This article is written by Rashika Narain, a 4th year law student at the West Bengal National University of Juridical Sciences. She is a coordinator for Indian Mediation Week.
As a run up to the Indian Mediation Week 2017 (IMW ’17), we have conducted over 70 awareness drives[1] across the country. The two primary questions we faced were
- “Why should we mediate?”
- “Will the settlement resolve our dispute once and for all?”
Now the response to the first question is fairly simple. Mediation is cheaper, faster and an inherently party-centric process. With mediation there is no judgement involved, but a mutually agreed upon solution. The focus is not on who is right or wrong but on how the problem can be solved while maintaining the relationship.
The second question is slightly tricky to answer. You want to say yes. After all, the drive is to promote mediation and you want the audience to believe that it will solve all their woes, but at the same time being a law student one is aware, that currently mediation settlements in India are not bullet-proof. Unlike arbitration awards and conciliation settlements, mediation settlements unless court-referred do not enjoy finality from legislative sanction. In fact private mediation agreements are only enforceable in a court as a contract and do not enjoy any other status. While data from other jurisdictions indicate that parties are far more likely to comply with a mediation settlement than a decree from a court, a situation may arise when one party does not follow through on his end of the bargain. Thus, can a settlement resolve a dispute finally? Most probably, although in case one party chooses to prolong the matter after arriving at a solution, the other party will have to go to court and enforce the settlement as a contract, thereby bringing with it the whole host of problems that parties sought to avoid while opting for mediation over traditional forms of dispute resolution mechanisms like litigation.
Therefore, the correct answer to the question is no. Mediation may not resolve all your disputes finally. You may have to go to Court. This leads us to the third common types of questions we are asked.
- “Does the Government support this? How can we settle disputes on our own? If mediation is as good as you say it is, why then is the Government not doing something with it?”
This I must say is a very good question. Yes, the government does support mediation. In fact, the Ministry of Law & Justice identified ODRways (a primary collaborator of IMW ’17) as one of the 12 ADR centers to help reduce government disputes. ODRways is exclusively a mediation platform, thus the government’s support for ODRways indicates their faith in mediation as well. Further, the Ministry of Law and Justice is the name partner for IMW ’17 and encourages Team IMW with their endeavors every step of the way. However, the reason this question arises is due to the fact that trust in the system is a pre-requisite for a dispute resolution mechanism to become popular.
These questions lead me to the primary argument I am trying to make, in order to make mediation a popular dispute resolution mechanism, we need legislation- a framework to regulate the uncertainty. There exists a need to create a framework for enforcement of settlements and we need some degree of trust and certainty to the process that will come with passing a law. Scholars and even several mediators have often argued that a legislation regulating mediation will defeat the purpose of mediation itself. Mediation is an informal process and as soon as we pass a law we give a license to judges to interpret the law as they seem fit and a couple of years down the line, jurisprudence on the subject may evolve in an unclear and convoluted manner. This will take us away from mediation proceeding and back to litigation. The second argument raised by skeptics is that the informal nature associated with mediation will vanish as soon as a law regulating the process is passed. Every mediation meeting is different, mediators need to creatively step around the parties emotions and sentiments to help them arrive at a solution. Individuals fear that this creativity is threatened by a law, as once procedure is laid out, it may hamper the freedom that mediators possess.
The response to these objections are simply that while it is true that judges in different high courts may interpret the law differently for different occasions and in fact that is not a situation we are unused to in India, this harm cannot outweigh the gains involved by regulating mediation. Inconsistencies may exist on all matters before different courts, the question we need to ask ourselves in not whether judges may interpret the law differently, but whether the law will help the mediation process even without judicial interpretation. The answer is yes. Not solely because it will help consumers trust the process, but because once we regulate enforcement, half the battle is already won. Parties that are assured that their settlement will be legally binding will want to solve their disputes through mediation because now, not only are they are assured of the cost and time efficiency of the process, their fear regarding finality will also be assuaged.
The second argument is a theoretical one, it is true that mediation is not a one size fits all solution, creativity is imperative to the process. Thus, this law legislating mediation cannot be one that is rule based, or procedure based but must be modeled along a principle based regulation. The law must not guide or control the manner in which proceedings are conducted but must acknowledge and codify principles (such as confidentiality and enforcement) that are essential for mediation to be successful. We must only legislate away the uncertainty without taking away from the creativity involved.
[1] Please Hyperlink the first post here. To explain what a mediation awareness drive is.
