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1. Introduction to Alternative Dispute Resolution (ADR)
“I realized that the true fiction of a lawyer was to unite parties… A large part of my time during the 20 years of my practice as a lawyer was occupied in bringing out private compromise of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.”
~ Mahatma Gandhi
The concept of ADR (Alternative Dispute Resolution) has existed in this world since ancient times. It refers to a variety of dispute resolution techniques and processes utilized by the disputing parties to reach an agreement. ADR has proved to be a solid and reliable alternative to the traditional method of solving disputes, i.e., litigation, as it can solve all kinds of disputes, including family, industrial, commercial, civil, etc. Generally, when the parties opt for ADR, they get a neutral third party who assists them in discussing and communicating their differences to solve the dispute. The techniques and processes used have helped countless people maintain their relations, reduce hostility and increase cooperation. They have been scientifically developed by ADR centers and leading Universities in Canada, United States, Australia, and Great Britain and helped in the emergence of a crucial movement in these countries. Eastern countries such as Japan and China also have preferred conciliation to deal with and solve disputes.
The Supreme Court of India emphasized the need for ADR in M/s Guru Nanak Foundation v. M/s. Rattan Singh and Sons:
“Interminable, time consuming, complex and expensive court procedures impelled jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to Arbitration Act, 1940 (‘Act’ for short). However, the way in which the proceedings under the Act are conducted and without an exception challenged in Courts, has made lawyers laugh and legal philosophers weep. Experience shows and law reports bear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the Courts been clothed with ‘legalese’ of unforeseeable complexity.“
Despite the fact that many prominent parties and their supporters have historically opposed ADR, it has recently garnered significant approval among the general public and the legal profession. In addition, several courts now compel some parties to use some form of alternative dispute resolution, generally Mediation, before allowing their cases to be heard and tried in a court of law. The growing popularity of ADR can be explained by the increasing burden of cases on the Courts, the view that ADR is less costly than litigation, and the wish of the parties to control the selection of people who will have a say in deciding their disputes.
In India, the practice of referring disputes to ADR mechanisms and solving them without court intervention can be dated back to ancient days. From Vedic times, municipal courts in the country have employed Mediation or Arbitration as means of ADR. The “Bhradarnayaka Upanishad” is the oldest treatise in which arbitral bodies such as the Serni, the Puga, and the Kula are talked about. Collectively known as Panchayats, these arbitral bodies were the most common forms of dispute resolution mechanisms that dealt with matrimonial, contractual, and even criminal. The parties to the dispute generally accepted the decision of these bodies, and the settlement was legally binding on them. During the Muslim rule in India, there were provisions for Arbitration. Arbitration and an arbitrator are known as “Tahkeem” and “Hakem” in Arabic, respectively, and the arbitrator’s decision in those times was binding on the disputing parties.
But it was only with the arrival of the East India Company in India that ADR truly started growing. Regulations for Arbitration were promulgated by the British government in the three presidency towns of Madras, Bombay, and Calcutta. The Bengal Regulation Act, 1781, and the Bengal Resolution Act, 1772 had the necessary provisions to get the disputing parties to appoint an arbitrator after mutual agreement and get a verdict that would be binding on them. These acts were replaced by the Code of Civil Procedure, 1859, which had sections dedicated to Arbitration. Presently, The Code of Civil Procedure, 1908, provides that parties in a dispute must be encouraged to opt for ADR mechanisms under Section 89.
Finally, to make Arbitration an effective ADR mechanism, the Indian Arbitration Act, 1940, dealt with domestic Arbitration. But due to the excessive intervention of Courts and the Act’s inability to provide an effective, speedy and transparent mechanism to resolve disputes, it was replaced by the Arbitration and Conciliation Act, 1996, which covered both international and domestic Arbitration. The primary purpose of the Act was to make Arbitration a quick and cost-effective method of solving disputes. But Arbitration is not the sole ADR mechanism. Mediation, Conciliation, Negotiation, and Lok Adalat have also been utilized as ADR mechanisms. This research paper aims to study Mediation as a means of ADR and understand its origin and contemporary scenario in the country.
2. Origin and Historical Development of Mediation
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!”
~ Mediator Joseph Grynbaum, P.E.
Mediation is one of the mechanisms of ADR, and through the observation made by Mediator Grynbaum, we can understand that Mediation consumes fewer resources in the form of time, money, and human resources than litigation and Arbitration. We may also note that litigation is nonvoluntary, adversarial, non-consensual, public, and binding. On the other hand, Arbitration can be described as a consensual, nonvoluntary, and binding process. Mediation includes the best of both of these dispute resolution processes within itself and is voluntary, non-binding, consensual, confidential, and non-adversarial. The Mediators are neutral third parties who are skilled at enhancing the dialogue and communication between the parties. Their ultimate aim is to make the parties reach a mutually acceptable agreement.
The earliest example of Mediation can be traced back to Israel, where King Solomon, in 960 B.C, acted as a mediator between two ladies. The ladies quarreled about the lawful maternity of a kid and had King Solomon intervene. He gave an equally favorable arrangement for both the ladies, which helped in resolving the dispute. This neutral approach to the dispute resolution process makes a mediator crucial in disputes that get settled out of Court. Mediators used such a strategy centuries later to resolve civil disputes between Israeli citizens and other groups of people. Community centers of Mediation were built up to address the 1948 statehood conflicts with Palestine. These institutions for dispute settlement play an essential role in alleviating political tensions between the two countries.
Mediation is also said to have originated in Sumerian civilization, according to several experts. Sumer was a Mesopotamian civilization that flourished in what is now known as the Middle East between 4500 and 1900 B.C. Before presenting a matter before the Court, the “mashkim” considered the merits of each case. The “mashkim” also aided disputing parties in resolving their differences on their own. This position is comparable to that of a modern-day mediator. If the “mashkim” could not bring two sides together, the case was taken to Court. In addition, Sharia Law encourages the use of a mediator in disputes. The general norm is that the Mediator must be impartial and have no financial interest in the dispute. They should only resolve disagreements by proposing ideas and solutions to the disputants. The parties must decide whether to accept or reject the Mediator’s recommendations.
Mediation was popular among businesspeople in pre-British India. Members of business associations asked for impartial and respected businessmen known as “Mahajans” to resolve conflicts through an informal method mixed Mediation and Arbitration. The employment of panchas, or wise people, to handle tribal disagreements is another method of early conflict resolution still being practiced today. Disagreeing tribal members gather with a pancha to address their complaints and try to reach an agreement.
If that fails, the matter is brought before the tribe’s public forum. The pancha seeks to solve the issue once more after carefully evaluating the tribe’s claims, defenses, and interests. If the parties cant reach an agreement, the pancha makes a binding decision. The pancha makes his judgment based on tribal law and the tribe’s long-term interests in sustaining harmony and prosperity. All procedures are conducted orally, with no written record of the proceedings or their conclusion. Despite the lack of legal power or punishments, Indian disputants often employed and accepted such mediation techniques.
The present-day Mediation bears a strong resemblance in certain aspects to the ancient conflict-resolution processes described before. In the current scenario, the mediation table consists of a neutral third party, i.e., the Mediator is not a judge who may impose a decision on the parties. The parties clarify their issues and misunderstandings and find a mutual solution to their problem. The Mediation will succeed if the parties truly have the intention to reach a mutually acceptable settlement privately and retain their relationship. Compared to Arbitration, Mediation is a non-binding process and is relatively in-formal, while the former is a binding process where the parties have no control over the outcome. They are encouraged to make suggestions by the arbitrator, but the final authority to give a binding award remains with him only. There also lies no appeal to the award.
Meditation, on the other hand, hands over the control to the parties and allows them to negotiate in a healthy and cordial environment. The parties choose the best settlement option by themselves. The parties don’t feel that either of them has won or lost the case as both of them leave the table with their glasses half-full. Further, confidentiality is guaranteed in Mediation, while on the other hand, there is no statutory guarantee of confidentiality in Arbitration. Mediation is an effective way to resolve disputes and saves a lot of time and money, which would have been utilized to prepare litigation. Thus, the main advantages of Mediation are substantial savings in time, energy, and costs of litigation, a win-win solution that satisfies both the parties, business-relationship preservation, confidentiality, and privacy.
The term “Conciliation” is often used interchangeably with “mediation” in many countries. Still, it was differentiated in the Arbitration & Conciliation Act 1996 and in the definitions given under Section 89 of the Code of Civil Procedure which was only inserted after the amendment in 1999. After enacting this statute and the amendment of CPC, legislative recognition was given to conciliation and Mediation, but the awareness about the same was only limited to litigants and lawyers. The general public was not aware and had no idea about these effective processes of dispute resolution. It is important to note that even though a neutral third party assists the disputants in both Mediation and conciliation, the role of a conciliator is more intervening and pro-active as he has the statutory power to help the disputants by suggesting solutions and proposals for settlement. The terms of the settlement agreement can also be formulated and reformulated by him. The Mediator does not have these powers, and this is the primary difference between the two processes.
The amendment to the 1908 code was also a massive step in integrating ADR in the Indian Judicial system. The main intention behind inserting Section 89 was that if there is a case where the Court can see elements that may lead to a mutually acceptable settlement, the Court can direct the disputants to select any one ADR method, and if they fail, the Court may direct them to another method. The constitutional validity of the amendment was also challenged in the Salem Advocate Bar Association v Union of India, but the Supreme Court held that the amendment was valid and affirmed its commitment for the early settlement of conflicts. The Court further stated that:
“mediation of disputes is a highly evolved method of resolving conflict and manifests a more sophisticated political order; also, that government and public authorities can and should rightly include that process in the established legal order to encourage settlement of disputes.”
3. Contemporary Scenario of Mediation in India
After establishing litigation in British India, Arbitration was legalized and is still the most used ADR method. Mediation has begun to become familiar to legal professionals in the country only since the last few years except in cases where the Court directs it. Thus, if we compare the development of ADR in India and the U.S. over the previous 20 years, we can observe that American judges and lawyers have accepted and embraced Mediation as an effective dispute resolution mechanism while the Indian legal professionals are still examining and gaining the required knowledge about Mediation. They are studying the process and discussing the type of cases in which this process could be utilized, which is quite similar to what happened in America in the 1980s. Thus, we can say that Mediation is still a growing process in India and has just begun to gain significance.
Great efforts are being made throughout the world to include Mediation in the judicial systems. In Egypt, it is mandatory to go through Mediation before a retired judge in all cases where the government is sued by private parties. France is also working since 1995 to expand the legislative capacity of Mediation and conciliation in the country. Countries like Ukraine and Tanzania are also enacting mediation reforms to adapt to the modern world.
Mediation is considered beneficial not just for small claims, vehicle accidents, and family conflicts but also for more complicated concerns, including environmental difficulties and intellectual property problems. Significant corporate interests are under growing pressure to resolve conflicts quickly and affordably, and peacefully to optimize long-term interests and sustain commercial connections due to the rapid pace of change in national and rising worldwide markets. India should take notes from these nations and similarly encourage Mediation. The original Panchayat system must be revived for people to understand that Mediation is not strange or new to Indian culture and customs; instead, it has always been a part of them.
Also read: National Register of Citizens
To boost the mediation movement in India, various High Courts have established dedicated conciliation and mediation centers such as the one present at the Madras and Delhi High Court. Before proceeding to Court, these centers urge parties to try Mediation. A list of judicial and advocate mediators is maintained by several centers. The High Courts also manage the centers’ websites to disseminate their message. Further, the proposal of the Nyaya Panchayat Bill 2009 is also a step in the right direction as this Bill seeks to revive the Panchayat system in the villages and ensure speedy, people-oriented, participatory, and effective justice to the rural population with a broad scope for conciliation and Mediation.
Various ADR institutions in India, such as the Indian Council of Arbitration (ICA), have played a crucial part in increasing awareness about Mediation. Several conferences and seminars are also held by the institution where it tries to make the legal professionals understand the benefits of Mediation and remove any apprehensions and misunderstandings about the process. But despite these efforts, there remain several challenges blocking the path for Mediation to become a popular ADR mechanism. Lack of Awareness in the rural and semi-urban areas, misconceptions about the effectiveness of the process, lack of trained ADR professionals and mediators are some of the problems that we still face today. If there are no professional mediators, people typically get retired judges to mediate in their disputes who sometimes conduct the mediations very formally in a manner that resembles the courtroom. Thus, it is the need of the hour to train the younger generation in Mediation and spread as much awareness as we can about the same.
Since the last few years, mediation competitions have also become very popular among students. A team of three comprises a mediator in these competitions, and two negotiators compete and show off their mediation skills. These tournaments are held both on a national and international level among various law schools. They have played a vital role in generating awareness about the effectiveness of the process among the younger generation who might grow to be ADR professions. I have personally participated in many of these tournaments, and every participant and judge is very passionate about Mediation. The training that we get at the beginning of the competition helps us understand the nuances of Mediation and how it can help solve disputes, whether they are personal or purely commercial.
4. Online Mediation in a Post-Covid World
The Covid-19 pandemic has affected every person, commercial or non-commercial entity. It forced everyone to adapt to the present scenario where offline meetings were highly discouraged due to the deadly virus. Just how the lawyers, judges, and other legal professionals started utilizing video conferencing, mediators took the mediation table online and conducted online Mediation with the disputants. It would not be wrong to say that online Mediation brings with itself several new challenges that were not there in the offline medium. Since no one predicted a global pandemic of this scale, the adaption was done fast and mostly without preparation.
Most of the mediators around the world were not technologically savvy and were not interested in utilizing the online medium because they thought that Online dispute resolution (ODR) would not work. There was no time for training and getting used to software like google meet and zoom. Further, the widespread use of video communication for family and social purposes gave the impression that online conferencing required nothing more than a decent internet connection, a decent webcam, a decent computer, and a decent sense of improvisation. However, knowing which Zoom buttons to press does not imply that you have received enough ODR training. We may utilize Zoom to accomplish our work, but being an excellent online mediator necessitates a far broader set of abilities and awareness. There are various areas that third parties must grasp through ODR training and education to engage in successful and fair online dispute resolution.
Firstly, the dynamics of communication and making the parties feel comfortable and as if they are genuinely heard are very different online. Some mediators believe that online Mediation takes twice as much effort as the online medium lacks the personal touch and eye contact present in the offline mode. Further, there is a lack of non-verbal communication, which may affect the process. Secondly, repeated online glitches or an unstable internet connection may make the parties impatient. Thus, it is imperative to understand that online Mediation can be more time-consuming and may demand a lot more preparation than offline Mediation. Thirdly, there are also issues regarding privacy and confidentiality in online mediations, and it’s much harder to explain and guarantee the parties about their privacy online.
Because of the virus, mediators have been forced to shift their professions from the physical to the digital realms. Many mediators who were first hesitant to use internet mediation because of the interruption to their practices have since changed their minds. The mediation tournaments are also being conducted online, and I can say from personal experience that Mediation has successfully adapted to the contemporary scenario and found its way to remain effective and efficient amid a global pandemic. According to a survey done by James Claxton of Waseda University in December 2020, approximately 83% of the mediators say that their online mediation sessions are either “positive” (43%) or “highly positive” (41%). Only about a third of people say their experience was neutral. 5%, on the other hand, say their online sessions have been unfavorable. A large proportion of mediators who described their experience as “highly positive” said they had never utilized internet mediation.
Based on settlement rates, the survey’s findings show that online Mediation is just as successful as face-to-face Mediation. They also suggest that, even if real encounters are feasible, online Mediation will remain a common element of Mediation practice. Based on these findings, the pandemic appears to have reawakened mediators to the advantages of online Mediation. The inherent flexibility of Mediation seems to be favored in the internet arena as well. As can be seen, mediators use different techniques online than they do in person, and they see flexibility as a comparative advantage over physical Mediation. Since India has its own cultural and geographical differences, the above survey results may not necessarily be valid throughout the country. Mediation is still relatively young in India compared to other countries and is yet to attain the position of a popular ADR process. Thus, some suggestions to boost the popularity of the Mediation process in the country are-
1. Sensitizing the young lawyers about Mediation and its effectiveness is the best way to grow the influence of Mediation in the future. The young lawyers may include students of law, fresh graduates, or people who are just interested in law and may pursue it in the future. Mediation Competitions and Tournaments are some of the best ways to achieve this goal, but it is pertinent to point out that these tournaments are only limited to the country’s premium and national law schools. A majority of the population that studies law is not enrolled in these Colleges and might not have access to the required resources and knowledge about Mediation. Thus, it is of utmost importance that we spread the message of Mediation through all the law colleges in the country.
2. With the onset of the Pandemic, Mediators everywhere faced difficulty in adapting. But experienced Mediators who are generally old are still having a hard time adjusting to the new online environment and learning different software. Therefore, training sessions that would teach them the basics of the video conferencing software and sessions to enhance the online mediation skills of Mediators throughout the country will help them feel more comfortable with the new online environment.
3. Mediation institutions in India such as International Centre for ADR (ICADR), New Delhi, Centre for Advanced Mediation Practice (CAMP), Bangalore, Centre for ADR, Mumbai, etc., can collaborate with students and lawyers interested in Mediation and run awareness campaigns that are not just focused on the general population, but also big e-commerce entities who don’t usually use Mediation as a dispute settlement mechanism. Through this, we can avoid potential lawsuits that would go on in Courts for ages and increase the caseload.
Mediation is not a panacea or a miracle cure for the national judicial system’s institutional issues. However, it contains several characteristics that distinguish it from the formal and traditional courts that have permanently settled society’s problems through public and legal proceedings. In these conventional courts, literacy is presupposed, and the remedy is mostly one party losing while the other winning. Except Arbitration, Mediation, and other forms of ADR are informal, private, future-looking, facilitative, collaborative, and interest-based processes that bring the disputants towards a win-win solution that satisfies both the parties.
As rightly said by Abraham Lincoln, we should “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.” Thus, we can conclude that Mediation is an effective ADR process both online and offline and can help parties reach mutually acceptable settlements out of the Court. The process holds enormous promise in India and still needs to expand its roots throughout India’s legal system, generate more awareness about its effectiveness, and overcome all the challenges that prevent it from becoming the best ADR mechanism.
 Mohandas K. Gandhi, An Autobiography: The Story of My Experiments with Truth 97 (Beacon Press, 1993).
 O. P. Motiwal, “Alternative Dispute Resolution in India,” 15 Journal of International Arbitration 1 (1998).
 M/s Guru Nanak Foundation v. M/s. Rattan Singh and Sons AIR 1981 SC 2075, at 2076.
 Gianna Totaro, Avoiding court at all costs available at: https://www.afr.com/companies/professional-services/avoiding-court-at-all-costs-20081114-j8es2 (Visited on June 8, 2021).
 O. P. Malhotra and Indu Malhotra, The Law And Practice Of Arbitration And Conciliation, (Lexis Nexis, 2006).
 Ibid., at p. 5.
 Ivneet Walia, Alternate Dispute Resolution And The Common Man available at: http://www.legalserviceindia.com/article/l312-Alternate-Dispute-Resolution-And-The-Common-Man.html (Visited on June 8, 2021).
 Ira Cohen, Ancient Roots of ADR: A brief Sketch of Early History of Mediation available at: https://www.miamibusinesslitigators.com/a-history-of-mediation.html (Visited on June 8, 2021).
 Jakob Vinther and Thomas Todd, The History of Mediation and Why It Is Still in Use Today available at: https://www.mediate.com/articles/vinther-history.cfm (Visited on June 8, 2021).
 A Xavier, The Origin and Growth of Mediation in India available at: https://www.arbitrationindia.com/pdf/mediation_india.pdf (Visited on June 8, 2021).
 Alessandra Sgubini Marighetto Mara Prieditis & Andrea, Arbitration, Mediation and Conciliation: differences and similarities from an International and Italian business perspective available at: https://www.mediate.com/articles/sgubiniA2.cfm (Visited on June 9, 2021).
 (2002) 8 SCC 35, 146–52.
 Supra note 11.
 Hiram Chodosh et al., “Egyptian Civil Justice Process Modernization: A Functional and Systemic Approach,” 17 Michigan Journal of International Law 865–917 (1996).
 HE Chodosh, Mediating Mediation reform in India available at: https://lawcommissionofindia.nic.in/adr_conf/chodosh4.pdf (Visited on June 9, 2021).
 Ankur Khandelwal, “Assessing the Scope of Mediation in India: Upholding the Principles of Justice,” 12 Asian Dispute Review 4 (2010).
 Mediating Online Is Much More Than ‘Doing It On Zoom available at: http://mediationblog.kluwerarbitration.com/2021/02/28/mediating-online-is-much-more-than-doing-it-on-zoom/ (Visited on June 9, 2021).
 James Claxton, Mediators Like Online Mediation And Other Verifiable Facts available at: http://mediationblog.kluwerarbitration.com/2021/05/17/mediators-like-online-mediation-and-other-verifiable-facts/ (Visited on June 9, 2021).
Author: Pratham Malhotra, Rajiv Gandhi National University of Law, Punjab
Editor: Kanishka Vaish, Senior Editor, LexLife India