Striking a Delicate Balance: Regulatory Dilemmas in Mediation

Introduction

While mediation as a mode of dispute resolution is not a recent innovation, finding its historical antecedents in the annals of antiquity,¹ the trajectory of its modern practice has undergone a swift metamorphosis. This evolution has been notably conspicuous in the nascent years of the twenty-first century. The contemporary lexicon of mediation now resonates with the procedural refinements and sophisticated methodologies, epitomising the dynamic fusion of ancient roots with our modern legal landscape.

The process of dispute resolution through mediation proffers an array of prospective advantages, particularly when considered as a prelude to conventional litigation. Indian courtrooms today are grappling with an overwhelming caseload, witnessing an estimated backlog of almost 4 crore cases.² Within this purview, the efficacy of mediation, when triumphantly realised, extends beyond mere cost-effectiveness, encapsulating an ethos of diminished adversarial contention as compared to its litigious counterpart.³ The mediation process has been eloquently characterised by certain scholars as emblematic of “human legal evolution”. This profound assertion underscores the transformative nature of mediation, wherein parties engage in a nuanced exploration of the underlying reasons precipitating the dispute. In doing so, not only does mediation facilitate an enlightened comprehension of the conflict’s nature, but it also endeavours to forge a pathway towards ameliorating future relations. Termed as the conflict theory,⁴ this paradigm posits that mediation not only elucidates the intricacies of the dispute’s genesis but, crucially, strives to fashion a resolution that is mutually advantageous. In certain instances, mediation goes beyond dispute resolution, catalysing the cultivation of enduring relations between the involved parties. Scholarly research substantiates the contention that settlements arising from the mediation milieu bear the potential for enduring success.⁵ This stems from the inherent design of mediation solutions, crafted to be flexible and to engender a heightened level of mutual satisfaction with outcomes. The pivotal distinction lies in the adaptability of these resolutions, a stark departure from the often rigid and impersonal verdicts imposed by litigations/judgments. When parties are able to actively participate in shaping the outcomes, it fosters sustained satisfaction and, by extension, enduring relationships.⁶

Mediation in India

In tracing the roots of dispute resolution in India, we are compelled to acknowledge the profound historical precedents that have shaped the essence of mediation, particularly within the cultural tapestry of villages. In these rustic settings, disputes eschewed the formalities of courts and found resolution through the institution of “panchayats”.⁷ These panchayats comprised of village elders, often revered as “Panch Parameswar”. These Village Panchayats were a paragon of community wisdom, wherein the five elders (Panchs) presided over civil, criminal, and familial disputes. This indigenous system not only bore witness to the successful resolution of multifaceted disputes but also operated autonomously from State authority and control. The very fabric of this system was interwoven with principles akin to the modern understanding of mediation — a voluntary, consensual process wherein parties entrust the resolution of their conflicts to individuals of their choice or private tribunals. This age-old practice, deeply ingrained in the ethos of ancient and medieval India, illuminates a long-standing recognition of the efficacy of private dispute-resolution mechanisms outside the purview of formal State institutions.⁸

However, its formal integration into the legal framework is relatively recent. The growing backlog of cases in Indian courts during the late 20th century brought renewed attention to alternative mechanisms of dispute resolution. The Legal Services Authorities Act, 1987⁹, promoted Lok Adalats, and the 1999 Amendment to the CPC introduced Section 89¹⁰, empowering courts to refer disputes to alternative dispute resolution (ADR) methods, including mediation. Despite its potential, the provision suffered from drafting ambiguities and procedural uncertainties, prompting judicial intervention. These concerns culminated in Salem Advocate Bar Assn. (II) v. Union of India¹¹, where the Supreme Court clarified the scope and application of Section 89. The Court clarified the procedural requirements of Section 89, emphasising that mediation must be a consensual process. While courts could recommend mediation, parties could not be compelled to participate without their consent. To enhance clarity, the Court distinguished mediation from other ADR mechanisms such as arbitration, conciliation, and judicial settlement. Confidentiality was also highlighted as a cornerstone of mediation, with the Court ruling that discussions during mediation could not be used in subsequent court proceedings. Further, the judgment stressed the need for skilled mediators and proposed the establishment of training programs and accreditation standards. A key directive was the creation of model mediation guidelines to assist High Courts in developing uniform rules.

The legislative journey of the Mediation Bill commenced with its introduction in the Rajya Sabha on 20-12-2021. Subsequently, the Bill underwent a thorough examination by the Parliamentary Standing Committee on Personnel, Public Grievances, Law, and Justice, chaired by Sh. Sushil Kumar Modi, which submitted a comprehensive report for further scrutiny. On 13-7-2022, the Committee presented its findings to the Chairperson of the Rajya Sabha, marking a significant milestone in the legislative process. The Mediation Bill navigated through the dual chambers of the Indian Parliament, securing approvals from both the Rajya Sabha and the Lok Sabha on 1-8-2023, and 7-8-2023, respectively.¹² Following these approvals, the Mediation Act of 2023 received the assent from the President of India¹³, culminating in its official publication in the Gazette of India on 15-9-2023. This formal proclamation marks the culmination of an extensive legislative journey, solidifying the Mediation Act, 2023 as a pivotal component of the Indian legal landscape.

This paper analyses and critiques the Mediation Act, 2023¹⁴. It argues for a tiered approach to regulation that protects the core principles of mediation, like confidentiality and flexibility, which are essential to its effectiveness and appeal. Excessive regulation in these areas risks undermining the very essence of the process, achieving the opposite of the Act’s goal: “to promote and facilitate mediation”.¹⁵ At the heart of this examination lies the delicate balance between regulation and the fundamental principles that underpin mediation. The paper in conclusion discusses the various stages of regulation that are found in most jurisdictions for mediation legislation and postulates a tiered approach to be implemented in India. This approach will enable the mediation landscape to be controlled and standardised while keeping mediation sessions themselves fluid and adaptable as needed, preserving this central characteristic of the process.

The art of regulation

In contemplating the regulatory landscape surrounding mediation, it is imperative to shed light on evolving perspectives that transcend traditional dichotomies of regulated and deregulated spaces.¹⁶ Rather than clinging to antiquated views rooted in outcome-focused statutory interventions, contemporary discussions on mediation regulation have shifted towards nuanced considerations of process, institutions, and diverse stakeholder engagement.¹⁷ Contrary to the notion that mediation exists in an unregulated void, the reality is far more complex. Spaces characterised as “deregulated” are not devoid of regulatory influences; instead, they signify a reduction or absence of specific regulatory elements, such as statutory laws.¹⁸ These seemingly deregulated domains often find themselves governed by alternative regulatory frameworks, encompassing industry codes of conduct, disciplinary mechanisms, and the subtleties of supply and demand dynamics. The ongoing discourse should be approached with a discerning perspective, steering clear of an absolutist stance. Instead of outrightly discarding the necessity for regulation, the crux of the matter lies in striking a judicious balance — a delicate equilibrium that not only recognises but also integrates the cultural and legal-political intricacies woven into the fabric of mediation processes, especially in India. While considerations related to who mediates, the enforcement of awards, and the integration of mediation within the broader legal framework are undeniably pivotal, it is imperative to underscore a fundamental tenet — the essence of the mediation process itself should not be subjected to overly stringent regulation. In navigating this delicate terrain, where regulatory measures are indispensable, a conscious effort must be made to safeguard the core principles that define mediation, such as confidentiality. The sanctity of the mediation space, characterised by its flexibility, informality, and the autonomy of parties, should be preserved.

Market-contract regulation in mediation

The market-contract regulation approach, deeply rooted in the principles of free markets and contract law, champions individual autonomy and emphasises freedom of choice and robust competition within the mediation landscape. The broad framework is as follows:

(i) Free market drives mediation: Anyone can offer services, influenced by supply/demand and contracts (like banks and franchises).

(ii) Quality through competition: Mediators with poor performance fade out, similar to “survival of the fittest”.

(iii) Informed choice and feedback: Access to information influences mediator selection, and repeat business incentivises quality, etc.¹⁹

Parties navigating mediation services operate within the contours of supply and demand laws and private contracts, cultivating an environment where reputations, repeated dealings, and personalised arrangements exert substantial regulatory influence.

However, a nuanced perspective is vital when evaluating this market-contract paradigm.

Self-regulation in mediation

In the realm of self-regulation, mediation unfolds through collective, community, and industry-led initiatives, embodying reflexive and responsive regulatory theories. These approaches facilitate collaboration between government entities and the regulated collective, allowing actors to identify issues, reflect upon them, and negotiate tailored solutions.²⁰ Distinct from top-down policy regulation, self-regulatory instruments, such as approval and practice standards, precedents, and model clauses, have played a pivotal role in shaping mediation practices globally. Australia’s National Mediator Accreditation System stands out as a noteworthy example of national self-regulation within the mediation industry.²¹

Formal legislative regulation in mediation

Formal legislative regulation, steeped in traditional euro-centric civil law doctrines, relies on legislation and formal institutions such as the judiciary to oversee mediation. This approach, characterised by an “active” State, assumes a paternalistic, interventionist role, suggesting that the State knows what is best for civil society. A structured body of legal norms defines what is considered appropriate and just according to State interests. Several countries, including Austria, the Slovak Republic, and parts of Germany have embraced a formal legislative strategy for regulating mediation, ostensibly indicating a commitment to its formal recognition as a legitimate dispute resolution practice.

Despite the purported benefits, formal legislative approaches encounter significant limitations. These mechanisms grapple with non-legal perspectives, high complexity, unpredictability, and innovation. The widespread use of sector-specific mediation legislation in common law countries, such as Australia, the United States, and England, reflects a deliberate choice to avoid comprehensive national mediation legislation due to its inherent inadequacies.²²

The crux of the matter lies in the potential harm that formal legislative regulation can inflict on party autonomy and the democratic decision-making processes embedded in mediation. As regulatory agencies, often bolstered by State funding, step into the role of dictating terms and conditions, a palpable erosion of party autonomy takes hold. Party autonomy, a foundational principle of mediation, underscores the freedom of disputing parties to craft the resolution process according to their distinct needs and preferences.

Formal Legislative Regulation in India (the Mediation Act, 2023)

The introduction of the Mediation Act of 2023, particularly Section 38²³, exemplifies the complexities of attempting to regulate mediation comprehensively. Section 38²⁴ empowers the Council to play a multifaceted role in shaping and overseeing the landscape of mediation in India. The appointment of Council members by the Central Government intertwines the executive branch with a body that wields considerable regulatory power over mediation. This convergence raises valid questions about the independence of the Council from political influence which leaves scope for potential regulatory decisions to be influenced by political considerations, this blurs the line between the legislature and judiciary which is deleterious to any democratic framework.

Furthermore, the breadth of powers granted to the Council, ranging from specifying criteria for recognition of mediation institutes and service providers to laying down standards for professional and ethical conduct, places an extensive regulatory apparatus under the control of a body that lacks the diverse perspectives inherent in a judicial process.²⁵ The Council’s ability to renew, withdraw, suspend, or cancel registration and recognition, coupled with its authority to enter into agreements with domestic and international bodies, consolidates a level of influence that could be at odds with the principles of an independent judiciary. A critical concern within the Mediation Act of 2023 lies in Section 38(d)²⁶ which empowers the Council to define the manner of conducting mediation proceedings. While seemingly well-intentioned to ensure standards, this provision teeters on the edge of excessive regulation, potentially undermining the very essence of mediation. In essence, the Act risks transforming mediation into a procedural labyrinth reminiscent of arbitration or litigation. The core strength of mediation lies in its fluidity, adapting to the distinctive requirements of each dispute. Unlike the structured and formal processes of arbitration or litigation, mediation’s appeal lies in its ability to foster organic and flexible conversations between disputing parties. By vesting the Council with the authority to dictate the procedural intricacies of mediation proceedings, Section 38(d)²⁷ poses a significant risk. Meticulous adherence to procedural stipulations can stifle the natural flow of mediated dialogues, transforming what should be an interactive and collaborative process into a rule-bound exercise. This potential transformation threatens to drive disputants away from mediation, compelling them to seek resolution through more familiar and structured avenues like the courts.

Suggestions to regulate mediation practice in India

An additional dimension in comprehending mediation regulation involves categorising laws based on their distinct roles within the mediation process from beginning to end. These roles can be delineated into laws that facilitate access to mediation and initiate the mediation process; commonly referred to as triggering laws, those that govern the actual procedural aspects of the mediation process; termed procedural laws, and laws that fortify and endorse the recognition and practice of mediators by instituting standards for mediation; known as standard-setting provisions.

Triggering laws stand as gatekeepers, determining the accessibility of mediation. Crafting these laws demands a delicate legal touch — how can inclusivity be ensured without imposing barriers that might deter potential participants? The regulatory framework must strike a balance, recognising the voluntary nature of mediation while instilling confidence in its efficacy. The essence of mediation lies in its consensual nature, and any regulatory measures should not inadvertently transform it into a mandatory or restrictive process. Standard-setting provisions undeniably contribute to the professionalisation of mediation. Establishing benchmarks and expectations for mediators serves to elevate the overall quality and consistency of mediation services. It ensures that practitioners adhere to ethical norms, providing parties with confidence in the competence and integrity of those guiding them through the mediation process. Section 38(c)²⁸ grants the Council the authority to lay down guidelines for the continuous education, certification, and assessment of mediators. While the intention to ensure ongoing professional development is valid, it is crucial to ensure that these standards are inclusive, accommodating diverse expertise beyond legal professionals. This inclusivity contributes to a rich pool of mediators, bringing varied perspectives and enhancing the effectiveness of the mediation process. Recognising that disputes often span diverse sectors, the regulatory framework should allow for sector-specific specialisation among mediators. This entails considering whether mediators with expertise in fields such as healthcare, technology, or finance can bring valuable insights to disputes within their respective domains. Striking a balance between general mediation standards and sector-specific expertise ensures a nuanced and effective resolution process. This aspect of regulation safeguards the essence of mediation without unduly impinging on its core principles.

Procedural regulation, on the other hand, ventures into the very heart of mediation — its fluidity, adaptability, and participant-driven nature. The provision requiring the maintenance of an electronic depository of mediated settlement agreements [Section 38(n)]²⁹ reflects an attempt to bring transparency and accountability into the mediation process. However, it raises questions about the potential impact on confidentiality, a cornerstone of mediation. Anonymising data emerges as a paramount consideration. This involves rigorous protocols to safeguard the identities of parties and the specifics of their disputes. Techniques such as removing personally identifiable information, redaction of case details, and assigning unique identifiers become instrumental in upholding the confidentiality of individual agreements. The regulatory framework must be underpinned by explicit legal safeguards to assure parties that their sensitive information is secure. Adherence to data protection laws, coupled with stringent penalties for unauthorised disclosures, creates a robust legal foundation. Parties should be afforded clear legal recourse in the event of confidentiality breaches, reinforcing their confidence in the confidentiality measures prescribed by the legislative framework.

The provision granting the Council the authority to dictate the manner of conducting mediation proceedings, as stipulated in Section 38(d)³⁰, is a focal point of concern. By providing such sweeping authority, the Act risks compromising the intrinsic qualities that make mediation a preferred mode of dispute resolution. Mediation thrives on its fluidity, adaptability, and participant-driven nature. Dictating the manner of conduct may inadvertently introduce rigidity into a process designed to be dynamic and responsive. To address this, a tiered approach could be considered, offering a nuanced solution that balances standardisation with contextual adaptation. At the foundational level, the legislation should articulate principles essential to the mediation process such as party autonomy, confidentiality, voluntariness, impartiality, and neutrality. By enshrining these principles in the legislative text, the Act does lay the groundwork for the ethical and procedural underpinnings of mediation. Simultaneously, the tiered approach envisages the delegation of authority to recognised mediation institutes for procedural aspects. Recognition criteria for these institutes should be stringent, encompassing factors such as track record, expertise, adherence to ethical standards, and a commitment to ongoing professional development. Transparent reporting and accountability mechanisms should be in place, requiring institutes to make their procedural formulations publicly accessible, fostering scrutiny and contribution from stakeholders. However, if guidelines are set forth, they must be suggestive and voluntary in nature, ensuring party autonomy while having a structure in place that reflects industry best practice.

Conclusion

The Mediation Act of 2023³¹ emerges as a significant milestone in the evolution of alternative dispute resolution in India. Acknowledging the pervasive backlog in the judicial system and the potential of mediation to offer swifter, cost-effective, and mutually satisfactory resolutions, the Act manifests a commendable effort to formalise and regulate this alternative avenue. However, as with any legal framework, the Mediation Act is not immune to scrutiny, reminding us that the path to effective regulation requires a delicate balancing act. Mediation, as a method of dispute resolution, holds a distinctive allure in its very essence — an allure grounded in fluidity, adaptability, and participant-driven dialogue. The delicate balance lies in regulating mediation enough to preserve its foundational principles, yet not so much that it transforms into a structured and formalised process akin to litigation or arbitration. Any Act should thus seek to protect the core values of mediation and not stifle its inherent qualities.

Legislators must recognise the evolving nature of ADR and be unafraid to embrace the idea that some facets of mediation might remain unregulated. The very nature of mediation, with its emphasis on party autonomy, flexibility, and confidential discourse, thrives in an environment unencumbered by excessively rigid regulatory frameworks. Legislators must resist the temptation to transform mediation into a mirror image of litigation or arbitration. Rather, they should cultivate an understanding that the true brilliance of mediation lies precisely in its departure from the norms governing traditional legal proceedings.