MEDIATION

Introduction
Alternate Dispute Resolution (ADR) is a legally permitted informal but
structured means of settling disputes outside of the courtroom. This is a
relatively new trend in India. With the increase in the number of cases filed
every day, inordinate delays, and the increasing burden on courts, ADR in India
is gaining more popularity. While courts follow complicated, rigid, and long
procedures; ADR is more informal, flexible, and quick. The problem with taking
a matter to litigation is that there has to be blame put on one of the parties and
that blame has to be proved. Such a case can be exhausting for both parties as
it is an expensive and lengthy process.

The main characteristics of mediation are that it provides; a voluntary,

confidential, non-binding, and interest-based procedure. No decisions are
imposed on the parties and it is at their discretion to accept the outcome.
Parties wishing to avoid the glare of publicity can use mediation to keep their
disputes confidential and personal. Out of all the methods of dispute resolution,
mediation is the most preferable and convenient.

History of mediation in India

Mediation is an age-old practice in India dating back to the Vedic period. In
Hinduism, a lot of significance is given to the elderly and their expertise,
experience, and knowledge. Seeking their advice for family disputes has been a
practice since time immemorial. A similar form of dispute resolution can be
witnessed in the panchayat system.

Types of alternate dispute resolutions

There are four types of alternate dispute resolutions which are as follows-

Arbitration
It is a procedure in which one or more arbitrators are selected mutually by both
the parties to whom the dispute is submitted. Their decision is final and binding.
The administration of arbitration is in accordance with the procedure of an
institution (tribunal).

Negotiation
Through direct or indirect communication the parties with conflicting views
discuss the form of action to agree to resolve the dispute amicably. Negotiation
is the first step towards solving an existing dispute before having any third-
party involvement.

Conciliation
One party who initiates to resolve the dispute communicates to another party
the subject matter of the dispute through a written agreement. When the other
party agrees a conciliator is appointed. Two or more conciliators can be
appointed if both parties agree to such a requirement. The advice given by the
conciliator is non-binding on the parties.

Mediation
It is the most informal way of dispute resolution. Two parties come together to
appoint a mediator who is unbiased in facilitating dispute resolution amicably.
This method is generally preferred in family and matrimonial disputes especially
in divorce cases.

What is mediation?
Mediation is a private but structured method of dispute resolution. It is a
voluntary process in which both the disputing parties come together to find a
solution to their problem by entering into a written contract and appointing a
mediator who assists parties in reaching an amicable settlement. A mediator
can be of any designation and can be appointed either formally or informally.
Contrary to conventional courts, the decision of the mediator is not imposable
and the decision-making power rests in the disputing parties. Mediation
provides the parties to express their emotions, interests, end goal, and opinions
which are often not given importance in the conventional courts.

There are no fixed and rigid proceedings in alternate dispute resolution and
mediation is the most flexible of all these methods making it the most desirable
one. It is a party-centric and neutral procedure. Parties can withdraw from the
procedure of mediation at any stage without stating any explanation. All the
information and evidence presented during mediation is kept confidential thus
outside parties do not have access to the mediation proceedings. Data given to
the mediator cannot be used for any other purpose besides helping the
mediator to reach an appropriate resolution. This ensures that nobody’s public
image gets tarnished in the process.

One of the major advantages of mediation is that neither of the parties loses
and the interests of both the parties are conserved. It is a win-win situation for
both parties. The parties control the end result of the mediation and either party
has the advantage of terminating the mediation without giving any reason.

Types of mediation

Court referred mediation

In India, mediation is legitimised by Section 89 of the Civil Procedure Code,
1908 which empowers the court in matters where it appears to exist as a
component of a settlement that would be acceptable to both parties, the Court
shall articulate the terms of a possible settlement and refer the same for
mediation for which procedure may be prescribed by the court itself. In the case
of Salem Advocate Bar Association, Tamil Nadu v. Union of India, Supreme
Court held in reference to the matter of mediation that conciliation and
arbitration are mandatory for court matters. This judgment has granted legal
and social recognition to mediation as a dispute resolution in India. This type of
mediation is often utilised in matrimonial and family disputes, particularly
divorce cases.

Private mediation
In private mediation, a qualified mediator is appointed by the parties on a fixed-
fee basis. Both the parties come together to resolve the issue amicably. A
mediator can be of any designation and anyone can appoint them to resolve
disputes through private mediation. It is a time-saving mechanism and gives
various creative outcomes for parties to choose from. The decision of the
mediator is not ultimate and hence not binding on the parties.

Advantages of mediation
Cost efficient and time saving
The cost incurred in the mediation process is nominal compared to judicial
procedures. It is not mandatory to appoint legal counsels in mediation thus a
huge cost is saved. There are no obligatory procedures like conventional
courtrooms hence saving procedural cost fees. The dispute resolution process is
quicker due to the least legal formalities and procedural flexibilities. A mediator
has the liberty to consider those issues she/he deems significant to bring parties
to the agreement, time-consuming evidence is generally avoided, thereby
saving time and resources.

Flexible and creative solutions

There exists no set procedure for mediation thus providing parties access to a
wide range of outcomes. Different mediators have different styles which are
often amended as per the requirements of the specific case. The resolutions
achieved by the process of mediation sometimes aren’t possible through
arbitration or judicial procedures. Both the parties work together to resolve the
dispute among themselves and are free to formulate customised solutions as
per their requirements.

Confidentiality and privacy

All the information and evidence presented during mediation is kept confidential
thus outside parties do not have access to the mediation proceedings. Data
given to the mediator cannot be used for any other purpose besides helping the
mediator to reach an appropriate resolution. In fact, there is such secrecy that
there is unique confidentiality between one party and the mediator i.e. if one
party provides information to the mediator, it can be kept confidential from the
other party subject to specific conditions. Another significant benefit of
mediation in India is that it is completely private and helps to protect the public
image of the parties. Only the disputing parties and the appointed mediator is
present during the process making it personal and private.

Restoration of relationship
In conventional court proceedings blame is put on one of the parties which is
often detrimental to the relationship of the parties. The final decision of the
court is imposed on both the parties and it can be undesirable because one
party always loses. On the contrary in mediation parties alone are responsible
for their own decision and can choose to not accept the final settlement brought
about by this process. This helps parties to come to a solution peacefully and
amicably. Even if the relationship between the parties was compromised due to
existing issues it can be restored by the process of mediation as it upholds the
interests of both parties.

Control and dominion

The parties can choose the time, location, and the duration of the proceedings
giving parties a lot of control. Courts have their own schedule that is to be
adhered to by everyone hence it is not as convenient. Contrary to the judicial
system parties in mediation are not opponents but are collaborators striving to
find a resolution that is mutually acceptable. One of the major advantages of
mediation is that neither of the parties loses and the interests of both the
parties are conserved. The parties control the end result of the mediation and
either party has the advantage of terminating the mediation without giving any
reason.

Conclusion
Mediation in India is gaining popularity as it is a low-cost, party-centric and
neutral procedure. There is a need for dedicated law enacted to formalize the
process of mediation. To have a better understanding of their rights parties can
hire legal professionals specially trained in ADR to represent them and explain
the situation in a professional way to the mediator. For all these benefits of
mediation, in the coming future, it will be the most common method of dispute
resolution especially in corporate affairs and family disputes.

Role of mediation in international

disputes
What is international dispute?
In layman language, International Disputes refers to disputes and conflicts
involving different countries. The United Nations Security Council (UNSC)
defines “International Disputes” as a conflict of legal dispute. It refers to any
disagreements between nations on any fact, issue, interest or any subject
matter in the political, ideological or legal arena.

Types of international dispute

International disputes or conflicting situations between nations/states/countries
can be due to various reasons. It might be related to territory, ideology,
security, independence, ethnicity, culture, resources, refugee issue, border
disputes, war, biological war, etc. Several sensitive refugee issues have arisen
in different countries like the Bangladesh refugee crisis, the crisis over the
Rohingya Muslims, etc. The nations try to resolve such disputes by mediation to
shorten the process of dispute resolution. Here in solving the disputes regarding
the Rohingya Muslims between Bangladesh and Myanmar, the Chinese
Government has served as the mediator. Border disputes also have been one of
the challenging disputes in the international arena. It can be aerial, marine or
on land. It arises between countries due to various reasons like occupancy,
infiltration, smuggling, espionage, etc.

How are disputes solved at the international level?

It is the International Law that prevails at the international level. Mainly there
are two main methods of solving disputes. One is the peaceful means including
negotiation, inquiry, good offices, mediation, conciliation and arbitration as
mentioned under Chapter VI of the United Nations charter and the other is the
compulsive means including complaints, restoration, reprisal, hostile embargo,
blockade, intervention, war. International law aims at finding a peaceful solution
to the disagreement/disputes between nations. As per the 1970 “Declaration of
Principles of International Law”, the states should solve their international
disputes by negotiation, enquiry, mediation, conciliation, arbitration and judicial
settlement. In an international platform, mediation is useful when a conflict has
continued for some time but the parties have not reached any resolution and
are also not prepared to incur further costs or escalation of the dispute or to
engage in direct or indirect dialogue and what they require is external conflict
management.

International Dispute Resolution Centers

Today, at the international level, different dispute resolution centres have come upon. There is
the Singapore Mediation Convention to resolve commercial international disputes. In 2018, the
International Centre for Settlement of Investment Disputes (ICSID) has set mediation rules to
modernize the rules for resolving investment disputes. This has also organized a series of events
on investment mediation to increase knowledge about investor-state mediation. There are other
centres like the London Court of International Arbitration (LCIA), Chartered Institute of
Arbitrators (CIArb), World Intellectual Property Organization (WIPO), Arbitration and
Mediation Centre (AMC), American Arbitration Association (AAA), Hong Kong Mediation
Centre, Indian Institute of Arbitration and Mediation, Japan International mediation centre, etc.
that deals with mediation provisions and laws.

How does mediation play an effective role in settling

international disputes?
Be it domestic or international, mediation consists of four main segments. It includes mediators,
disputants, disputes and outcomes. Meditation is a process of resolving disputes that is generally
ideal for those nations having different backgrounds, different cultures and different languages as
it might lead to great misunderstanding. There are three main factors that play a crucial function
in enhancing the role of mediation in the complete process. It comprises the role played by the
mediator, the strategies and stages involved in the process and the nature of the parties in the
conflict.

Mediator’s role
The mediation process starts with the appointment of a mediator. Mediators are also known as
the “Third Party”. Mediators can be individuals (2.3%), states (49.8%), regional organizations
(19.5%), or international organizations (28.4%). After the Cold War, the UN has actively
participated in dispute resolution in Afghanistan, Bosnia, Cambodia, East Timor, Somalia,
Liberia, Rwanda and Angola. Also, regional organizations like the African Union (AU), the
European Union (EU), and the Arab League have also acted as mediators. The mediator that the
parties are assigned with is a neutral person and is mutually selected by them. He has to be
equally trusted by both parties. The mediators should possess the required skill and intelligence,
to tackle the conflict at hand. In this process, the mediator’s job is not to judge. The mediator
must be consistent, transparent and even-handed in managing the mediation process and should
respect the confidentiality of the parties. The determining factor includes parties’ consent to
mediation, military or political interest or goals, ideological and psychological considerations, or
actions of external players, etc.

In any international dispute, solving it is 50% based on the role played by the mediator. If the
mediator succeeds then the whole mediation process gives fruitful results. The mediator must
choose the strategies very strategically. The mediator should not be biased. Partiality can lead to
complex effects. In some cases, more than one mediator mediates the conflict. This might hinder
as well as contribute to peacemaking. This was seen in one of the disputes where the European
Union (EU), the United States (US) and the United Nations (UN) worked feverishly to foster
peace in Yugoslavia which resulted in the Dayton Accords. It is also important to analyze the
different mediation dynamics, identifying the dispute’s type, the background of the issues, etc.
before proceeding. Mediators working conduct should adhere to the mandates and the set rules
and regulations. The UN mediators work within the framework and abide by the guidelines of
the United Nations Charter. They also work according to the applicability of the framework
constituted by the rules of the governing international law in the situation, international
humanitarian law, human rights law, refugee laws, global and regional conventions, and
international criminal law, etc. To follow a legal and procedural method, it is important that the
process complies with the normative and legal frameworks. They need to ensure that the parties
understand and are aware of it. For instance, if a party demands war, crimes against humanity,
genocide, or gross violations of human rights, including sexual and gender-based violence;
treason or rebellion then it violates international principles. Also because of emotional and
behavioural factors, having a female mediator in the mediation process helps in the success rate
to some extent as per some studies.

Mediation strategy
The role of mediation in solving international conflict would be successful if there are credible
mediation efforts. This would allow the mediator to monitor as well as guide the mediation
process, helping in strengthening the negotiating capacity of the parties and other stakeholders
involved, assisting them in reaching agreements, and stirring support for implementation.

The mediators’ strategies are based on the context of the conflict, willingness of the parties to
find a solution, countries involved, etc. Also, the previous relationships between the mediator
and the parties play a part in the process. If the mediators belong to the same organization or
alliance then the degree of trust in each other would be high. Evaluative and facilitative are two
different approaches to mediation. In evaluative mediation, the mediator provides each party
with an assessment of the strengths and weaknesses of its position and in facilitative mediation, it
is the parties that offer and counter-offer and discusses the potential expense and risk.

There are also three general approaches. In the power-based approach, the parties opt for war as
means of solving their conflicts. In the rights-based approach, certain standards are followed to
conclude. Mediation falls in the third category i.e., an interest-based approach where parties
reconcile their underlying interests. They attempt to bridge their different needs, aspirations,
fears or concerns in a manner that is satisfactory to both.

A mediation process usually goes through three phases. In the introduction phase, the mediator
and the parties lay ground rules of the process and the parties lay down their demands and
perspective. In the second stage, the mediator and the involved parties discuss the problem in-
depth and try to find a solution for the same. Then there is the third closing stage where the
parties decide on a resolution, agree to it and a resolution for the same is drafted mentioning the
outcomes of the mediation.

A mediator in the mediation process follows certain strategies. The first and foremost is the
Communication- Facilitation Strategy where the parties together start the communication. The
mediator tries to gain trust and confidence and understand the facts and identify the issues to
create a suitable environment and interests for the parties and provide them with information.
Proper communication can be a key to conflict resolution. This was seen in the Oslo agreement
between Israel and the PLO where Norway played a major role. The second strategy is the
Procedural Formulation Strategy which deals in deciding key decisions like agenda structure,
venue of the discussion, and further enhancing the communication process. It also involves
establishing protocols, suggesting procedures, highlighting common interests, interactions with
the media, and keeping the process focused on issues. It was seen in the New Zealand mediations
of the Bougainville conflict in 1995. The third is the Directive Strategies. It is the most important
phase where the mediator tries changing the parties’ expectations, making suggestions and
proposals, supplying information, making them aware of costs involved, helping devise a
framework for acceptable outcomes, pressing the parties to show variability, changing
perceptions, etc. It provides for a systematic application of the possible resolution and empirical
analysis of mediation in solving international conflicts. The application of this strategy was seen
in the Camp David Peace Accords where President Carter provided a billion-dollar aid guarantee
to Israel and Egypt as part of the agreement that lasted over 30 years.

The mediator also uses a preventive diplomacy strategy. It helps the mediator to avoid any sort
of conflict arising between disputants and also to prevent the occurrence of fights. This strategy
was very handy during the China trade war, the Russia-United States disputes and the North
Korea- United States conflict. As per a study by Bercovitch (who introduced this strategy) and
Houston in the early 20th century, they found out that it is the directive strategies that are highly
effective in settling international disputes. It can persuade the disputants to agree to an outcome.
In the apolitical strategy, non-profit and private organizations like the International Crisis Group
participate in the resolution of international conflicts through analyzing, researching, and
advocating for conflict resolution. National ownership can be adopted after closely consulting
with the parties where local cultures and norms are adapted along with international law and
normative frameworks. Parties must be sensitized on the need to balance national ownership with
the importance of marshalling international support for the implementation of an agreement in
the resolving process.

Conduct of the parties

The parties that have opted for mediation are known as disputants. Minimum two parties are
involved. It can be either two states or one state and another organization and such. The
disputants are from Central and South America; Africa; South West and East Asia; and the
Pacific, Middle East and Europe. International disputes can be on various matters. Over 47% of
the interstate disputes mediated are in the highest category of fatalities. The composition of the
disputes is: territory (27.5%), ideology (5.8%), security (32.5%), colonial (7.9%), resources
(5.5%) and ethnicity (20.8%).

First and most importantly, the parties in the conflict must be willing and trying to meditate. It is
up to the parties to decide when to choose mediation. Mediation processes turn complex when it
engages actors at different levels. The mediation process faces hurdles when in the case of
interest groups like social movements and youth groups, they lack clear leadership and are not
easily defined. The parties must be transparent with the laws and norms that guide their
involvement. Sometimes the parties may reject mediation initiatives because they do not
understand mediation and perceive it as a threat to sovereignty or outside interference. Also
sometimes in a multi-actor conflict, the parties may agree to the mediation, leaving a mediator
with the difficult situation of partial consent to commence a mediation process.

The final stage is the outcome. If it appears that any settlement is unattainable, then the mediator
should consult with the parties what is as to the minimum that needs to be achieved in order to
commence a peaceful approach. It should also help the parties build into the agreement options
to address the issue later. Sometimes mediation can be a long-lasting process bearing fruitful
outcomes. One such instance was the nuclear crisis in Iran where the mediation process started in
2002 and was solved after 14 years.

Global outlook: laws in international arena

Today, war is becoming increasingly complex and so is mediating peace. International c

onflict takes regional and cultural dimensions and that leads to political unrest and drags on for
more than decades. It is within the power of the United Nations to tackle this system. The UN
has various mediation resources. The United Nations Convention on International Settlement
Agreements Resulting from Mediation enhances the global framework for mediation and
harbingers its continued growth in a new international treaty. Article 2 and Article 33 of the
United Nations Charter states that countries should solve their disputes through peaceful means.
International Arbitral Institutions such as the ICC, ICDR, and LCIA also provide mediation
services as a first step to solve any dispute.

In 2002 “Model Law on International Commercial Conciliation” was adopted to make more
effective laws and rules for the mediator as well. In some countries like Hawaii, California,
Norway, and the United Kingdom, mediation is mandatory before litigation. 45 jurisdictions
have adopted legislation on mediation procedure inspired by the Model Law on International
Commercial Mediation that was adopted by the United Nations in 2002 and later amended in
2018. In 2006, the “Mediation Support Unit” was established within the Department of Political
Affairs for mediation processes. In the year 2008, a five-person Mediation Support Standby
Team was developed to allow for the deployment of mediators to conflict areas on short notice.
On 24th September 2010, the “Friends of Mediation” was founded with the sole motive to
promote the culture of mediation. It consisted of 52 Member States, the United Nations and 8
regional organizations and other international organizations and was chaired by Finland and
Turkey. In the 65th session of the General Assembly, emphasis was given to strengthening the
role of mediation in the peaceful settlement of disputes, conflict prevention and resolution.
According to the UN Guidance on Effective Mediation, a mediation process should take into
consideration factors like consent, impartiality, inclusivity and national ownership of each
specific conflict.

In 2011, the European Union established a Mediation Support Team followed by the
Organization for Security and Cooperation in Europe (OSCE). Also, the African Union, the
Economic Community of West African States (ECOWAS) and the Intergovernmental Authority
on Development (IGAD) have established mediation support offices within their secretariat
structures. The Southern African Development Community (SADC), the Economic Community
of Central African States (ECCAS) and the Organization of American States (OAS) have
supported mediation capacities. Resulting from Mediation of the “Convention on Mediation” or
“Singapore Convention”, the United Nations Convention on International Settlement
Agreements facilitates international dispute resolution by making settlement agreements
resulting from the mediation to be directly enforceable at the courts of the member States. In
August 2019, it had six countries namely Qatar, Saudi Arabia, Ecuador, Fiji, Belarus and
Singapore and 48 signatories.

Strategies by countries to enhance the role of mediation

Different countries have different procedures for mediating disputes. In India, the legal system to
mediation was introduced through the Arbitration and Conciliation Act, 1996. The Indian
Supreme Court in the “Salem Advocate Bar Association, Tamil Nadu v. Union of India” held that
reference to mediation, conciliation and arbitration are mandatory for court matters. India’s role
is remarkable in solving international disputes. This has also paved the way for her to become a
neutral party in international disputes, mainly in the Asia-Pacific Regional Mediation
Organization and has shown support to Asian-African Legal Consultative Organization
(AALCO).

In the United States, mediation originated in the late 20th century and the government
started using it in 1970 onwards. The US federal government, settle or the local government
provides various mediators in order to resolve the issues. In Western, Europe mediators are
appointed in order to mediate all the Industrial Disputes. In Belgium, Italy, Poland, Germany,
Portugal and the Netherlands, only certain cases require mediation. In France, mediation is
voluntary, not mandatory. After Israel declared statehood in 1948, there were community
mediation centres established to resolve disputes with Palestine. China has been playing a
remarkable role in mediation. In the late 2000s, China attempted to mediate political conflicts in
Nepal and Zimbabwe and also the Israel-Palestine conflict. In the year 2017, Beijing mediated in
nine conflicts. China relies on its traditional approach and the policy of non-intervention,
friendly manner, Confucianism, humanistic/moralistic value system and neutral onlooker to
mediate. Economic interests, political influence, garnering prestige and visibility are its driving
force. Russia has been particularly active in promoting mediation since 2010. The European
Bank for Reconstruction and Development (EBRD) is actively promoting mediation in the
Kyrgyz Republic, Moldova and Tajikistan. Despite the fact that the Mediation Directive has
caused most European countries to open up more in the direction of ADR, they are nevertheless
wary of compelled mediation, as seen by the Frankfurt Higher Regional Court’s decision.

Landmark case where mediation solved

international disputes
Some of the landmark international disputes where mediation, by different international
organizations, states and individuals, have played a crucial role are:

Mediation by countries
1. Tashkent Declaration: The Tashkent declaration of 1966 was
mediated by the USSR. It was a conflict between India and Pakistan
over the Kashmir issue. The declaration led to the restoration of
friendly relations between India and Pakistan.

2. Arab-Israeli Conflict: A recent mediation case has been in the year

2020 where the United States acted as a mediator in solving the Arab-
Israeli conflict.

Mediation by international organizations

1. The International Institute for Sustainable Development (IISD) took a
premediating step where it conducted neutral third-party research to
avert the chance of any dispute that might arise out of climate change
due to scarcity of water in Syria, Lebanon, Israel, Jordan and
Palestine.
2. In 2019, the International Environment was facing several conflicts and
to solve this the United Nations-led international communities ensure
peaceful interaction and coexistence through mediation.
3. In the Gambia, there was a union by the United Nations, the AFRICAN
union, and neighbours’ countries to prevent a major political crisis
through mediation. This was also prevalent in countries like Sudan,
Iran, to name a few.
Challenges that mediation faces to settle
disputes
Although the nations have opted for mediation as a means to solve disputes still
there are certain obstacles and lacunas apart from their various advantages and
importance.

1. Obstacles: Mediating any international conflict involves different

things. Primarily it depends on the type of issues as its nature poses a
challenge in the mediation process. In some cases, the issues are state
fragility, political and criminal and ideological interests, etc. the
mediator, as well as the parties, faces certain hurdles in the process.
Thus, strengthening the capacities of mediators and conflict parties,
enhancing the chances of success, maximization of opportunities for
effective mediation is still not adopted properly.
2. Lacunas: Mediation as a dispute resolution system at the international
level lacks the institutional power and support that is associated with
adjudicatory forums. Also, there are no proper unitary or procedural
rules for governing the practice and implementation of the mediation
process. As seen, mediation involves many aspects. It is not just a
country coming forward to mediate the dispute between two conflicting
countries. It involves other aspects like time, venue, rules, procedures
and so on as seen. There is a lack of proper standards for determining
international mediators or such other factors to maintain uniformity.
This uniformity is required because the involved countries have their
own contrasting rules and process. Thus, uniformity is required to
comply with international law. It is just in recent time that the
American Arbitration Association (Private Mediation Providers), Judicial
Arbitration and Mediation Services (‘JAMS’) Inc and the International
Mediation Institute have developed processes for certifying mediators
in the practice of international mediation.