Originally published at IMIMediation.org on 8/22/19.
India is party to the historic signing of the Singapore Convention on Mediation, which could translate into business for mediation stakeholders. However, for mediation to flourish into the future, mediation practitioners and lawmakers in India need to rethink the nation’s policies and strategies in promoting mediation to a generation of millennials.
Despite the formation of numerous Indian mediation organisations and associations over the last decade, the practice of mediation has not yet succeeded in relieving the stranglehold of litigation. At conferences and seminars, we continually hear about the positives that mediation has over adversarial forms of dispute resolution, and yet, there are still 33 million cases pending in our courts, with close to 800k new cases listed every day. Somewhere, something isn’t working out for mediation in India.
I believe the problem lies in how the legal fraternity has approached and introduced mediation as a tool of dispute resolution to the common folk of the country. For most citizens of India, mediation is a free pro-bono service provided by the courts, to settle disputes that the courts discard as trivial or troublesome. The word is often substituted for a “compromise” or a “non-binding contract”, where a mediator is looked upon as a social worker or counsellor. Some educated professionals even consider mediation to be an “illegal, under-the-table, deal-making process”. These are a few examples of the misconceptions surrounding mediation that has stunted its growth in India.
For private mediation, be it commercial or otherwise, to evolve into a financially viable career option in India, the practice needs a fresh, frank and fearless approach. I propose a blueprint of ReStructuring the business of mediation in India. In the post-Singapore Convention era, there is an urgent need to ReSearch, ReDraft, ReBrand, ReMarket, RePackage and ReDistribute, before ReIntroducing mediation to millennial India.
Mediation has been underway in India for decades, having first received legal recognition under Section 4 of the 1947 Industrial Disputes Act. Incidentally, mediation’s identity crisis also began with this legislation, with the statute dictating that “conciliators” appointed under this legislation are “charged with the duty of mediating in and promoting the settlement of industrial disputes”. Mediation was made to share its core identity with a distinctly different style of collaborative dispute resolution—conciliation. Since then, the word ‘mediation’ is often reduced to a verb in the context of the conciliation process, with the terms ‘mediation’ and ‘conciliation’ used interchangeably, leading to misunderstandings among users about their expectations—and misinterpretations among practitioners about their practice.
In 1996, fortunately, an amendment to Section 89 of the Civil Procedure Code (CPC) in India, clearly distinguished the processes of mediation and conciliation as alternate forms of dispute resolution. It stated that mediation is a facilitative process, while conciliation follows an evaluative and suggestive style. Section 89 of the CPC, however, would work as a legal guideline for only court-referred mediations, while private mediations were left to the mercy of the Arbitration and Conciliation Act of India,1996.
Currently, unlike a successful private conciliation, where a signed agreement has a standing similar to that of an arbitration award, a settlement agreement arising out of a private mediation in India remains a mere contract between two disputing parties. A breach of the settlement agreement in private mediation cannot be resolved through a simple enforcement petition in the court of law (which is the case for private conciliation), but has to be dragged back to the corridors of the court, and initiated as a case of litigation. If Indian law (CPC s89) clearly defines the difference between mediation and conciliation as simply a matter of the neutral’s style, then why does one process enjoy the security cover of a quick enforcement and the other does not? The unspoken truth is that the lack of a simple and straightforward mechanism of enforcing a private mediation settlement agreement has acted as a dent in its integrity, from the point of view of a lawyer and user.
It is incredibly encouraging to see the recent developments in laws governing the practice of mediation in India, with various legislation accommodating mediation as a method for resolving disputes. However, the impact of these amendments is only limited to court-annexed institutional mediation.
In July 2019, a few weeks before the Indian government decided to sign the Singapore Convention on Mediation, the Indian Parliament passed the Consumer Protection Bill 2019, where an entire chapter (Chapter V) is dedicated to mediation. Even though the legislation promotes and encourages mediation, it still retains its identity as a court-referred and court-annexed service, where the settlement enjoys the privilege of a court decree. There is no acknowledgment of enforcing a mediation settlement arising out of a private mediation, prior to it be referred to a consumer dispute forum or consumer court.
In May 2018, an amendment to the Indian Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Act”) had made it mandatory for a party filing a suit under the Act (a “commercial dispute”, as referred to under the Act) to first initiate mediation proceedings with the opposite party unless claiming urgent relief in the suit. A huge step forward for pre-litigation mediation, but, once again, it didn’t spell any positives for private mediation. A closer reading of the amended Section 12A (2) of the statute states that “the Central Government may, by notification, authorise the Authorities constituted under the Legal Services Authorities Act, 1987, for the purposes of pre-institution mediation”. This basically translates to the fact that mediation as a service can be accessed from government authorised institutes.
Until and unless India finds a conclusive solution to initiating and enforcing private mediation settlement agreements, private mediation will continue to resemble an un-knotted air-balloon—where despite the efforts taken to promote the ‘pros’ of the process, the one major ‘con’ will keep users and lawyers at bay. The Arbitration and Conciliation Amendment Bill 2018 has reached an impasse in parliament, and if the highlights of the proposed amendment are anything to go by, it had no mention about mediation.
Solution – India needs to amend the Arbitration and Conciliation Act to grant mediation the same status as conciliation regarding the enforcement of a final settlement agreement. Alternatively, since arbitration lies on the adversarial extreme of the dispute resolution spectrum, and is currently clubbed with Conciliation, legislators could draft an exclusive Consensual Dispute Resolution Law, this time excluding arbitration altogether, and including mediation and conciliation under one legislation but with separate provisions to clearly define the two varying styles of functioning by a neutral.
Trained and untrained professionals in India’s legal industry have engaged in mediation practice for decades. Unfortunately, this experience bank has not been documented or analysed, except for some research conducted under the auspices of IMI’s Global Pound Conference in India in 2017. Decades of court-annexed mediation work in the adjunct premises of Indian courts provides huge scope for learning, research, and development.
In particular, success stories—settlement numbers, deterrence rates, court cases withdrawn, appeals avoided, financials stabilised, relationships restored, communities regrouped—need to be studied and evaluated and tracked over time. Currently, we have very limited knowledge on the successes and failures of mediation practice in India, and are forced to rely on subjective opinions and individual perspectives.
Solution – Mediation in India needs to have a centralised institute with an international vision, not to monitor or control the industry stakeholders, but to streamline recognition, accreditation, and complaints, if any. This institute must also invest in collating information, through surveys, interviews and testimonials, and periodically publish these records in news publications and law reviews. The government of India has to be convinced and determined to invest into funding such a project and run it according to global standards set by institutions such as the International Mediation Institute.
Jonathan’s next article will explore the ideas of ReBranding, RePackaging, ReMarketing and ReDistributing mediation in India, and ways to make mediation a more effective and viable supplement to the courts system.
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