim was to encourage the differently able student to compete in the mainstream and at the same time to make the normal students appreciate, understand and accept such differently abled students. I got the website designed in a way that it can be accessed by any differently abled student. It had Braille print out and read aloud facility and we had also arranged for a sign language interpreter. We got an overwhelming response as 130 teams from across the globe registered for the said event. It was conducted fully online with the main operating team (consisting only of University students) lead by Ms. Mahak Rathee, a young and very capable lawyer in Delhi, myself being  in Ahmedabad  and other core team members at Malaysia (Datuk Sundra Rajoo), Hong Kong (Ms. Alix Povey), Melbourne (Dr. Prof. Rajesh Sharma) and Dehradun (Dr. Ajar Rab). 

It was an event which was run by the Students and for the students !! it is with pride I can share that I have been called for speaking at various national and international events on ADR and also as a trainer for training in International Arbitration and Mediation. With God’s grace I am getting appointment both as a Sole Arbitrator and also as a Tribunal Member and I also represent clients as a Counsel in Arbitration matters. It is ofcourse not easy for a first generation lawyer from a Tier II city to get such accomplishments. But there’s much more to achieve and I am Looking forward to it !

So far as my hobbies are concerned, I love travelling, tasting different vegetarian cuisines from around the globe, reading fiction and science related news and articles, watching action and Sci-Fi movies, I love watching Hindi and Gujarati Theater, I love to play badminton, table tennis and watching international tennis and football/soccer tournaments. I also love cooking ofcourse only vegetarian. Infact pandemic helped me further develop my said hobby to a large extent 

Your message to the new crop of lawyers wanting to make a mark for themselves in this industry. What other than hard work is a mantra to success?

Passion for the subject is the key to success in any field and Law is not an exception. If one is not passionate about the subject, it is really a waste of time and money to pursue for the sake of it. Also aptitude for the subject is equally important. Good and active listening is another quality that one must inculcate to be a successful legal advisor. Reading different subjects and gathering support therefrom is also an important trait of a successful lawyer. Good command on oral and written skill is a must if one intends to become a good lawyer. Also networking is an important key in today’s world to be successful. Of course hard work has no substitution but that alone is not enough. 

Take a good look and appreciate what I have suggested above and I wish all the best to all the young students and lawyers reading this interview. I am always ready and happy to help, support and guide you whenever you need.

*Sameer Shah is an Advocate, Arbitrator and Mediator. He is also the Director- CIArb India, Founder- S.U.Shah and Associates and Senior Partner- Trust Legal, Ahmedabad.