Reintroducing Mediation To Millennial India

India is party to the historic signing of the Singapore Convention on Mediation, which could translate into business for mediation stakeholders. However, for mediation to flourish into the future, mediation practitioners and lawmakers in India need to rethink the nation’s policies and strategies in promoting mediation to a generation of millennials.

Despite the formation of numerous Indian mediation organisations and associations over the last decade, the practice of mediation has not yet succeeded in relieving the stranglehold of litigation. At conferences and seminars, we continually hear about the positives that mediation has over adversarial forms of dispute resolution, and yet, there are still 33 million cases pending in our courts, with close to 800k new cases listed every day. Somewhere, something isn’t working out for mediation in India.

I believe the problem lies in how the legal fraternity has approached and introduced mediation as a tool of dispute resolution to the common folk of the country. For most citizens of India, mediation is a free pro-bono service provided by the courts, to settle disputes that the courts discard as trivial or troublesome. The word is often substituted for a “compromise” or a “non-binding contract”, where a mediator is looked upon as a social worker or counsellor. Some educated professionals even consider mediation to be an “illegal, under-the-table, deal-making process”. These are a few examples of the misconceptions surrounding mediation that has stunted its growth in India.

For private mediation, be it commercial or otherwise, to evolve into a financially viable career option in India, the practice needs a fresh, frank and fearless approach. I propose a blueprint of ReStructuring the business of mediation in India. In the post-Singapore Convention era, there is an urgent need to ReSearch, ReDraft, ReBrand, ReMarket, RePackage and ReDistribute, before ReIntroducing mediation to millennial India.

ReDrafting

Mediation has been underway in India for decades, having first received legal recognition under Section 4 of the 1947 Industrial Disputes Act. Incidentally, mediation’s identity crisis also began with this legislation, with the statute dictating that “conciliators” appointed under this legislation are “charged with the duty of mediating in and promoting the settlement of industrial disputes”. Mediation was made to share its core identity with a distinctly different style of collaborative dispute resolution—conciliation. Since then, the word ‘mediation’ is often reduced to a verb in the context of the conciliation process, with the terms ‘mediation’ and ‘conciliation’ used interchangeably, leading to misunderstandings among users about their expectations—and misinterpretations among practitioners about their practice.

In 1996, fortunately, an amendment to Section 89 of the Civil Procedure Code (CPC) in India, clearly distinguished the processes of mediation and conciliation as alternate forms of dispute resolution. It stated that mediation is a facilitative process, while conciliation follows an evaluative and suggestive style. Section 89 of the CPC, however, would work as a legal guideline for only court-referred mediations, while private mediations were left to the mercy of the Arbitration and Conciliation Act of India,1996.

Currently, unlike a successful private conciliation, where a signed agreement has a standing similar to that of an arbitration award, a settlement agreement arising out of a private mediation in India remains a mere contract between two disputing parties. A breach of the settlement agreement in private mediation cannot be resolved through a simple enforcement petition in the court of law (which is the case for private conciliation), but has to be dragged back to the corridors of the court, and initiated as a case of litigation. If Indian law (CPC s89) clearly defines the difference between mediation and conciliation as simply a matter of the neutral’s style, then why does one process enjoy the security cover of a quick enforcement and the other does not? The unspoken truth is that the lack of a simple and straightforward mechanism of enforcing a private mediation settleme