The Vidhi Centre for Legal Policy is an independent legal policy advisory group whose mission is to achieve good governance in India by impacting legislative and regulatory design.
For more information, see www.vidhilegalpolicy.in.
About the Authors
- Mr. Alok Prasanna Kumar is a Senior Resident Fellow at Vidhi Centre for Legal Policy, in the Judicial Reforms Initiative.
- Mr. Ameen Jauhar is a Research Fellow at Vidhi Centre for Legal Policy, in the Judicial Reforms Initiative.
- Ms. Kritika Vohra is an Associate Fellow with Vidhi Centre for Legal Policy, in the Judicial Reforms Initiative.
- Ms. Ishana Tripathi is an advocate practising in Bengaluru and is a non-resident expert with Vidhi Centre for Legal Policy.
In an interim report, we had studied four jurisdictions, namely Australia, Singapore, United States of America and the United Kingdom, to ascertain best practices and takeaways which may facilitate the establishment of an efficient framework for court connected mediation in India.
The final report compiles and presents the data provided to us by the mediation centres at the Delhi, Karnataka and Allahabad High Courts. It also presents the main discussions covered during round table and individual interviews conducted with mediators and administrators at the Delhi Mediation Centre and the Bangalore Mediation Centre. Based on the data gathered, the report analyses the performance of court connected mediation programmes and makes institutional and legislative recommendations to strengthen mediation in India.
This report was prepared in collaboration with the Department of Justice of the Ministry of Law & Justice, Government of India, and has been submitted to the Department. The final report and the data collected from the mediation centres can be downloaded from the links provided below.
Vidhi Centre for Legal Policy has worked in collaboration with the Department of Justice, Ministry of Law and Justice (Government of India), to study and evaluate the progress of court-connected mediation programmes in India. This report is a follow up to the analysis presented in our Interim Report. The Interim Report, published on July 29, 2016, contained some of the preliminary conclusions from our doctrinal study, and the data made available to us by the Bangalore Mediation Centre and the Delhi High Court Mediation and Conciliation Centre regarding their operations between 2011 and 2015.1
Our main findings relating to the doctrinal study in the Interim Report are:
(i) Numerous steps have been implemented in Australia, Singapore, the United States of America and the United Kingdom, to strengthen their respective mediation frameworks. These steps include development and promotion of pre-litigation mediation programmes, strong coordination between the judiciary and the government to implement institutional frameworks for mediation, high professional standards and adequate training for mediators, education and training of judges in their roles to refer matters for mediation, and accreditation and certification guidelines for mediators.
(ii) Concerns regarding regulating the practice of mediation are not unique to India, and are being addressed in numerous other jurisdictions.
Some of the key findings of the Interim Report that emerged from our analysis of the data provided by the mediation centres in Bangalore and Delhi are:
(i) The most significant cause for mediation not taking place in many cases was the lack of cooperation between parties to the dispute, or failure of the parties to turn up for mediation in the first place.
(ii) Though different types of cases were referred for mediation, matrimonial cases stood out as a category most often referred by judges.
(iii) Though mediation referrals at the centres generally increased between 2011 and 2015, there is scope for improving referral rates by increasing awareness amongst users, and enhancing interest towards mediation among referral judges.
This report is a continuation of our study of court-connected mediation programmes in India. In addition to the analysing statistical data provided by mediation centres in Bangalore and Delhi, we have also analysed data from the Allahabad High Court Mediation and Conciliation Centre. Further, we have conducted a series of interviews with mediators and administrators at the centres in Bangalore and Delhi to get insights into some of the qualitative aspects of the mediation process, as well as the operations of these centres.
Based on our study of the data, we have assessed the operations of these mediation centres under five broad areas – i) role of referral judges; ii) training and accreditation of mediators; iii) infrastructure development and administration of mediation centres; iv) user awareness; and v) codification: potential legislation for mediation. Some of our findings are presented below:
(i) Role of judges - The use of mediation as an alternate dispute resolution mechanisms has not always found warm reception among members of the judiciary. In this regard, it may be helpful to undertake regular training sessions for judges to sensitise them about the benefits of the process, which in turn can encourage them to refer more matters for mediation. The role of judges is also crucial in facilitating the referral of atypical cases for mediation.
(ii) Training and accreditation of mediators - In addition to sensitising judges, it is imperative to improve the quality of mediators by introducing regular and mandatory training programmes. Better trained mediators will ensure better process quality and improved rates of settlement; even cases where mediation does not yield a settlement agreement, a well-trained mediator may be able to bridge the gap between parties and improve their interaction. In addition to training standards, it may help to introduce accreditation process for mediators which would, inter alia, allow parties to make an informed decision about who they want to appoint as a mediator.
(iii)Infrastructure development and administration of mediation centres – Issues of increasing backlog, pendency and inadequate number of mediators at these centres highlight administrative shortcomings which must be addressed. Mediation is intended to be an expedient alternate mechanism of dispute resolution, and it is imperative that infrastructure and administrative facilities at these centres keep pace with the increase in referral rates so that backlog and pendency do not become systemic issues.
(iv) User awareness - Though court connected mediation programmes have been operating for almost a decade, there is insufficient awareness about them and their benefits compared to litigation or other alternate dispute mechanisms. This is largely attributable to haphazard data dissemination initiatives undertaken by the judiciary. It is necessary to ensure a continuous and accessible dissemination of data pertaining to the benefits of mediation to the existing and potential users. This will require collaborative and planned awareness drives from both the governments and respective state judiciaries. Further, lawyers must be sensitised about the process of mediation and its benefits, so that they are confident in recommending it to their clients when approached for counsel.
(v) Codification: potential legislation for mediation- The lack of codification has resulted in a lack of uniformity across mediation centres on some of the key aspects of the mediation process. In this context, there is a broad consensus on two points: first, a legislation is needed to address certain regulatory aspects of mediation like training standards, enforcement of settlement agreements, et al, and second, such a legislation should not over prescribe or compromise the flexibility of the mediation process and autonomy of parties mediating.
Based on the analysis, this report concludes with some recommendations under two headsinstitutional and management reforms, and legislative reforms. Some of the key recommendations are briefly discussed below:
(i) Institutional and management reforms
a. Quality control and popularising mediation- It is crucial to ensure the provision of quality mediators and the necessary infrastructure for an informal and comfortable experience to parties. Additionally, institutionally, the judiciary should involve itself to a greater degree in promoting mediation. Apart from regular training and sensitising programmes for judges and lawyers about the mediation process, it is also necessary for the judiciary to collaborate with the governments in improving dissemination of information about mediation.
b. Mediation as a profession- To ensure better quality of mediators, it is necessary to professionalise the practice of mediation in India. It is necessary to incentivise people to become whole time mediators, and ensure they are providing high quality services. Further, lawyers handling mediation work should also be experts in mediation, something akin to arbitration practitioners in India.
c. Training of judges- There is a pressing need to train existing and potential judges about the fundamentals of mediation to improve their understanding of the process, and train them for their role in preparing parties for mediation. Chief Justices of all High Courts should enforce a rigorous training framework for all judges in courts within their respective jurisdictions. Furthermore, Chief Justices should also monitor programmes focussing on
(ii) Legislative reforms
a. Referral judges- To facilitate the role of referral judges, legislation may prescribe normative standards to guide judges when determining suitability of cases for mediation. It should also list the types of cases where mediation should be mandatory and where judges should, as per their discretion, determine the suitability of mediation. Legislation should further provide for disincentives like imposition of costs on parties who do not give a fair chance to settling suitable disputes, and it should explicitly allow parties to opt for mediation at any stage of an ongoing litigation,
b. Code of ethics and professional standards- It is necessary to enforce a code of ethics and professional standards to be followed by mediators across the board. This code should, inter alia, codify consequences of violation of the said standards by mediators.
c. Enforcement of settlements and confidentiality- Legislation should provide for precise grounds available to a party to a settlement, to challenge the same. Additionally, mediation being a confidential process, legislation should carve out precise exceptions to this confidentiality of proceedings.
d. Training and accreditation of mediators- Legislation should prescribe the minimum training standards for mediators. Apart from training, accreditation of mediators should also be done based on their educational and professional background. Accreditation, while important to help judges choose mediators for parties or for court-connected mediation centres to prepare a panel, need not be made mandatory.