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Moving from ADR to CDR – A conscious effort to put Mediation at the heart of Conflict Resolution

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Akshaya P.A.
Mediation

Conflict is pervasive at all levels and spheres of society. Conflict resolution enables the parties to create value and reach mutually beneficial settlements. Conflicts are multi-dimensional, unique and inevitable. They arise between individuals, employees and employers, companies and governments. One indispensable element of conflict resolution is consent. Parties to a conflict are more likely to collaborate if they consent to commit to the process. This is where the process of mediation comes in, where two parties come together and reach an amicable settlement with the help of an impartial third party. It is an effective process of allowing both parties to reach mutually beneficial solutions.

This article hopes to provide insight into the people, process and problem dimensions of this method, along with its manifestations in different contexts. It will also cover the challenges and how to overcome them. The article will also highlight case studies, innovation and trends and finally, the Mediation Bill, 2021.

Understanding Mediation

Mediation is defined as “a process of negotiation, but structured and influenced by the intervention of a neutral third party who seeks to assist the parties to reach an acceptable agreement”. It is an informal process where the parties seek to resolve a conflict or plan a transaction and the neutral third party cannot impose a solution, but only assist them in reaching one. Parties have complete control over the process and can choose the place, time and mediator. Mediation is viewed as a constructive form of solving disputes. 

Role of Mediator and their Skillset

The main feature which differentiates mediation from other methods of dispute resolution is that the parties agree that the mediator will not have the power to impose a solution upon them. Hence, the role of the mediator is to assist the parties in reaching an amicable settlement on their own. The mediator will enable the parties to overcome hurdles that they would face upon communication and find common ground. 

A mediator is bound to provide a suitable environment for discussion. The structure of mediation is up to the choice of the parties and thereby it is the duty of the mediator to set an agenda that the parties would agree to. Further, the mediator should ensure the parties understand the process and its implications. He/she should encourage the parties to communicate, understand each other’s problems and negotiate. Unlike in arbitration or conciliation, the parties have to develop their own solutions. Consequently, the mediator plays a huge role in transmitting the messages between the parties and persuading them to accept a particular solution. In certain situations, the emotions may run high, and it is crucial for the mediator to be empathetic and maintain order. 

Some of the indispensable skills that a mediator should possess are as follows: 

  • Communication skills. 
  • Persuasion skills.
  • Listening skills. 
  • Interaction management skills. 
  • Problem-solving and process management skills.

What edge does Mediation have over other methods of conflict resolution? 

If one considers resolving their disputes through the conventional method of litigation. This is time-consuming, expensive, and complex and does not consider the element of consent. 

In comparison with arbitration, parties have absolute control over the process and the solution they agree upon. In arbitration, the solution is called an award and it is under the control of the arbiter. The arbiter’s decision is final and binding, whereas the mediator does not have the power to impose, and a settlement can be reached only with party approval. Arbitration is relatively more formal than mediation, where attorneys control party participation. The decisions in arbitration are publicly available, whereas confidentiality is a key feature of mediation. 

Conciliation refers to a method of alternative dispute resolution where a third party makes suggestions to the party for resolving disputes. This term is usually used interchangeably with mediation. The neutral party in this process is less active and the process by itself is less formal. The suggestions made by the conciliator may not always be tailored to the needs of the parties and may not allow creative solutions to be developed. 

Negotiation is a process of resolving disputes through discussion and there is usually no third party involved. Negotiation is commonplace. This method lacks the benefit a mediator brings to the table such as ability to harmonise the power imbalance, neutrality and effective communication. 

Significance of Mediation in Conflict Resolution across different contexts

Mediation

Mediation is a great way around the traditional method of hashing out it in Court, and is suitable for a variety of situations. Consequently, mediation is gaining traction over other methods of alternative dispute resolution. Mediation is an effective method to resolve conflict between family members, employers and employees, companies and even nations. It offers flexibility and the opportunity to both parties in reaching positive outcomes. It has undeniable benefits such as speedy resolution, cost-effectiveness and tailored solutions. It allows the parties to focus on re-conceptualising their dispute as a problem that can be solved, keeping the legal jargon aside. 

The process will bring a myriad of benefits if introduced into organisations. Studies in the UK have found evidence of sustained improvement in employer-employee relationships. They enable early and informal resolution of conflicts in the workplace. Usually, disciplinary proceedings create a feeling of distrust among the employees and this can be replaced by mediation. A study conducted in a large private company (QualCo) revealed that tangible evidence of commercial benefits by quickly resolving potentially costly disputes. In the US, this shift to Alternate Dispute Resolution methods such as arbitration, mediation and conciliation was named the ‘quiet revolution’. In a survey, mediation was considered the most effective approach to conflict resolution as it improved communication, produced positive results and reduced the cost and delay associated with conflict resolution.

In 2016, the Insolvency and Bankruptcy Code was introduced. This provided for a Corporate Insolvency Resolution Process (CIRP) which is a non-adversarial system that enables those affected to resolve their conflicts amicably. It is suggested that the resolutions arrived at during mediation are more stakeholder friendly and innovative than a typical plan out of the CIRP. The shift towards mediation in India is highlighted by the legislative actions. The Civil Procedure Code, 1908 provides for the settlement of disputes through ADR wherever suitable. The Companies (Mediation and Conciliation) Rules, 2016 provide guidance as to nomination of mediators, relevant procedure, principles and ethics and so on. It provides a 3-month time limit for completion of the mediation or conciliation highlighting the priorities of the legislature with regard to mediation. 

In line with India’s commitment towards the UN Convention on International Settlement Agreements Resulting from Mediation, the Mediation Act, 2023 has been passed by the Rajya Sabha. All these efforts show the commitment towards positioning mediation at the centre of dispute resolution. 

In case of family disputes, mediation is believed to be more successful in preserving the relationships between divorcing parents, which is crucial for the children’s future welfare. Several legislations around the world enable couples to attend mediation if there is a possibility of salvaging the marriage. But it is also helpful in getting the parties to agree on rules, alimony, custody and property. The ability of mediation to provide solutions tailored to the interests of the parties comes in handy. 

It is also found appealing to resolve environmental disputes that are multi-dimensional and involve multiple stakeholders. Unlike other tools such as economic intervention, development aid and peacekeeping, mediation requires relatively less resources. Mediated settlements have become common since the 1990s, in the case of interstate conflicts. There has been a shift from mediating inter-state conflicts to civil wars as well. Not only great powers, but medium and small powers are involved as well. It has gained significant importance that it finds a place in the Article 33 of Chapter VI of the UN Charter.

This requires the parties to resolve any disputes that are likely to endanger the maintenance of international peace and security through alternative dispute resolution mechanisms. These methods have been used in disputes in Namibia, Afghanistan, Mozambique, Cambodia, El Salvador and others. A mediation support unit was established in 2005 by the United Nations. The Singapore International Mediation Centre launched the SIMC COVID-19 Protocol to provide businesses the ability to resolve disputes quickly through expedited mediation and many nations have followed suit. This shows the acceptance of countries to place mediation at the centre of dispute resolution

Mediation, at the community level, has multiple benefits. States like Kerala have implemented a grassroots level dispute resolution mechanism with the aim of reducing the pendency in the Courts. As a multi-cultural society, disputes are resolved through the community mediation volunteer program and leaders of the community are trained to handle them in an effective manner. The resolutions formed are made into executable degree by submitting a pre-litigation petition at the Lok Adaalat. 

Overcoming Challenges in Mediation

Mediation

In mediation, parties place their trust on the neutrality of the mediator. Further, personal qualities of the mediator are also said to have an effect on the success of the process. The mediator’s personal or professional interests should not get in the way of providing the parties an equal footing. Mediation in India, does not have provisions spelling everything to a T. However, it is generally accepted that the principles of natural justice have to be followed. If mediators are aware of any personal or professional interests that would affect their neutrality, then it is essential that they disclose it to the parties. It is also advisable for the parties to establish a working relationship with the mediator and ensure the absence of self-interest. Biased mediators would bring down the credibility of the process and this is to be avoided at all costs. However, research shows that biased mediators are also able to bring in settlements by convincing their side to make necessary concessions. 

In cases where the conflict is international, the mediator has to handle cross-cultural barriers and has to manage the power dynamics and ensure a fair negotiation process. Geopolitical tensions and cross-cultural communication are also crucial hindrances in delivering the essence of mediation. 

With the commercial environment growing, mediation finds itself wedged in technical matters such as contractual intricacies, intellectual property and financial conflicts. Despite the process being informal, a significant percentage of mediators have a legal background. Retired Judges, Advocates with considerable experience and bureaucrats find their place in the crowd. Community mediation deals with conflicts that are multi-faceted and dynamic involving multiple parties. These conflicts usually deal with resource allocation, customary practices and other grievances. Not all mediators possess the skills to handle such conflicts effectively and those mediators that have those skills are not accessible to everyone in the societal hierarchy. This situation brings in the necessity to provide adequate resources and training for mediators, ensuring the key features of the process are preserved. 

As stated earlier, many companies have included in-house mediation within their conflict resolution framework. Companies are more focused on nipping the conflicts in the bud and this levies great pressure on the mediators to reach a settlement as soon as possible, giving negligible time to come up with creative solutions. Mediators have to cautious in addressing sensitive issues related to workplace discrimination. Family disputes are often influenced by strong emotions and past conflicts that a third party like the mediator may not be able to address properly. 

Parties may not always approach mediation as a way of resolving their disputes and may use it as a stalling mechanism. It can be challenging for parties to place the resolution of their issues in the hands of a third party whose skills will impact the outcome. Parties also may lack knowledge of the necessary information about their rights and duties preventing them from making informed decisions. Though litigation is viewed as time-consuming, expensive and complex, people still place reliance on the same. This creates the need for spreading awareness about mediation and also the pre-requisites of a fair settlement. 

Case Studies

The entire details of the case are not available as confidentiality of the proceedings have to be respected. 

  • A WIPO Mediation of a Biotech dispute
    A French and Germany company collaborated for the development of a human antibody for the treatment of a disease. Subsequently, the French company was acquired by a US corporation. The German company filed a suit for the breach of contract on the basis of default in payments by the US Corporation. After a year of court proceedings, the parties took up the suggestion to submit their dispute to the WIPO centre of Mediation. Out of a list 5 candidates, the parties agreed on one of the candidates who had considerable knowledge and experience in intellectual property, The parties reached a settlement agreement within six months.
  • Dispute resolution in Occupied Palestinian Territories
    The Construction industry in Palestine is as volatile as the country’s vulnerable political and economic existence, Events such as border closures, blockades lead to shortage or unavailability of raw materials and other inputs causing delay and price escalation. There is a lot of internal and external pressure on the projects and several methods are used for conflict resolution. First preference is given mediation and conciliation and litigation is rarely sought. It is estimated that almost 70 to 90% of disputes are resolved through the customary dispute resolution systems and never reach the formal justice system. This method is called Sulh and is similar but not the same as modern mediation. Disputes arising out of construction activities are resolved through these methods as litigation does not provide speedy resolution. Litigation expanding into months or years can be fatal for construction disputes. However, there is a preference for ad hoc mediation and not much effort is put into facilitating institutional mediation. 
  • Indus Water Treaty Dispute Resolution
    This mediation settlement between India and Pakistan is one among the successful instances of environmental mediation. In this case, the mediation support was given by the World Bank and they divided the Indus river basin. The western tributaries were given to Pakistan and the eastern tributaries to India. This settlement has survived to a great extent, except for the recent tensions in the Kishenganga and Ratle Hydropower projects. 

What does the Future hold?

There is an increased use of mediation in international dispute resolution with the growth of micro and small business enterprises in the international arena. The composition of those approaching mediation include online consumers, small businesses, communities in remote indigenous villages, entrepreneurs, investors and states. It is offered by multiple international and regional organisations in various sectors such as intellectual property, insurance, manufacturing etc. The steady growth of international mediation has motivated nations and international organisations towards establishing a legal framework. 

Currently, there are initiatives to improve the professionalism of mediators by recognition of mediator credentials and experience, development of international standards for mediators,  and procedure for cross-recognition of mediator standard. International mediation service providers also provide codes of conduct and ethical guidelines for mediators. Efforts are made towards harmonised standards in international mediation. Institutions such as SIMI have established a channel for feedback and peer review of the mediators. It is now an obligation in some countries, to engage in mediation wherever it is required. 

Countries like the US, Canada and Australia employ Facilitative mediation programs which accommodate the diverse issues of diverse populations. Mixed-modes of dispute resolution are also increasingly used. Currently, technology is referred to as the ‘fourth party’ in the mediation process. Online dispute resolution is carried out through e-mail, instant messaging, video conferencing, social networking, blogs etc. Such methods are found to be relatively affordable. Apology legislation has also been added on to amicable dispute resolution. Apologies made in the course of mediation are protected by legislation that preserve the confidentiality of the process. 

The scope of third-party funding of mediation has also grown through which financially weak parties could obtain the benefits of this process.

Conclusion

Mediation is continuously being placed at the centre of the dispute resolution due to the multitude of benefits it can offer at a significantly lower cost than traditional litigation. The case studies explored in this article are clear illustration of the benefits offered by mediation such as speedy resolution, mutually beneficial solutions, financial and social accessibility. The challenges in the process can be overcome with efforts towards efficiency. The shift from ADR to CDR focuses not only on coming around the weaknesses of litigation, but focuses on providing mutually beneficial and creative solutions.

It provides a plethora of benefits in different contexts such as family disputes, employee disputes, commercial disputes, inter-state disputes and so on. There has been movement towards standardizing the process dimension of mediation in order to create a sense of certainty and prevent misuse. It is an effective channel to increase the accessibility of legal remedies. People shy away from litigation as it is expensive, time-consuming and uncertain. Further, there is little to no knowledge on law among the common people. Mediation, with other alternative dispute resolution methods, is a way to overcome these challenges. 

Awareness about the method must be created and appropriate training is given to the mediators to secure all the benefits that mediation offers.

References

  •  Saundry , R. and Wibberley , G. (2012) ‘Mediation and Early Resolution  A Case Study in Conflict Management’, Institute for Research into Organisation, Work and Employment, iROWE [Preprint].
  • Riskin, L. (1985) ‘The Special Place of Mediation in Alternative Dispute Processing’, Florida Law Review , 37(1).
  • Ibid.
  •  Finra (2022) Comparison between arbitration & mediation, Comparison Between Arbitration & Mediation | FINRA.org. Available at: https://www.finra.org/arbitration-mediation/comparison-between-arbitration-mediation (Accessed: 18 August 2023). 
  • Supra 3.
  •  Indulia, B. et al. (2023) Mediation: The future of dispute resolution, SCC Blog. Available at: https://www.scconline.com/blog/post/2020/06/25/mediation-the-future-of-dispute-resolution/ (Accessed: 18 August 2023). 
  • Supra 1.
  • Id.
  • Stipanowich, T. and Lamare, R. (2013) ‘Living with ADR: Evolving Perceptions and Use of  Mediation, Arbitration and Conflict Management in  Fortune 1,000 Corporations’, Pepperdine University School of Law [Preprint].
  • Justice A.K. Sikri and Anuroop Omkar, ‘Mediation in Corporate Insolvency: A Game Changer’ BusinessWorld (14 June 2019), available at: http://www.businessworld.in/article/Mediation-In-Corporate-Insolvency-A-Game-Changer/14-06-2019-171872.
  • § 89, Civil Procedure Code, 1908.
  • Kamalnath, A. and Kaul, A. (2022) ‘Adding mediation to India’s corporate resolution process’, International Insolvency Review, 31(2), pp. 163–182. DOI: 10.1002/iir.1450.
  • Khanna, A. (2023) Mediation bill: An incomplete settlement, The Indian Express. Available at: https://indianexpress.com/article/opinion/columns/mediation-bill-an-incomplete-settlement-8898924/ (Accessed: 19 August 2023).
  • Hensler, D. (2003) ‘Our Courts, Ourselves: How the Alternative Dispute Resolution  Movement Is Re-Shaping Our Legal System’, Dickinson Law Review, 108(1).
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  • Ibid.
  • Wallensteen, P. and Svensson, I. (2021) ‘Talking peace: International mediation in armed conflicts’, Journal of Peace Research, 51(2), pp. 209–228. DOI: 10.1007/978-3-030-62848-2_10.
  • Peck, C. (2009) ‘United Nations mediation experience: Practical lessonsfor conflict resolution’, The SAGE Handbook of Conflict Resolution, pp. 413–434. DOI: 10.4135/9780857024701.n22.
  • Supra 6.
  • Hrishikesh, S. (2023) Kerala leads!! Kerala started First Community mediation volunteer program in India, Asia Law Portal – A forum for discussion of news, information & opportunity in the Asia-Pacific legal markets. Available at: https://asialawportal.com/why-india-should-adopt-kerala-model-community-mediation-volunteer-system/ (Accessed: 20 August 2023).
  • Supra 17.
  • WIPO, O. (no date) WIPO Mediation Case Examples, WIPO mediation case examples. Available at: https://www.wipo.int/amc/en/mediation/case-example.html (Accessed: 21 August 2023).
  • Besaiso, H., Fenn, P. and Emsley, M. (2016a) ‘Alternative dispute resolution in Palestine: The myth and dilemma of construction mediation’, International Journal of Law in the Built Environment, 8(3), pp. 269–286. DOI: 10.1108/ijlbe-12-2015-0021.
  • Adamzyck, S. and Coll, B. (2012) Customary Dispute Resolution Mechanisms in the Gaza Strip. Available at: https://www.flyktninghjelpen.no/globalassets/pdf/reports/customary-dispute-resolution-mechanisms-in-the-gaza-strip.pdf (Accessed: 21 August 2023).
  • Mishra, A. and Tripathi, P. (2022) ‘MEDIATION IN ENVIRONMENTAL DISPUTES: AN INDIAN PERSPECTIVE’, Delhi Law Review, 36. Available at: https://www.researchgate.net/publication/365851198_MEDIATION_IN_ENVIRONMENTAL_DISPUTES_AN_INDIAN_PERSPECTIVE (Accessed: 21 August 2023). 
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