THE POENA OF NARASU: A CASE FOR CLOSING THE DICHOTOMY BETWEEN CUSTOMARY LAW AND CONSTITUTIONJanuary 18, 2019
SCOPE OF SECTION 17 OF ARBITRATION AND CONCILIATION ACT, 1996: POST-AMENDMENT OF 2015January 28, 2019
Mr. Thomas Valenti is a Chicago based conflict resolution specialist offering mediation, arbitration, and facilitation services and training, globally. A member of the Chartered Institute of Arbitrators, Thomas is also an Arbitrator on the Public Panel at FINRA and is an approved Arbitrator and Mediator for several governmental and regulatory bodies, including the Circuit Court of Cook County, The National Arbitration Forum and is on the Advisory Board for The Association of Mediation Assessors, Trainers and Instructors. In recent conversation with IJLPP, he talks about Arbitration Policy in India, ADR on online platform, his GYDI and much more.
How would you describe your association and affiliation to various dispute resolution platforms like the PACT, INADR, etc? How far do you think they impact the legal trends of a society?
When I first started traveling to India 7 years ago, it was to promote and bring awareness about mediation. Over the years I have come many times and not exclusively as a representative of any organization. I have seen the impact of many individuals, universities and organizations, not just those you mention. In summary, I can say that the level of awareness has increased exponentially, but, more importantly, the level of knowledge on the part of students increased accordingly. I do not feel that this is due to any one organization or person or few of them. Rather, it is the result of the sincere and diligent efforts of the students themselves who, for the most part, are self-taught in the various aspects of dispute resolution.
What are your views on the recent trend of dispute resolution via web portals and their bid to create a digitized mechanism of Mediation or Negotiation? Do you believe it can be an effective step towards spreading awareness in the society?
I do support online learning efforts to decrease the cost of education and to increase access to it. However, I am not an avid proponent of online learning and assessment of soft skills. My workshops are very interactive and employ experiential learning. I think this dynamic approach is what makes them popular and effective. The ability for participants to ask questions and get answers in the moment can produce engagement and a learning flow that has valuable benefits and results. I think the next period of time will tell the tale of the success of these initiatives.
India has been a country with deep and strong rooted litigation practices. With various platforms and forum, how do you perceive the conception and development of ADR as a full-fledged field of practice in India?
There is no doubt that the dispute mindset in India is for judicial decisions. This is no more evident than in the number of pending cases. In the USA, for example, where somewhere near 95% of all cases are resolved before Judicial decisions, we do not have pendency problems. Lawyers come from schools where all aspects of consensual dispute resolution are now part of the curriculum. I think the Indian mindset change will take many more years, but not until all dispute resolution courses are part of core legal law school curricula.
As we all know that there had been a huge debate over the entry of foreign law firms in India. What are your views on it? How far do you think this will impact or make a difference to the contribution of India in the field of International Commercial Arbitration or International Mediation?
There is no reason for the resistance of Foreign lawyers in India. There are many law Firms of substantial reputation and skills that will always be the firms of choice for their clients. In the era of globalization, there will be opportunities for collaboration between international law firms, creating hubs of good legal practice in India for both litigated and non-litigated matters. The cry for reciprocity should be heeded, of course. With regard to arbitration, as a dispute mechanism that serves cross border transactions well, and given India’s substantial contributions to the global economy, there will be a need to create policies and procedures for these matters to involve foreign counsel. These rules, for arbitration, can pave the way for broader application across the larger legal community.
In India we have Arbitration and Conciliation Act to specifically cater to these two mechanisms, however there is no separate or specific law to deal with matters pertaining to Mediation or Negotiation. How far do you think there is a need of codification of other forms of ADR as well?
Yes, I think that such a codification can go a long way to increasing awareness and acceptance of Mediation. The refrain that I hear most in India is about enforceability of mediation settlement agreements. This resistance point is not something I have seen in other countries. So, it would appear that any proposed codification of mediation should deal with enforceability, perhaps in making a simple and easy method of converting such a settlement into an award where it is felt necessary. With regard to Negotiation, I see no reason need or methodology of it. At its base and raw form it is consensual, and benefits from the ability to use it in a variety of settings and in a variety of methodologies. It should remain free from formalization.
What is your view on the concept of institutionalising the field of Arbitration in India? What are the various key points that the policymakers need to cater to while implementing any such thing?
There has been a move to formalize and improve opportunities for both domestic and international arbitration in India for some time. It is apparent that this is necessary. Attempts have been made to make improvements by the 2015 Arbitration Act Amendment. And now we are seeing further efforts in the 2018 Amendment Bill. The New Delhi International Arbitration Centre Bill is another attempt to make positive change. I support all of these efforts as they will result in India reclaiming the substantial arbitration business opportunities that have been lost to other countries. There needs to be a concerted effort to make the Indian arbitration process have the respect and efficiency that has proven beneficial in other countries. Learning from the successful others should inform the Indian future with regard to arbitration.
The Global Youth Development Initiative proposed by your firm is your pilot project in Afghanistan. Please tell us more about this project. Do you plan to bring about any similar initiative to India as well?
The Global Youth Development Initiative is a programme designed to assist aspiring young professionals in conflict and post-conflict zones with the development of their leadership, employability, and networking skills. Basing the 2017 pilot program in Afghanistan, the GYDI seeks to connect students from universities across Afghanistan with mentors across the globe and across various disciplines. This program will act as the platform for these students to find the professional and cultural frames of reference they need to be competitive in the global economy. Where the supply of mentors from professional disciplines may be limited in Afghanistan, particularly in its current volatile climate, our program aims to facilitate the conversations and relationships necessary for these students to build strong networks and achieve their professional goals.
In 2018, we moved forward with a second group of Mentees that widened our scope to include students from countries in conflict. We have also expanded by including teen school students, and not just university students. Although still serving, primarily, the Afghan community, we welcome our new mentees from all over the world. We pair students with mentors from different parts of the world.
We are very grateful to all who dedicate their time, skills, and effort to contribute to our success.
With regard to bringing GYDI to India, I do not see India as a target country, but in a sense it is in India now. We have many of my Indian friends who act as mentors, and who help with other tangential work that arose serving those in Afghanistan.
GYDI is eternally grateful for the assistance of our Indian friends and supporters.
Lastly, what would be your piece of advice to all those who aspire to enter into the field of ADR and make a career out it, or, those who are already in the process of growing in this area of law?
There are many advice that could be more specifically tailored to individuals, but some that come to mind that have broad application are:
Continue what you are doing to become better in the field of dispute resolution.
Urge your Law Schools to create curricula that include all forms of consensual dispute resolution.
Do not think that you can leave college and make a living as a mediator.
Get a law job, spread your skills to your legal colleagues.
Look for or create opportunities to serve India through making mediation available to those that the court system does not or cannot serve well.
[This interview was taken by Pranav Tanwar (Editor-in-Chief, IJLPP) and Rishika Jain (Senior Editor, IJLPP)]
Feature Image Credit: Lakecity Brew
In Text Picture Credit: Law Mantra