Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>Mediation in India: Do we Practice what we Preach?</xTITLE>

Mediation in India: Do we Practice what we Preach?

by Sandhya Swaminathan
August 2020 Sandhya Swaminathan

The reality of mediation practice in India is in stark contrast to mediation taught in theory. Mediation is an effective and efficient form of alternative dispute resolution, only when its core principles as taught in theory are upheld. The existing legal framework on mediation in India has somehow failed to recognise and uphold these very principles that are fundamental to mediation, rendering it a rather cumbersome process. Promoting primarily involuntary forms of mediation, the legislature has put at stake fundamental concepts of mediation, such as party autonomy and voluntariness. Further, there being a lack of recognition granted to mediation settlements is rather discouraging to parties willing to opt for mediation. The author by way of this article, seeks to analyse the current mediation practice in India in the light of the core fundamentals of mediation as taught and practiced globally and contemplates the future of mediation practice in India, in the light of India recently becoming a signatory to the Singapore Mediation Convention. 

Mediation Practice in India: An Ineffective Regime?

Mediation in theory is taught to be a process of consensual dispute resolution undertaken by parties to a dispute. This process is essentially a dialogue between instituting parties, in the presence of a neutral third party called the mediator, with the aim of reaching a mutually agreeable and beneficial settlement of the dispute. Such settlement arrived at, is a binding contract upon the parties. 

In India, one is likely to have observed the steady rise in the number of Alternative Dispute Resolution institutes conducting training sessions, general awareness programs and mock mediation competitions for law school students, legal practitioners and general public alike to promote mediation as a viable and efficient alternative to traditional dispute resolution through courts. 

The reality of mediation practice in India is however in stark contrast to mediation taught in theory. Mediation is an effective and efficient form of alternative dispute resolution, only when its core principles as taught in theory are upheld. The existing legal framework on mediation in India has somehow failed to recognise and uphold these very principles that are fundamental to mediation, rendering it a rather cumbersome process. Promoting primarily involuntary forms of mediation, the legislature has put at stake fundamental concepts of mediation, such as party autonomy and voluntariness. The safeguarding of these core principles of mediation is imperative for parties choosing mediation to derive the benefits of the process as promised in theory.

The author by way of this article, seeks to analyse the current mediation practice in India in the light of the core fundamentals of mediation as taught and practiced globally and contemplates the future of mediation practice in India, in the light of India recently becoming a signatory to the Singapore Mediation Convention. 

Core Principles of Mediation 

  • Voluntariness of Parties: Parties, choose the process of mediation out of their own free will.  Mediation as a dispute resolution mechanism stands out due to it being a consensual process. The process being voluntary is indicative of the willingness of the parties to collaborate and come up creative and mutually beneficial solutions. It causes the parties to lay all their cards on the table, display faith in each other and speak with transparency to aid each other in understanding needs and interests driving the session. With such understanding and collaboration, comes efficiency. 
  • Mediator, a neutral third party: It is the role of the mediator, to facilitate a dialogue between the willing parties. They are required to maintain confidentiality and to be facilitative or evaluative is at their discretion. Parties have the freedom to pick a mediator of their choice. 
  • Party Autonomy: Mediation, is a flexible process. Parties hold the final decision making authority to their own disputes. There is no pressure upon parties to come up with a solution within a fixed time frame, or to come up with any solution at all. The process being party driven, the discretion to draw up a binding agreement rests with the parties. This freedom as experienced by parties while adopting mediation, causes them to actually adhere to any agreements they may draw up at the end of the process.

Current Mediation Practice in India 

While one may assume that mediation has been gaining increasing recognition in India, it is pertinent to note that almost all legal recognition that mediation does currently have in India, in some form or the other falls short of the very essentials of mediation thereby rendering an otherwise efficient practice a failure. 

Mediation as practiced in India is primarily by way of court referrals or by virtue of statutory mandate. Another category of mediation practice is private voluntary mediations, mediation settlements of which lack recognition in the current legislative framework.

Involuntary Mediation Practices

Court Referred Mediations (Section 89, Code of Civil Procedure, 1908)

These mediations, take place when courts direct parties to civil disputes to explore possible terms of settlement by way of mediation. Courts are more likely to make such referrals in the case of familial or petty civil disputes. The 129th Law Commission of India Report recommends courts to refer disputes for mediation compulsorily. With the aid of a court appointed mediator, the parties are then required to go through the process of mediation. The failure of the process essentially results in the parties being sent back to court to go ahead with their litigation.  

Statutory Mandate 

Statutes demanding that mediations be mandatorily instituted prior to approaching courts to litigate, is the second form of mediation practice in India. These mandates are usually coupled with prescriptions requiring parties to draw up a settlement within a fixed period of time failing which they may institute litigation proceedings.  For instance, Section 12A of the Commercial Courts Act, 2015 mandates pre-institution mediation for non-urgent commercial cases.

The success of either of the aforementioned processes results in the drawing up of an agreement, i.e. mediation settlement.  

These forms of mediation as practiced in India, have the potential of being rather ineffective. When a process which embodies voluntariness as its core fundamental is forced upon parties by way of court direction or statutory mandate, the final outcome is an inevitable failure of the system. When unwilling parties are made to sit across each other, there is an absence of free flow of information. There is no trust between the parties, let alone a positive outlook towards reaching a solution. Such parties, are often so unwilling to engage in dialogue, that the only reason they even step foot into a mediation session is to fulfil a requirement of the law, as a mere procedural formality. Such mediations have no hope of success and add to the mental agony of disputing parties. 

Parties subjected to such involuntary mediation, are also provided with little to no choice with regards to their mediator. In the event that parties do not experience a level of comfort or rapport with the mediator, the outcome is an unfruitful session. Further, witnessing unwilling parties approaching mediation on a regular basis, could prove to be a key demotivating factor to court appointed mediators. A result of the same may lead to a lack of interest, lethargy, lack of faith in the process of mediation within mediators whose fundamental duty is to drive the process, build faith and promote the benefits of the process.

Private Voluntary Mediation Practices

Less popularly practiced in India, these are mediations wherein parties consensually opt to mediate their dispute, much like what is taught to us in theory. The parties also exercise discretion while choosing their mediator. This form, upholds all the fundamental values of mediation, however, remains a road less taken due to a lack of legal recognition of such practice and settlements arrived at the end of such mediations. 

A lack of recognition to mediation settlements serves as a burden to mediating parties, for they are then required to get the same recorded as compromise decrees or awards before courts.  Such an additional burden only serves as a means to dissuade persons from opting for mediation at all, in contrast to the promise of ease and comfort that mediation in theory otherwise offers. 

Singapore Mediation Convention: A Ray of Hope for the Future

The Supreme Court of India, in Krishna Murthy v. New India Assurance Co. Ltd., emphasised the need for a standalone legislation for mediation practice in India. Further, India, on August 1, 2019, became a signatory to The United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Mediation Convention”). For effective implementation of the same, it can be expected that India shall soon roll out an extensive legislative framework recognizing private voluntary mediations and mediation settlements arrived at both in relation to domestic as well as cross-border mediations, based on model laws prescribed under the convention.  The implementation of legislative reforms solely addressing and recognising all forms of mediation practice alike shall impose in the public, faith in the process. With such faith coupled with benefits such as cost and time efficiency, ease of use and accessibility, mediation is sure to become a popular choice of dispute resolution in the near future.  The freedom of choice of a mediator, whether to mediate or not, when to mediate, the reliability on any mediation settlements reached is more than incentive for people to opt for this process.

Conclusion

The current legislative framework on mediation in India promotes solely involuntary models of mediation practice, which in itself is prejudicial to the essence of mediation thereby rendering it a failure. 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. India becoming a signatory to the Singapore Mediation Convention, can be seen as the first of many steps in the right direction towards making mediation a key player in the field of dispute resolution in India. Further, with the present COVID-19 pandemic in play, Online Dispute Resolution mechanisms have seen a major growth. Mediating online is one of the most easy and viable methods to resolve disputes despite the standstill the world has arrived at owing to the pandemic. Breach of contract is the single and most prominent cause for most legal disputes that arise out of a pandemic, and mediating such disputes shall not only save them the time spent waiting for their case to be listed, but also help them preserve ongoing working relationships. The fact that standalone legislations for mediation will soon be implemented has not only brightened the scope and future of mediation, but is certainly the need of the hour!

Biography


Sandhya Swaminathan is a III Year Student, B.B.A. LL.B. (Hons.) at National Law University Jodhpur.



Email Author
Additional articles by Sandhya Swaminathan