Why Do We Need A Mediation Law? After All, Mediation & Conciliation Are The Same Thing, Right?
I’ve strongly felt like there’s a lot of noise when you’re trying to understand consensual dispute resolution (also known as, CDR) in India. There’s, unfortunately, no uniformity in the way we understand labels like ‘conciliation’ and ‘mediation’ – our law and literature, both scarce and pointing towards a divide.I’m of the belief that the dichotomy is damaging to mediation practice, as well as the efforts of many who are preaching the gospel of CDR and access to justice. This piece has the following four propositions to deliver – (A) that mediation and conciliation are the same, and in doing so, reconciling the key defences that suggest the opposite, that they are exclusive to each other in absolute terms;(B) how does one reconcile the use of two separate words (‘mediation’ and ‘conciliation’) in the 1996 Act, and the CPC; (C) how does one reconcile the logic behind the use of two different sets of procedures under the CPC,and (D)make you wonder why we’ve talking about a mediation law, and what have we been ignoring to do all this while.
Before we begin discussing these specific points, I feel obligated to provide some contextual information to keep it in the background as we move ahead in the discussion.
- There is a reasonable difference between ‘private mediations’, i.e. mediations commenced by the parties on the basis of an agreement without any direction given by a court or tribunal, and ‘court-referred mediations’ – the difference being the legal framework that becomes applicable depending on whether it is private or court-referred. A court-referred mediation operates under the Section 89 regime of the Civil Procedure Code. I’msubmitting that a ‘private mediation’ is governed by a completely different legal framework, i.e., the Indian Contract Act, 1872, and specifically the 1996 Act. This seems logical as a court-referred mediation would require a different procedural framework since it’s under the directions of a court where no-settlement can send you back to the court for the case to be decided through trial on merit.
- Taking it straight from Retd. Justice M. Jagannadha Rao’s paper on ‘Concepts of Conciliation and Mediation and their Differences’, I also find the need to define these concepts, else it would turn into a classic scene of ‘the cart before the horse’.Has ‘conciliation’ been defined in any legislative enactment? No, we refer to the functions of a ‘conciliator’ as scripted by the 1996 Act in order to understand what ‘conciliation’ is.And for this, the most commonly usedpoint is the featured function under Section 73 of the 1996 Act (discussed in detail below).
- Why is this discussion relevant? I am of the opinion that there is a discord in the present position of law governing ‘mediation’ or ‘conciliation’. The legislations, precedents, and the academic works, create an artificial difference between ‘mediation’ and ‘conciliation’. ‘Conciliation’ and ‘mediation’ are, therefore, considered as two distinct concepts. The logical (though erroneous) corollary of that understanding wouldthen simply be that ‘private mediations’ are without any legislative support or legal recognition, hanging in mid-air without any legal status because there’s no such thing as a mediation law.And now, we’ve created an artificial need for a mediation law to fill-in the gaps. But do we really need it? Or do we just need clarificationsin order to bring consistency to Indian framework of consensual dispute resolution?
A. Are ‘mediation’ and ‘conciliation’ the same thing?
When asked “what’s the difference between conciliation and mediation”, the school of thought which affirms the difference always brings up Section 73 of the 1996 Act.It’s their submission that one must refer to the functions of a ‘conciliator’ as scripted by the 1996 Act in order to understand what ‘conciliation’ is. Fair enough. But for this reason, the most commonly used point is the featured function under Section 73. They say it’s clear that the ‘Conciliator’under the said 1996 Act, apart from assisting the parties to reach a settlement, isalso permitted to make ‘proposals for a settlement’ and ‘formulate the terms of a possible settlement’ or ‘reformulate the terms’.How is this being used to differentiate mediation from conciliation? They say that the role of the ‘conciliator’ is‘pro-active’ and ‘interventionist’as provided in Section 73, whereas the role of the ‘mediator’ must then necessarily be restricted tothat of a ‘facilitator’.
There are several levels at which this argument is testable –
- By definition, mediation and conciliation are exactly the same
It is interesting to note that when mediation is defined, one can simultaneously agree that conciliation may be defined in the exact same way.
‘Mediation’ is a facilitative process in which disputing parties engage the assistance of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute. The mediator has no authority to make any decisions that are binding on them, but uses certain procedures, techniques and skills to help them to negotiate an agreed resolution of their dispute without adjudication [ADR Principles and Practice’ by Henry J. Brown and Arthur L. Mariot (1997, 2nd Ed. Sweet & Maxwell, Lord on Chapter 7, p 127)].
Mediation is negotiation carried out with the assistance of a third party. The mediator, in contrast to the arbitrator or judge, has no power to impose an outcome on disputing parties.Despite the lack of ‘teeth’ in the mediation process, the involvement of a mediator alters the dynamics of negotiations. Depending on what seems to be impeding (an) agreement, the mediator may attempt to encourage exchange of information, provide new information, help the parties to understand each other’s views, let them know that their concerns are understood; promote a productive level of emotional expression; deal with differences in perceptions and interest between negotiations and constituents (including lawyer and client); help negotiators realistically, assess alternatives to settlement, learn (often in separate sessions with each party) about those interest the parties are reluctant to disclose to each other and invent solutions that meet the fundamental interests of all parties [‘Dispute Resolution’ (Negotiation, Mediation and other processes’ by Stephen B. Goldberg, Frank E.A. Sander and Nancy H. Rogers (1999, 3rd Ed. Aspine Law & Business, Gaithesburg and New York)(Ch. 3, p. 123)].
But what about Section 73? Is that unique to ‘conciliation’? I’m almost there…
- Models of mediation
Mediation is a process that has several models based on the mediator’s ‘interaction’ and ‘intervention’ dimensions. The combination of the two dimension presents distinct models of mediation to be identified which is logical in theory and relevant in practice [The Mediation Metamodel: Understanding Practice, Nadja Alexander (Conflict Resolution Quarterly, Vol. 26, no. 1, Fall 2008]. Why this is relevant in practice? Well, a mediator’s approach or conduct is never a constant dynamic during mediation. It fluctuates over ‘interaction’ and ‘interventionist’ scales depending on the dynamics of the mediation session. Coming back to the point –understanding that there are several distinct models of mediation, what would you call a mediation process where a third party neutral has a ‘pro-active’ and ‘interventionist’ roles? An ‘advisory mediation’ or a ‘counsel mediation’, which involves a high level of mediator intervention in the problem like advising providing suitable settlement terms. So the mediator in this case simply assumes the responsibility of the parties “when it appears that there exist elements of a settlement which may be acceptable to the parties”.Mediation, therefore, notably includes that necessary feature wherein a mediator might assume a more proactive and interventionist role.
We’ve been hearing that the role of the ‘conciliator’ in India is‘pro-active’ and ‘interventionist’as provided in Section 73, and the unsubstantiated supposition that the role of the ‘mediator’ must then necessarily be restricted tothat of a ‘facilitator’. Here’s the important part – why can’t Isay that ‘conciliation’ is nothing but a pro-active or interventionist form of ‘mediation’? This will start to make complete sense in the next section.
- Does ‘conciliation’ remain to be ‘conciliation’in the absence of Section 73?
Perhaps an extract of Section 73 would serve a good purpose in the conclusion of this discussion –
“Sec. 73(1) settlement agreement. (1) When it appears to the Conciliator that there exist elements of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties, the Conciliator may reformulate the terms of a possible settlement in the light of such observations.”
If I had to say that a certain‘conciliation’ proceedings never witnessed Section 73 in operation, would you still call it ‘conciliation’? Say, it never occurred to the ‘conciliator’ that there existed elements of a settlement which may be acceptable to parties, would that still be ‘conciliation’ or would it cease to be a ‘conciliation’? Yes, it would remain to be ‘conciliation’ proceedings!But haven’t we been hearing that the black and white difference between ‘conciliation’ and ‘mediation’ is Section 73? By that logic, if the so-called ‘pro-active’ and ‘interventionist’role of a ‘conciliator’ is absent,shouldn’t I be calling that process as ‘mediation’ because the neutral in the process did not exhibitthe attributes of being ‘pro-active’ or ‘interventionist’? A conciliator’s formulation and reformulation of possible terms of settlement is not a necessary part of the conciliation process.
At the risk of repetition, let me quote this paragraph again –
We’ve been hearing that the role of the ‘conciliator’ in India is pro-active and interventionist as provided in Section 73, whereas the role of the ‘mediator’ must then necessarily be restricted to that of a ‘facilitator’. Here’s the important part – why can’t I just say that ‘conciliation’ is nothing but a pro-active or interventionist form of ‘mediation’?
Here’s a pictorial representation to explain the two perspectives with respect to the relationship between ‘mediation’ and ‘conciliation’.
I, therefore, find it compelling to conclude that there is no such difference between ‘conciliation’ and ‘mediation’. They may only be superficially different but are exactly the same in substance.
B. How does one reconcile the use of two separate words (mediation, and conciliation) in the 1996 Act, and the CPC
There’s a certain problem that appears in the 1996 Act, and the CPC – mediation and conciliation appearing separately under Section 30(1) and Section 89 (and Order X Rules 1A, 1B, 1C), respectively. I am willing to admit that this is quite the tough one, and I don’t see any other answer than to consider this as a drafting error. As I’ve brought it out earlier, the scales showing the equivalence of the terms are overwhelmingly precise and sound leaving no scope for a distinction between ‘mediation’ and ‘conciliation’.
Quoting straight from the Afcons Infrastructure Limited & Anr. v. Cherian Varkey Construction Co. Pvt. Ltd. (2010) 8 SCC 24 – the principles of statutory interpretation are well settled. Where the words of the statute are clear and unambiguous, the provision should be given its plain and normal meaning, without adding or rejecting any words. There is, however, an exception to this general rule. Where the words used in the statutory provision are vague and ambiguous or where the plain and normal meaning of its words or grammatical construction thereof would lead to confusion, absurdity, repugnancy with other provisions, the courts may, instead of adopting a plain and grammatical construction, use the interpretive tools to set right the situation, by adding or omitting or substituting words in the statute. When faced with an apparently defective provision in a statute, courts prefer to assume that the draftsman had committed a mistake rather than concluding that the legislature has deliberately introduced as absurd or irrational statutory provision.
Now, there are two reasons which compel me to consider Sections 30(1)of 1996 Act and 89 of the CPC are potentially erred in referring to mediation and conciliation as two mutually exclusive concepts of ADR –
- The discussion in Part (A) of this piece presents a firm basis for concluding that mediation and conciliation are one and the same. It reveals the absurdity of the provisions under the A&C Act and CPC which speak contrary to a rational understanding of what is mediation and consensual dispute resolution.
- In Afcons Infrastructure Limited & Anr. v. Cherian Varkey Construction Co. Pvt. Ltd., the Supreme Court went ahead to define‘Mediation’ as ‘a method of non-binding dispute resolution with the assistance of a neutral third party who tries to help the disputing parties to arrive at a negotiated settlement’, and subsequently held that ‘mediation’ is also a synonym to the term ‘conciliation’.
A departure from the literal rule of plain and straight reading can, however, be only in exceptional cases, where the anomalies make the literal compliance of a provision impossible or absurd or impractical as to defeat the very object of the provision. When words (in this case – ‘mediation’ and ‘conciliation’) are universally understood in a particular sense, and assigned a particular meaning in common parlance, the manner of placement of these words in the provisions of the 1996 Act and CPC, have led to an absurd result – giving no legal status to mediation proceedings as there is no mediation lawin existence– and therefore, it must be regarded as a clerical or typographical error in drafting, resulting in two words being used separately that actually mean the same thing.
How this proposition impacts on our understanding of the 1996 Act and the CPC is quite interesting, and it certainly merits a closer examination. Assuming the synonymity of ‘mediation’ and ‘conciliation’ helps me draw the following coherent conclusions –
1996 Act – whether you call it ‘mediation’ or ‘conciliation’, parties who’ve agreed to mediate or conciliate will be mediating or conciliating under the 1996 Act. This would grant ‘mediations’ the sanctity under the 1996 Act, and not leave mediations unhinged without any legal framework.
CPC – although ‘mediation’ and ‘conciliation’ are the same thing, section 89 provides two separate procedures under Sections 89(2)(a) and 89(2)(c). And in no way do these separate procedures evidence a diversity in concept but merely a diversity in the forums where the process of mediation may be undertakenunder a different legal regime (the 1996 Act and the LSA Act). I’ve discussed this below.
C. How does one reconcile the provision of two separate procedures in referring parties to ‘conciliation’, and to ‘mediation’ under Sections 89(2)(a) and 89(2)(c) of the CPC?
Till now I’ve been able to draw an understanding about the equivalence of ‘mediation’and ‘conciliation’, and for the sake of the following discussion let us assume that ‘mediation’ and ‘conciliation’ are the same thing.Once that stand point is taken, it must necessarily and coherently answer the dilemma of two separate procedure under Sections 89(2)(a) and 89(2)(c) of CPC in referring parties to ‘conciliation’ or ‘mediation’–
- Section 89(2)(a) - for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;
- Section 89(2)(c) - for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;
It appears to me that the provision provides two separate forumswhich have two separate outworking –
Section 89(2)(a) à conciliation/mediation à where parties have consented à conciliation/mediation referred to be performed under the 1996 Act àa successful settlement has the effect of an arbitral award on agreed terms under Sections 74 and 30 of the 1996 Act à settlement agreement in conciliation/mediation will have to be placed before the court for recording it and for disposal in its terms.
Section 89(2)(c) à conciliation/mediation à where parties’ consent is not taken à conciliation/mediation referred to be performed under the LSA Act à a successful settlement has the effect of Lok Adalat award which is deemed to be a decree of the civil court under Section 21 of the LSA Act à settlement agreement in conciliation/mediation will have to be placed before the court for recording it and for disposal in its terms.
For these reasons, I’m bound to say that Section 89 isn’t really a divider between the two concepts. Rather it provides two different forums to pursue conciliation/mediation – under the 1996 Act, and the LSA Act. In other words, it provides different governing laws for the conciliation/mediation proceedings – one that takes you to the 1996 Act, and other to the LSA Act.
|Section 89(2)(a)||Section 89(2)(c)|
|Based on the consent of the parties||Mandatory in nature|
|Under the 1996 Act||Under the LSA Act|
|A settlement agreement is deemed to be an arbitration award under Section 30 of the 1996 Act which is deemed to be a court decree||A settlement agreement is deemed to be a Lok Adalat award and deemed to be a court decree under Section 21 of the LSA Act|
D. Where does discussion lead us? What about the mediation law?
I completely understand if it is difficult to agree with this piece as it contrasts with the popular view about ‘mediation’ and ‘conciliation’ being different from each other.But if you had to agree with me about their synonymity, you may also wonder - why is there such a need felt to make a new mediation law. And most importantly, how does it help us to have two separate concepts called – ‘mediation’ and ‘conciliation’? Is making a distinction getting us anywhere or is it just a boiling pot of more conundrum? Frankly, I haven’t come across any reasonable explanation which answers these questions. The present situation of India as an emerging nation with an ‘alternative dispute resolution culture’ presents several challenges in the legislative and regulatory framework governing conciliation/mediation. It would rather be a tremendous help if we can bring clarity to all the confusion that’s there, and harmonise the different enactments and rules to develop a coherent framework for mediation/conciliation. The first four simple things that come to mind are –
- Providing Part-III of the 1996 Act with a definition clause to define conciliation, and include mediation within the definition to eliminate any distorted ideas that call it different from each other. The UNCITRAL Model Law on International Commercial Conciliation (2002) has the perfect example– “conciliation” means a process, whether referred to by the expression conciliation, mediation or an expressionof similar import, whereby parties request a third person or persons(“the conciliator”) to assist them in their attempt to reach an amicablesettlement of their dispute arising out of or relating to a contractual or otherlegal relationship.
- Clarifications and amendments necessary to harmonise the mediation/conciliation under the 1996 Act, as well as the CPC.
- Update Part of the 1996 Act (Part-III) in accordance with the UNCITRAL Model Law on Commercial Conciliation, 2002.
- Harmonise the different mediation/conciliation rules, and bring it in alignment with the law of Conciliation under the 1996 Act.
At present, it seems to me that mediation’s legal status literally hangs by a thread, and would presumably be the case with parties’ ‘trust’ in the process. The Law Commission of India is yet to consult and formulate a comprehensive report, and it’s about time that it does. The first step in the development of a mediation-culture or a conciliation-culture is in the making of legal foundations through legislations and rules requiring disputing parties to, at least, favourably consider mediation/conciliation. Law acts like a pillar in supporting mediation/conciliation by giving it recognition, credibility and legitimacy. A specific and clear law would certainly bring a revolution in the way litigants and practitioners approach consensual dispute resolution.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].
This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.