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You're tossing around "amazing" to describe Mediation, but let me break down the bills my client's racked up for these sessions, along with the barrage of texts, emails, and calls to the mediator's juniors – most of which have been met with crickets or frustrating delays. All that, and we've got zilch to show for it, with a mediator who shows up to the party clueless about the case every single time 🤷♂️ I'm left wondering, with all the inputs I've handed over (and my opposing counsel too), how can you stroll in so unprepared? And what's the deal with having a whole army of junior attorneys if they can't get you up to speed?
And let's get one thing straight – in this game, there's no room for "strong practitioners," just the one who comes out on top. Mediation is the final frontier for settlements, and that means mediators hold some serious sway over the outcome. They should be giving both sides' lawyers a fair shake, not playing favorites based on who's promising more referrals.
And therefore, for all these reasons, I give this mediator an F Grade. The juniors I interacted with were wasting their time. They have no interest in the work they are meant to do or the law.
See the problem with this is enforcement. Enforcement comes from courts- then the executive who does 100% of the work. Until procedures and rules of ADR are enforced in a timely manner like say that in the UK or some states of the States, Indian ADR procedures will suffer.
Throw some hints, maybe?
ADR is indeed slippery slope to stand on - especially when your opponent has substantial means of exercising influence. Giving mediators / arbitrators more work is one way of bribing without consequence, and it’s rampant.
This episode at the Cal HC being a case in point - https://www.verdictum.in/court-updates/high-courts/arbitrators-non-disclosure-regarding-representing-affiliate-company-in-court-proceedings-raises-real-danger-of-bias-1487150
Good luck with your mediation!
- communicating ex parte with the other side
- seeking favors/ indulgences from the other side
- giving latitude to factual positions and statements made by opposing counsel (while ignoring our submissions entirely)
Coordinating with this mediator's junior associates, all of whom are law graduates from okayish universities, has been a painful experience. They exhibit an indifferent attitude, often ignoring emails and texts for days or weeks. Some of them probably got hired with a phone call from a highly placed politician/ bureaucrat/ fauji, etc
To make matters worse, during the proceedings, this mediator has been favoring one side's lawyers, subtly highlighting their credibility - by discussing unrelated cases involving high-profile parties, as if they were old acquaintances.
Such conduct, in my opinion, casts a shadow over the Indian ADR system.
My experience before this high-profile (yet shady) mediator leaves me hesitant to recommend mediation for resolving high-stakes claims. It's individuals like this mediator that inadvertently steer good cases towards large law firms because they can get away with so much unchecked! - from shifting goalposts shamelessly to delivering drafts riddled with inconsistencies and grammatical errors.
I really hope that this big-shot mediator gets to read this and conducts future proceedings fairly. So peeved that I wouldn't care less if this mediator gets offended and recuses. This mediator should also read up on the law and submissions provided by both sides before the sitting (instead of walking in with a blank). These sessions arent happening for free! It's laughable how the opposing counsel, in this case, has gotten away with passing off nonsensical legal submissions that can be called out by a 3rd-year law student without being put to check by this particular mediator.
The thought of having to appear before this mediator again makes me cringe.