Each year thousands of Indian students pursue law as a career option in different universities across the country but inexperienced faculty and outdated curricula mean that these aspiring graduates and legal professionals are ill prepared for the evolving demands of a new legal profession.
Recent Changes in Legal Education in India
The legal industry in India is shifting from traditional practices such as litigation to exploring new areas of dispute resolution such as arbitration and mediation.
The majority of universities still use traditional modes of teaching and learning, and fail to train students with the negotiation and mediation skills that they require. To fill this gap, some students participate in mediation tournaments but most still lack exposure to the knowledge and skills they will need to work in the modern Indian legal system.
ADR over Litigation
The current Chief Justice of India, in one of his recent speeches, pointed out the importance of mediation as a way to ensure speedy disposal of cases and suggested that law schools should develop diploma courses in this field as the time taken in litigation is a big deterrent for those seeking to have disputes resolved. More recently, the Chairman of the Bar Council of India in described plans to introduce a Mediation Training Program as part of the LLB course curriculum. In January of this year the Supreme Court formed a committee to draft the new Indian Mediation Law.
These initiatives all show the desire of the judiciary and regulatory institutions to promote the uptake of ADR. The government also is making necessary changes to the existing laws and is introducing policies that encourage or mandate the parties to attempt mediation before filing proceedings. For example, in 2018 the government formulated rules under the Commercial Courts Act, 2015 and made it compulsory for the parties to attend a Mandatory Mediation Session before going to court. Mediation has also been introduced in the Companies Act, 2013 and the Insolvency and Bankruptcy Code, 2016 in a similar fashion.
The corporate sector appears also to have understood the efficiency of ADR mechanisms to resolve disputes, is incorporating arbitration and mediation clauses in their contracts and is applying rules of institutions such as ICC, SIAC etc. Many legal professionals are incorporating arbitration and mediation practices in their area of work. Some educational institutions and universities have taken the initiative and are organising arbitration and mediation tournaments for law students to learn and interact with recognized professionals in this area. Every year new arbitration and mediation centres open in India to meet the growing demand for these services.
Even outside the professional sphere, mediation was a topic for discussion in every household last year when the famous Ayodhya dispute was referred to mediation. This dispute over the ownership of property arose between two different religious sects over an area of land that was considered to be sacred by both parties.
Why is ADR rapidly gaining in popularity across India
As it is widely known that ADR mechanisms are cost-effective and less time consuming than traditional litigation. As such they have become important for reducing the burden on the Indian Judicial System which has roughly 35.3 Million cases pending across all the courts in India. Some cases take decades to be adjudicated, and an appeal to a higher court can then take another two years. Referring suitable matters to mediation, especially in the lower courts, is the only way out of this backlog for the judiciary. As a result, judges are using their powers under Section 89 of the Code of Civil Procedure and several other legislative provisions to divert cases into mediation.
Mediation is also being ‘advertised’ as an alternative to fighting cases in the lower courts and several other initiatives are being taken by the judiciary to explain the benefits of the process to potential litigants. Promoting ADR is also in the best interests of the government as out of all the cases filed in any court jurisdiction, 46% are being filed by or against the government as a party. The expense of litigating these cases is a huge burden on the government and resorting to ADR processes can save a lot of taxpayers’ money.
Why don’t more Law Schools offer Mediation and Negotiation Courses to Students?
It is an accepted fact that mediation skills in general are helpful for everyone in their day to day lives and most importantly for lawyers planning a career in dispute resolution. Despite that, apart from a handful of universities, most of the law schools have turned a blind eye to the change in market demands and are continuing with their traditional ways of teaching. However, to fill the gap between their formal education and the skills they require, some students participate in mediation tournaments but these are in the minority.
One reason that this area is underdeveloped in university curricula is that there is a “cultural deterrent” in that mediation and negotiation are considered by many as a ‘soft option’ and not a real law subject and therefore making space for such options in an already crowded curriculum is not prioritised.
Another option for the students who do wish to study ADR is to enroll in one of a few mediation workshops available but the cost and lack of accessibility might discourage them. Therefore, the majority of the students are exposed to fierce competition for legal jobs without all the knowledge and training that they need to thrive in the workplace. Mediation and arbitration are still too “new” for traditional law schools to make to wholeheartedly embrace them in their curriculum.
Online education as a solution
One solution to meet this challenge of updating the curriculum quickly is online. Students can engage with the learning from wherever they are and acquire knowledge from established professionals. E-learning can be updated regularly with new legal developments, commentary and other information. A range of studies have come to a conclusion that E-learning can be as effective as, if not more than, the traditional learning. Furthermore some studies show that students prefer E-learning for acquiring new skills, and according to a report by KPMG, the Indian online education industry will grow to 9.6 Million users by 2021.
E-Learning can not only bridge the gap between the areas where traditional education falls short but it also comes with a number of other benefits and features while allowing students to access lessons whenever they want. They can go through the lessons as many times as they want and review topics that are particularly challenging. Law Schools can integrate these online lessons into their curriculum quickly without reinventing the curriculum or teaching structure completely.
Working professionals can also benefit from this as they might not have enough time to attend a college and take formal classes. Online education platforms can give them exposure to these important skills and strategies without compromising their existing work.
The end or the beginning?
As India plans to expand its use of arbitration and mediation exponentially, the legal fraternity must prepare for this. Everyone from the judiciary to various institutions are promoting ADR with a special focus on training young lawyers to use the necessary skills.
The lack of experienced faculty and old curriculum are potential barriers to this development. In order to ensure budding lawyers have the necessary skills, universities have a duty to adapt to the changing demands or their students and of the market.
An updated curriculum that also focuses on enhancing the mediation and negotiation skills of students should be introduced in response to the growing demands of the market. Online education can offer a solution to this problem. E-Learning can transcend the old pedagogical methods and can result in an effective and successful learning experience.
Academic Research Intern, Mediator Academy
Saksham is a final year student at the National Law Institute University, India.