‘Know thy audience’. This is the first step before even designing the schedule for training for referral judges. With the amendment to the Code of Civil procedure in the year 2002 and being in the year 2022, a trainer should have a guesswork of how many trainings on this topic the trainee judges would have gone through. How should the training curriculum be designed? The structure of the training program always depends upon the background of the trainees. The training curriculum for trainees who have been recently appointed as judges will be entirely different from the training curriculum for those who have experience of 5-10-15 years or more in the judiciary. Sometimes the trainees may form a mixed group.
It is always better to know beforehand as to how many of the trainees have already attended training for referral judges in the past? Based on this crucial information the curriculum has to be meticulously designed. A trainer should not hesitate to get this information from the organizers of the training. At times, this information is made available to the trainer on the training floor. Even then, on the spot, the trainer must have the capacity to reschedule the sub-topics within the main topic, in order to avoid the boredom factor which may arise due to repetition(s).
INNOVATIVE THINKING
Topics and subtopics must be chosen very cautiously.
TO BE AVOIDED:
- While dealing with the topic under the Head “Cases which can and cannot be mediated”:-
A trainer has to make a reasonable guess as to what all would have already been introduced to the trainees in the previous training sessions.
Example
Asking a question as to which are the cases fit for referral to mediation as per the Judgment in the case of Afcons Infrastructure and others v. Cherian Varkay Construction and others, may make the trainees who have been in the judiciary for more than ten years, lose their interest, as they would have gone through this judgment many times. They may not feel comfortable if they are asked to tell one after the other the list of cases that are fit for mediation.
On the other hand, taking them through the practical aspects related to the very same sub-topic may make the session very interesting.
The trainer may choose some topics like:
- Power of Attorney
- Death of a party
- Third party interest is reflected in the written statement but in the suit such party is not made a party.
- Tripartite agreements.
- Settlement having Consequences on other stakeholders.
- Family Court matters – where Parties are living in two different countries and child is a citizen of foreign country etc.
- Rights of subsequent purchasers
- Conflict of interest amongst legal representatives.
- Should the court wait for the written statement? – what are the advantages- disadvantages?
Example
Can a matter where the power of attorney holder is representing the party be referred to mediation, even if there is no clause authorizing the power of attorney holder to enter into a settlement?
Can the Court ask the party to get a power of attorney in this regard?
When can the Court ask?
If a report of mediation settlement is received by the Court where the power of attorney holder has represented one of the parties, and such power of attorney holder is not authorized to participate and enter into settlement in mediation, will the report be acceptable?
Whether caution should be taken before referral?
Whether such cases fall under the category of cases that cannot be mediated?
What if the settlement is arrived at by a party with the power of attorney holder of the other party, who was not authorized to settle or enter into compromise but was authorized only to conduct the case on his behalf, and the Court accepts it, and later the original party seeks for setting aside the same on the ground that P.A.Holder has traveled beyond his power.
What if the PA Holder dies after settlement but before the settlement is accepted by the Court
What if the original party dies, after settlement through the power of attorney holder but before it is being accepted by the Court?
A trainer has to make a list of all possible situations/questions under each of the topics.
Where the trainer is not into active practice, it is ideal that the trainer gets all inputs from practicing lawyers and other mediators, collects information from several live cases and then gives the presentation.
Trainer should not forget that source of information can also be through colleagues, academicians, co-trainers, lead trainers, other advocates, and mediator friends.
However, a thorough preparation cannot be ignored.
TOPIC ON CITATIONS RELATED TO MEDIATION
If a trainer chooses to speak on this topic:
- List of case laws must be kept ready in hand.
- It is ideal to distribute the case law /citations as a handout.
- Trainer must have read the entire judgment 3-4 times.
- What are the facts of the case must be culled out in 5-6 lines.
- What is the ratio decidendi has to be very specifically identified.
- Mentioning some legal proposition as per trainer’s reference from google without names of parties, details of date of judgment, names of the Court /citation etc. must be avoided, as it may reflect on the lack of professionalism on the part of the trainer.
- Any decision which is out of context of the topic related to referral must be completely avoided, failing which, trainee judges may outright reject the same as being irrelevant and out of context.
INTERACTIVE SESSION
Questions on the following lines may be framed and posed for discussion:
- After the mediation settlement report is made available to the judge, what are the difficulties faced by them?
- Trainer to give them one or two case histories where the report could or could not have been accepted by the Court.
(For this trainer has to keep record of at least twenty five case histories, readily available in the trainer’s kit and make use of the same one after the other depending on the time available.)
Referral of Criminal cases
A trainer may have to equip oneself well before dealing with this topic. Basic provisions of the Criminal procedure Code and IPC, several decisions under S. 482 regarding quashing must have been thoroughly gone through. When compounding is permissible, when it is not, when criminal cases can be mediated and when it cannot be, how settlement can be drafted and how it cannot be; all these aspects have to be thoroughly understood. A statement from a trainer that “I do not handle criminal cases” may not be well received by the trainee Judicial officers. The components of referral are expected to have been thoroughly understood by the trainer, irrespective of the area of practice of the trainer, or if the trainer feels very uncomfortable with a topic/subtopic may gracefully avoid handling such session(s).
“ I know nothing” should precede “I know something”.
SLAMW
(All Copyrights reserved by the author S.Susheela)
Training of Trainers in Mediation 