What Is Holding Back Mediation In India?

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:

  1. Would it be beneficial to categorise mediation as an ADR mechanism?
  1. Does Indian law (statutory and case law) differentiate between conciliation and mediation?
  1. If the second question is answered in the affirmative, then, what is the legal framework which applies to mediation in India?
  1. What is the stand taken by India before United Nations Commission on International Trade Law (UNCITRAL), in relation to mediation?
  1. 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