News: Foreign Aid

Local lawyer exports U.S. mediation to India

Dale Shlachter

Robert Rack Jr. (L) shakes hands with Indian Chief Justice Y.K. Sabharwalthe. Steve Mayo (middle) helped set up the mediation program.

In three months Cincinnatian Robert Rack Jr. overcame marauding monkeys, jealously guarded handwritten records, generations of legal tradition and almost overwhelming demand when he introduced mediation in Indian trial courts.

"I am optimistic that we have created a model judicial mediation program that will be accepted, sustained and replicable," Rack told mentor and outgoing India Supreme Court Chief Justice R. C. Lahoti. "With active supervision by the Delhi High Court and the India Supreme Court, failure is unlikely and there is potential for increasing success."

Now it's up to Lahoti's successor and others in the Indian legal system to maintain, improve and expand the program to other states.

Rack is chief mediator for the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati. There he and four colleagues help parties in civil suits settle their differences after trials but before costly full appeals. Settlements also reduce caseloads for frequently shorthanded appellate judges.

Rack's approach spread to other American federal courts and drew the attention of Chief Justice Lahoti, who persuaded colleagues to invite the California-based Institute for the Study and Development of Legal Systems to create a model pre-trial mediation center for India.

The chief justice and others knew Rack from earlier work in India and two Lahoti visits to Cincinnati that included Rack's mediation service and other local mediators. Steve Mayo, executive director of the institute — a lawyer but not a mediator — had worked with Rack and asked him to do the job.

"What they were trying to do is what I had had been doing for years," Rack said.

But the previous effort involved Indian local trial courts rather than multi-state appeals courts. So when the invitation came, "I felt I should try to do it," Rack said.

Judge Danny Boggs of the 6th U.S. Circuit Court of Appeals gave Rack a three-month administrative leave, and Rack's Cincinnati colleagues picked up the slack.

"Lots of people had to work to make it possible for me to do this," Rack said.

Rack, Mayo and institute colleague Dave Shlachter arrived Aug. 1. The immediate challenge was to train judges as part-time mediators, rather than training lawyers or non-lawyers, as in typical mediation programs.

"I've never done a model like this before," Rack said. "I've never seen this model before. ... I was making this up pretty fast."

Most judges find it hard to shift from handing down decisions to helping others resolve differences, but overall it was a great idea because Indian judges possess unique status and respect, Rack said.

"To introduce mediation to this country, it would be better for judges to be doing it," he said.

Rack trained 18 judges as mediators, set up supportive administrative systems, helped design and dedicate the new mediation center in a wing of the district trial court in New Delhi, and oversaw initial mediations.

His plan for classroom work, followed by closely observed initial mediations and follow-up training, was overwhelmed by an initial request for local trial judges to send civil cases for mediation.

"The cases just started pouring in," Rack said. "We couldn't stop the flow. I couldn't get back to the classroom. It was just chaos. The whole schedule just got blown out of the water."

However, everyone coped. Clerks found and delivered mounds of handwritten case records tied with yarn-like string. Judge/mediators finished 40 hours of mediator training and, by the time Rack left Nov. 1, worked on more than 200 cases. Of those, they completed more than 150 and settled about 80.

Another 12 judges are to be trained as mediators. All 30 will serve one day a week on a rotating basis unless the Indians accept Rack's recommendation to make mediation a permanent, desirable and alternative career path.

Rack said the Indians' settlement percentage was cause for optimism and should rise.

Settlements also enhance judicial economy. Judges typically dispose of less than one case per day in trial court. But as judge/mediators, each settled more than one and one-half cases per day.

India's legal system is notoriously slow. For the parties involved in successful mediation, binding, enforceable settlements come years faster than possible with trials and appeals. Parties who fail to settle may return to court knowing that confidentiality rules mean nothing said during mediation can be used against them.

All of this was achieved in temporary, un-air-conditioned district court quarters vulnerable to marauding monkeys that come through open, unscreened windows when clerks leave. Court staff uses trained lemurs to deter raiding monkeys, but the system was imperfect.

The new mediation center — sketched out and approved in hours and built in four weeks — is a monkey-proof, air conditioned "oasis" equal to the best judicial facilities; judge/mediators now have quarters suitable to their rank and expanded mission.

Not everyone is pleased by the advent of mediation in the trial court. Overcoming resistance is high on the to-do list Rack left behind. He said lawyers often fear mediation will cut into their status and fees. Eventually, however, attorneys who resolve cases quickly, satisfactorily and at lower cost can expect growing reputations and client lists.

"A happy client is a repeat client ... and will refer other people," Rack said.

Rack told the chief justice and judicial colleagues that the new mediation center is "very likely to succeed and grow" but it remains "vulnerable from three fronts":

· Opposition by the powerful bar association could be fatal. This can be defused in part if judge/mediators remain neutral and keep the parties' interests foremost during mediation.

· Judge/mediators must not "relapse or regress to more patriarchal and authoritative mediation styles as the training and trainers recede from their consciousness." Having litigants evaluate their mediation experience in writing would help keep judge/mediators in tune with program goals and methods.

The program might die when the Americans leave if Indians have not invested themselves sufficiently in mediation. Rack suggested steps to minimize this risk, including the introduction of younger judges and non-judge lawyers as mediators.

The center has a 95 percent survival chance in the first year and 85 percent over three years, Rack said. If it works, the model can be adopted anywhere in India. ©

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