“In the post-pandemic world order, mediation should be one of the most preferred modes for dispute redressal.” – Nandini Gore

Nandini Gore is Advocate on Record, Supreme Court and Partner, Karanjawala & Company Advocates. She has been practicing since 1988 and has an experience of more than 30 years at the Bar specializing in Litigation, Arbitration, Corporate practice and Mediation practice.

Q. Being an expert mediator, where do you think India stands in the field of Mediation in the corporate/private sector or private mediations, especially as alternate dispute resolution is being encouraged across the world?

For many years, especially in the Indian context, we have observed the reluctance of litigants to embrace mediation as an effective means to dispute resolution. Even though the progress experienced in this regard may not have been at the desirable pace, it is indisputable that improvements have been made specially qua matters relating to family and matrimonial disputes. The benefits that mediations bring have been slow to reach the realm of commercial matters. There has been, however, a concerted effort to make the legal environment more favourable, with many courts finding it increasingly convenient to refer commercial disputes matters to mediation to iron out an amicable settlement rather than resort to the traditional court litigation to resolve the ever-increasing complexity of business disputes. The inherent flexibility of mediation proceedings are a real advantage over traditional court centric litigation.

The outbreak of the Covid-19 pandemic has brought about unimaginable worldwide commercial disruptions, and as businesses suffer through this crisis, it is more important than ever that disputes get resolved in a timely and efficient way. It is high time that all stakeholders discuss the legal impact of the Covid-19 pandemic and the changes it will usher in in the legal field and how India can be more accepting of the Alternate Dispute Redressal (“ADR”) mechanisms in the days to come.

Looking at the present scenario, many are anticipating a surge in the need for resorting to alternate means of dispute redressal all over the world. The end of the lockdown has seen an inevitable surge of new claims, which shall arise out of the commercial disruptions owing to lockdown being put in place. A majority of the claims will emanate from the delays or cancelations in inter alia the construction business, shipping industry, international transit, energy and power sector etc. In the world order post the pandemic, “Mediations” should be one of the most preferred modes for dispute redressal in these cases.

The pendency of cases, the ever-increasing number of statutory Appeals and most importantly the increasingly alarming rate at which disputes are being taken up for litigation in our country, is I believe one of the biggest hurdles in the administration of justice. As a practising Supreme Court Counsel, I have witnessed the very increasing number of cases and litigants that approach the Hon’ble Supreme Court for effective adjudication of the dispute having gone through the hierarchy of the courts in our country.

I have always firmly believed that where justice is administered at a belated stage is as good as the denial of justice, and therefore the most important and biggest hurdle that has to be overcome is to bring down the pendency of cases before various courts of India. It is extremely pertinent to mention here that the founding father of our nation and subsequent legislators have anticipated this and sought to remedy these by the establishments of alternative disputes redressal mechanism in our country. Mediation, Arbitration, Conciliation and establishments of Lok Adalats etc. are the various ways by which the problem of pendency of cases was sought to be tackled by the Indian State. However, over the years in my personal experience as a Certified Mediator and practising Supreme Court Advocate I have personally noticed that these avenues have not been utilized to the best of their capabilities.

Q. You have been a lawyer for over 30 years. Could you talk about some interesting cases you have worked on that turned out to be great learning experiences or turning points in your career?

Two extremely enriching learning experiences come to mind. As a young lawyer briefing the celebrated Justice (Retd.) Late V.M. Tarkunde, Senior Advocate and former Judge of the Bombay High Court, he told me that the key to becoming a good lawyer lay in the efficient and in-depth understanding of the Code of Civil Procedure. He also used to tell us that to truly understand the working of the legal system, every lawyer should spend some part of his career in the Trial Court. Another valuable lesson I learnt was when I was briefing Mr Fali S. Nariman, Senior Advocate. His conferences taught me that one should never hesitate in putting across valid legal arguments despite one’s young age. Mr Nariman has always recognized and appreciated any hard work put in by young lawyers and this is one advice I will always pass on to the younger lawyers.

Q. Did you face any difficulties because of being a woman, especially 30 years back when mindsets in the legal profession may not have been in favour of gender equality? Do you think gender based challenges still exist today for women in the profession?

I wouldn’t really call it a struggle but rather an enriching experience. I agree that the number of Advocates practicing is slightly skewed (gender wise) but this trend is changing. I have always believed that it’s your calibre and not your gender that will take you places in the profession. If I talk about my office, I take immense pride in the fact that extremely intelligent and outstanding female lawyers have been and are part of my team.

The legal fraternity has definitely become more inclusive. The overall scenario, especially in regard to the litigation field has seen a massive shift from work being concentrated in the hands of a few Counsel to the present day scenario. The new avenues and specialized forums have led to greater specialization by counsel resulting in better and essentially more organized service delivery to the clients. The litigation scenario, especially in Delhi, has massively benefited from this with the city attracting the best young legal minds.

Q. You have filed a PIL before the Supreme Court for implementation of guidelines for installing CCTV cameras in all buses and public transport for the benefit of women. According to you, where do the laws in India lack in preventing crimes against women such as sexual violence?

I firmly believe that the issue is not with the absence of laws but rather the effective implementation thereof. A genuine consciousness that aims at ensuring protection of rights of women is what is essentially required. Violence against women and girls take many forms, including domestic violence, sexual assault, human trafficking, so called ‘honour killings’ and the traditional custom of female genital mutilation prevalent in some religions. This is rooted in the gender inequality that women face throughout their lives from childhood till old age. Given the devastating effect violence has on women, efforts have mainly focused on responses and services for survivors. However, the best way to end violence against women and girls is to prevent it from happening in the first place by addressing its root and structural causes.

Prevention should start early in life, by educating and working with young boys and girls promoting respectful relationships and gender equality. Working with youth is the best bet for faster, sustained progress on preventing and eradicating gender-based violence. While public policies and interventions often overlook this stage of life, it is a critical time when values and norms around gender equality are forged. 

A strong focus on prevention through the promotion of gender equality, women’s empowerment and their enjoyment of human rights is the need of the hour. It also means making the home and public spaces safer for women and girls, ensuring women’s economic autonomy and security, and increasing women’s participation and decision-making powers—in the home and relationships, as well as in public life and politics. Working with men and boys helps accelerate progress in preventing and ending violence against women and girls. They can begin to challenge the deeply rooted inequalities and social norms that perpetuate men’s control and power over women and reinforce tolerance for violence against women and girls.

Awareness-raising and community mobilization, including through media and social media, is another important component of an effective prevention strategy. 

Q. What role do you think Artificial Intelligence and legal technology can play in improving the efficiency of the legal profession?

The Indian legal sector has seen very little innovation in terms of technology and lawyers have for long been comfortable and relying on the methods and solutions that were designed years ago. Artificial Intelligence can play a big role in changing the way lawyers operate and how the law is looked at in India. 

We live in a world ceaselessly immersed in technology. The use of technology accounts for the evolutionary shifts in human activity, not only at the individual and the societal level, but has also driven immense changes in various professions. Entire industries and professional fields have risen or disappeared as a result of technological developments. There is no doubt that technology tools permeate all parts of our lives, and the outbreak of the Covid-19 pandemic has ushered in a revolution of sorts where traditional litigation has been forced to make use of IT tools such as video conferencing to ensure that the dispensation of justice does not suffer during these testing times. 

The traditional litigation is still a fully in-person session (or series of sessions) while the parties and their counsel and the field suffers to cope up with the need of the present times. Despite most of us having become more familiar, comfortable, and adept with incorporating technology into elements of our personal lives, the domain of utilizing technology to bring about effective dispute redressal is still a distant dream.

It would not be an understatement to say that a vast majority of legal institutions have ignored technology. Protracted reliance on heavy briefs and papers should have been at the forefront during these times, when the use of technology has been rather forced. A lack of institutional framework which could promote use of technology is primarily responsible for the same. Whereas the commercial world has readily accepted and utilized the role of technology to make arbitrations more effective, with specific protocols and institutional framework having been put in place, the other forums, whether its traditional litigation or mediations etc. have been left behind.

In this regard, a useful guide will be to study the leaps taken in incorporating IT tools in the field of International Commercial Arbitrations. As a step in the direction to facilitate online conduct of proceedings, the Korean Commercial Arbitration Board (KCAB) published the “Seoul Protocol on Video Conferencing in International Commercial Arbitrations”. The Protocol addresses all aspects of conducting video-conference hearings in international arbitrations, from witness examination to technical specifications. These and other resources can help guide arbitrators and parties as they continue to resolve disputes under present restrictions. It is pertinent here to understand that the protocol is not a hasty reaction to the present outbreak of the Covid-19 pandemic and has rather been in active deliberations since 2018, and has been designed to be a comprehensive guide to conducting arbitral proceedings remotely, and therefore, presents itself as a rather important tool in these times. A cohesive study of the protocol, and how the same can be adapted to suit the needs of a mediation is the need of the hour.  

The growing relevance of information security is an unavoidable feature of modern-day legal practice and the increase in electronical filings and use of videoconferencing in proceedings would lead to heightened concerns of cybersecurity and privacy protections. It is, therefore, incumbent on the Government to provide adequate mechanism to guard against the said issues with strengthened legal provisions and mechanisms. A substantive chapter in penal laws can go a long way in allaying these fears. 

It is pertinent here to mention the 2020 Protocol on Cyber Security in International Arbitration, published by a working group established by the International Council for Commercial Arbitration, the New York City Bar Association and the International Institute for Conflict Prevention and Resolution. Although the Protocol has been drafted keeping in mind international commercial arbitrations, it may also be a useful reference for outlining and establishing an effective protocol for litigation proceedings as well.

Q. How would you describe your professional journey so far? And what career advice would you like to give to young lawyers and law students? 

In one word, rewarding. An element of ensuring public service was part of my life and was one of the main motivational factors that led me to pursue law as my career. I was always inclined towards debating in school and college and was inclined to appear for the Civil Services examination and therefore, a natural step in that direction was to pursue law. It started off as a subject that I intended to be part of my optional paper in the civil services examination but soon became my true calling.

I would say that one of the most enriching experiences of my life was my time at the University of Delhi. My alma mater, Campus Law Centre, Faculty of Law of the University of Delhi is where I received the holistic understanding of the subject and, coupled with the guidance I received from my professors there, is what helped in shaping the lawyer I am today. Having grown listening to the lectures of Prof. Madhav Menon on Constitutional Law, Prof. Kubba for Torts, Mr Rajiv Khanna on Contract, and Hon’ble Mr Justice A.K. Sikri who used to teach us the Code of Civil Procedure, their education is possibly my life’s biggest lessons.

My advice to the young lawyers has been the same through these years. Do what makes you happy is the advice I give everyone joining the profession. It doesn’t really matter if you work as a litigation counsel in the district courts or be part of a Tier-I law firm handling the most talked about matters or join the corporate side of law as long as one stays committed to providing the best legal advice and stays true to integrity and honesty that this profession demands. For a young lawyer the avenues as on date in the field of law are immense and the whole wide world its open and waiting for them. However, I strongly recommend that every lawyer, whether a fresher or an experienced one, should always do some pro bono work and give back to the society. This experience is particularly enriching.

I still remember the time when I had approached two eminent lawyers of the Hon’ble Supreme Court of India, Mr. Fali S. Nariman and Mr. Harish N. Salve, Learned Senior Advocates to appear in a case seeking relief for a rape victim (Nari Raksha Samiti case) before the Hon’ble Supreme Court of India. There is much to be learnt from them, who not only appeared pro bono in the matter but were also instrumental in ensuring that effective guidelines are laid down to ensure that the heinous crime does not happen to anyone else.

****