Mediation has deep roots in India. Evidence of mediation is found in ancient Sanskrit epics. Over the past 2,000-plus years, community disputes within the sub-continent have traditionally been mediated by local village elders. See “Journal of Legal Studies and Research” [Vol. 2 Issue 5] ISSN 2455-2437 “Dispute Resolution in Rural India: An Overview,” Laju P. Thomas. With deference to this history, India, on Sept. 14, 2023, through an Act of Parliament and assent of the president, authorized “the Mediation Act, 2023” (the act). See India’s MediationAct2023.pdf (legalaffairs.gov.in). The stated goals of the act include:
“Developing India to be a robust centre for domestic and international mediation…to promote and facilitate mediation, especially institutional mediation…to provide for a body for registration of mediators, to encourage community mediation and to make online mediation an acceptable and cost effective process.”
Considering these ambitious goals, the act is a significant development in the field of alternative dispute resolution (ADR) in and outside of India.
The act applies to one-sixth of the world population and businesses operating in India The act is noteworthy as it “shall extend to the whole of India” (see the act at Chapter I Section 1(2)) and its 1.4 billion people (see Population Clock: World (census.gov)). The act applies to virtually all civil disputes (with specific exceptions) including those involving parties with a principal place of business outside of, but with operations within, India. Further, the act is intended to mitigate India’s formidable litigation backlog (see India has court backlog of 40 million cases, chief justice says | Reuters 04/30/22). India is recognized as an emerging economic power predicted to exceed the United States in buying power by 30% in 2050 and is expected to be the world’s second-largest economy by 2075 (see The Harvard Business Review, Bhaskar Chakravorti and Gaurav Dalmia, “Is India the World’s Next Great Economic Power?” (hbr.org) 09/06/23).
Disputants, domestic and foreign, will welcome the efficiency that mediation offers as compared to traditional litigation. Attorneys representing parties which do (or will do) business are urged to look closely at the act.
Mandatory v. Voluntary Mediation
When originally introduced, the proposed act included a requirement of mandatory pre-litigation mediation regardless of the existence or absence of a prior agreement for pre-suit mediation. See India Mediation Bill, 2021. After public criticism stemming from encroachment on the core mediation principles of consent, voluntary involvement and self-determination, the dictate to compel mediation was removed. The debate, however, raised interesting arguments for mandatory mediation.
Specifically, these include the assertion that mandatory mediation would result in the mediation of more disputes; thus, reducing judicial burden. It was argued that mandatory mediation does not force parties to settle but encourages consensual resolution before judicial process is initiated thereby protecting participant autonomy and self-determination. Mandatory mediation, it was suggested, would increase public awareness of the choice that mediation presents and result in creating a culture favoring amicable resolution of disputes as opposed to the adversary process. Nevertheless, as passed, the act does not have a mandatory provision, but given its lofty goals and stressed legal system, it is likely that litigants will be strongly encouraged to utilize mediation by the judiciary.
The Mediation Council of India, the Professionalization of Mediators and Emphasis on ‘Institutional Mediation’
The act provides for the creation of an infrastructure to encourage mediation and establishes the centralized “Mediation Council of India” charged with, inter alia, registering mediators, creating mediator standards of professional and ethical conduct for mediators, approving “mediation service providers” and “hold training, workshops and courses in the area of mediation”. To date, the Mediation Council members have not been appointed and specific standards have not been established.
Once in place, mediators practicing in India will be registered professionals with standardized criteria of practice with specific ethical guidelines. The act affirms ethical principles familiar to well-trained mediators such as required disclosure of conflicts of interest, mediator independence, mediator competence, mediator impartiality, confidentiality, process integrity, and party self-determination. Largely, these values are contained in the Model Standards of Conduct for Mediators adopted by the American Bar Association (ABA), the American Arbitration Association (AAA) and the Association for Conflict Resolution (ACR) in 2005 (see model_standards_conduct_2005.pdf).
The Mediation Council of India will provide disputants with confidence that mediators will be independent, well-trained and regulated. In addition to supplying ethical and professional guidance, the Mediation Council of India will register and oversee, not only, individual mediators but also of “mediation service providers”—organizations that employ and “accredit” mediators. By emphasizing institutional mediation, the Mediation Act creates an added level of trust for disputants, who rely on well-trained mediators.
In homage to India’s long history of relying on village elders to facilitate local dispute resolution, the act provides a parallel framework for “community mediation” applicable to a “dispute likely to affect peace, harmony and tranquility amongst the residents of families of any area or locality.” “Community mediators,” as defined by the act, are individuals either identified as part of a “permanent panel of community mediators” created by local judiciary or:
- a “person of standing and integrity who is respectable in the community;”
- “any local person whose contribution to the society has been recognized;”
- a “representative of area or resident welfare association;”
- a “person having experience in the field of mediation” and
- anyone “deemed appropriate.”
We have long recognized that community disputes differ from commercial and personal injury matters. In his seminal article “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (Harvard Negotiation Law Review Spring 1996), Leonard Riskin examined mediator styles in relation to the “problem” defined as “narrow” (a one-time litigated dispute) or “broad” (a public policy issue) or somewhere in between (such as a business dispute where the parties have an interest in an on-going relationship). The “Riskin Grid” creates four sectors (“narrow evaluative,” narrow facilitative,” “broad evaluative” and “broad facilitative) and is used by mediators to identify and refine styles, and by parties to find a suitable third party and to design the mediation process.
Legitimacy of Online Mediation
Most mediators in the post-COVID age have used videoconferencing to conduct proceedings and recognize that on-line mediation is cost-effective, efficient and useful. The act places the specifically legitimizes its use. The Mediation Council of India will set forth clear guidelines for such process.
The wide-ranging infrastructure envisioned by the Mediation Act, 2023 supplies an excellent opportunity for legal systems worldwide to explore ways to make mediation more accessible and trustworthy and presents ADR with much to consider. The field has seen breakthroughs with attendant high hopes. These include, inter alia, the 1981 publication of “Getting to Yes” by Roger Fisher and William Ury, which has become a staple for law school curricula, the “Riskin Grid” (1996), and endorsement of the 2005 Model Standards of Conduct for Mediators by the AAA, ABA and ACR. Unfortunately, now, almost 20 years later, these standards have not been implemented uniformly in the United States (or even across Pennsylvania) and mediation has not become widespread. The Mediation Act joins this lineage and raises interesting questions for the future of mediation that deserve further scrutiny. These include:
- Should mediators be recognized as distinct professionals with field specific standards for practice, training and ethics?
- Should mediators be registered?
- Should pre-litigation mediation be mandatory?
- Should “community” mediation be considered separately from tort/commercial mediation?
As the number of mediators increases, public perception of the value of alternative dispute resolution grows and mediation techniques evolve, these and other issues will become more important.
Reprinted with permission from the January 8th, 2024 edition of the The Legal Intelligencer © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.