Advocate and solicitor Ameet Hariani felicitated with the Rotary Club of Bombay’s Indira Suresh Kotak Award for Conflict Resolution through Mediation and Conciliation
Rtn. Suresh Kotak: Congratulations to Rotary for introducing conflict resolution, which is necessary in this turbulent world. Mediation and conciliation are the greatest pillars of resolution as they go with the principle of justice and fairness; it doesn’t go with tarikh pe tarikh (date after date) lingo. The lawyers who work in this kind of mediation are rare because they don’t want their practice which gives them a lot of money. So, I congratulate this unique personality who has been working in this area. And this is a very important area that Rotary has touched upon. So, my congratulations to both.
Ameet Hariani
Good afternoon, ladies and gentlemen, Rotarians. Well, a lot has been said about me, so I’ll just keep it short. I just want to say how glad I am to be here today. This is the premier club, not only of Bombay, but I would say of India. Thank you for having me, and thank you for awarding me with this prestigious Indira Suresh Kotak Award for Mediation and Conciliation.
I went through your bulletin about today’s announcements and your motto of Service Before Self. It’s amazing, the amount of work that you are doing. I’d like to congratulate each of you who have been participating in this.
As you heard, my journey has been from a litigating solicitor, a litigating attorney, to a real estate attorney and, at the same time, being the Managing Partner of a law firm. From there, I have transitioned now to being a mediator and an arbitrator. I also act as a legal advisor and an independent non-executive director to various companies.
During this transition, I’ve learnt that you have to carry people with you. You must have collaboration, and you have to have dialogue. Without that, it doesn’t work, whether you’re running a firm or conducting mediation.
So, I’m going to talk today about my role as a mediator. It’s a completely different approach from being a litigating lawyer. As a litigator, you would cross-examine the other side. And, at the end of it, you would say, “I put it to you that you are a witness of untruth.” This is a typical question which needs no answer because the person will deny it. But you’d still ask it. You take sides. You want your client to succeed.
But as a mediator, you have to be much more balanced. You have to help both sides reach a conclusion which is a win-win for both of them. For that, you must understand human nature — that’s the key. You have to understand people’s motivations, why they are doing what they’re doing, and you have to have open communication, fairness, and equity. That’s what I’m going to talk to you about.
First, let’s understand why people opt for mediation.
People choose mediation perhaps because they are members of a family and a senior person in the family suggests, “Please mediate and sort out issues between yourselves.” Or the court suggests it. We had the recent case of the two Lodha brothers. They mediated and reached a solution.
The other reason why people choose for mediation is that they don’t want to be bound by an arbitration award or by a court decision, but they still want to explore settlement possibilities — whether the other side is really willing to settle. You know your own weaknesses, but the other side knows theirs. And you see whether a settlement between the parties is possible.
Confidentiality is essential, and it is one reason why people opt for mediation. It’s also much more cost-effective. No tarikh pe tarikh (date after date). It’s also more cost-effective than litigation. Most importantly, it leads to preservation of relationships. If there is a successful mediation, there is going to be a method where, over a period of time, there will be a reconciliation between the family members. This really helps.
I’m going to share my mediation journey through some examples. Of course, I have completely masked the details — you won’t be able to recognise any of the parties, for confidentiality purposes — but it’s important for you to understand how the process works.
We had one mediation where emotions were running very high. There were four brothers who had been working together for many, many years. They had numerous companies with a turnover in excess of ₹5,000 crores, and many jobs were at stake. So, how do you actually deal with such a situation?
You begin by asking yourself fundamental questions. If they have worked together for so many years, why has a dispute arisen now? Is it because there was a patriarch who controlled everything and has now grown old? Or is there some other reason? Will the parties — especially in a family — talk openly with each other? Probably not. Would there be a four-way split? Or a three-way split? A two-way split? No split at all? Or, is it something else entirely?
What a mediator must do at the inception is build credibility. You have to ensure that parties are convinced that whatever transpires will remain confidential. People don’t want it talked about in social circles. You must ensure confidentiality, establish your credibility, and maintain transparent communication. Simultaneously, you assess the situation. Once you learn the facts, you understand whether all parties actually want a solution. Some people may be content with the status quo and they don’t want a solution — but that’s for you to assess. That’s one of the things a mediator does.
Once you have established your credibility, the real mediation begins. During mediation, there will be misunderstandings and miscommunication. Emotional stress and distrust due to past experiences will be expressed. There will be power imbalances. Some people may talk more; they are much more valuable. Others may be defensive, but that doesn’t mean they don’t have something to say. Sometimes, a mediator finds unrealistic expectations — that parties want everything resolved when complete resolution may not be possible.
So how do we address this? And this is what we did during that mediation.
You go into the mode of active listening — you have to understand what is said and what is unsaid. You have to understand what people are saying through their body language and their expressions. There will be lots of non-verbal cues, and you almost need to function like a counsellor. You ask open-ended questions — “I understand that you’re feeling a particular way,” or, “Tell me more about what happened on that particular day.” You should be non-confrontational, non-judgemental — and that’s key to a successful mediation.
As I said earlier, balance the power dynamics. Ensure everyone is heard. And, importantly, balance what you say with warmth; balance wisdom with warmth.
Once you identify common ground, you can tell people, “Look, there is so much you have in common. There is so much you can do positively.” Help people understand what’s possible and what’s isn’t. Emphasise, especially, future goals — what you want to achieve through the mediation.
In this particular case, we discovered that there was a lot of emotional angst, but the main reason for the disputes emerging now was not the patriarchy issue that I had mentioned earlier, but that the next generation wanted to enter the business. Everyone had their own aspirations. Once we realised that as the core issue, the focus shifted from what had happened in the past — whether it was right or wrong, or everyone’s emotional hurts — to the issue of how to position yourself for the future.
Once that got done, we had to work out a separation framework. We involved all the lawyers and the tax counsel to make it simpler. Then, my role was transformed from a mediator to an arbitrator. The parties filed consent terms before me, and I issued a consent award.
It is deeply satisfying when something works out — when you can build bridges and ensure that people remain happy. In fact, the role of mediator is sometimes, I think, far more satisfying than that of a litigating lawyer.
I’ve given you a brief overview of how mediation works. I hope it’s been interesting. Thank you.
ROTARIANS ASK
Suppose there are two parties, one wants mediation and other doesn’t, how do you bridge that gap?
Circumstances often occur where, if you identify the core issue — like I mentioned, the issue was about the younger generation wanting to enter the business — once a person wants something to happen, it will happen. There is no way to force people into mediation. Both parties must be willing to explore. It can’t be forced.
You have to collaborate with a lot of people to bring them to the table. There will be some old family associates whom they respect — especially in promoter-led companies. So how do you manage all the dynamics? Because people’s emotions often run high. You become a psychologist as well!
Thank you. You are right. It’s partly counselling and partly understanding the underlying issues. In the dispute between the four brothers that I mentioned, the cause was something that had happened 15 years ago at a wedding. These things happen, but you have to work through all of that.
How long does it typically take to reach a settlement, say, in the example of the four brothers? Does it go on for several months, or years — or can it be just a few weeks if you’re lucky? And the second question — but you need not answer if you don’t want to — is: how do mediators charge their fees? Is it a fixed sum or a part of the total amount?
Typically, for a successful mediation, I would say between four to six months at most. Otherwise, it’s not going to happen. Mediation can fail, that’s also possible. But that’s my thought process and approach. You must devote a lot of time to it because you have to understand what people are feeling.
Regarding fees — they are based on time spent. It can’t be just a lump sum because there is considerable time spent. I don’t think, if you go to a good mediator, that you’re going to waste time. The mediator is not going to waste time, because he has other things to do as well. But it will take time because people need to understand and express themselves.
I’m going to take you away from the family corporate space more into the political arena. We have a situation today — I won’t name names — but there are two big nations at loggerheads. Do you see a possibility of any kind of mediation with so much emotion flying around? Almost daily, decisions are being made and publicly announced. I’m pretty sure similar things occur in some families too. What are your views? Do you see a possibility of a decision that we can see in the next couple of months? And if so, what would be your views and guidance as to how one could mediate?
Well, that’s a loaded question. What you’re asking about is realpolitik. I don’t think people are really interested in settlement — except that people want to have a perception that they have succeeded. I don’t see any building of bridges happening. It’s only that people want to say, “I have succeeded in whatever I have set out to do,” and the other party has to probably lie down and say, “OK,” and pretend to give up everything. That’s what is happening in the world now. Beyond that, I don’t see who is going to do what. That’s for the future.
Fundamentally, we have always advocated arbitration as a means of alternative dispute resolution. Now we are advocating mediation. Why is mediation better than arbitration? All our contracts generally contain an arbitration clause. Do you think they should have a mediation clause now — and why is it fundamentally better?
Typically, before entering arbitration, there is always a discussion between the Managing Directors of the two companies, say, to see whether they can sort out things at a larger level — which, in a sense, is a mediation without a mediator, right? That almost always happens, to see whether — why go into a litigation situation? But a formal mediation is rare between companies. However, mediation is very often the preferred approach in family situations.
A couple of questions. The first one is — I’m always interested in Rotary — is there any scope for collaboration between your health initiative and Rotary’s various medical initiatives? The other question is: which is more mentally stressful for you — arbitration, or arguing in a high-profile case? And the third question: recently, it was Hindustan Unilever and that cosmetic company — why did they go public and then settle it?
Let me answer the easy part first — about Healing Touch, which is Dr. Mahesh Balsekar and Phiroze. I will be happy to introduce them to whoever is interested, in the Club. At Healing Touch, we don’t build a corpus. Every rupee goes to the kids. It’s meant for their health, and there is zero — I’m saying zero — administrative expense. All the administration is handled by the trustees, who absorb all costs. That’s why I’m very proud of being associated with Healing Touch.
On the second question about how to take it forward — I’m happy to discuss with you offline, or to take it forward, because it’s a longish answer.
I work as an education futurist, and I want to tell you this is exactly what we’re trying to do at the school level — problem-solving to create win-win situations. It’s beautiful to see that when there is a problem and we ask children to create this win-win situation, they can. So, your work is truly an inspiration. My only question is — there is so much scepticism among administrators and principals. “How can you really do it?” They still have — I’m sorry — but the litigation mindset. Would you ever consider addressing a panel of principals?
That’s really expanding my scope of whatever I do. I’ve never done it, so I don’t know whether it will work or help or not. But yeah, I’m very happy to see kids involved in problem-solving. I think that’s a great thing.
Because the NEP — the National Education Policy — includes problem-solving as one of the 21st-century skills. And if we can teach children from the primary and pre-primary level to do that, then — sorry, but we wouldn’t need people like you.
Perfect. Perfect.
In your experience in family settlements, it’s always one brother versus another brother, sometimes father versus a son. What is the role of the women of the house in bringing about these settlements? Because ultimately, we hear that one mother or sister or somebody has stepped in and pulled everyone’s ears and brought them to settle. So, what has your experience been with women in mediation? How do they participate?
Generally, if it’s a family, I would encourage the women to participate because they have a perspective which is often much more practical and realistic. So, I would strongly think that that’s a great thing to do. However, we are a patriarchal society, so initially, I don’t think women want to get involved. But once they know that a solution is around the corner, they do get involved — and that’s the best way that it will lead to a lasting solution.
I’ve been seeing a lot of disputes, generally between best friends or family members. Whenever it’s such close relations, you always try to ensure they patch up with each other, rather than face bloodshed in the courtroom. But there is always initial resistance when you try to get them to the table. How do you change that mindset? Or is there a way to change their mindset? Is it not possible? Because after a lot of pointing out — after going to the Supreme Court, High Courts, everywhere — then they ultimately come to the table. But a lot of water is lost under the bridge by then.
The best way to get into a mediation is for the people to realise that it’s neither time-effective nor cost-effective to go into long litigation. Therefore, what works best — and I’m not being holier-than-thou because I also act as an arbitrator — but the point is that your approach to being an arbitrator and mediator is completely different. Mediation works a lot of the time if the people are willing to give it a good try. But it’s not always that people want to give it a good try.