India – “A mediator of world peace”

The practice of mediation in India differs significantly from mediation as it is theoretically taught. Only when the fundamental tenets of mediation as it is theoretically taught are upheld can it be used as an effective and efficient form of ADR. Due to the fact that the core concepts of mediation are not recognised or upheld by the country’s current legal structure, it is a relatively laborious process. The legislature has jeopardised core principles of mediation, such as party autonomy and voluntariness, by promoting predominantly involuntary forms of it.

Additionally, the fact that mediation settlements are not recognised discourages parties who might otherwise choose mediation. In this article, the author examines the current mediation practice in India in the context of the core principles of mediation as they are taught and applied globally.

Indian mediation practice: an ineffective system?

Theoretically, participants in a dispute engage in mediation as a process of consensual dispute settlement. To resolve the issue in a way that is acceptable to both parties, this process primarily entails a talk between the parties who started the dispute and a mediator who acts as a neutral third party. Any agreement reached in this regard constitutes a legal contract between the parties.

To promote mediation as a practical and effective alternative to traditional dispute resolution through the courts, there has been a steady increase in the number of Alternative Dispute Resolution institutes operating in India. These institutes offer training sessions, public awareness campaigns, and mock mediation competitions for law school students, legal professionals, and members of the general public.

However, the practice of mediation in India differs significantly from the mediation theory. Only when the fundamental tenets of mediation as it is theoretically taught are upheld can it be used as an effective and efficient form of ADR. Due to the fact that the core concepts of mediation are not recognised or upheld by the country’s current legal structure, it is a relatively laborious process.

The legislature has jeopardised core principles of mediation, such as party autonomy and voluntariness, by promoting predominantly involuntary forms of it. For parties selecting mediation to experience the benefits of the process as envisioned in theory, it is essential that these fundamental mediation principles be upheld.

In this article, the author examines the current mediation practice in India in the context of the core principles of mediation as they are taught and applied globally. The author also considers the potential development of mediation practice in India in light of India’s recent ratification of the Singapore Mediation Convention.

Indian ancient mediation

The non-adversarial dispute settlement procedures are not new to Indian society; scholar Yajnavalkya established the KULA tribunal, which dealt with conflicts between communities, family members, tribes, etc. During the reign of Yajnavalkya, trade, and commerce grew incredibly, which prompted the creation of tribunals like SHRENI and PUGA. Cases were decided with fairness, equity, and a clear conscience in accordance with customs and usage.

Parashar, a different scholar, proposed that the Parishad, an assembly of learned people, should resolve some disputes. The contemporary legal framework for settling disputes involving marriage conflicts or those involving businesses and merchant associations has its roots in Indian customary law.

“Meditation produces insight, lack of meditation leaves ignorance,” the Buddha said. Choose what leads to wisdom by being aware of what moves you ahead and what holds you back.

The informal institutions of decision-making evolved with society and gave rise to the official legal system, but the idea of mediation has remained relevant in today’s society. Instead, a system of conflict resolution like mediation that could preserve peace and harmony in society is urgently needed.

Current Indian jurisprudence on mediation

There are numerous ADR laws that contain a variety of methods where the parties can refer to settle their disputes without going to court. For instance, the court may specify the parameters of settlement under section 89 of the Code of Civil Procedure and submit them to Lok Adalat, arbitration, conciliation, mediation, or judicial settlement.

A standard statute was passed in 1996 for arbitration and conciliation. Under the Legal Services Authority Act of 1987, a Lok Adalat is established. However, there is no separate statute regarding mediation in India, which has made it unclear what the distinction is between the two.

Inferring that they are distinct processes is the fact that the terms were specified separately under section 89 of the Code of Civil Procedure (Amendment) Bill, 1997. However, the Law Commission of India’s 163rd report disapproved of the proposal for the law. Even then, the original text of section 89 was passed by the parliament.

However, several statutes encourage mandatory mediation before bringing a lawsuit, including the following:

• The Industrial Disputes Act,1947 (section 4)
• The Companies Act, 2013 (Section 4)
• The Micro, Small, and Medium Enterprises Development Act, 2016
• The Real Estate (Regulation and Development) Act, 2016
• The Consumer Protection Act, 2019

Nevertheless, the need for a stand-alone law still exists due to ambiguities in the definition of mediation, as stated in Paragraph 2.7 of Report No. 238 of The Law Commission of India: “There is practically no difference between conciliation and mediation, and the terms are frequently used interchangeably.” However, because Singaporean custom gives each phrase a different definition, they cannot be used interchangeably.

Fundamentals of mediation

• Voluntariness of Parties: Parties voluntarily agree to participate in the mediation process. The fact that mediation is a consensual process makes it unique as a method of resolving disputes. The fact that the process is voluntary demonstrates the parties’ commitment to working together and developing original, win-win solutions. In order to help one another comprehend the needs and interests guiding the session, it forces the participants to lay all their cards on the table, show trust in one another, and communicate openly. Efficiency results from such teamwork and understanding.
• Mediator, an impartial third party: The mediator’s job is to encourage communication between the willing parties. They must uphold confidentiality, and it is up to them whether to serve as a facilitator or an assessor. The choice of a mediator is entirely up to the parties.
• Parties have autonomy during mediation, which is a fluid procedure. The parties themselves retain the last say in any disagreements. Parties are under no obligation to come up with a solution or to come up with any solution at all within a set time frame. The decision to create a legally enforceable agreement is left up to the parties because the process is led by them. The parties genuinely abide by any agreements they may come up with at the end of the mediation process thanks to the freedom they enjoy while participating in it.

India’s current mediation practices

Although it may seem as though mediation has been receiving more and more legal acceptance in India, it is important to emphasise that practically all of this recognition falls short of the fundamental principles of mediation, making an otherwise successful practice ineffective.

India typically uses judicial recommendations or statutory mandates to refer cases to mediation. Private voluntary mediations are a different type of mediation activity, and the settlements from these mediations are not yet recognised by the law.

Practices of involuntary mediation

Court-referred mediations (Section 89, Code of Civil Procedure, 1908)

When courts order parties to civil disputes to examine potential conditions of settlement through mediation, these mediations take place. Such recommendations are more frequently made by courts in cases of interpersonal or minor civil conflicts. The 129th Law Commission of India Report suggests that courts compulsorily send cases to mediation.

The parties are then obligated to participate in mediation with the assistance of a mediator who has been designated by the court. The parties are essentially sent back to court to continue their fight if the process fails.

Statutory mandate

The second type of mediation practice in India is mandated by statute, which calls for mandatory mediation to be initiated before litigants approach the courts. These orders typically come with prescriptions stipulating that parties must draught a settlement within a certain amount of time or else they may start legal action. For non-urgent commercial cases, pre-institution mediation is required per Section 12A of the Commercial Courts Act, 2015.

The creation of an agreement, or mediation settlement, follows the achievement of either of the aforementioned steps.

These mediation techniques, as they are used in India, may not be very effective. The system will always fail if parties are compelled into participating in a process that has voluntariness as its central tenet through court order or statutory compulsion. There is no free exchange of information when unwilling parties are forced to sit next to one another.

Between the parties, there is no trust, and there is no hope of finding a solution. Such parties are frequently so unwilling to communicate that the only reason they attend a mediation session at all is to comply with a legal requirement as a mere procedural formality. Such mediations worsen the mental anguish of the contending parties and have no chance of success.

Additionally, parties that are subjected to such forced mediation have little to no choice in the mediator. The mediation session will be unsuccessful if the parties do not feel at ease or get along with the mediator. Additionally, seeing hesitant parties show up for mediation on a regular basis may serve as a major demotivator for court-appointed mediators.

The same could result in mediators losing interest, becoming drowsy, or losing faith in the mediation process, despite it being their primary responsibility to lead it, foster confidence in it, and highlight its advantages.

Practices of private voluntary mediation

These mediations, which are less frequently used in India but are theoretically similar to what we are taught, involve parties who mutually agree to resolve their disagreements. The choice of the mediator is left up to the parties as well. Although this form preserves all of the core principles of mediation, it is less commonly used because neither the practice nor the agreements reached the conclusion of such mediation are recognised by the law.

The parties who mediate must then go through the trouble of having the agreements documented as compromise decrees or awards before courts if mediation settlements are not recognised. In contrast to the ease and comfort that mediation is supposed to bring, such an added load merely serves to discourage people from choosing mediation at all.

The Singapore mediation convention: a glimmer of hope

In Krishna Murthy v. New India Assurance Co. Ltd., the Supreme Court of India emphasised the requirement for a separate law governing the practice of mediation in India. In addition, India joined the list of nations that have ratified The United Nations Convention on International Settlement Agreements Resulting from Mediation (also known as the Singapore Mediation Convention) as of August 1, 2019.

It can be anticipated that India will soon introduce a comprehensive legislative framework that recognises private voluntary mediations and mediation settlements reached in regard to domestic as well as cross-border mediations, based on the model laws prescribed under the convention, in order to ensure effective implementation of the same.

Implementing legislative changes that only address and acknowledge all varieties of mediation practice will instill public confidence in the procedure. Given this confidence and advantages including cost and time effectiveness, usability, and accessibility, mediation is likely to gain popularity as a method of resolving disputes in the near future.

People are more than encouraged to choose this method by the freedom of the mediator, the freedom to mediate or not, and the reliability of any mediation agreements obtained.

Will India be a good mediator?

For a variety of recent reasons, India can be crucial in the Palestine-Israel dispute.

For decades, the US and Russia have attempted to negotiate a peace agreement without success. Since the US openly supports Israel and routinely vetoes any resolution denouncing Israeli forces’ activities at the UN, the US is not respected by the Arab countries.

The United States has vetoed all of the UN resolutions that have been brought against Israel, which has resulted in a deadlock.

India, on the other hand, will probably be seen as impartial and independent given its history of friendship and cooperation with Palestine and its close military connections to Israel.

As a result, according to experts, the nation might be considered a legitimate entity to serve as a mediator between the two archrivals.

India also has a de-hyphenation policy with Israel, which means that its relationship with the Jewish state is separate from its contacts with other nations.

India enjoys cordial ties with Iran, another independent nation that has long supported Hamas and has been a strong ally of the group.

According to experts, India stands to benefit significantly from the successful resolution of the world’s most pressing problem. The nation’s prominence at international forums will improve, and its standing in world politics will experience an unprecedented surge.

It goes without saying that a stable Middle East will contribute to the growth of the Indian economy by facilitating the movement of oil and other products across the seas and by fostering a secure environment for the millions of Indians who work there.

Conclusion

The practice of mediation in India differs significantly from mediation as it is theoretically taught. Only when the fundamental tenets of mediation as it is theoretically taught are upheld can it be used as an effective and efficient form of ADR. Due to the fact that the core concepts of mediation are not recognised or upheld by the country’s current legal structure, it is a relatively laborious process.

The legislature has jeopardised core principles of mediation, such as party autonomy and voluntariness, by promoting predominantly involuntary forms of it. Additionally, the fact that mediation settlements are not recognised discourages parties who might otherwise choose mediation.

The current legal structure for mediation in India only supports methods of mediation that are forced onto parties, which negates the purpose of mediation and renders it ineffective. Private mediation will continue to resemble an unknotted air balloon until and unless India discovers a permanent solution to starting and enforcing private mediation settlement agreements. Despite efforts to highlight the “pros” of the procedure, the one significant “con” will deter users and attorneys.

The first of many positive moves towards making mediation a major component in India’s conflict resolution system may be observed in India’s signing of the Singapore Mediation Convention. Furthermore, online dispute resolution procedures have significantly increased in popularity as a result of the ongoing COVID-19 pandemic. Even with the world at a standstill due to the epidemic, internet mediation is one of the simplest and most practical ways to settle disagreements.

Most legal issues resulting from a pandemic are caused, by far and away, by breaches of contract. By mediating such disagreements, parties can avoid waiting for their case to be listed as well as maintain continued business relationships. The upcoming implementation of separate mediation laws has not only expanded the practice’s potential and assured its survival, but it is also unquestionably necessary.

This article has been submitted by Sophia Satapathy, a student at Lloyd Law College.