Once touted as a quick and efficient way to resolve disputes, Alternative Dispute Resolution (ADR) processes such as mediation and arbitration have become bogged down with the same problems as those in litigation. Arbitration agreements are routinely dragged into courts and accords reached through mediation are often flouted with impunity. Yet, there are those who dare to think differently, like the folks at Meta-Culture. Established as the country's first specialised dispute resolution company, Meta Culture has slowly built a strong reputation in a field which faces much scepticism. In a wonderfully stretched out chat with Bar & Bench, Nivedita Chowdary, Head of Training at Meta Culture,(pictured below right) talks about ADR, why lawyers may be reserved about mediation and the future of ADR in India.

Bar & Bench: Could you first tell us a bit about yourself? How did you choose ADR?

Nivedita Chowdary: I graduated from NALSAR in 2005. Right after that I went to the US to do my LL.M in ADR. To be honest, I only became interested in ADR after my 4^th year internship with a judge in the Bombay High Court. Through conversations with him, and my work there, I got my first glimpse of the possibilities of ADR.

So, after graduation, I knew that I wanted to do something in ADR. At that time there were just two schools (that I was aware of) offering a specialised LL.M. As part of my LL.M, I went to intern with a company in California to get some hands-on experience in the field of ADR and more specifically, Mediation.

After that my first job was with the Center for Conflict Resolution in Chicago where I was working as the Manager of Mediation Services. I worked there for a short span after which I moved to New York City to join Safe Horizon Mediation (now known as the New York Peace Institute). I worked there for four years and got a lot of experience in Mediation. We mediated all kinds of cases varying from neighbourhood disputes to small business disputes to divorce and family cases. We were also affiliated with the New York City Courts System which helped us mediate cases that were otherwise going to be tried in court.

Bar & Bench: Why the decision to leave the US and move to India? What got you to Meta Culture?

Nivedita Chowdary: After six years in the US, I decided to move back to India. It was always the plan but I wanted to get some experience abroad in the field.When I finished my LL.M, this field was almost absent in India and my husband wanted to stay back there as well for a bit. In 2011, when my husband graduated from business school it seemed like the right time to come back.

Meta-Culture seemed like the natural choice. The work they do meshes very well with my experience and interests and they are the only ones in India who do this work and in fact one of the very few companies in Asia. When we decided that we were moving back I was always worried that I would have to join a law firm and give up on Mediation and Conflict Resolution..

That same year I heard about Meta-Culture. It had won the Association for Conflict Resolution Award in the U.S. The more I heard about it, the more I found myself wanting to work there. So when the time was right I got in touch with them, went for an interview and got the job.

As I see it, there is no better place for me to nurture my interest in this field. To be honest, it was a no- brainer.

Bar & Bench: You have said that the Conflict Management “menu” has many options. Care to elaborate on these options? In the field of commercial disputes, is there one particular option which is more suited to dispute resolution than the rest?

Nivedita Chowdary: Yes, there are quite a few options. One, Mediation which involves the intervention of a trained third party facilitator who helps resolve a dispute between two people; two, Consensus Building, where mmultiple stakeholders are brought to the table to allow all voices to be heard and build a consensual decision; three, Dialogue Facilitation where a facilitator is brought in to facilitate communication between participants to ensure better understanding as they move towards decision making.

And no, there is no one particular option that is better suited that the rest. These are all effective processes in the right context and when applied with skill. Unfortunately people are either unaware or misunderstand them. Many are even skeptical. In India, as I see it (in my limited experience), we go for litigation or at best Arbitration. I would say the other options have a huge success rate in other countries so why not give it a go here. You save time, money and maybe even the relationship.

Bar & Bench: Despite the claimed benefits of ADR, such as it being a quick and economically efficient manner of resolving disputes, it hasn't really taken off in India. Do you think Indians are more prone to litigation than others? Comments?

Nivedita Chowdary: I am not sure I can say we are prone to litigation considering I worked in the US which is one of the most litigious countries in the world. I would say it is reservation and scepticism and perhaps lack of awareness that probably drives us away from the field. After all it [ADR] is a new process in our country and it is bound to take some time for people to get into it.

One thing I can say is that even people who know about ADR have only experienced Arbitration. We at Meta-Culture do not do Arbitration. Those who have given Mediation and Consensus building recognize the value it can bring. So, I think there is a starting problem and I believe that will have to change. How long are people going to keep using the court system? The court does not have the bandwidth at the moment to deal with the traffic.

So to wrap up, again I would not say that we are prone to litigation. We have a system that is top down, hierarchical and unilateral and despite theoretically being aware of other processes we are not actually educated on the intricacies that these processes have to offer.

Bar & Bench: Do you think that the non-enforceability of agreements reached through ADR is one of the major barriers to the growth of ADR? Do you see commercial disputes being successfully resolved through ADR?

Nivedita Chowdary: As lawyers, the first point we look at is- “Is this binding? Can it be enforced in a court of law?” To us, at Meta-Culture the enforceability of these agreements is secondary. It is the red herring. The reason for that is if an agreement is reached there are other ways of making it an enforceable document. Moreover, we believe that if an agreement is reached with complete ownership and “buy in” from the parties then, in our experience, the binding nature of it definitely takes a back seat.

However, people who are not aware of these processes will not realise that and so yes, that could be a barrier.

As for your second question, yes, I definitely see commercial disputes being settled through ADR mechanisms and more so through the process of mediation. Mediation is a process that allows for a platform to be created so that the disputants can have a conversation to see if they could come to some sort of a settlement.

Bar & Bench: How do you think that lawyers, traditionally trained in an adversarial style, respond to ADR?

Nivedita Chowdary: I think it is a mixed response at the moment. There are some attorneys who are willing to embrace mediation. In fact they themselves are mediators or they recommend these services to their clients. However, the majority [of lawyers], in my experience, have not yet bought into the processes that ADR offers, other than arbitration, perhaps.

Bar & Bench: What do you think makes a good mediator? How does one become a good mediator?

Nivedita Chowdary: Good question. Well, I think that good listening skills are the key to being an effective mediator and it is in that respect that most people find it challenging. Ever since a young age we have been trained to talk and advocate for ourselves. However I have had people from all walks of life including lawyers come into mediation trainings being skeptical. But after some experience through the training and the practicum and seeing the process actually work, they change their opinion.

In the US, there is a lot of training involved before you become a mediator. Typically, the process includes 40 hours of training and a 12-14 week internship. After this, you co-mediate. You then have to mediate a substantial number of hours before you can mediate solo. . Effective mediation can only happen through lots and lots of practice. Besides the 40 hours of initial training, if one is interested in any specialised areas such as divorce, work place or victim-offender mediation, that would entail more training.

Bar & Bench: What are the kind of people Meta Culture is looking for in terms of employees? Are there any future projects that you are looking forward to?

Nivedita Chowdary: We would be willing to work in collaboration with law firms and in-house counsels to figure out what the best course of action would be to get ADR services to their clients. We recently initiated a roundtable dialogue for all stakeholders in the garment industry in the State. We have also been trying to work with several courts. In fact, the Mediation Cell of the Kerala High Court called us up and asked us to work with them!

Meta-Culture does hope to eventually expand both nationally and internationally. We are also in talks with law colleges such as NUJS, NLS & NALSAR and we are trying to introduce lectures, courses or even some training. The goal is to expose law students to a new field and create awareness from the get go.

Bar & Bench: Lastly, how efficient do you find Indian law firms in terms of conflict management?

Nivedita Chowdary: Indian law firms have their own mode of conflict management down to the T and they are extremely efficient within that framework However, I do believe that they could benefit from developing additional conflict management and collaborative negotiation tools that can help them serve their clients even more effectively.