Addressing Ground Reality & Busting Myths Of Mediation

Vivek Joshi & Rohan Gulati

26 April 2020 6:45 AM GMT

  • Addressing Ground Reality & Busting Myths Of Mediation

    Whilst the fate of litigations is prima facie due to the several stages involved in a case proceeding, there has been a considerable focus upon the several mechanisms available under the framework of Alternative Dispute Resolution (hereinafter "ADR"). Pertinently, there has been a constant cloud over the fundamentals involved in the ADR mechanisms. With a fairly acceptable statutory framework prescribed for Arbitration & Conciliation in India, there has been a constant legal vacuum in and around 'Mediation'. The absence of a concrete statutory framework and recognition has muddled the understanding of the fundamental principles of Mediation as a tool of dispute resolution. Thus, the present article briefly addresses the overall ground reality and bust myths that still surround the practice and procedure of Mediation.

    1. Consensual, not adjudicatory: Mediation departs from the adversarial process of dispute resolution and adopts the consensual mode of settlement of disputes. Mediation is a peacemaking process and deviates from the practice and procedure adopted in courts. The term 'consensual' indicates the consensus of the disputing parties over the issues they negotiate upon. Further, the atmosphere offered by a Mediation session allows the parties to the dispute to freely discuss their issues and arrive at an amicable solution. The process in its entirety does not adopt any characteristics of adjudication. The objective of a Mediation session is to create a win-win situation for the disputing parties, by providing them a distinct platform, and a neutral third person, to arrive at a settlement.
    2. Jurisdiction over Subject-Matter: The realm of Mediation is extremely wide. There is nothing such as a'non-mediatable' dispute. On the contrary, as laid down in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., reported in (2011) 5 SCC 532, the court distinguished between disputes that are arbitrable and not; however, criminal matters remaining an exception, no law defines the boundaries as to what disputes may be mediated. Therefore, in view of the aforesaid, Mediation attracts a broad spectrum of disputes from every possible jurisdiction. For instance, Mediation is not just confined to resolution of disputes pertaining to family law or commercial transactions, even cross-border disputes or issues relating to national security may be resolved through Mediation and provide for an amicable solution at the end.
    3. Expedite, not delay: Unlike the court mechanism, Mediation does not involve multiple stages of a case proceeding. A settlement agreement may be agreed upon by the disputing parties within a few sessions. However, the casual and laid-back attitude of several stakeholders perceives Mediation as a delay tactic. Non-appearance of either party or respective counsel is a common situation observed by the Mediators. However, the misconception centering around delay and subsequent undue advantage of the same by the stakeholders needs to be revamped. Thus, in Mediation the parties should possess the outlook of settling their dispute and burying the hatchet at the earliest utilizing it as an effective tool of dispute resolution.
    4. Mediation -Non-synonymous to Conciliation: In view of the decision rendered in Salem Advocate Bar Association (II) v. Union of India, reported in (2005) 6 SCC 344, the terms 'Mediation' and 'Conciliation' cannot be used interchangeably, as there has been a constant state of confusion with respect to the terms being utilized interchangeably. Thus, there exists a thin line of difference between the two mechanisms. Mediation is
      facilitated negotiation
      , whereas Conciliation involves a proactive role of the conciliator. Therefore, the two mechanisms should not be equated or be understood interchangeably.
    5. A step forward or backward? A dilemma: Another glaring instance is the insertion of Chapter IIIA titled Pre-Institution Mediation and Settlement, inducted in 2018 by way of an amendment to the Commercial Courts Act, 2015 (hereinafter
      "The Act"
      ), that has fostered the agitated requirement of 'pre-institution mediation'. Vide this amendment, section 12A was introduced in the Act, which mandates a reference to mediation, before the institution of a suit under The Act, and promotes the parties to resolve their differences amicably out of court. However, the pit-falled cases requiring an urgent interim relief are exempted from the above-said.

    Additionally, the Central Government notified the 'Commercial Courts (Pre Institution Mediation and Settlement) Rules, 2018' (hereinafter "PIMS Rules"), mandating pre-institution mediation to be in conformity with the PIMS Rules. Moreover, PIMS Rules have enlarged the scope of Mediation by providing a well-structured procedure including, but not limited to, the role of mediator, representation of parties, the procedure of mediation, confidentiality of mediation, ethics to be followed by mediator and maintenance and publication of mediation data, however, it is pertinent to mention that, the overall process of Mediation encounters distrust of stakeholders due to the misuse of Section 12A of The Act.

    As mentioned earlier above, the mandatory reference can be circumvented in view of sub-section (1) of Section 12A, if the plaint is accompanied with an application of "urgent interim relief", to allow the parties to institute a suit before a court of law directly, by-passing the reference to Mediation. Thus, the term viz., 'urgent interim relief' has been qualified as a mere 'interim relief' which subsequently footfalls the complete process of Mediation and the government's intention to the enactment. Hence, the aforesaid lacuna may be summed up in lines of a classic poem - I'm the parliamentary draftsman, I compose the country's laws, and of half the litigation, I'm undoubtedly the cause.

    • Mediator as a facilitator or Neutral person – The fundamentals of Mediation involves the principles of neutrality and impartiality, and in this regard, the mediator shall ensure that both the parties gain equal arms of neutrality. Adopting the principle of neutrality in Mediation, enables to establish trust and respect amidst the parties.

    Further, it is worth observing that the mediator neither intervenes with the terms of settlement agreed upon by the parties nor does he guide the parties to reach out to certain settlements. The parties are vested with the sole right to finalize the terms of settlement. Thus, a mediator is a mere facilitator and acts neutrally throughout the process. Therefore, this ensures that the mediator - (i) lacked personal interest in the outcome of the dispute, (ii) was unbiased, and (iii) acted even-handedly in good faith.


    In our view, the primary and underlying reason for the legal vacuum surrounding Mediation is due to the lack of an appreciable approach, which undermines the process at the very foot front and has consequently been touted as the poorer cousin of litigation or arbitration. Additionally, there has been a lack of substantive recognition towards Mediation as an effective tool of dispute resolution. Even though a few ground realities and myths have been discussed in the present article, there are several other ancillary reasons as to why Mediation has not been utilized and been appreciated in its entirety. Off lately, there have been a few steps in the right direction to sensitize and promote the concept, however, despite the steps undertaken by several stakeholders across India, Mediation still has not received the pole position. It may have been promoted up the grid, however, there appears to be a lengthy lap ahead. Contemporarily, a perspective that may be worth pondering upon would be the consideration of treating the process of Mediation equivalent and appropriate to litigation and arbitration.

    This article is authored by Vivek Joshi & Rohan Gulati, students of Symbiosis Law School, Hyderabad. Views of the author(s) are personal.

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