Comparative Analysis of Mediation Laws in India and other countries

By Ananya Singh

INTRODUCTION: OVERVIEW OF MEDIATION

Disputes are a part of everyone’s life. Disputes are inevitable and are sure to arise in any personal or
commercial association. Every dispute has three aspects, namely: people, process, and problem.
There is nothing wrong with having a dispute but what is important, is how the parties handle that
dispute. There could be two modes of addressing a dispute: adversarial like litigation and arbitration
and non-adversarial like mediation and conciliation.1 Mediation as an alternative to self-help or formal
adversarial procedures is not entirely new. In an effort to capture the essence of mediation and
highlight distinctions between it and other forms, various research defines mediation in a restricted
way. However, other researchers provide a very accurate definition in which they state that they
prefer to approach mediation behaviourally. One such definition is, “it is a process of conflict
management where disputants seek the assistance of or accept an offer of help from, an individual,
group, state or organization to settle their conflict or resolve their differences without resorting to
physical force or invoking the authority of the law.”2
Even though a third party is involved in this process, it is not the same as arbitration, conciliation, or
negotiation. It differs from arbitration as the parties to an arbitration agreement designate a neutral
third party or parties to make a binding decision about the issues at hand. The adjudicatory procedure
utilized in arbitration is normally less formal than the one used in court and is carried out in private.
Arbitration is similar to the judicial procedure in terms of informality and privacy, with the exception
that the "judge" is decided upon or agreed upon by the parties and receives authority from the
agreement to arbitrate. The parties in mediation can choose the mediator, but they do not give the
mediator the authority to decide on their behalf.3 Further, despite having certain aspects
of negotiation, mediation is not the same as conventional negotiation. Although there is no pre-
established framework for negotiation, it can be pursued by lawyers and is typically used to help
resolve disputes. Private negotiation typically relies on an adversary model and does not involve a
neutral resource person. If mediation is ineffective, private negotiation may come before, follow, or
take place simultaneously. Lastly, contrary to popular belief, mediation is not the same as conciliation.
By evaluating their historical evolution and use, mediation and conciliation can be differentiated from
one another.4 Other than that there also lies a procedural difference between the two, a planned

1
Geetanjali Sethi, India: Mediation : Current Jurisprudence And The Path Ahead, MONDAQ, (9 Nov. 2022,
1:24PM), https://www.mondaq.com/india/arbitration-dispute-resolution/957898/mediation-current-jurisprudence-and-the-path-
ahead.

2
Boulle L, Mediation: Principles, Process, Practice, Butterworths, Sydney, 1996 at 52.

3
Jay Folberg, A Mediation Overview: History and Dimensions of Practice, 1983 MEDIATION Q. 3 (1983).

4
Id.
negotiation process is mediation. In mediation, the parties control the outcome while the mediator
controls the process through a number of distinct stages, including introduction, joint session, caucus,
and agreement. On the other hand, the conciliator might not adhere to a set procedure. The process
of conciliation may be carried out as a conventional negotiation, which can take various forms. The
distinctions between conciliation and mediation are essentially of degree rather than kind. In practice,
conciliation eventually shades into mediation.
While the process of mediation is similar in all jurisdictions, there will be differences from country to
country. In this research paper, we look at the general features of mediation in three offshore dispute
forums, India, the United States, and the European Union.

MEDIATION IN INDIA

At present, mediation in India can be initiated in three ways – first, by providing for it in a dispute
resolution clause in contracts and resorting to it either through institutional or ad-hoc mediation;
second, by way of reference by the court under Section 89 of Code of Civil Procedure, 1908 (‘CPC’)
or under special legislations such as Section 37 of Consumer Protection Act, 2019 after the case is
filed in courts; and third, mandatory pre-litigation mediation as provided under Section 12A of
Commercial Courts Act.5

Unlike arbitration and conciliation, there is no overarching law in the nation that governs mediation. By
including ADR in the civil procedure, Section 89 of the CPC, 1908 was a significant step toward
institutionalising ADR. Where it appears to the court that there exist elements of a settlement which
may be acceptable to the parties, this provision gives civil courts the authority to submit civil disputes
to mediation. Salem Advocate Bar Association6 and Afcons Infrastructure Ltd. and Ors.7 are the two
significant cases through which mediation in India received an impetus. Through the Salem Advocate
Bar Association case, the Apex Court established a Committee to facilitate improved Section 89
implementation by guaranteeing speedier administration of justice. The Model Rules, 2003 were
written by this Committee and has been used as a guide by several High Courts to create their own
mediation regulations.8 Additionally, in the landmark case of Afcons Infrastructure Ltd. and Ors., when
analysing Section 89 of the CPC, 1908, the Apex Court determined that taking into account the
general language of Rule 1A of Order 10 of the CPC, the civil court should always refer matters to the
ADR procedure, except in certain recognised excluded categories of cases. It continued by stating
that the court must quickly document the grounds for not using any of the settlement procedures

*Ananya Singh, Jindal Global Law School, Third Year Law Student
5
Deepika Kinhal & Apoorva, Mandatory Mediation in India - Resolving to Resolve, Indian Public Policy Review 2020, 2(2): 49-
69.

6
Salem Advocate Bar Association v. Union of India (AIR 2005 (SC) 3353).

7
Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co. (P) Ltd. and Ors. (MANU/SC/0525/2010),

8
Supra Note. 6.
outlined in Section 89 when the matter is not appropriate for reference to any of the ADR processes.
Therefore, pursuant to Section 89, a hearing shall be held following the filing of the pleadings to
consider recourse to an ADR process, but actual reference to an ADR process shall not be required in
every instance.9

Looking at these judgments, one will presume that the higher judiciary is generally in favour of
mediation and is eager to encourage all appropriate disputes to be handled through mediation rather
than adding to the court's workload. However, in practice, Section 89 of the CPC and the
aforementioned judicial declarations have not had the expected effect since the district justice judges,
who are entitled under Section 89 to send situations to mediation lack proper training, along with
which there are a number of structural problems that have impeded the adoption of mediation.
Additionally, because legal proceedings in Indian courts have a reputation for being lengthy, difficult,
and expensive, the judicial system becomes ineffectual and leads to a need for a more speedy and
inexpensive dispute resolution that is not being met by conventionally available legal services.

MEDIATION IN THE UNITED STATES OF AMERICA

Forms of mediation can be found in the earliest records of the United States, extending back to Native
American dispute resolution practices. The early settlers from England brought the idea of court-
sponsored mediation. In due of the disruption caused by labour disputes, mediation became more
popular in the early 20th century. The early 1980s and late 1970s saw the first attempts at mediation-
related legislation. And today, it is frequently used in civil and administrative agency cases.10 Here,
there exists a strong public policy that supports ADR techniques, including mediation. Despite being
well-known for its propensity for litigation, the United States has one of the most sophisticated and
effective systems in the world for resolving conflicts through procedures such as mediation and
arbitration. The public policy of reducing the burden of the courts and the significant costs associated
with the expansion of the court system are two very important factors in the adoption of such
mediation programs.

By the mid-1980s, lawyers and State Bar Associations had professionalized mediation in the US, by
developing mediator training standards, providing lawyer training in mediation and prescribing ethical
standards for lawyers when acting as mediators and when acting as advocates in mediation.
Accordingly, prepared lawyer mediators made mediation a generous piece of their law practice. By
reacting decidedly and determinedly to consolidate mediation as a greeting and helpful ADR
apparatus in the American lawful framework, lawyers have not lost business to mediation, however,
have rather become tucked away as mediators and as the guards for mediation in the US lawful

9
Supra Note. 7.

10
Polsinelli PC, Mediation in USA, LEXOLOGY (Nov.9 ,2022, 8:10PM),
https://www.lexology.com/library/detail.aspx?g=1afc5951-1db6-4f91-8e3b-500022484dbd.
frameworks. Currently, mediation has gradually become the primary ADR model used by the courts.
Many US federal agencies have expanded ADR use, appointed dispute resolution specialists, and
settled government contract disputes as well as workplace and labour management disputes. These
include the US Postal Service, the Air Force, the United States Information Agency, and the
Department of Veteran Affairs.11

The United Nations General Assembly adopted the United Nations Convention on International
Settlement Agreements Resulting from Mediation (the Convention) on 20 December 2018. The
Convention is an important step towards ensuring an efficient and harmonised framework for cross-
border enforcement of settlement agreements resulting from mediation.12 In addition, there are
numerous professional organisations in the US for mediators. American Arbitration Association,
Federal Mediation and Conciliation Service, Nation Mediation Board, Civil Mediation Council,
Chartered Institute of Arbitrators, US Institute of Peace, United Nations Department of Political Affairs,
and Judicial Arbitration and Mediation Services are a few of these organisations. For candidates
interested in a profession in mediation, each state has established its own standards and
requirements. A mediator can also work privately in any state without a licence, certification, or listing.
Through initiatives like the National Association of Certified Mediators, accreditation as a mediator
can now be attained online. As a result, anyone with a high school graduation who successfully
completes a mediation course can pursue a career in mediation. In addition, there are some
mediators who are chosen by the courts who have to meet greater qualifications in order to practice
mediation. A JD from an authorised law school and passing their state's bar test are prerequisites in
some states for mediator applicants. Others accept mediators who have degrees in their field of
expertise, such as mediators pursuing a career in family mediation who has a master's degree in
social work. Different states demand that court-appointed mediators take continuing professional
development courses. States have also put in place court rulings or case law giving mediators
immunity. The majority of civil liability for misconduct committed during a mediation procedure is
shielded from mediators by this immunity. As an illustration, the Southern District of Indiana
Alternative Dispute Resolution Rule 1.3 states that each Mediator "shall have immunity in the
performance of his or her duties under this Rule, to the extent permitted by applicable law, in the
same manner, and to the same extent as would a duly appointed Judge." Additionally, mediator rights
are permitted under a number of state mediation acts and court regulations. Depending on the
jurisdiction, the privilege's scope varies.13 We can therefore conclude with certainty that the United
States has a solid mediation system that meets the needs of its citizens.

11
Riyanka Roy, Mediation Tradition in Asia and Legal Framework in India, china and other Asian xounteries in comparison with
US and EU Legal regulations, RESEARCHGATE (Nov. 9, 2022, 8:30PM),
https://www.researchgate.net/publication/311900251_MEDIATION_TRADITION_IN_ASIA_AND_LEGAL_FRAMEWORK_IN_I
NDIA_CHINA_AND_OTHER_ASIAN_COUNTRIES_IN_COMPARISON_WITH_US_AND_EU_LEGAL_REGULATIONS_RIYA
NKA_ROY_CHOUDHURY_NAMAN_KAMDAR.

12
Supra Note. 10

13
Supra Note. 10.
MEDIATION IN EUROPEAN UNION

The European Union (EU) has purposefully promoted mediation and other ADR techniques during the
past two decades in order to improve citizen’s access to justice. It has intensified this effort,
particularly over the past ten years. Mediation has been positioned at the forefront of EU policy on
improving access to justice and effective dispute settlement among the range of ADR methods that
are now accessible. The shift toward mediation reflects the growing tendency in the EU and the
dominant position that mediation now holds within the broad ADR spectrum.14

In order to help EU Member States create legislation governing mediation in civil and business
disputes, the European Union (the "EU") issued Directive 2008/52 (the "Mediation Directive") in 2008.
The Directive establishes a uniform set of guidelines to control mediation practice throughout the EU,
enhancing the legality and respectability of mediation as a method for resolving disputes. The EU has
pushed for a strong institutional framework to govern mediation practice across the EU by including
mediation in the Directive, which is quite a big development given the difficulties in navigating the
various national laws, languages, and cultures. The Directive’s declared objectives were to promote
mediation use and foster a harmonious coexistence of mediation and legal proceedings (Article 1). It
establishes a uniform set of guidelines for mediation practice throughout the European Union, and
according to Article 1 of the Directive, it only applies to cross-border civil and commercial
proceedings. Furthermore, according to Article 1.2, it shall not apply to matters relating to tax,
customs, or administration, nor shall it apply to the State's liability for actions and inactions taken in
the execution of its official duties. In order for the Member States to implement mediation law in their
own national legal systems, the Mediation Directive specifies the minimum regulatory standards.
Further, as long as the parties' rights to access justice were not violated, Member States are free to
make mediation necessary under Article 5.2 of the Mediation Directive.15

The main issue that proponents of mediation in the EU are dealing with is, among other things,
introducing uniformity to mediation norms and practices in cross-border disputes. The Directive is
silent at this time about the mediator's credentials. The Directive does not address mediation
qualification requirements, training, etc. Right now, anyone can declare themselves to be a mediator.
The development of the mediation profession is being hampered by the absence of mediation
regulation in certain countries. The protocol for intercultural competency, which mediation specialists
need to arbitrate across many legal jurisdictions has been produced by some institutions, including
the International Mediation Institute (private, based in the Netherlands). However, the EU has not yet
made any significant progress on this urgent issue, which has far-reaching ramifications for the
expansion and development of mediation in Europe. Building a set of ethical standards that all
member states can agree upon, developing a strong strategy for mediation education and awareness,

Ali Khaled Ali Qtaishat, European Union Directive on Mediation: Assessing the Developments and Challenges, EUROPEAN
14

JOURNAL OF SCIENTIFIC RESEARCH ISSN 1450-216X / 1450-202X Vol. 148 No 3 February 2018, pp. 386-393.

15
Supra Note. 5.
among other things, are other challenging topics within the EU mediation discourse. As of now, the
EU’s reactions have mostly focused on member states adherence to the 2008 Mediation Directive
rather than the more subtle aspects of mediation.16

CONCLUSION

Trends of growth definitely suggest and shed light on how mediation has become a more and more
common form of dispute settlement. According to the research that was conducted and the analysis of
the many mediation roots, legislative reforms are to thank for the origins of mediation in the United
States, the United Kingdom, and India. The mediation system in India is still expanding, and with the
passage of the Mediation Bill, 2021, one can only hope that it will continue to improve. In addition,
although American lawyers initially perceived mediation as a vulnerability and the fought it as an
unwelcome requirement inside the profession, over the past 20 years they have come to see
mediation as just another tool in their toolbox. Additionally, it is acknowledged in the European Union
that despite its obvious flaws, the Directive is a unique plan for bringing about a noticeable change in
the mindset of the excessively litigious society. This paper also demonstrates how, despite the fact
that the mediation procedure is generally the same, there are differences in how it is applied in
different nations.

16
Supra Note. 14.