This article was authored by Akarsh Kumar and Ashutosh Pareek from NLUO, Cuttack.
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!”
The introduction of mediation as an ADR mechanism is changing the way dispute resolution has functioned in the Indian legal regime. It assists in resolving legal disputes with greater pace. Implementation of mediation ethics makes it more reliable and trustable method of dispute redressal mechanism. There are certain ethical principles which play an intrinsic role in mediation such as confidentiality and loyalty. In India, mediation has inherited these principles which have helped in gaining people’s trust over other accustomed litigative approaches such as litigation. Hence, Mediation is popularizing dramatically in India.
This paper aims to analyze how mediation functions in Indian judiciary, and its impacts of adhering to ethical principles. Furthermore, it makes us understand how Indian judiciary accepts and makes it a proper and fast way of dispute resolution. The research method that has been used in this paper is doctrinal method. It is based on secondary sources like scholarly articles, books, case laws, and newspaper articles. The scope of this paper focuses on Indian scenario. Nevertheless, a comparative study of working of different organizations and countries (which adopted mediation much earlier than India) has been done to understand the concept in a much better way. So, this paper basically tries to analyze the impact of Mediation Ethics in making mediation a trustable part of Indian Judiciary.
Abraham Lincoln, the President of the United States of America had once said that “Discourage litigation; persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and a waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”
To start with, let’s understand the basic meaning of the “Mediation” and “Ethics” separately.
Starting with the expression “Ethics”, it is the process of deciding whether any particular action is fair or not. Although it seems quite effortless, it is confounding when it comes to applying it pragmatically. This is because of the reason that what’s right and wrong may vary from person to person depending upon their own perspective. Various other factors such as the circumstances the person is into during that time, the culture, beliefs or mindset of the person also comes into play while deciding what’s right and wrong. So, it boils down to the reasoning of what a party considers to be the right principle can be totally wrong for some other. To get through this uncertainty and vagueness, certain ground rules need to be set so that uniformity can be maintained.
Mediation can be understood as a means of conflict resolution. It is the resolution of disputes being facilitated by an unprejudiced third party i.e. a mediator where he strives to foster an unforced and a voluntary agreement by the parties who are in dispute. The keystones of mediation are primarily negotiation, communication, facilitation and, the approaches (that have been taken to solve the disputes). Nevertheless, compliance with the highest professional ethics such as independence, honesty and integrity is equally important.
While aspiring to develop mediation as an alternative to the other accustomed litigative approaches to fix disputes, two evident issues are relevant which need to be addressed.
- The first being to determine the limit up to which mediation as a course of action can seek to fend off those hitches which besiege the litigation.
- The second being the firm belief and public interest which is the basis of the functioning of our judicial system which says that the responsibility of our system of imparting fair justice is not defeated in the pursuit of finding the alternatives.
Focusing on the second issue that has been zoned out holds equal, if not more, importance compared to the first one. Since, it put forward the basic questions concerning integrity and ethics of any other devised alternative framework. It is so because those principles help to generate faith in people towards our judicial system. And that’s exactly what the whole topic hovers around. It is also not wrong to state that mediation at one level of perspicacity is a means of abstaining from the pitfalls of litigation which are quite obvious and known to people nowadays.
Following are the ethical issues typically associated with mediation-
1) The responsibility of the third person who is a neutral party to the whole course of mediation to keep the whole mediation process completely confidential.
2) He shouldn’t have a conflict of interests with either of the parties.
3) Both the parties should adhere to certain ground that would facilitate them in reaching to compromise.
ADVENT OF ETHICAL RULES
Before jumping directly on the Mediation ethics, there is another thing which needs to be addressed first. That is the question as to where mediation or rather ADR as a whole gets its legality from to function as a recognized form of dispute resolutions in an ethical way? It came from the Code of Civil Procedure that talks about ADR alternatives and gives it legal backing via section- 89 which states “Settlement of disputes outside the Court. —
(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for: — (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat: or (d) mediation…..
And further (2) (d) specifically states as to when mediation comes into play that is “(2) were a dispute has been referred—
(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed”.
The next step after legalizing ADR is regulating its implementation and that is exactly where Mediation ethics comes into play. Hence, there is a need to form guidelines and codes to implement it judicially and systematically.
The codes and guidelines are already out there at both international and national levels. For instance, Guidance for Effective Mediation by the United Nations outlines the basic guidelines about the essence of mediation. Although it just provides a basic outline and not rigorously binding on different nations. It states “These Guidelines are national in scope and are necessarily general. They are not intended to supplant applicable state or local laws or rules. All JAMS mediators should be aware of applicable state statutes or court rules that may apply to the mediation they are conducting. In the event that these Guidelines are inconsistent with such statutes or rules, the mediators must comply with the applicable law”.
Talking specifically about India, initially, there existed different schools of thought that were popular in the country concerning the methodology and curriculum for the training of the mediators. Thus, a committee was formed to come up with a uniform training manual which can be adaptable to local situations as well. It came up with something we know as the Mediation Training Manual of India. It has broadly 14 chapters in which it makes us understand what mediation is, how it is different from judicial process, how it evolved initially. Chapter VI onwards extensively talks about mediation ethics.
Chapter VI talks about important aspects of mediation like confidentiality Good-faith participation, etc. It highlights certain ground rules of mediation.
Chapter VII talks specifically about the role of mediators and so on.
We can read further about these from the Code itself. Thus we can see that many efforts have been made to regulate the ethics of the mediation process in India.
However this paper does not talk about the codes that already exist to regulate mediation ethics. Rather it analyzes the real case examples of ethics disputes to appreciate it pragmatically as to what extents these ethics are being maintained in our country.
And furthermore, what more can be done to improve and impart ethics in the mediation process of India by comparing it with other countries’ mediation ethics and standards. So that more and more people could believe in the very process of mediation as a transparent and more- effective one compared to any other dispute resolving techniques.
According to Black Law’s Dictionary, MEDIATION refers to “Intervention; interposition; the act of a third person who interferes between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute. In international law and diplomacy, the word denotes the friendly interference of a state in the controversies of others, for the purpose, by its influence and by adjusting their difficulties, of keeping the peace in the family of nations.”
Before delving into Mediation ethics in India, let’s first trace the emergence of mediation as an Alternate Dispute Resolution (ADR) in India.
Initially, Mediation came to be recognized legally as a technique of dispute resolution in an Act known as the Industrial Disputes Act, 1947. Thereafter, in 1999, the Code of Civil Procedure (Amendment) Act was passed and it got implemented in 2002. It contains § 89 of the Code of Civil Procedure, 1908 through which the courts got authorized to refer the cases to alternative dispute resolution (ADR) methods to resolve pending strives.
Under this provision, parties have to mandatory give consent to go through mediation and the court could refer the dispute to mediation.
Moreover, the Alternative Dispute Resolution and Mediation Rules, 2003 provide for mandatory mediation under Rule 5(f) (ii) which allows the court to refer cases for mediation even when the parties are not ready for mediation.
Mediation is of many types ranging from court-ordered mediation to private mediation. Nevertheless, the underlying principles of maintaining the ethics remain the same in all the types of mediation.
As per Black Law’s Dictionary, the word Ethics/ Ethical refers to “of or relating to moral action, motive or character; as, ethical emotion; also, treating, of moral feelings, duties or conduct; containing precepts of morality; moral”; and secondarily as “professionally right or befitting; conforming to professional standards of conduct.”
Ethics plays an important role in mediation, it works as a trust factor on which both the parties to a dispute rely on. Ethics are those moral principles which should be followed by the mediator and the parties, but, it is the work of the mediator to maintain or to run the mediation on ethical ground. There are certain ethics that need to be followed everywhere such as confidentiality, justice, fidelity and others. 
In India confidentiality is the incentive for the parties to opt for mediation. But does confidentiality really pays an important role?
To settle the argument or dispute parties need to reveal every card. Hence, confidentiality plays an important role. Confidentiality makes them comfortable in sharing their part alone to the mediator. It also ascertains that whatever that has been disclosed would remain in the closed doors.
Generally, parties while entering into mediation make an agreement according to which they form certain rules or decide on certain terms pertaining to confidentiality, some institutions which administer mediation cases make provision for the same. One such institution is Mediation Rules of the International Chamber of Commerce (ICC) which says unless both the parties agree or any law requires the open proceeding of mediation, the process of mediation will be confidential and private. Furthermore, any matter discussed or any submission or document produced by any of the parties in mediation cannot be used in any litigation, arbitration or anywhere else, unless parties obtained those submissions independently. Even the recording of any suggestion or admission by another party cannot be produced unless consented or independently expressed.
Same rules are being followed in India with regard to confidentiality, fidelity, etc. But in India with the increasing importance of mediation Supreme Court has itself initiated to refer certain cases for mediation and has also made certain rules for the same. Arbitration and Conciliation Act 1996 of India also works in line with the UNCITRAL model, Section 75 of this Act has made certain provisions regarding confidentiality in mediation and conciliation (and most often Mediation and conciliation both are used interchangeably in India). It provides that conciliator or mediator and the parties shall keep all the matters confidential unless it is necessary to disclose the matter. India is maintaining ethics with the help of these laws by keeping confidentiality which binds the parties to be loyal to each other. Importance of ethics can be further studied through certain case laws which shows how the Supreme Court itself is promoting mediation because of backlog of cases by recommending disputed parties to opt for mediation. Further, Apex court has also made it secure by making Laws (Arbitration and Conciliation Act 1996, Court-connected Mediation under the Supreme Court (Civil Procedure) Rules, 2005) to secure parties trust into mediation. In the case of Moti Ram (D) Thr. L.Rs. and Anr. vs. Ashok Kumar and Anr parties were in dispute of a property which Supreme Court directed to be settled through mediation to resolve the dispute. Subsequently, the mediator sent a report to the court which included various settlement and proposals made by the parties which were regarded as confidential. The Supreme Court took a stand on this by saying “If the mediation succeeds, by both the parties to the Court without mentioning what transpired during the mediation proceedings. If the mediation is unsuccessful, then the mediator should only write one sentence in his report and send it to the Court stating that the `Mediation has been unsuccessful’. Beyond that, the mediator should not write anything which was discussed, proposed or done during the mediation proceedings. This is because in mediation, very often, offers, counteroffers and proposals are made by the parties but until and unless the parties reach to an agreement signed by them, it will not amount to any concluded contract. If the happenings in the mediation proceedings are disclosed, it will destroy the confidentiality of the mediation process.”
In the case of Rama Aggarwal vs. PIO, Delhi State Legal Service Authority that came up before the Central Information Commission (CIC), it held that a party cannot seek information pertaining to mediation proceedings under the Right to Information Act, 2005 as the same attracts exceptions under provisions of the said Act. The CIC observed that –
“Information regarding negotiation, mediation, conciliation and counselling will fall under exempted clause of information of another spouse, being personal and given in fiduciary capacity and, no public interest is established in disclosure, while there is larger public interest in protecting that information like that would help mediation to flourish, hence such information shall not be disclosed.”
The High Courts in India also have the power to frame their own rules for ADR practice and procedure that would be applicable to their respective jurisdictions. In exercise of this power, -the Delhi High Court has framed the Mediation and Conciliation Rules, 2004. As per these rules, the parties cannot rely and reveal any information or argument that has taken place into the proceedings of mediation and to maintain confidentiality.
The overall analysis shows that the rules prescribed by the Supreme Court and the functioning of Mediation in India in conformity with the international standards. Judiciary in India has played an important role in strengthening confidentiality and loyalty in mediation. This should help mediation to grow further as a dispute resolution mechanism and to help build people’s trust over it.
COMPARISON OF INTERNATIONAL ARENAS
Understanding the profile of individual legal systems of the different countries around the world is essential, but a “Regional” and a wide “Global” approach to the dispute resolution and law is probably a futile exercise. This section elucidates the uniqueness of the ADR methods successfully functioning in the countries like the United States of America (USA) and China. The discussion of these models is to empathize upon the fact that these can possibly be made popular and adopted as per the Indian dispute resolution systems.
UNITED STATES OF AMERICA (USA)
The development and use of alternative dispute redressal mechanisms in the USA pre-dates both the Declaration of Independence and the Constitution. The United States law has strongly supported ADR which is obvious from various case verdicts. In a case before US court, the petitioner alleged that “The award was made (by mediation) either from improper and corrupt motives, with the design of favouring or in ignorance of the rights of the parties to said submission and of the duties and powers of the arbitrators who signed the said award.” The claim was denied by the court stating “that the arbitrators acted unjustly or with partiality or ignorance in making their award, but avers that they acted justly, fairly, and with a due consideration of the rights of the parties.” And it was observed by the court that if an award is within the submission and contains the honest decision of the arbitrators after a full and fair hearing of the parties, a court of equity will not set it aside for error either in law or fact. 
So, what we can incorporate from this to our own ADR system ethics is that the court cannot set aside the decision given while following the ADR norms on the sole basis of an error in law or fact, if the decision is honest and unbiased.
China independently developed her own institutions and culture, including approaches to legal problems, in many ways significantly different from those of Western civilizations.
The Chinese jurisprudence has two major philosophical traditions: Confucianism and Legalist thought. Unlike Confucian thought (li) which seeks to make the enforcement of law flexible and adaptable, the legalist tradition (fa) stresses that society can achieve harmony only where transgressions are met with firm and swift punishment.
Folsom and Minan held that in China mediation and conciliation remain the predominant forms of civil and commercial dispute settlement in both domestic and international affairs.
In China by making mediation and conciliation the main form of handling a case makes it a powerful way to handle disputes otherwise why a country like China would choose mediation but we are far from making mediation and conciliation a major dispute resolution mechanism because most people aren’t aware of this mechanism and don’t take it as a basis for satisfying relief.
No doubt that much can be taken into consideration for our ADR ethics from the vast Chinese jurisprudence based broadly on two ideas being Confucianism and legalist.
With the advent of ADR and particularly Mediation in India, most of the cases are being shifted to these fast redressal mechanisms. So, it is definitely removing burden on the Courts. Further, Supreme Court has issued guidelines that regulate the key principles of Mediation system in India. Thus, mediation in India has come to be in line with international standards and gaining the trust of the public.
The key principles of mediation are to maintain trust of both the parties by keeping the information confidential that has been disclosed in the mediation process, being loyal towards each other and imparting fair justice with the help of the mediator. Both the cases of Rama Aggarwal and Moti Ram discussed above have shown that how significant it is to keep the proceeding of the mediation confidential and no part of the process should be discussed and used as evidence in any other proceeding.
Because of the ethical perspective in mediation, it became a trustable part of Indian judiciary. This is quite evident since the Supreme Court itself refers certain cases for mediation and at the same time it ensures that all the rules are being followed. Further, comparing Indian mediation on international grounds with countries like USA and China, who uses mediation as a secondary mechanism to solve the dispute, Indian Mediation proves to be in line with International standards and without any arbitrariness.
Thus, in a nutshell, it can be safely concluded that Indian mediation is a good alternative mechanism to settle disputes. Its usage should rather increase to reduce the burden of Indian Judiciary, Moreover, proper emphasis should be given on its proceedings and people should be aware of the Mediation system in India and its advantage such as fast and amicable way of resolving dispute and without any revelation of any confidential information.
- The Mediation & Dispute Settlement Centre, http://www.themediationcentre.co.za/index.php/quotes-of-note (last visited Nov. 18, 2018). ↑
- Barthel T, Ethical Perspectives in Mediation, Mediate.com, https://www.mediate.com/articles/barthelT3.cfm (last visited Dec. 11, 2018). ↑
- Id. at 1. ↑
- “ILO” (World Day for Safety and Health at Work 2013: Case Study: Karoshi: Death from overwork January 1, 2007), https://www.ilo.org/aids/legislation/WCMS_117310/lang–en/index.htm (last visited Nov. 1, 2018). ↑
- Id. at 3. ↑
- Dhananjay Y. Chandrachud, MEDIATION – realizing the potential and designing implementation strategies http://lawcommissionofindia.nic.in/adr_conf/chandrachud3.pdf (last visited Nov. 15, 2018). ↑
- United Nations “UN Guidance for Effective Mediation UN Peacemaker” https://peacemaker.un.org/guidance-effective-mediation (last visited Dec. 11, 2018). ↑
- CODE CIV. PROC., 1908 §89. ↑
- Id. ↑
- Law Commission of India, Consultation paper on ADR and mediation rules (2018), http://lawcommissionofindia.nic.in/alt_dis.pdf. (last visited Nov 16, 2018). ↑
- British Broadcasting Corporation, Ethics – Introduction to Ethics: Ethics: A General Introduction (2018), http://www.bbc.co.uk/ethics/introduction/intro_1.shtml. ↑
- Alexander N and Lee J, Confidentiality in Mediation: An Indian Perspectiv, Kluwer Mediation Blog, (Nov. 28, 2018), http://mediationblog.kluwerarbitration.com/2016/01/18/confidentiality-in-mediation-an-indian-perspective/. ↑
- Supra note 10, at 5. ↑
- Afcons Infrastructure Ltd & Anr v. Cherian Varkey Construction Co (P) Ltd & Ors, (2010) 8 SCC 24 (India). ↑
- Supra note 10, at 8. ↑
- Court- Connected Mediation under the Supreme Court (Civil Procedure) Rules, 2005. ↑
- Moti Ram (D) Thr. L.Rs. and Anr. v. Ashok Kumar and Anr (2010) 14 (ADDL.) SCR 809. ↑
- Id. ↑
- Mr. Ashok Yadav v. Government Of Nct Of Delhi, (Central Information Commission) <http://commission188.rssing.com/chan-11719226/all_p239.html> accessed November 16, 2018. ↑
- Mrs. Rama Aggarwal v. Department Of Legal Affairs,CIC/SA/A/2015/000305. ↑
- Mediation and Conciliation Rules, (2004), http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_QEP90BUB.pdf ↑
- “Asian Courts in Context” (Google Books) <https://books.google.co.in/books?id=Yk1sBQAAQBAJ&pg=PA68&lpg=PA68&dq=CHAPTER -6 COMPARATIVE STUDY STUDY OF THE ALTERNATIVE DISPUTE REDRESSAL INSTITUTIONS FUNCTIONING IN OTHER COUNTRIES 6.1 INTRODUCTION&source=bl&ots=gdk2VLiWbg&sig=GKpEqheh3UY63b5T7aNmSoMzXOM&hl=en&sa=X&ved=2ahUKEwjkvfKot5ffAhXBb30KHWcLATEQ6AEwAHoECAoQAQ#v=onepage&q=CHAPTER -6 COMPARATIVE STUDY STUDY OF THE ALTERNATIVE DISPUTE REDRESSAL INSTITUTIONS FUNCTIONING IN OTHER COUNTRIES 6.1 INTRODUCTION&f=false> accessed November 24, 2018 ↑
- Burchell v. Marsh, 58 U.S. 344 344 (1854). ↑
- Berring RC, Folsom RH and Minan JH, Law in the Peoples Republic of China, 38 The American Journal of Comparative Law 395 (1990). ↑
- Dingxin Zhao, The Confucian-Legalist State-A new theory of Chinese history (2018). ↑
- Ralph H. Folsom and John H Minan, Law in the People’s Republic of China-Commentary, Readings and Materials (2018). ↑