I shall not mince words. In 1996, the word ‘mediation’ appeared in Indian statutory law for the first time. Cut to 2017, we are still waxing eloquent as to mediation being a ‘new’ alternative dispute resolution (ADR) mechanism, and yet, it has not really picked up in India. With a narrative building up over the years, that there is not much awareness about mediation, and therefore it has not struck a chord with many Indian users.
In a series of pieces, I intend to pose some difficult questions and explore possible answers. I hope that during the course of The Global Pound Conference (GPC) Series 2016-17, Chandigarh, these questions will either lose their bite, or, better answers are provided. I believe that this exercise would go a long way to identify why mediation has not become more popular in India. Moreover, I am quite hopeful that it will also enable us to formulate a strategy to give an impetus to mediation in India.
The questions are:
- Would it be beneficial to categorise mediation as an ADR mechanism?
- Does Indian law (statutory and case law) differentiate between conciliation and mediation?
- If the second question is answered in the affirmative, then, what is the legal framework which applies to mediation in India?
- What is the stand taken by India before United Nations Commission on International Trade Law (UNCITRAL), in relation to mediation?
- What is the legal framework which applies to private mediation in India?
1. Would it be beneficial to say that mediation is an ADR mechanism?
The question is not whether it would be correct to say that mediation is an ADR mechanism. The question is, would it be beneficial to say that mediation is an ADR mechanism. In my humble opinion, if we adopt a vanilla approach, mediation could fit into this category, as it is definitely an alternative to litigation. However, I believe that it is this resort to a vanilla approach which has been a disadvantage for mediation.
One of the main problems with identifying mediation as an ADR mechanism, is that adjudicative (decision based) processes like arbitration fall into the same category. Furthermore, negotiation, mediation, conciliation and arbitration are said in one breath; at least in India, as much as these non-adjudicative (settlement based) processes greatly differ from arbitration. I believe that it would be in the benefit of mediation that it is rescued from human factors and cognitive bias, and hence, we must airlift mediation out of the fold of ADR mechanisms and give mediation asylum.
Why human factors?
We trolled Snapdeal instead of Snapchat. We have confused Sonu Sood instead of Sonu Nigam. We are quite capable of creating a Burj Khalifa – Mia Khalifa fiasco too. Despite all awareness measures, users tend to get confused between arbitration and mediation, merely because they are ADR mechanisms. I say so unabashedly, because, even when the writing on the door is “PULL”, we tend to push the door, not out of curiosity, but out of habit. So, awareness measures do not take us a long way.
Why cognitive bias?
Arbitration has not really left a very good taste in the mouth of its users. As ADR mechanisms, there is a user perception that like arbitration, mediation is also a failure in the making. Human factors add to cognitive bias.
ADR mechanisms can either be adjudicative (arbitration) or non-adjudicative/consensual (negotiation, mediation and conciliation). It is this dichotomy which calls for isolation of arbitration from other ADR mechanisms.
If it is not beneficial to call mediation an ADR mechanism, then what should we call it?
In order to answer this question, let us examine the basics. Litigation and ADR mechanisms come within the fold of dispute resolution mechanisms. Litigation takes place in a court of law, and the parties neither have any control over the court of law nor over the proceedings. Needless to say, the parties have no say in the decision which is pronounced by the court of law.
While arbitration is an adjudicative process much like litigation, the arbitrator/arbitral tribunal is created by the parties and the procedure is decided by the parties. Subsequent to appointment and deciding the procedure, the parties neither have any control over the arbitrator/arbitral tribunal nor over the proceedings. Needless to say, the parties have no say in the decision or award rendered by the arbitrator/arbitral tribunal.
Pertinently, mediation is diametrically opposite to arbitration, in the sense that it is non-adjudicative. In fact, mediation is far more democratic and consensual as compared to litigation and arbitration, which in my view is nothing but private litigation.
A need for new terminology?
In sum and substance, mediation is radically different from litigation and arbitration, and hence, it would be in the benefit of mediation to call it a ‘consensual dispute resolution’ (CDR) mechanism. What is good for mediation is good for negotiation and conciliation too. Thus, negotiation, mediation and conciliation should be called CDR mechanisms. I hope that isolation of arbitration as an ADR mechanism from negotiation, mediation and conciliation which are CDR mechanisms shall play a pivotal role in making not just mediation, but also negotiation and conciliation, more acceptable.
Another prevalent narrative is that in India, mediation and conciliation are one and the same. The said narrative has been built, probably in a bid to make the outcome of a mediation enforceable as though it is a settlement agreement (which is the outcome of a conciliation). However, the said narrative has put the cart before the horse. But setting that aside, does Indian law (statutory and judge made) differentiate between conciliation and mediation? I shall be exploring the answer to the said question in the next piece.
Written by Arjun Natarajan.
Arjun Natarajan is a Delhi/NCR based commercial litigator and an accredited/certified mediator.