NUJS Law Review 11 NUJS L. Rev.

1 (2018)

FORMULATING A MODEL LEGISLATIVE FRAMEWORK

FOR MEDIATION IN INDIA
Rashika Narain & Abhinav Sankaranarayanan*
The Indian judicial system has often been criticised for high rates of pendency, inefficient functioning,
and adoption of an archaic approach to dispute resolution. The need to establish alternate pathways
of dispute resolution has been emphasised on numerous occasions by the Law Commission of India as
well as acclaimed scholars. Mediation has been identified by legal practitioners as a suitable
technique for resolving a variety of disputes. However, such an alternate form of dispute resolution is
yet to gain popularity in India, with the lack of legislative sanction being cited as a key reason for its
underdevelopment. This paper seeks to understand mediation as an alternate dispute resolution
technique and explores reasons regarding why mediation will prove to be a suitable pathway for
litigants in India to resolve disputes in an amicable and inexpensive manner. Additionally, this paper
discusses the different forms of mediation regulation across jurisdictions and argues that the creation
of a national legislative framework would be the ideal next step in India.
Table of Contents

I. INTRODUCTION ........................................................................................................................... 2
II. REQUIRMENT OF ADR IN INDIA ............................................................................................... 4
III. MEDIATION IN THE INDIAN CONTEXT ................................................................................. 8
A. COURT REFERRED MEDIATION (POST-LITIGATION MEDIATION): §89 CPC........... 8
B. MEDIATION WITHIN STATUTES ......................................................................................... 9
C. PRIVATE MEDIATION (PRE-LITIGATION MEDIATION) ................................................ 11
1. Confidentiality................................................................................................................... 13
2. Enforcement of Settlement Agreements ............................................................................. 14
IV. REGULATORY FRAMEWORKS FOR MEDIATION ............................................................... 17
A. MARKET-CONTRACT REGULATION ................................................................................ 18
B. SELF-REGULATORY APPROACH ..................................................................................... 20
C. FORMAL REGULATORY FRAMEWORK ........................................................................... 22
D. FORMAL LEGISLATIVE REGULATION............................................................................. 25
V. FINDINGS OF THE SURVEY AND MODEL CLAUSES ............................................................ 26
A. METHODOLOGY ................................................................................................................. 27
B. MEDIATOR QUALIFICATIONS .......................................................................................... 27
C. CONFIDENTIALITY............................................................................................................. 28
D. ENFORCEMENT OF SETTLEMENTS ................................................................................ 30
VI. CONCLUSION .......................................................................................................................... 32
VII. ANNEXURE: MODEL QUESTIONNAIRE............................................................................... 32
A. GENERAL ............................................................................................................................. 32
B. REFERENCE MADE TO MEDIATION ............................................................................... 33
C. COMPLAINT MECHANISMS .............................................................................................. 34

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 NUJS Law Review 11 NUJS L. Rev. 1 (2018)

D. RIGHTS OF PARTIES .......................................................................................................... 34

E. INFRASTRUCTURE REQUIREMENTS............................................................................... 35
F. SELECTION OF MEDIATORS ................................................................................................ 36
G. AWARENESS ........................................................................................................................ 37

I. INTRODUCTION
The judiciary acts as the backbone of the Indian democracy, by ensuring social
order while furthering the ends of justice. The existence of an independent and unbiased
judiciary is necessary for the preservation of citizen’s rights and maintenance of the rule of
law. Further, studies indicate that the effectiveness of the civil justice system, in particular,
has a profound impact on the efficiency of the economy,1 thus maintaining economic
stability.2 Authoritative judicial determination, wherein the coercive power of the State
compels unwilling litigants to come to the negotiating table, is crucial to ensure that weaker
parties are able to enforce their legal and contractual rights.3 Thus, the existence of a civil
justice system, which functions efficiently and adjudicates expeditiously, is indispensable for
the continued survival of any democracy.

However, the Indian justice system is infamous for its inability to dispose
cases in a timely manner.4 As of December 8, 2017, there are over 2.6 crore cases pending in
High Courts across the country.5 In fact, at the current pace of functioning, the Delhi High
Court alone would take 466 years to clear its backlog.6 As of December, 2016, there exist
seventy-five lakh civil suits pending, out of which more than forty lakh have been pending
for over two years.7

The Supreme Court has on several occasions recognised the need for a less
formal, alternative forum that may help in securing speedy justice as the Court stated judicial
processes in India are time-consuming, complex and expensive.8 Protracted litigation is not in
the interest of either party, not only due to the time and high economic costs involved but also

* 3rd and 1st year BA. LL.B students at the W.B. National University of Juridical Sciences, Kolkata. We would
like to thank Ms. Gauri Pillai for her invaluable comments and vital inputs on earlier versions of this paper, as
well as for her help and guidance at every stage. We would also like to thank Mr. Pranjal Sinha (ODRways) for
helping us conceive the paper in its initial stages. All errors, however, remain solely ours.
1
RM Sherwood, Judicial Systems and Economic Performance, 34 QUARTERLY REVIEW OF ECONOMICS &
FINANCE 101, 116 (1994).
2
CYNDI BANKS, CRIMINAL JUSTICE SYSTEM, ETHICS, AND PRACTICE, 11-15 (2012); SHIV KUMAR DOGRA,
CRIMINAL JUSTICE ADMINISTRATION IN INDIA 4-5 (2003); Hazel Genn, What is Civil Justice For? Reform, ADR,
and Access to Justice, 24 YALE L. REV. 18 (2013).
3
Id.; ALAN UZELAC, GOALS OF CIVIL JUSTICE AND CIVIL PROCEDURE IN THE CONTEMPORARY JUDICIAL
SYSTEMS, 29-37 (2013).
4
Mayur Suresh & Siddharth Narrain, The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India,
17, 20 (2014); THE WORLD BANK, Ease of Doing Business in India, available
at http://www.doingbusiness.org/data/exploreeconomies/india/#enforcing-contracts (Last visited on January 7,
2018).
5
NATIONAL JUDICIAL DATA GRID, Summary Report of India, available at
http://njdg.ecourts.gov.in/njdg_public/main.php# (Last visited on December 8, 2017).
6
It would take Delhi HC 466 yrs to clear backlog: CJ, THE INDIAN EXPRESS, February 13, 2009, available at
http://indianexpress.com/article/india/india-others/it-would-take-delhi-hc-466-yrs-to-clear-backlog-cj/ (Last
visited on February 3, 2018).
7
NATIONAL JUDICIAL DATA GRID, supra note 5.
8
Guru Nanak Foundation v. Rattan Singh & Sons, AIR 1981 SC 2073; Sukanya Holdings Pvt. Ltd. v. Jayesh H.
Pandya, (2003) 5 SCC 531; Shyamalika Das v. Gen. Manager, Gridco, (2010) INSC 802.
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 NUJS Law Review 11 NUJS L. Rev. 1 (2018)

because of the emotional cost associated with the public forum.9 Negotiation is one such
method that involves parties endeavouring to settle the dispute amicably, aiming to arrive at a
solution and not a ‘decision’ as negotiations do not involve a judge passing a judgment, but
parties arriving at a compromise.10 Mediation, conciliation and Lok Adalats are modes of
Alternative Dispute Resolution (‘ÁDR’) mechanism through negotiation.11

Mediation provides an alternative, that not only saves time and is cost
effective, but it also enables parties to work together and solve disputes amicably. 12 The
current adversarial form of litigation does not allow for open dialogue or conversation, parties
fight against each other while the problem still persists. In contrast, in mediation, both parties
play an active role in resolving the dispute to reach a settlement.13 Additionally, there exist
several indirect costs of litigation such as time, the relationship, and loss of faith between
parties.14 Internationally, mediation has made justice more accessible as it has made
adjudication more accommodating.15 Studies indicate that parties are more likely to comply
with a mediation settlement than a court decree.16

Empirical data indicates that mediation is cheaper, faster and more satisfying
as a dispute resolution mechanism than traditional litigation.17 Despite the successful track
record mediation enjoys, Indian citizens have placed a significantly disproportionate reliance
upon the traditional judicial system to resolve disputes, as opposed to alternate modes of
resolution. Through our paper, we attempt to analyse this trend.18 After analysing responses
from major Indian mediation centres and numerous mediation practitioners to the queries
posed by us, we found that the reason mediation is not widely used as a dispute resolution
mechanism in India is because of the lack of State support. We argue that individuals do not
trust the existing mediation setup, and in order to encourage mediation, we believe that there
exists a dire need for a regulatory framework for mediation as there exists for arbitration.

In our analysis, for the purpose of understanding the grey areas in the existing
legal framework for mediation in India, we framed a questionnaire for practicing mediators in
India. Our survey questionnaire was modelled to contain thirty-two questions and was
designed to focus on seven facets of mediation. The first aspect in this regard focused on the
challenges faced by parties during a mediation proceeding. Next, we examined the

9
Harry T Edwards, Alternative dispute resolution: Panacea or anathema?, 99 Harvard Law Review 669, 670
(1986).
10
Mary P. Rowe, People who feel harassed need a complaint system with both formal and informal options, 6
NEGOTIATION JOURNAL 166 (1990).
11
Global Pound Conference Series 2016-17, Lok Adalat: India’s Alternative Dispute Resolution Mechanism,
available at http://globalpound.org/2017/05/04/lok-adalat-indias-alternative-dispute-resolution-mechanism/
(Last visited on February 3, 2018); Different Modes of Alternative Dispute Resolution (ADR), available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/44117/9/09_chapter%203.pdf (Last visited on February 3,
2018).
12
Different Modes of Alternative Dispute Resolution (ADR), supra note 11.
13
TJ Costello, Pre-litigation Mediation as a Privacy Policy: Exploring the Interaction of Economics and
Privacy, available at https://www.mediate.com/articles/costelloTJ1.cfm (Last visited on February 3, 2018).
14
Id.
15
Tony Biller, Good Faith Mediation: Improving Efficiency, Costs, and Satisfaction in North Carolina’s Pre-
Trial Process, 18 CAMPBELL LAW REVIEW 284 (1996).
16
James J. Alfini & Catherine G. McCabe, Mediating in the Shadow of the Courts: A Survey of the Emerging
Case Law, 54 ARK. L. REV. 182 (2002); Mary F. Radford, Advantages and Disadvantages of Mediation in
Probate, Trust, and Guardianship Matters, 1 PEPP. DISP. RESOL. L.J. 241 (2000).
17
Alfini & McCabe, supra note 16.
18
To answer this question and to understand the practice of mediation in India, we undertook a survey of
professional mediators in India, see Part VII of this paper.
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 NUJS Law Review 11 NUJS L. Rev. 1 (2018)

parameters used in different states for making a reference to mediation. The third section
sought to understand the rights available to parties that opt for mediation. This section
contained questions pertaining to confidentiality as well as enforcement options for parties.
The fourth section considered the infrastructural requirements for the existing centres and the
challenges the centres face. In the fifth section, the complaint mechanisms that exist for
consumers of the service were sought to be looked into. The sixth section covered the criteria
for mediator qualification in each centre while the final section of the survey was directed
towards understanding the manner in which lack of awareness poses a challenge to mediation
and impact of a regulatory regime on the same. We approached mediators from centres
located in Delhi, Mumbai, Bangalore, Shimla, Chennai, Golghot-Assam, Alapuzha- Kerala,
Pune, Kochi, Coimbatore, Srinagar, Hyderabad and Nagercoil-Tamil Nadu. In total, forty-
four respondents answered our survey questionnaire.

Based on our findings, we shall be arguing for formal regulation for mediation
in the form of a principle-based legislation. In Part II of the paper, we identify the different
types of ADR mechanisms and highlight the benefits arising out of mediation as opposed to
other dispute resolution processes, including litigation in courts. Part III identifies the present
legal set-up for mediation in India. We also identify and discuss certain important areas that
are currently unregulated and the manner in which regulation in these areas would help in
developing a robust culture supporting mediation. Part IV identifies the types of regulatory
frameworks that exist for mediation across the world. We discuss Market Contract
Regulations practiced in the UK, the self-regulatory approach in Australia and formal
regulatory frameworks and legislations in the EU. While examining the harms and benefits
arising out of these systems, we argue that the regulatory approach in the form of legislation,
as followed by the EU, is best suited for India. In Part V, we discuss the findings from our
survey and identify certain core principles that should be part of the legislation setting up a
framework for mediation.

II. REQUIRMENT OF ADR IN INDIA

The ineffectiveness of the justice system in India is a result of the fact that
litigation in Indian courts has proven to be a time consuming, laborious, and expensive
process.19 Further, an acute lack of competent institutions capable of training adequate
numbers of accomplished lawyers has resulted in a dearth of quality legal professionals.20
Moreover, the inherent inadequacies in the legal aid system in India have compelled
prospective litigants to seek out a small clique of established lawyers. This in turn has
increased the workload of these lawyers, and has resulted in incessant delays and substantial
increase in charges.21 A combination of these factors has compelled a vast majority of the
public to forego certain grievances and choose to resolve their disputes only as a ‘last resort’.

19
Marc Galanter & Jayanth K. Krishnan, Bread for the Poor: Access to Justice and the Rights of the Needy in
India, 53 HASTINGS LAW JOURNAL 789.
20
THE INDIAN EXPRESS, supra note 6; The Bar Council of India, Reform of Legal Education in India: Note on
Proposed Directions for Reform, available at http://www.barcouncilofindia.org/wp-
content/uploads/2010/07/LegalEducationReformRecommendations.pdf (Last visited on January 25, 2018);
Improving legal education in India, THE HINDU, September 29, 2016, available
athttp://www.thehindu.com/todays-paper/tp-opinion/Improving-legal-education-in-India/article14783272.ece
(Last visited on January 25, 2018); Bar and Bench, Clinical Legal Education: A Way towards Up-scaling Access
to Justice in India, available at http://barandbench.com/clinical-legal-education-a-way-towards-up-scaling-
access-to-justice-in-india/ (Last visited on February 2, 2018).
21
Robert L. Kidder, Formal Litigation and Professional Insecurity: Legal Entrepreneurship in South India,
24(1) LAW AND SOCIETY REVIEW 182; Jamie Cassels, Judicial Activism and Public Interest Litigation in India:
Attempting the Impossible?, 37(3) THE AMERICAN JOURNAL OF COMPARATIVE LAW 503.
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Consequently, presently while a dispute persists, parties choose not to approach the formal
dispute resolution mechanism, as the only option they perceive is litigation. Thus, there
currently exists a demand for speedy and inexpensive dispute resolution that is not being met
by the conventionally available legal services.
Additionally, there exist numerous structural barriers such as income, caste,
gender, age, and religion that have rendered the Indian courts inaccessible to large segments
of the general populace.22 These barriers disproportionately impact the marginalised sections
of Indian society.23 For instance, in certain parts of the country, women and Dalits are
actively discouraged from enforcing their rights.2425 The convergence of these factors has
resulted in a large proportion of the Indian population becoming disenchanted with the
functioning of the Indian judiciary.26
Furthermore, the adversarial nature of litigation, which is often regarded as the
sole mode of dispute resolution, coupled with the alienating behaviour of the lawyers that
focuses more on procedure has been identified as one of the several causes of disconnect
among the masses.27 Further, the prohibitively high costs for the procurement of civil justice
and the complexity of the inner workings of the justice system, natural consequences of an
adversarial mechanism,28 discourage people from approaching the courts.
As a result, while there exists a pressing need to reform the judiciary, for a
complete transformation in the justice system in India, it is also necessary to complement the
existing court system with robust alternative mechanisms. This has been highlighted by a
number of distinguished jurists.29 The idea of a ‘Multi-door Courthouse’ was first
conceptualised by Frank Sander, who emphasised the need to provide alternative avenues for
citizens to amicably resolve their disputes in an informal manner. 30 He proposed the ‘Multi-
door Courthouse’ as a single establishment that provided multiple informal avenues to
resolve disputes. This establishment would provide prospective litigants a choice to identify

22
GALANTER & KRISHNAN, supra note 19; C. Raj Kumar, Legal Education, Globalization, and Institutional
Excellence: Challenges for the Rule of Law and Access to Justice in India, 20 INDIANA JOURNAL OF GLOBAL
LEGAL STUDIES 221, 252.
23
Kumar, supra note 22.
24
See National Campaign on Dalit Human Rights, Access to Justice for Dalits in India, December 18, 2015,
available at http://idsn.org/20448-2/ (Last visited on February 2, 2018); Navsarjan Trust, Gender-Violence and
Access to Justice for the Dalit Woman, 13, 14 (2011).
25
Government of India and United Nations Development Programme, Removing Barriers through the Bench: A
Training Manual for Judges on Laws and Issues Related to Marginalised Communities, available at
http://www.in.undp.org/content/dam/india/docs/DG/Removing%20Barriers%20through%20the%20Bench.pdf?
download (Last visited on February 2, 2018).
26
DAKSH INDIA, Access to Justice Survey 2015-16, available at http://dakshindia.org/wp-
content/uploads/2016/05/Daksh-access-to-justice-survey.pdf (Last visited on December 15, 2017).
27
LORD WOOLF, HER MAJESTY'S STATIONARY OFFICE, ACCESS TO JUSTICE: INTERIM REPORT TO THE LORD
CHANCELLOR ON THE CIVIL JUSTICE SYSTEM IN ENGLAND AND WALES (1995).
28
Id.; HELEN STACY & MICHAEL LAVARCH, BEYOND THE ADVERSARIAL SYSTEM 75-84 (1999).
29
Harry T Edwards, Alternative Dispute Resolution: Panacea or anathema?, 99 HARVARD LAW REVIEW 678,
679 (1986); Mary P. Rowe, People Who Feel Harassed Need a Complaint System with Both Formal and
Informal Options, 6 NEGOTIATION JOURNAL 169,170 (1990); Judith Resnik, Many Doors? Closing Doors?
Alternative Dispute Resolution and Adjudication, 10 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 225, 226
(1994).
30
Address by Frank E.A. Sander at the National Conference on the Causes of Dissatisfaction with the
Administration of Justice (Apr. 7-9, 1976), reprinted in FRANK E.A. SANDER, VARIETIES OF DISPUTE
PROCESSING (1978).
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the dispute resolution technique most suited to their particular grievance.31 This theory has
been further endorsed and emphasised extensively in a number of other jurisdictions.32
The High Court of Kerala in T. Vineed v. Manju S. Nair33 held that making an
attempt for alternative redressal of disputes is not only a statutory obligation of courts under
§89 of the Code of Civil Procedure but also forms part of a duty that courts owe to the
public.34 Widespread adoption of ADR mechanisms would provide the aggrieved with
multiple avenues to enforce their rights and would consequently improve access to justice in
India.35 Consequently, it would substantially lower the burden upon the subordinate and high
courts. This need for the adoption of such techniques has been emphasised and reiterated by
the Law Commission of India on numerous occasions.36
ADR mechanisms typically include arbitration, neutral evaluation,
conciliation, and mediation.37 Both arbitration and neutral evaluation are adjudicatory forms
of dispute resolution that involve an independent third party who evaluates the dispute. While
neutral evaluation involves a seasoned and neutral third party who evaluates the merits of the
dispute and delivers a non-binding judgement, arbitration involves the rapid adjudication of
disputes by an independent and private third party who then passes a binding award.38
Conciliation and mediation, on the other hand, are both mechanisms that involve an
independent third party who helps parties reach ‘a settlement’, rather than the adjudicator
passing a unilateral award. While, certain legislations have failed to adequately distinguish
the two concepts and have used them in an interchangeable manner,39 it has been recognised
by the Supreme Court,40 as well as the Law Commission, that conciliation and mediation are
both fundamentally different techniques.41 Conciliation as a form of dispute resolution
involves a conciliator who assumes an active role, meets the concerned parties, and proposes
the terms of settlement.42 Mediation as an ADR mechanism is largely informal in nature, and
does not focus heavily on procedural aspects. The mediator, in contrast with the conciliator,
plays a passive role, and merely sets the tone of negotiation between the parties.43 Such an
environment encourages citizens to readily approach the mediation centres to adjudicate their

31
Id.
32
Gladys Kessler & Linda J. Finkelstein, The Evolution of a Multi-Door Courthouse, 37 CATHOLIC UNIVERSITY
LAW REVIEW 578, 579 (1988); SANDER, supra note 30.
33
T. Vineed v. Manju S. Nair, 2008(1) KLJ 525.
34
Id.
35
Law Commission of India, Delay and Arrears in Trial Courts, Report No. 77 (November 1978); Law
Commission of India, Delay and Arrears in High Court and other Appellate Courts, Report No. 79 (May 1979);
Law Commission of India, The High Court Arrears- A Fresh Look, Report No. 124 (1988).
36
Id.
37
MICHAEL MCILWRATH & JOHN SAVAGE, INTERNATIONAL ARBITRATION AND MEDIATION: A PRACTICAL
GUIDE, 3-7 (2010); Edwards, supra note 29, 669-670; Frank EA Sander, Alternative Methods of Dispute
Resolution: An Overview, 37(1) U. FLA. L. REV. 2 (1985).
38
JAMES S. KAKALIK, AN EVALUATION OF MEDIATION AND EARLY NEUTRAL EVALUATION UNDER THE CIVIL
JUSTICE REFORM ACT, 17-23 (1996).
39
The Companies Act, 2013, §442(2).
40
Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344 (‘Salem II) ¶61.
41
Justice M. Jagannadha Rao, Concepts of Conciliation and Mediation and their Differences, available at
http://lawcommissionofindia.nic.in/adr_conf/concepts%20med%20rao%201.pdf (Last visited on January 31,
2018).
42
Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute Resolution Movement is re-Shaping
Our Legal System, 108(1) PENN ST. L. REV. 165 (2003).
43
Laura Fishwick, Mediating with Non-Practicing Entities, 27(1) HARVARD JOURNAL OF L. AND TECH. 331, 349
(2013).
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disputes, aiding in altering the perception of systems of justice as a last resort.44 This informal
and party-oriented nature of mediation could also potentially provide assistance in
transgressing structural barriers that render justice inaccessible to sections of the population.45
Further, ADR techniques in India, such as mediation and arbitration, have
proved to be quick and efficient, with two-thirds of mediated disputes being resolved at an
average rate of 173 minutes per case in 2015.46 This is in stark contrast to the existing justice
system, wherein high courts take an average of 523 days to dispose of a civil writ petition.47
This is in line with the concerns voiced by an overwhelming majority of Indian civil litigants,
who outline a fair, speedy, and inexpensive trial as their top priority.48
Globally, arbitration and mediation are widely employed ADR mechanisms
and have been acknowledged to be the most effective.49 However, the two techniques are
distinct and apply to different kinds of disputes.50 While arbitration is ideal primarily for
disputes of a commercial nature, mediation has a broader reach, and has been used
successfully to resolve disputes of multiple kinds, ranging from criminal trials to commercial
transactions.51 Most importantly, arbitration focuses on adjudicating disputes expediently,
while mediation is a party centred process which focuses primarily upon the needs, rights,
and interests of the individual parties.52
The core value and benefit of mediation is that it provides an opportunity for
the parties to converse, negotiate, and arrive at an amicable compromise that is acceptable for
all the concerned parties.53 Adversarial litigation does not provide any scope for the litigants
to compromise and enter a legally binding settlement even if the concerned parties are willing
to do so. In contrast, all parties – consumers, companies, employers, employees, husband and
wife – play an active role in solving the problem while reaching a compromise through
mediation.54 In addition to this, there exist several indirect costs of adjudication such as
employee’s time, loss of an employee, loss of a customer, loss of a business relationship, or
just a loss of faith between parties, which are not incurred if parties adopt mediation.55 There
also exist several advantages for society related to the action of coming to an amicable
solution. For instance, the potential of lawsuits being filed against teachers in America is a

44
DAKSH INDIA, supra note 26; John Lande, Failing Faith in Litigation? A Survey of Business Lawyers' and
Executives' Opinions, 3 HARV. NEGOTIATION L. REV. 1 (1998).
45
Bingham Centre for the Rule of Law, International Access to Justice: Barriers and Solutions, 22 (October
2014) at https://www.biicl.org/documents/485_iba_report_060215.pdf?showdocument=1 (Last visited on March
3, 2018).
46
VIDHI CENTRE FOR LEGAL POLICY, Strengthening Mediation in India: Interim Report on Court Annexed
Mediations, 42, (July 29, 2016), available at
https://static1.squarespace.com/static/551ea026e4b0adba21a8f9df/t/579ee7be5016e10ca2ae65f0/147003192069
4/Interim+Report_Strengthening+Mediation+in+India.pdf (Last visited on February 3, 2017).
47
DAKSH INDIA, supra note 26.
48
Id.
49
Fishwick, supra note 43; SCOTT BROWN & CHRISTINE CERVENAK, ALTERNATIVE DISPUTE RESOLUTION
PRACTITIONERS GUIDE, 15-18 (2000).
50
Id.
51
Judge Joe Harman (of the Federal Circuit Court of Australia), From Alternate to Primary Dispute Resolution:
The pivotal role of mediation in (and in avoiding) litigation, National Mediation Conference Melbourne (2014).
52
FRANK ELKOURI, EDNA ASPER ELKOURI & ALAN MILES RUBEN, HOW ARBITRATION WORKS (18th ed., 1985);
JAY FOLBERG & ALISON TAYLOR,MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CONFLICTS WITHOUT
LITIGATION 32-35 (1986); MARK D. BENNET & MICHELE G. HERMANN, THE ART OF MEDIATION 43-48 (1996).
53
DAVID SPENCER & MICHAEL BROGAN, MEDIATION LAW AND PRACTICE 68 (2006); ROBERT A. BARUCH BUSH
& JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: THE TRANSFORMATIVE APPROACH TO CONFLICT 3 (1994).
54
Costello, supra note 13.
55
Kenneth R. Feinberg, Mediation - A Preferred Method of Dispute Resolution, 16 PEPP. L. REV. 5 (1989).
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factor that is known to cause stress that has shown to be a cause behind teachers leaving the
profession. However, the informal nature of mediator proceedings helps reduce such
emotional costs and therefore, has an impact on the burn out rate of teachers.56 Mediation can
also be used as a form of dispute settlement when the employer wants to retain an employee,
when both parties want to gain a deeper understanding of the problem to resolve the issue at
hand, at a minimal cost.57 With costs associated with hiring employees, namely, opportunity
costs, training costs, lost time being so high, employment mediation can be a viable option to
resolve internal disputes. Additionally, in a settlement agreement, parties can agree to reach
any compromise, which can include remedies that a court may not be able to grant but will be
acceptable to both parties.58 For instance, on several occasions a sincere apology is the only
demand made a party,59 courts cannot force a party to apologise since this is not a right any
party has in statute, but a settlement along these terms can be drafted.
Crucially, the mediator assumes a largely passive role, her primary objective
being to facilitate the parties in reaching an amicable settlement. 60 This trait is unique to
mediation as it is the only ADR mechanism wherein the third party merely guides the parties
and helps them resolve their differences, instead of proposing the future plan of action.61
III. MEDIATION IN THE INDIAN CONTEXT
The Code of Civil Procedure (‘CPC’) was amended in 2002 to incorporate §89
which includes mediation as an ADR mechanism.62 As per §89, if the court deems that the
matter may be settled amicably or through alternative mechanisms, it can refer the case to
arbitration, conciliation or judicial settlement through Lok Adalats or mediation.63 Mediation
at this stage is known as, court-referred mediation.64 In case court-referred mediation fails,
litigation for this matter shall continue; however, in the event efforts at mediation succeed, a
report is given to the Court by the mediator and the case is disposed off. The power of the
Courts to refer parties for mediation when it deems fit is enshrined in §89(d) of the Civil
Procedure Code. However, mediation may take place at two stages, pre-litigation mediation
and court-referred mediation.65 When the parties undertake mediation individually,
independent of Court proceedings, it is then termed pre-litigation mediation or private
mediation.66 There also exist several statues in India that refer to mediation. In this part, we
will discuss the regulations surrounding all phases in which mediation takes place.
A. COURT REFERRED MEDIATION (POST-LITIGATION MEDIATION): §89
CPC
§89(2) provides the procedure that is to be followed when ADR mechanisms
are employed. §89 envisions only post-litigation mediation; therefore, the rules of procedure

56
Bradley, Allison, TJ Costello, Robin McMillin & Bob Popinsky, Redefining the Texas Teacher Shortage: Key
Issues in Retention and Recruitment of Quality Educators, (December 2001).
57
Costello, supra note 13.
58
Id.
59
Id.
60
DAVID SPENCER & MICHAEL BROGAN, MEDIATION LAW AND PRACTICE 8 (2006).
61
Hensler, supra note 42.
62
Civil Procedure Code (Amendment) Act, 2002.
63
The Code of Civil Procedure, 1908, §89(1)(d).
64
Niranjan Bhatt, Court Annexed Mediation, LAW COMMISSION OF INDIA,
http://lawcommissionofindia.nic.in/adr_conf/niranjan%20court%20annx%20med13.pdf (Last visited on March
3, 2018).
65
Mediation and Project Committee, Mediation and Training Manual of India, 16, available at
http://www.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf (last visited on March 3, 2018)
66
Id.
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prescribed under §89 are applicable only to such court referred mediation. In the absence of
a central legislation governing mediation, proceedings take place as per rules prescribed by
each Court.67 However, in Salem Advocate Bar Association v. Union of India (‘Salem I’)68
the Supreme Court recognised the need for regulating mediation proceedings on account of
the absence of a framework rendering §89 ineffective. The Court was of the opinion that for
ADR to be successful under §89, “the modalities” for the manner in which proceedings will
take place need to be formulated. Pursuant to this judgment, the Mediation and Conciliation
Project Committee (‘MCPC’) was formed under Justice Jagannadha Rao, which submitted a
report, formulating the Civil Procedure Alternative Dispute Resolution and Mediation Rules,
2003.69 These Rules laid down non-binding procedural guidelines for court referred
mediation. The Supreme Court opined that these rules could be adopted by each High Court
with modifications that the Court deemed fit.70 As a result, the development of mediation
system in each state has been dependent largely on the inclination of each court. For instance,
only five disputes have been resolved at the Tripura Mediation Centre from 2008 to 2015,71
while 31,441 disputes have been resolved by Bangalore Mediation Centre from 2011 to
2015.72
Based on our survey we found that 61.8% of the respondents to our
questionnaire said that less than 100 cases are annually referred to them, only 5.9% of the
participants receive more than 1000 cases annually. Incidentally, all respondents that
indicated they receive more than 1000 cases are practicing mediators in Bangalore. 64.7% of
the data set responded that judges refer cases on the basis of no prescribed standard. 34.3% of
the respondents stated that the High Courts that they practice under have not taken any
concrete steps to implement the MCPC recommendations.
B. MEDIATION WITHIN STATUTES
Apart from §89, the only other statutes that provide for dispute resolution
mechanisms that resemble mediation are the Industrial Disputes Act, 1947, Companies Act,
2013 and arguably the Arbitration and Conciliation Act, 1996 (‘1996 Act’).73 Before delving
into the specific provisions of these legislations, it must be noted that the provisions for ADR
within these statutes resemble conciliation rather than mediation, with some statutes
collapsing the distinction between the two (Companies Act, 2013), while other statutes only
providing for conciliation (Industrial Disputes Act, 1996 Act), thereby, rendering mediation
outside of §89, unregulated.
The Industrial Dispute Act sets up a conciliation framework for workmen and
employers to resolve disputes.74 A Conciliation Officer and a Board of Conciliators are
appointed by the government. The duties of these officers as codified in the statute include
investigating the dispute and helping the parties arrive at an amicable solution. The officer’s
role is akin to that of a civil court. He is vested with the power to adduce evidence and pass
judgment.75 In case the Officer is of the opinion that the dispute cannot be resolved, a failure

67
Code of Civil Procedure, 1908, Order 20, Rules 1A, 1B & 1C.
68
Salem Advocate Bar Association. v Union of India, (2003) 1 SCC 49 (‘Salem I’).
69
Rao, supra note 41.
70
Id.
71
NORTHEASTNEWS, Mediation yet to start visibly in India: Judges, October 4, 2015, available at
http://northeastnews.in/news_details.php?c=30&n=12546#.WFKvudV97IV (Last visited on March 3, 2018).
72
VIDHI CENTRE FOR LEGAL POLICY, supra note 46.
73
ANUROOP OMKAR & KRITIKA KRISHNAMURTHY, THE ART OF NEGOTIATION AND MEDIATION, 57 (2015).
74
The Industrial Disputes Act, 1947, §§4,5,12.
75
OMKAR & KRISHNAMURTHY, supra note 73; The Industrial Disputes Act, 1947, §§4, 5.
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report is submitted to the Government. While the statute seems to incorporate conciliation as
a dispute mechanism akin to mediation, in reality the parties do not have a say in the terms of
the settlement or in the final outcome.76 In fact, the pleadings submitted by each party are
drafted by professionals and there is no scope to explore the issues underlying the dispute.77
The proceedings envisioned under the Industrial Disputes Act similarly do not resemble
either mediation or conciliation.78
Companies (Mediation and Conciliation) Rules, 2016 (‘Companies Rules’)
and §442 of the Companies Act 2013 set up a Mediation and Conciliation Panel “for
mediation between the parties during the pendency of any proceedings before the Central
Government or the Tribunal or the Appellate Tribunal.”79 While, the panel is referred to as
the Mediation and Conciliation Panel, the Act states that it is set up only for the purpose of
‘mediation’.80 On a reading of the Companies Rules with §442, it is evident that the statute
does not maintain a clear distinction between mediation and conciliation, as laid down by the
Jagannadha Rao Committee report in 2003 post the Salem I judgment. For instance, Rule 17
of the Companies Rules describes the role of the mediator and conciliator to be the identical
while the 2003 Report acknowledged that the two do not and cannot perform the same
function, as a conciliator has a more active role.81 The 2003 report cited several international
authors and UK Reports and referred to mediation as a means of settling disputes by a third
party who helps both sides to come to an agreement, which each considers to be acceptable.
The Committee was of the opinion that mediation can be ‘evaluative’ or ‘facilitative’.
‘Conciliation’, on the other hand required the conciliator to play an interventionist role in
bringing the two parties together and arriving at a settlement.82 In fact, this distinction is
recognised even within the 1996 Act, wherein §30 refers to mediation and conciliation

76
The Industrial Disputes Act, 1947, §§4,5.
77
OMKAR & KRISHNAMURTHY, supra note 73.
78
Id.
79
The Companies Act, 2013, §442. It states:
“442. (1) The Central Government shall maintain a panel of experts to be called as the Mediation and
Conciliation Panel consisting of such number of experts having such qualifications as may be prescribed for
mediation between the parties during the pendency of any proceedings before the Central Government or the
Tribunal or the Appellate Tribunal under this Act.
(2) Any of the parties to the proceedings may, at any time during the proceedings before the Central
Government or the Tribunal or the Appellate Tribunal, apply to the Central Government or the Tribunal or the
Appellate Tribunal, as the case may be, in such form along with such fees as may be prescribed, for referring the
matter pertaining to such proceedings to the Mediation and Conciliation Panel and the Central Government or
Tribunal or the Appellate Tribunal, as the case may be, shall appoint one or more experts from the panel referred
to in sub-section (1).
(3) The Central Government or the Tribunal or the Appellate Tribunal before which any proceeding is pending
may, suo motu, refer any matter pertaining to such proceeding to such number of experts from the Mediation
and Conciliation Panel as the Central Government or the Tribunal or the Appellate Tribunal, as the case may be,
deems fit.
(4) The fee and other terms and conditions of experts of the Mediation and Conciliation Panel shall be such as
may be prescribed.
(5) The Mediation and Conciliation Panel shall follow such procedure as may be prescribed and dispose of the
matter referred to it within a period of three months from the date of such reference and forward its
recommendations to the Central Government or the Tribunal or the Appellate Tribunal, as the case may be.
(6) Any party aggrieved by the recommendation of the Mediation and Conciliation Panel may file objections to
the Central Government or the Tribunal or the Appellate Tribunal, as the case may be”.
80
Companies Act, 2013, §442(1).
81
Companies (Mediation and Conciliation) Rules, 2016, Rule 17.
82
Lord Chancellor’s Department, Discussion Paper on Alternative Dispute Resolution, available at
http://www.lcd.gov.uk/Consult/cir-just/adi/annexald/htm (Last visited on March 3, 2018); HENRY J. BROWN &
ARTHUR L. MARIOTT, ADR PRINCIPLES AND PRACTICE 127 (1st ed., 1997).
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separately as alternative dispute resolution during the pendency of an arbitration

proceeding.83 Blurring of the lines between mediation and conciliation is especially troubling
because it is unclear whether the Companies Act, 2013 intends to create a separate
framework for conciliation outside the 1996 Act, or whether the legislature intended to create
a framework for mediation of commercial disputes separate from conciliation.84
The 1996 Act does not define mediation or conciliation, however §73 of the
1996 Act lays down what a settlement agreement is and the role of a conciliator when a
settlement agreement is being framed. His role under the Act is that of an interventionist, pro-
active individual, as he can formulate terms of the settlement. Even when the parties want to
make a suggestion for settlement, they must make such a suggestion to the conciliator first,
thus making the conciliation proceeding under the 1996 Act rigid. 85 Hence, it cannot be
argued that mediation in India is regulated or can be clubbed with conciliation under the 1996
Act.
Therefore, even though these statutes make references to Mediation, in
practice only the non-binding MCPC rules pursuant to §89 govern post litigation mediation
while pre-litigation mediation is entirely unregulated.
C. PRIVATE MEDIATION (PRE-LITIGATION MEDIATION)
In K. Srinivas Rao v. D.A. Deepa,86 the Supreme Court discussed the idea of
pre-litigation mediation in the context of family disputes.87 In this case, the husband prayed
for a divorce decree on grounds of mental cruelty as the wife had filed a false criminal
complaint against him and his family. The Court, while granting the husband relief, placed
great importance on the benefits of pre-litigation mediation as a form of dispute settlement,
observing that in the present case there would be no requirement for a divorce had the parties
approached a mediation centre prior to pursuing the suit. The Court acknowledged that often
disputes such as these arise as a result of trivial reasons that are exacerbated by pursuing
litigation. The oppositional ‘winner takes all’ set-up is not beneficial for the relationship
between parties, particularly in the context of matrimonial disputes.
Subsequently, the judge observed that data from the Delhi district courts
indicate that chances of a successful resolution are higher when parties approach mediation
centres at the earliest instance.88 The Court went to the extent of holding that if parties are
willing, even non-compoundable offences (offences that cannot be settled out of Court)89
under 498A of the Indian Penal Code should be referred to mediation by courts. 90 The
judgement discussed that this method of resolution will help solve matrimonial disputes in an
amicable manner such that all parties will be satisfied.91 The Court identified that the benefits

83
The Arbitration and Conciliation Act, 1996, §30.
84
Arjun Natarajan, Companies (Mediation And Conciliation) Rules, 2016 – “Giant Leap” Or “Achilles Heel”
For Mediation In India?, LIVE LAW, September 20, 2016, available at http://www.livelaw.in/companies-
mediation-conciliation-rules-2016-giant-leap-achilles-heel-mediation-india/(Last visited on March 3, 2018)
(“This confusion arises as the Companies Rules provides for conciliation of disputes without making any
reference to the 1996 Act. Further as this procedure is also referred to as ‘mediation’ within the Companies Act,
there exists a possible intention of the legislature to create mediation framework for commercial disputes.”).
85
Arbitration and Conciliation Act, 1996, §69.
86
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
87
Id.
88
Id.
89
Code of Criminal Procedure, 1973, §320.
90
Id.
91
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
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of pre-litigation mediation include the possibility of settlement at the first instance, in

addition to the fact that families and relationships are saved if parties resolve their dispute
through mediation and reach a mutually agreeable settlement. In an effort to settle
matrimonial disputes at the pre-litigation stage itself, the Supreme Court directed all family
courts in India to set up and publicise pre-litigation clinics at all mediation centres.92
In jurisdictions across the world, the growth in court-referred mediation has
nurtured a culture of mediation and has subsequently resulted in the rise of pre-litigation
mediation.93 However, in India the number of civil cases referred by courts for mediation
itself remains abysmally low.94 For instance, only 5.49% of newly instituted civil cases were
referred to mediation by the Karnataka High Court in the year 2015. 95 Studies indicate that
not only does a low rate of court referral impact post litigation mediation but the rate of court
referral also plays a role in the development of a culture of private mediation in the country. 96
54.5% of the respondents of the survey felt that parties are more inclined to reaching a
settlement prior to the court framing issues.97
The primary benefits that arise as a result of dispute settlement through
mediation are saving of cost and time, and maintenance of confidentiality,98 all of which are
further exaggerated in the case of pre-litigation mediation. With respect to costs, private
mediation incurs less cost than court referred mediation, as by the time parties have been
referred by the court they have already incurred the direct costs of litigation such as court
fees, lawyer’s fees, and stamp paper duty. However, the only costs that may be associated as
a result of private mediation would be mediator fees and other administrative fees associated
with institutionalised mediation, in addition to any settlement amount agreed upon by the
parties.99 Court-referred mediation requires parties to first file their dispute in Court, thereby
making the dispute a matter of public record, as no such requirement exists for private
mediation, confidentiality is ensured. With respect to the amount of time involved, private
mediation does not require the heavy procedure involved in filing a dispute and then
obtaining a reference under §89 CPC, therefore, time take in naturally shorter. For instance,
the average time taken by Bangalore Mediation Centre to resolve a dispute pre-litigation is
150 minutes.100
Despite the several advantages that pre-litigation mediation possesses over
court-referred mediation, it is currently unregulated in India. In this part, I shall discuss two
aspects of private mediation – confidentiality and enforcement, which suffer as a result of this
regulatory over-sight. Further, we shall argue how this lacuna within Indian regulation is also
responsible for the lack of popularity of mediation (both private as well as court-referred) as a
dispute resolution mechanism in India.

92
Id, ¶35.
93
Mark Kleiman, A Perspective on the Growth and Evolution of the Field of Mediation, available
athttp://www.mediate.com/articles/kleimanM1.cfm (Last visited on February 3, 2018).
94
VIDHI CENTRE FOR LEGAL POLICY, supra note 46.
95
Id.
96
See Greg Rooney, The Australian Experience Of Legislated Pre-Action Adr Requirements: Specificities,
Acceptation, And Keys To Success, available at
http://www.odreurope.com/assets/site/content/PREMEDIATION-adr.pdf (Last visited on March 3, 2018)
97
Results of the Survey conducted using the Questionnaire, see Part VII: Annexure of this paper.
98
Law Reform Commission, Report Alternative Dispute Resolution: Mediation and Conciliation (November
2010), available at http://www.lawreform.ie/_fileupload/reports/r98adr.pdf (last visited on March 3, 2018)
(‘Law Reform Report’).
99
Results of the Survey conducted using the Questionnaire, see Part VII: Annexure of this paper.
100
VIDHI CENTRE FOR LEGAL POLICY, supra note 46, 42.
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1. Confidentiality
Confidentiality is essential for any mediation proceeding to be successful.101
The fact that parties can engage in open, honest and informal discussions with one another
helps them arrive at a compromise. Confidentiality is particularly crucial for parties to discuss
all forms and avenues of settlement. Without free-flowing discussion, parties would not be
able to resolve dispute in a non-adversarial manner. In addition to this, on occasions where
parties refrain from filing a suit in court as the subject matter of the suit is painful or
scandalous, private mediation offers a remedy. Parties need not fear public scrutiny as a result
of the confidential nature of mediation proceedings.102
The Supreme Court when discussing mediation as a process held in Moti Ram
v. Ashok Kumar,103 that mediation proceedings ought to be strictly confidential, and in case
of court referred settlements the mediator must simply place the agreement before the court
without conveying to the court what transpired during the proceedings. A similar principle
was upheld by the Central Information Commission in Rama Aggarwal v. PIO, Delhi State
Legal Service Authority104 wherein it was stated that proceedings during mediation are
protected under the exceptions in the Right to Information Act, 2005 and are not subject to be
disclosed as no public interest is served on disclosure and there exists larger public interest
protecting the information.105
In India, confidentiality is usually ensured through confidentiality agreements
that are signed by lawyers, parties and the mediator.106 However, there exist centres for
mediation in India wherein mediation proceedings are kept confidential solely on the basis of
trust.107 The question that arises then is whether the Court will uphold this principle of
absolute confidentiality in cases where one party alleges fraud on part of the mediator. It is
also worth considering if courts will pierce the veil of confidentiality in order to determine
whether consent of the parties was obtained freely for the settlement agreement. For instance,
a court may not be in a position to adjudicate whether the mediation settlement was reached
under coercion, or determine as to what are the terms of the settlement, if all facts of the
proceeding are kept confidential, and thereby outside the court's purview.108
Although the Court has not answered these questions directly, in Vennangot
Anuradha Samir v. Vennangot Mohandas Samir,109 the Court set aside a settlement for
divorce as it was of the opinion that consent of the wife was given under duress and was not
free consent. However, the reason the Court could take such a stand was because §23(1)(bb)
of the Hindu Marriage Act, 1955 provides for the court to be satisfied that the consent
obtained for a mutual consent divorce has “not been obtained by force, fraud or undue
influence.”110 In absence of a specific statute or policy for all mediation settlements, it is
unclear as to whether courts will adopt a similar position for all cases when the validity of a
settlement is questioned. While confidentiality is an essential component of mediation, some

101
See Charlie Irvine, The Three Pillars of Mediation, KLUWER MEDIATION BLOG, January 12 2012, available at
http://kluwermediationblog.com/2012/01/12/the-three-pillars-of-mediation/(Last visited on March 3, 2018)
(‘Irvine’).
102
Id.
103
Moti Ram v. Ashok Kumar, (2011) 1 SCC 466.
104
Rama Aggarwal v. PIO, Delhi State Legal Service Authority, CIC/SA/A//2015/900305.
105
Id.
106
Results of the Survey conducted using the Questionnaire, see Part VII: Annexure of this paper.
107
Id.
108
Alfini & McCabe, supra note 16.
109
Vennangot Anuradha Samir v. Vennangot Mohandas Samir, (2015) 16 SCC 596.
110
The Hindu Marriage Act, 1955, §23.
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exceptions may need to be carved, in larger public interest. For instance in California, the
Supreme Court held that if a statement made during a mediation would be one that would
exculpate a criminal defendant in a subsequent proceeding, the person making the statement
can be compelled to repeat it, thereby the Court pierced the veil of confidentiality on grounds
of larger public interest.111 We shall examine the exceptions that may be required in this
regard in Part V of this paper.
2. Enforcement of Settlement Agreements
Another issue that arises in the absence of a framework regulating mediation is
in relation to the enforceability of a settlement agreement. Although, there exist data in other
jurisdictions to show that parties are more likely to comply with mediation settlements than
court orders,112 situations do arise where one party does not comply with the terms of the
settlement and the other party approaches the judiciary for enforcement of the same.113 There
exist separate mechanisms for enforcement of settlements based on whether they were a
result of pre-litigation or court referred mediation proceedings.
For court-referred mediation, the Supreme Court in Afcons Infrastructure v.
Cherian Verkay Construction114 held that settlement agreements that arise out of court-
referred mediation are enforceable only if they are placed before the court for recording the
settlement and disposal.115 However, for court referred mediation, rules formulated by each
state vary, with some states remaining silent in their rules regarding enforcement and others
like Punjab and Haryana incorporating provisions for enforcement in their Mediation Rules,
2003.116 In Ravi Aggarwal v. Anil Jagota,117 the Delhi High Court held that a mediation
settlement cannot be binding on parties if the settlement has not been placed on record before
the court. In this case, the trial court had referred a compoundable offence to a mediation
centre and subsequently the parties arrived at a settlement. One party had complied with the
terms of the settlement, while the other party enjoyed the benefits and did not comply with
his end of the agreement. The issue before the court was whether such an agreement is

111
Rinaker v. Superior Court, (1998) 62 Cal. App. 4th 155.
112
Craig A. McEwen & Richard S. Maiman, Mediation in Small Claims Court: Achieving Compliance Through
Consent, 18 LAW & SOCIETY REV. 11 (1984).
113
Dayawati v. Yogesh Kumar Gosain, 2017 SCC OnLine Del 11032; Susan Jacob v. State of Karnataka, Cri.
Petition No. 5524/2013 (Karnataka High Court) (Unreported).
114
Id.
115
Id.
116
Mediation and Conciliation Rules, Punjab and Haryana High Court, Rules 23, 24.
“23. Settlement agreement:
(1) Where an agreement is reached between the parties in regard to all the issues in the suit or some of the
issues, the same shall be reduced into writing and signed by the parties or their power of attorney holders. If any
counsel have represented the parties, they shall attest the signatures of their respective clients. (2) The
agreement of the parties so signed and attested shall be submitted to the mediator/conciliator who shall, with a
covering letter signed by him, forward the same to the Court in which the suit is pending. (3) Where no
agreement is arrived at between the parties, before the time limit specified in rule 17 or where, the
mediator/conciliator is of the view that no settlement is possible, he shall report the same to the Court in writing.
24. Court to fix a date for recording settlement and passing decree;
(1) Within seven days of the receipt of a settlement, the Court shall issue notice to the parties fixing a date for
their appearance which date shall not be beyond 14 days from the date of receipt of the settlement and the Court
shall then take the settlement on record. (2) Thereafter, the Court shall pass a decree in accordance with the
settlement, so taken on record, if the same disposes of all the issues in the suit. (3) If the settlement disposes of
only certain issues arising in the suit, the Court shall take on record the settlement on the date fixed and shall
include the terms of the said settlement in the judgment, while deciding the other issues.”.
117
Ravi Aggarwal v. Anil Jagota, 2009 SCC OnLine Del 1475.
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binding without the settlement being placed before the trial court to be recorded. The High
Court held that such a settlement is not binding.118
Pre-litigation mediation settlement agreements may be enforceable in three
different ways. First, to give effect to a private settlement agreement, after parties have
reached a settlement they may choose to file suit and subsequently make an application to the
court under Order XXIII Rule 3119 to effect a compromise; however this has been recognised
as an highly irregular method to enforce a settlement, as parties would have to bear the
primary costs of litigation even with no intention to pursue litigation.120 Second, private
mediation settlement agreements, in the absence of any other legislation, are enforceable on
the basis of contract law.121 Enforceability of settlement agreements by relying on the Indian
Contract Act implies that principles of duress, free consent and fraud will apply to settlement
agreements.122 This takes us back to the confidentiality aspect of the proceedings and the
question of what evidence of mediation proceeding can remain outside judicial purview.
Furthermore, as no enforcement mechanism similar to other ADR techniques123 exists for
mediation settlements, parties need to approach courts to enforce the settlement, which brings
with it a host of problems associated with litigation that the parties sought to avoid when they
agreed to resort to mediation in the first place.
Third, parties have sought to enforce mediation settlements as arbitral awards
or conciliator settlements. A mediation settlement can be enforced as an arbitral award if the
proceeding takes on recommendation of the arbitral tribunal and the tribunal records the
terms of settlement as an award.124 However, in case of a conciliation settlement the Delhi
High Court in Shri Ravi Aggarwal v. Shri Anil Jagota125 held that a settlement agreement that
is an outcome of private mediation is not a conciliation settlement agreement as defined
under §73 and §74 of the Arbitration and Conciliation Act, 1996 unless procedure laid down

118
Rakesh Kumar v. State, Criminal Writ No.1018/2010, (Del. H. C.), (Unreported).
119
The Code of Civil Procedure, 1908, Order 23, Rule 3.
“Compromise of suit.- Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or
in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant
satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order
such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so
far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or
satisfaction is the same as the subject matter
of the suit: -
Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has
been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of
deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation : An agreement or compromise which is void or avoidable under the Indian Contract Act, 1872 (9
of 1872), shall not be deemed to be lawful within the meaning of this rule.”.
120
Afcons Infrastructure v. Cherian Verkay Construction, 2010 (8) SCC 24, ¶10; Gerald Manoharan & Tanvi
Kishore, Enforceability of a Mediated man Settlement, available at http://www.campmediation.in/enforceability
(last visited on February 3, 2017).
121
Mediation and Project Committee, supra note 65; Shri Ravi Aggarwal v. Shri Anil Jagota, 2009 SCC OnLine
Del 1475.
122
Alfini & McCabe, supra note 16.
123
A settlement that takes place before the Lok Adalat, the Lok Adalat award is also deemed to be a decree of
the civil court and executable as such under §21 of the Legal Services Authorities Act, 1987. Conciliation, the
Settlement Agreement is enforceable as if it is a decree of the court having regard to §74 read with §30 of the
1996 Act. The award of the arbitrators is binding on the parties and is executable/enforceable as if a decree of a
court, having regard to §36 of the 1996 Act.
124
The Arbitration and Conciliation Act, 1996, §§30, 73.
125
Shri Ravi Aggarwal v. Shri Anil Jagota, 2009 SCC OnLine Del 1475.
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in the Arbitration and Conciliation Act, 1996 is followed.126 Thus, in the present case it was
not enforceable through this Act, as no procedure under the 1996 Act was followed.127 In the
context of mediation settlements under the Negotiable Instruments Act, 1883, the Delhi
District Court in 2016 identified a lacuna in the existing legal framework and recognised the
need for the High Court to formulate guidelines laying down the procedure for the
enforcement of a mediation settlement and consequences of breach by a party.128
The requirement for regulating mediation is founded on four primary reasons:
First, to protect consumers from fraudulent mediators, second, to increase public awareness
about mediation as an ADR process, third, so that a regulatory framework can be used to
improve mediator ability and fourth, to enhance the credibility of the profession itself.129
Without a binding regulation or an Act, any individual, with or without a law degree or other
training, can call themselves a mediator. As mediation is a relatively new professional service
and many consumers – both individuals and lawyers – do not possess adequate information
about service providers to evaluate a mediator’s qualifications and practice. 130 While
presently the MCPC rules lay down procedure for mediator accreditation, these rules are
neither binding nor followed religiously in India.131
Under the existing framework, consumer protection is largely ignored, leaving
several users of this service without any recourse against unskilled mediators.132 A regulation
would prevent the entry of unskilled or unscrupulous mediators into the fraternity as it would
lay down qualifications that mediators must possess.133A mediation regulation could lay
down binding standards that would establish standards with respect to education,
apprenticeship experience, performance testing and mediation skill training that new
mediators would be required to adhere to. This would also provide mediation with the much
required state certification that would encourage people to trust the process.134 The
government must recognise that consumer protection is a necessity especially when there
exist gaping loopholes with respect to confidentiality and enforcement in the current system.
Practitioners across the country believe that to promote the use of mediation as
an ADR mechanism, a framework to govern aspects such as confidentiality and enforcement
126
The Arbitration and Conciliation Act, 1996, §73.
“73. 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.
(2) If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written settlement
agreement. If requested by the parties, the conciliator may draw up, or assist the parties in drawing up, the
settlement agreement.
(3) When the parties sign the settlement agreement, it shall be final and binding on the parties and persons
claiming under them respectively.
(4) The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties.
74. Status and effect of settlement agreement.
- The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on
the substance of the dispute rendered by an arbitral tribunal under § 30.”
127
Shri Ravi Aggarwal v. Shri Anil Jagota, 2009 SCC OnLine Del 1475.
128
Dayawati v. Yogesh Kumar Gosain, 2017 SCC OnLine Del 11032.
129
Art Hinshaw, Regulating Mediators, 21 HARVARD NEGOTIATION L. REV. 163 (2016).
130
Id.; see NADJA ALEXANDER, INTERNATIONAL AND COMPARATIVE MEDIATION: LEGAL PERSPECTIVES 76
(2009).
131
Results of the Survey conducted using the Questionnaire, see Part VII: Annexure of this paper.
132
Hinshaw, supra note 129.
133
Kleiner, Occupational Regulation189, 192, 14 J. ECON. PERSP. (2000).
134
Hinshaw, supra note 129.
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are necessary, as the ambiguities pointed are the primary reasons identified by our survey for
inherent lack of trust in mediation by the public.135 57% of the respondents of the survey felt
that lack of trust is the reason that parties do not opt for mediation in the first place.136
Furthermore, despite the existence of several legal disputes that are subject to
mediation under contractual, statutory, or judicial auspices, most consumers of the service do
not possess a basic understanding of what mediation is and have an even more vague
understanding of their rights.137 To make educated choices, consumers need trustworthy
information about mediation and mediator quality, all of which is possible only through
regulation.138
In the next part of the paper, we shall discuss the features of different kinds of
regulatory framework that exist for mediation across jurisdictions, and seek to identify a
suitable framework to regulate both private and court-referred mediation in India.

IV. REGULATORY FRAMEWORKS FOR MEDIATION

Mediation is an extremely flexible and adaptable form of dispute resolution.
Confidentiality and an informal process are the two cardinal precepts of mediation practice
worldwide.139 Formulating regulations for an essentially informal process has challenged and
intrigued regulators and policy makers across jurisdictions.140 Despite extensive policy
debates and parleys, the question of regulation has persisted in being one of the most
controversial and inconclusive topics concerning mediation as an alternative dispute
resolution technique.

While considering approaches to regulating mediation, it is necessary to take

into account the theme that has continued to define and dominate discussions, debates, and
developments regarding ADR mechanisms: the diversity-consistency dilemma.141 The
diversity-consistency dilemma refers to the dilemma faced by regulators as a result of the
persistent tension between the two opposing forces of consistency and diversity.142 There is,
on one hand, the predilection towards ensuring diversity in practice through flexibility and
innovation, and, on the other hand, the inclination to establish consistency and reliability in
mediation practice through regulation. Diversity-consistency tensions represent a multiplicity
of interests relating to consumers, practitioners, service providers, and governments.143 For
example, consumers often prioritise flexibility and responsiveness in mediation while

135
Results of the Survey conducted using the Questionnaire, see Part VII: Annexure of this paper.
136
Id.
137
Id.; see DWIGHT GOLANN & JAY FOLBERG, MEDIATION: THE ROLES OF ADVOCATE AND NEUTRAL, 261
(2011).
138
Id.
139
Alfini & McCabe, supra note 16.
140
The United Nations Commission on International Trade Law [UNCITRAL], Working Group on
Conciliation, Report of the Working Group on Arbitration on the Work of its Thirty-Fifth Session, U.N. Doc.
A/CN.9/506 (November 19-30, 2001); International Arbitration Conference: Mediation, Arbitration and Recent
Developments, November 21, 2008, Liberalisation or Legalisation? (Nov. 21, 2008).
141
NADJA ALEXANDER, INTERNATIONAL AND COMPARATIVE MEDIATION: LEGAL PERSPECTIVES, Vol.4 75(1st
ed., 2009); T. Altobelli, New South Wales ADR Legislation: The Need for Greater Consistency and Co-
ordination 8 AUSTRALIAN DISPUTE RESOLUTION J. 20.
142
NADJA, supra note 141, 76.
143
Institutionalization (co-option of mediation into court programs, government agencies and business and
community organizations), legalization (case law on aspects of mediation), and innovation (experimentation
with a number of different mediation models) have all been identified as major trends that have influenced
mediation practice across the world.
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maintaining quality and accountability.144 On the other hand, policy makers often attempt to
ensure that consumers are protected from unscrupulous practitioners by introducing approval
standards which are to be necessarily met by mediators and mandating a certain degree of
transparency.145 While excessive regulation and insistence on rule consistency might stifle
innovation, a completely unregulated system might adversely impact uninformed consumers
due to the absence of adequate safeguards. In order to protect consumers from
unconscionable and possibly prejudicial practices, it is therefore essential to establish a
certain degree of transparency and disclosure along with appropriate approval standards.
However, it is feared that the establishment of rigid transparency standards would dilute the
confidentiality of the mediating process and undermine the efficacy of the technique in itself.
Consequently, it is essential that regulatory models perform a balancing act and help
inculcate the dual ideals of diversity and consistency.

In order to create an ideal environment for mediation, it is necessary for

regulators to standardise certain aspects of mediation whilst preserving its flexible and
innovative nature.146 There are many potential forms of mediation regulation and policy
makers throughout the world have promulgated several laws, codes, and standards with the
objective of regulating the mediating process.147 Given the adjustable and flexible nature of
mediation, it has been opined that there is no ‘one size fits all’ approach regarding its
regulation, and that any form of regulation is to be made in light of the prevailing socio-
economic milieu in the country of implementation.148 Accordingly, different countries have
adopted different approaches towards the regulation of mediation. From a global perspective,
the various forms of mediation regulation can be categorised into four primary approaches:
market-contract regulation, self-regulation, formal regulatory framework, and formal
legislative regulation.149 In this part, we examine all four approaches and discuss why it
would be ideal to establish a formal legislative framework, the third approach, to regulate the
mediation process in India.

A. MARKET-CONTRACT REGULATION
As its name suggests, the market-contract approach is based on the concepts of
laissez faire and party autonomy.150 In accordance with the principles of laissez faire,
individual parties are given maximum freedom to engage in any kind of arrangement for the
provision of mediation services.151 The terms of the private contract entered into by the
parties are given paramount importance under this approach.

However, market principles assume that consumers would be in a position to

gather information regarding the mediation process in order to make an informed choice. This
would require the parties to be educated about the inner workings of the mediation process in
order to make such informed choices. In addition, the market-contract regulation approach
allows the economic laws of supply and demand to determine the price and quality of

144
Nadja Alexander, Mediation and the Art of Regulation, 2 QUT. L. J. 8(2008).
145
Id, 2-3.
146
T Altobelli, New South Wales ADR Legislation: The Need for Greater Consistency and Co-ordination 6
AUSTRALIAN DISPUTE RESOLUTION JOURNAL 20 (1997).
147
NADJA, supra note 141.
148
Nadja, supra note 144.
149
Id., 3-4.
150
NADJA, supra note 141.
151
Id.
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mediation services.152 Accordingly, the costs of mediation services could potentially be lower
in comparison to other forms of regulation.

Further, the approach relies on legal infrastructure for the enforcement of

mutually agreed contractual provisions.153 Therefore, while the mediating process is driven
by concepts of individual freedom and economic liberty, this approach is dependent upon
Courts in order to effectively enforce awards and ensure compliance. As a result, this
approach helps give legal form to the ideals of party autonomy and individual responsibilities
while relying upon minimalist legal infrastructure for enforcement and contract
interpretation. Consequently, proponents of this approach have argued that it would provide
the parties with an opportunity to mutually self-regulate their transactions and enter into
innovative arrangements that are backed by legal sanction.

Nevertheless, there also exist extraneous factors regulating proceedings in the

market-contract approach. For instance, in Australia, where the market-contract approach is
being adopted increasingly to mediate high-end disputes, courts are empowered to remove
mediators on account of wrongdoing or misconduct.154 This in turn influences mediator
behaviour, making them more likely to act in accordance with the law. More importantly, the
potential of repeat deals, reputation power, and individualised arrangements available through
private contracting are likely to act as powerful regulatory instruments, which encourage
quality and consistency in mediation practice.155 For instance, mediators who acquire a
reputation for impartiality and speedy resolution would be preferred over other mediators.
Similarly, repeat deals occur when the parties to mediation are pleased with the conduct of
their mediator and it is likely that the same mediator will be engaged by the clients to resolve
future disputes.156 It has been suggested by mediation experts such as Deckert that the choice
of mediators, in a market-contract model, would be largely influenced by their reputation,
with mediators having poor or substandard track records being gradually eliminated from the
market.157

However, the risks of the market-contract approach lie in the multiple

imperfections of the free market and the realities concerning access to accurate
information.158 It is improbable for all consumers to have access to accurate and relevant
information regarding mediators and the process of mediation.159 Additionally, structural
barriers such as income inequality and illiteracy would render the freedom of choice illusory
rather than informed. Studies undertaken in certain jurisdictions have demonstrated that
inhabitants of geographically backward regions and individuals hailing from lower socio-
economic backgrounds are likely to be adversely affected by such mechanisms.160
Furthermore, the use of standard form contracts, which are often utilised extensively by large

152
Nadja, supra note 144.
153
Id.
154
For example, see Tapoohi v. Lewenberg, [2003] VSC 410, wherein professional negligence on the part of the
mediator was alleged.
155
Nadja, supra note 144.
156
Id.
157
Katrin Deckert, Mediation in Frankreich – Rechtlicher Rahmen und praktische Erfahrungen in MEDIATION –
RECHTSTATSACHEN, RECHTSVERGLEICH, REGELUNGEN 183 (2008).
158
NADJA, supra note 141.
159
Id.
160
Tania Sourdin, An Alternative for Whom? Access to ADR Processes (2007), 10(2) ADR BULLETIN 26 (2007)
available at http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1419&context=adr (Last visited on
April 2, 2018).
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corporations, would cause major disparities in bargaining power and render the notion of
freedom of contract non-existent.161

Consequently, in order for the market-contract approach to be successfully

implemented, it is essential for consumers to be well informed and capable of making rational
decisions. Therefore, in our opinion the market-contract approach would be unsuitable in the
Indian context, as a vast majority of Indian consumers are inadequately equipped to make
informed decisions as a result of numerous structural barriers in the form of caste, gender,
class, and illiteracy which impede access to information in India.162 In addition, due to the
fact that the judiciary in India is overburdened and has a high pendency rate, it is unlikely for
such disputes to be resolved quickly if the parties are compelled to resort to litigation for
enforcement of the settlement contract.

In a developing country like India, it is essential to formulate rigid safeguards

to prevent abuse by unscrupulous corporations and to secure the financial interests of all
consumers. Accordingly, the market-contract approach, which is largely based upon the
concepts of laissez faire and party autonomy, is inapplicable in a transitional democracy like
India.

A. SELF-REGULATORY APPROACH
As opposed to the market approach that largely revolves around the individual
autonomy of the parties, the self-regulatory approach refers to community and industry-based
initiatives that regulate the mediating process by embracing collaboration and innovation.163
There are many different forms of self-regulation and these approaches embody both
reflexive and responsive theories of regulation.164 The responsive theory aims to inculcate
collaboration between the Government and the group that is subjected to regulation.165
Reflexion refers to the notion of responsiveness and highlights opportunities for involved
individuals to identify issues and find their own solutions.166

Self-regulation can take the form of codes, standards, benchmarks, and similar
instruments established by private or public bodies, or a combination of both.167 Examples of
private bodies include dispute resolution organizations, private training institutions, chambers
of commerce, and professional associations of lawyers, counsellors, and other professions.
Under this approach, public bodies such as government agencies, legislative bodies, courts,
tribunals, publicly sponsored dispute resolution centres and public education and training
institutions are regularly involved in the establishment of approval and practice standards for
mediators.168

The self-regulatory approach has been successfully implemented in a number

of jurisdictions and the Australian National Mediator Accreditation System is recognised as a

161
Nadja, supra note 144.
162
Marc Galanter & Jayanth K. Krishnan, Bread for the Poor: Access to Justice and the Rights of the Needy in
India, 55 HASTINGS L. J. 789 (2005); C. Raj Kumar, Legal Education, Globalization, and Institutional
Excellence: Challenges for the Rule of Law and Access to Justice in India, 221 INDIANA J. OF GLOBAL LEGAL
STUDIES 20 (2013).
163
NADJA, supra note 141.
164
Id., 82.
165
Nadja, supra note 144.
166
Id.
167
Id.
168
NADJA, supra note 141.
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prime example of self-regulation on an industry basis.169 Integral instruments of self-

regulation in the Australian mediating process include approval and practice standards,
precedents and model clauses.170 The Australian National Mediator Accreditation System
established the National Mediator Standards Body (‘NMSB’), which implements the National
Mediator Accreditation System (‘NMAS’) and aids in setting assessment standards, which
are to be complied with by mediators desirous of being accredited to the national standard.171
Civil mediation practice in France is largely regulated by the self-regulatory codes of
conduct, accreditation requirements, and other standards of mediation organizations and
industry groups. In Netherlands, the mediator standards set by the Netherlands Mediation
Institute (‘NMI’) effectively operate as national benchmarks for mediating processes. 172 The
NMI provides an independent quality assurance system through accreditation and personal
certification of mediators.173 Similarly, the Civil Mediation Council (‘CMC’) has been
responsible for the development of a national pilot accreditation scheme for mediators in
England.174 The desirability of such industry-driven self-regulatory approaches to mediator
standards has been emphasised in a number of other jurisdictions as well.175

Self-regulatory instruments include framing of model mediation clauses by

organizations that endorse that industry and also cover practices such as co-mediation, which
involves two mediators instead of one, and mediation client surveys.176 Courts in Australia
have relied upon such self-regulatory instruments whilst determining the enforceability of
mediation clauses.177 In addition, corporate and government pledges to resort to alternative
dispute resolution techniques such as mediation before initiating litigation constitute a
growing form of self-regulation.178 These pledges typically emphasise the institution’s
commitment to alternate dispute resolution techniques and provide the procedure that has to
be followed whilst resolving disputes involving the signatory entity.179 Prominent examples
of such pledges include the UK Government Pledge 2001,180 the International Trademark
Association (INTA) ADR pledge,181 the CPR ADR Pledge,182 and the Individual and
Corporate Pledges of the Mediation First Communities in Hong Kong.183

169
Id., 83.
170
Nadja, supra note 144.
171
Id., 6.
172
NADJA, supra note 141; see also Netherlands Mediation Institute, available at www.nmi-mediation.nl (Last
visited on June 16, 2017).
173
NADJA, supra note 141.
174
Id., 82.
175
For example, the United States of America, where the Texas Credentialing Association, which is an industry
initiative, aims to cover all mediation credentialing in the state and Germany, where the Federal Ministry of
Justice has indicated the desirability of such industry-driven regulatory approaches.
176
Nadja, supra note 144.
177
See, e.g., European Consumer Law Group, Soft Law and the Consumer Interest (2001) European
Commission, available at www.ec.europa.eu/consumers/policy/eclg/rep03_en.pdf (Last visited on 16 June
2017); see also H Ballin, Director-General Administration of Justice and Law Enforcement (2007) as found in
Nadja, supra note 144 (the Dutch Minster of Justice in his letter to the House of Representatives expressed his
reluctance towards regulating mediation); see CEDR, Proposed Mediation Directive Adopted by European
Commission (2004), available at www.cedr.com (Last visited on 16 June, 2017) (the European Commission has
advocated self-regulation of mediation).
178
Nadja, supra note 144.
179
AMERICAN ARBITRATION ASSOCIATION, ADR & THE LAW, 140 (22nd ed., 2008).
180
Department for Constitutional Affairs, Effectiveness of the Pledge available at www.justice.gov.uk (Last
visited on 16 June, 2017).
181
International Trademark Association Alternative Dispute Resolution (ADR) Program Pledge, available at
http://www.inta.org/Mediation/Documents/INTAADRLawFirmPledge.pdf (Last visited on February 2, 2018).
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There are numerous perceived benefits of self-regulation. Participants in the

regulatory process are experts who possess an intimate and sensitive knowledge of the
specific needs and interests of the mediating community. In addition, the self-regulatory
model promotes innovation and has proved to be much more flexible and adaptable than
formal regulation. This is because industry members themselves participate in the decision-
making process and help further a diverse set of ideals. In addition, self-regulatory models
have been associated with lower costs of information collection, supervision, and
enforcement as a result of the fact that a substantial portion of the costs incurred are
reabsorbed by the industry itself because mediation experts and practitioners play a key role
in mediation regulation when self-regulatory models are employed.184

The primary risks associated with self-regulation are however with respect to
the resource levels, in terms of both expertise and funding.185 In order to achieve optimum
functioning, the self-regulatory approach requires sustained input from key interest groups
and experts.186 Where levels of industry and expert input begin to wane, the self-regulatory
model begins to lose efficacy and disintegrate.187 Furthermore, self-regulatory models are
susceptible to excessive and monopolistic domination by specific individuals or groups who
are not representative of the interests of the broader economic spectrum.188 Therefore,
sustained industry and expert input is essential for optimum functioning of the self-regulatory
model. Notably, there is an acute lack of skilled and experienced individuals who specialise
in mediation in India.189 Moreover, mediation is yet to pick up popularity as an ADR
mechanism in India and is still in a nascent stage of development.190 In the absence of a fully
functioning mediation community and requisite industry expertise, self-regulation would be
unsuitable. In addition, a vast majority of Indian citizens are not aware of their legal rights
and it is essential to protect such individuals from potentially exploitative behaviour by
unscrupulous mediation practitioners.191 As a result, the implementation of a self-regulatory
model in such conditions could possibly result in economic dominance being asserted by a
select few. Therefore, we believe that, the implementation of a self-regulatory model would
be unfeasible in India.

B. FORMAL REGULATORY FRAMEWORK

Like the self-regulatory approach, the formal regulatory framework approach
is based on reflexive and responsive theories of mediation and is relatively similar to the self-

182
International Institute for Conflict Prevention & Resolution (CPR) pledge to resolve disputes through
negotiation, mediation, and other Alternative Dispute Resolution (ADR) processes, available at
https://www.cpradr.org/resource-center/adr-pledges/21st-century-pledge (Last visited on February 2, 2018).
183
“Mediate First” Pledge, available at http://www.doj.gov.hk/mediatefirst/eng/pledge.html (Last visited on
February 2, 2018).
184
NADJA, supra note 141; Tania Sourdin, Australian National Mediator Accreditation System – Report on
Project (September, 2007), available at
http://archive.nswbar.asn.au/docs/professional/adr/documents/AccreditationReportSept07.pdf (Last visited on
April 2, 2017).
185
Nadja, supra note 144.
186
Id., 83.
187
Id.
188
Nadja, supra note 144.
189
Greg Bond, Talking Mediation in India, KLUWER ARBITRATION BLOG, January 24, 2017, available at
http://kluwermediationblog.com/2017/01/24/lex-infinitum-talking-mediation-in-india/ (Last visited on 16 June,
2017); Laila Ollapally & G Aparna, Mediation an omission in the ADR Legislation, BAR & BENCH, available at
http://barandbench.com/mediation-an-omission-in-the-adr-legislation/ (Last visited on 16 June, 2017).
190
VIDHI CENTRE FOR LEGAL POLICY, supra note 46.
191
Id.
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regulatory approach.192 Under this approach, the Government establishes formal parameters
within which the mediation community is allowed to self-regulate the inner workings of the
mediating process.193 The formal parameters established are often rather broad in nature so as
to ensure that that an adequate degree of flexibility is provided to the practitioners.
Consequently, this approach helps foster collaboration between the Government and the
mediation community and is responsive towards the demands and suggestions of all actors
involved in the mediating process.

The formal regulatory framework, usually takes the form of legislative or

executive instruments such as international conventions, directives, and legislations. Under
certain circumstances, even model laws, which typically mirror legislative enactments in
target jurisdictions, can act as effective guidelines for local regulators and interest groups. For
instance, in Australia, it has been suggested that the introduction of a national model law
dealing with the rights and obligations of participants in the mediating process would help
create effective guidelines and result in desirable regulatory outcomes. 194 The regulatory
framework helps establish formal and legally enforceable parameters within which other
forms of regulation, such as self-regulation can fill in the minute regulatory details. For
instance, the framework could deal with issues such as professional misconduct, whilst
allowing the mediation community to self-regulate quality control mechanisms. This form of
regulatory framework is used in a number of jurisdictions.195 The European Directive on
Mediation is a prime example of the successful implementation of the formal regulatory
framework approach.196 The directive defines mediation, establishes its scope, and identifies
the different aspects of the mediating process that require regulation by the individual EU-
member states.197 By doing so, it helps identify the exact scope for self-regulation by the
individual States. In addition, it recognises self-regulation as one of the different forms of
regulating mediation,198 and encourages member states to establish requisite quality control
mechanisms for providing mediation services.199 The Directive also places an obligation upon
member states to encourage mediators and mediating organizations to comply with such
quality control mechanisms.200

Similarly, the establishment of the National Consultative Council on Family

Mediation in France and the passage of The Act on Promotion of Use of Alternative Dispute
Resolution in Japan are cited as illustrations of the regulatory framework approach. 201 The
National Consultative Council on Family Mediation, which was created by means of a formal
decree, helped establish a State Diploma and a code of practice for family mediators. The
Council establishes the code of practice for mediators, lays down the content of training
programmes, certifies training centres, and provides the necessary compliance standards for

192
NADJA, supra note 141.
193
Id., 84.
194
R. Carroll, Trends in Mediation Legislation: ‘All for One and One for All’ or ‘One at All’?, 207 UNIVERSITY
OF WESTERN AUSTRALIA L. REV. 30 (2002).
195
NADJA, supra note 141.
196
Id.; see, Directive 2008/52/EC on Certain Aspects of Mediation in Civil and Commercial Matters, proposal
as adopted by the European Parliament and the Council of the European Union on 21 May 2008, L 136/3,
24.05.2008 (‘EU Mediation Directive’).
197
EU Mediation Directive, Art. 3(a).
198
EU Mediation Directive, Recital 14.
199
EU Mediation Directive, Recital 16.
200
NADJA, supra note 141.
201
Id., 85.
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obtaining public funding.202 While the Council helps provide a regulatory framework, it
allows individual institutions to operate within these boundaries.203

The foremost advantage of the formal regulatory framework approach is its

ability to accommodate a number of diverse interest groups whilst pursuing common
objectives.204 The formal regulatory framework is well equipped to accommodate divergent
interests because it provides for a common standard, while allowing interest groups to
customise the finer details, thereby striking a delicate balance between consistency and
diversity. However, formal regulatory frameworks are effective only in jurisdictions where a
single juristic body, such as the European Court of Justice, has the power to interpret and
enforce regulatory wrangles as and when they arise.205 Uniform interpretation of provisions
of the regulatory framework increases the robustness of the framework as a whole. On the
other hand, if the provisions are not interpreted harmoniously, the efficacy of the framework
is undermined.206 This is because of the fact that the formal regulatory framework only helps
establish certain parameters that guide mediation practice and a subjective interpretation of
these parameters would cause discrepancies in the application of the framework and dilute
the strength of the framework. In addition, in the absence of a fully functioning mediation
community, it is difficult to ensure continued innovation. Moreover, unlike comprehensive
ADR legislations, regulatory frameworks do not regulate specific details of mediating process
and hence, it is of utmost importance that the guidelines established by the framework are
interpreted harmoniously.

Consequently, the formal regulatory framework approach is not suitable for all
jurisdictions; the implementation of a national framework that deals with all aspects of the
mediating process is often unattainable in large and federal countries which are divided into
provincial and federal Governments and have numerous pieces of local and state
legislations.207 It is difficult to ensure that the provisions of the framework are interpreted in a
uniform manner across such countries because the judicial system is often bifurcated between
the federal and provincial governments. As a result, this approach cannot be adopted in
jurisdictions like the United States of America, which have a significantly large population, a
number of sub-national jurisdictions, and numerous pieces of local and state legislation.208
For the same reason the regulatory framework approach is unsuitable for implementation in
India. India has a massive population of over one billion, and has a quasi-federal
constitutional scheme. Moreover, it is impractical for the Supreme Court, which is the final
appellate court, to individually interpret and enforce all regulatory wrangles related to
mediation. If the role of interpretation of such regulatory disputes is taken by the subordinate
High Courts, it could cause discrepancies in interpretation, which would decrease the efficacy
of the framework as a whole. Furthermore, given the absence of a well-developed mediation
scheme in India, the disadvantages associated with self-regulation will also applicable to
formal regulatory frameworks, as they rely extensively upon self-regulation to fill in the finer
details.

202
Miquel Martin Casals, Divorce Mediation in Europe: An Introductory Outline, 9.2 ELECTRONIC J. OF
COMPARATIVE L. 17 (2005).
203
Id.
204
Nadja, supra note 144.
205
NADJA, supra note 141.
206
Id.
207
NADJA, supra note 141.
208
Id.
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Therefore, the implementation of a formal regulatory framework in India

would be impractical and possibly counterproductive. In fact, the ‘Civil Procedure
Alternative Dispute Resolution and Mediation Rules, 2003’ could be interpreted to be a
regulatory framework modelled along this approach. However over the last fourteen years it
has not proved to be successful in creating a robust framework for mediation.209

C. FORMAL LEGISLATIVE REGULATION

The formal legislative approach forms part of a formal regulatory approach
discussed in Part C; however, this relies primarily upon formal legislative enactments which
are supported by legal institutions, such as the executive and the judiciary, to regulate the
mediating process.210 The formal legislative approach focuses upon the positive notions of
law and is consonance with the concept of an active state. The presence of a formal
legislative enactment with regard to mediation would represent a strong endorsement of the
mediating process by the state and result in the recognition of mediation as a legitimate
alternative dispute resolution mechanism.211 The State helps incorporate well-defined legal
norms and policies into the regulatory process. The involvement of the State in most aspects
of the mediation process is identified as a defining characteristic of the formal legislative
approach in certain jurisdictions, such as France.212

Formal legislative enactments also help set goals of practice consistency,

establish certainty on legal issues regarding the mediating process, and provide consumer
protection. 213 For instance, prior to the introduction of the Uniform Mediation Act (‘UMA’)
in the United States of America, the mediating process was regulated in an inconsistent
manner which led to considerable uncertainty and confusion.214 The UMA helped provide a
uniform process and ensured that the integral tenets of mediation, such as evidentiary
privilege and confidentiality, were accorded the same degree of protection nationwide.

In recent times, a number of developing countries have preferred a centralised

and formal legislative enactment, over other forms of regulation, in order to govern
mediation.215 This is because transitional democracies, which are eager to attract investment
and enter into multilateral economic agreements, are compelled to demonstrate that their
legal systems are democratic and friendly towards alternate techniques of dispute resolution.
International institutions and corporations are more likely to recognise formal legislative
enactments as a clear indication of the Government’s will over other informal methods of
regulation.216 Moreover, formal legislative enactments help institutions and individuals,
unfamiliar with the localised legal scheme of a particular country, clearly identify the dispute
resolution process. Accordingly, a number of developing countries, including Austria,

209
VIDHI CENTRE FOR LEGAL POLICY, supra note 46.
210
Stanley B. Lulman, Dispute resolution in China after Deng Xiaoping: Mao and Mediation Revisited, 11
COLUM. J. ASIAN L. 229 (1997).
211
Nadja, supra note 144.
212
J-P Bonafé-Schmitt, Global Trends in Mediation: Training and Accreditation in France, 11 ADR Bulletin 47
(2009) (translation by D Macfarlane).
213
Nadja, supra note 144.
214
Id., 8.
215
Id., 10.
216
NADJA, supra note 141.
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Croatia, Montenegro, Serbia, Slovakia, Bosnia and Herzegovina, and Malta have adopted the
formal legislative regulatory approach.217

Sector-specific legislations, which are tailor-made for a particular sector or

industry, have been utilised extensively in other common law countries such as Australia, the
United States, and England.218 For instance, in England and Wales, mediation accreditation is
done on a sector-specific basis to cater to the requirements of the individual sectors. India can
explore the prospects of having similar sector-specific mediation legislations. Currently,
while certain legislations such as, the Industrial Disputes Act and Companies Act make a
passing reference to mediation, there exist no statutes which attempt to regulate mediation
proceedings.

However, on the other hand, the implementation of excessively rigid

legislative mechanisms may be counterproductive, and result in stifling growth and
innovation in mediation.219 Furthermore, the implementation of statutory regulations may,
under certain circumstances, dilute the core ideals of the mediating process, such as party
autonomy and confidentiality. It is therefore essential that legislators make sure that the
legislation is not antithetical in any way to the core values of mediation, which includes party
autonomy, confidentiality, and innovation.220 Accordingly, it is necessary that the legislative
mechanism balances innovation with consistency and ensures that the central tenets of
mediation practice are not undermined for the sake of uniformity.

Nevertheless, the formal legislative approach remains the most ideal and
suitable regulatory approach for India. The introduction of a uniform national legislation
regulating the mediating process would help establish consistency by resolving the disparities
in the interpretation and phraseologies of the multiple Mediation Rules framed by different
High Courts. Additionally, the introduction of a formal legislative enactment in India would
legitimise the mediating process and in addition would help demonstrate the country’s
continued commitment towards nurturing alternative forms of dispute resolution.
Accordingly, the formal legislative approach is ideal for India and is suitable for
implementation in Indian conditions.

V. FINDINGS OF THE SURVEY AND MODEL CLAUSES

The primary challenge before legislators while drafting legislation for
mediation is drafting a regulation that protects consumers without taking away from the
informal and voluntary nature of the process itself.221 The legislation itself must therefore be
broad enough to provide guidance that can be applied to the infinite variations in
circumstances that arise in practice.222 Further, the aim of this legislation must be to lay down
regulations that codify over-arching guidelines that are essential for mediation proceedings
without prescribing the manner in which a mediation proceeding will be conducted to ensure
that flexibility is not compromised.

As discussed in Part III, the primary justification for regulating mediation in

India is to ensure mediator qualification as well as improve the process itself and since

217
Ales Zalar, Towards Primary Dispute Resolution Systems: Global Trends in Civil and Family Mediation: An
Overview of Best Practice in Europe (2006).
218
LAURENCE BOULLE, MEDIATION: PRINCIPLES PROCESS PRACTICE 284-285 (2005).
219
NADJA, supra note 141.
220
Id.
221
Fishwick, supra note 43.
222
VIDHI CENTRE FOR LEGAL POLICY, supra note 46.
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mediation relies on the pillars of confidentiality and the finality of settlements, they form part
of the crucial principles that need to be codified.223 The aspects of the mediation legislation
we shall discuss in this part are first, mediator qualifications, second, determining the manner
in which confidentiality shall be ensured during mediation proceedings, third, and most
importantly the finality of outcomes of mediation.

The present section undertakes an empirical review of the working of

mediation centres in Delhi, Mumbai, Bangalore, Shimla, Chennai, Golghot-Assam,
Alapuzha-Kerala, Pune, Kochi, Coimbatore, Srinagar, Hyderabad and Nagercoil-Tamil Nadu.
After analysing responses from mediation centres across the country we discuss specific
clauses relating to confidentiality and enforcement from different jurisdictions and then
propose model clauses for the Indian law.

A. METHODOLOGY
We conducted a survey in order to identify the existing legal as well as
practical intricacies that exist in the manner in which mediation is practiced in India. The
sample for the survey comprised of mediators that practice across India. These included
independent practitioners as well as mediators appointed by the state that were working
within court-annexed mediation centres. The determinative criterion to choose participants
was that they must have completed at least one mediation session in India. These
questionnaires were emailed to 150 Indian mediators. This survey was quantitative in nature;
participants were given a questionnaire with 32 questions each containing multiple choice
answers. 44 individuals responded to our survey. These responses form the basis for the
discussion and findings in this paper.
A. MEDIATOR QUALIFICATIONS
Across the world, there exists several mechanisms to assess mediator
eligibility; they include educational qualifications, mediation training, and performance based
assessments as well as written exams.224 In India there exists no binding regulation that lays
down a standard for mediator qualification. The guidelines for mediator qualification that
resemble a regulatory framework are given by the Supreme Court MCPC. These non-binding
guidelines lay down a minimum forty hour course that needs to be completed by
mediators.225 This course covers the theory of mediation, role-playing/demonstrations of
mediation proceedings as well as shadow mediations that one must complete under a trained
mediator.226 The curriculum for the course includes the history of mediation, ethics of a
mediator, role of judges, parties and advocates, types of mediation and conflict resolution
among other things.227 The format of the course as well as the curriculum includes topics that
are covered by most internationally recognised mediation training programs.228An
overwhelming majority of the mediators that responded to our questionnaire believe that

223
Hinshaw, supra note 129.
224
Roselle L. Wissler & Robert W. Rack, Jr., Mediator Performance: The Usefulness of Participant
Questionnaires, 2004(1) J. OF DISP. RESOL. 229 (2004).
225
Mediation and Project Committee, supra note 65, 42.
226
Id.
227
Id., 43.
228
See Indian Institute of Arbitration and Mediation, IIAM Training, available at
http://www.arbitrationindia.org/training.html (last visited on March 3, 2018); The International Centre for
Alternative Dispute Resolution, Training Modules, available at http://icadr.nic.in/index.php?page=training-
programmes-on-mediation&p=104 (Last visited on June 3, 2017).
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these guidelines are sufficient. A total of 65.7% of the respondents believe that these
guidelines must be made mandatory.229

As per Salem Advocate Bar Association v. Union of India,230 judges and

lawyers are not required to undergo a mediation course. However, the adversarial atmosphere
in which judges and lawyers are conditioned to resolve disputes affects the success of the
mediation itself.231 Thus, the government must consider adopting a law providing legislative
sanction to the MCPC training guidelines, thereby ensuring that all mediators that practice in
India have undertaken a formal training in mediation.

B. CONFIDENTIALITY
As discussed earlier, confidentiality is an integral part of any mediation
232
proceeding. The openness and honesty that stem from informal conversations during a
mediation is guaranteed through confidentiality and is essential for the success of any
mediation.233 In our survey we asked mediators several questions on how they guarantee
confidentiality in India and how much importance is placed on confidentiality by
consumers.234 Majority of the mediation centres in India ensure confidentiality through
agreements signed by the mediator and/or the lawyers and the parties, however, close to
34.1% of the respondents secure confidentiality solely on the basis of trust or verbal
commitments.235 In fact, 25% of the respondents viewed lack of enforcement confidentiality
to be a reason parties opted out of mediation.236

Countries across the world regulate mediation in different ways. The EC

Directive on Mediation, 2008, stipulates that a mediator considers all information relating to
the mediation confidential unless it is opposed to public policy or is necessary to enforce the
settlement.237 While Italy pursues a stricter standard for confidentiality where all mediators
are required to keep confidential any information in connection with the mediation, including
the fact that the mediation exists and has been conducted between the parties.238 In addition,
mediators may not be called as witnesses and the parties may not rely on any
communications made or any information collected during mediation in the subsequent
judicial proceedings.239 Article 9 of the Italian legislation provides for all accredited
mediators to be bound by an obligation of confidentiality with respect to statements made and

229
Results of the Survey conducted using the Questionnaire, see Part VII: Annexure of this paper.
230
Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.
231
VIDHI CENTRE FOR LEGAL POLICY, supra note 46.
232
See Part IIIC(1) of this paper.
233
Law Reform Report, supra note 98; Irvine, supra note 101.
234
Results of the Survey conducted using the Questionnaire, see Part VII: Annexure of this paper.
235
Id.
236
Id.
237
Directive 2008/52/EC of the European Parliament and of the Council of May 21, 2008, 2008 OJ (L 136), Art.
7. It states:
“1. Given that mediation is intended to take place in a manner which respects confidentiality, Member States
shall ensure that, unless the parties agree otherwise, neither mediators nor those involved in the administration
of the mediation process shall be compelled to give evidence in civil and commercial judicial proceedings or
arbitration regarding information arising out of or in connection with a mediation process, except:
(a) where this is necessary for overriding considerations of public policy of the Member State concerned, in
particular when required to ensure the protection of the best interests of children or to prevent harm to the
physical or psychological integrity of a person; or
(b) where disclosure of the content of the agreement resulting from mediation is necessary in order to implement
or enforce that agreement”.
238
Legislative Decree No. 28, 2010 (Italy).
239
Id.
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the information acquired during the mediation process,240 while Article 10, titled ‘Usability
and professional-secrecy’, states that the statements made or the information acquired in the
course of a mediation process cannot be used in a trial having the same object, even in part,
that has begun, been summarised, or continued after the failure of mediation, except with the
consent of the registrant or the party from whom the information originated.241 The Article
further elaborates that the duty of a mediator in reference to testifying about the content of the
proceedings is protected, and hence, the mediator is not required to testify.242

The UMA adopted in the United States of America is an example of a

legislation that is striving to strike a balance between protecting mediation communications
and preventing parties from using mediation to cloak otherwise discoverable or admissible
evidence in privilege. The UMA protects ‘mediation communications’ as defined in the
statute.243 It provides that mediation communications are privileged unless the information is
otherwise admissible.244 Therefore, under the UMA while all briefs, letters, forms of
communication between the parties prepared specifically for the mediation are protected;
however, any exhibits or briefs used during the mediation but that can be admissible
otherwise such as documents prepared for an investigation are not protected by the UMA.
Such an example can be considered suitable in the Indian scenario as the law does not alter
the flexible nature of mediation by itself, but still manages to protect information that parties
chose to share exclusively during the mediation proceedings. The clause must be drafted in
the following manner:

Confidentiality:
(1) Notwithstanding anything contained in any other law for the time
being in force, the mediator and the parties shall keep confidential
all matters relating to the mediation proceedings. Confidentiality
shall extend also to the settlement agreement, except where its
disclosure is necessary for purposes of implementation and
enforcement.
(2) There is no privilege under this section for a mediation
communication that is:
(a) in an agreement evidenced by a record signed by all parties
to the agreement;
(b) made during a session of a mediation which is open, or is
required by law to be open, to the public;
(c) a threat or statement of a plan to inflict bodily injury or
commit a crime of violence;
(d) intentionally used to plan a crime, attempt to commit a
crime, or to conceal an ongoing crime or ongoing criminal
activity;
(e) sought or offered to prove or disprove a claim or complaint
of professional misconduct or malpractice filed against a
mediator.

240
Id., Art. 9.
241
Id., Art. 10.
242
Id.
243
Uniform Mediation Act, 2005 (U.S.A.), §2 (2) (Section 2(2): “Mediation communication” a statement,
whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of
considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a
mediator).
244
Id., § 4 (Privilege against disclosure; admissibility; discovery).
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The above clause is largely borrowed from the UMA, as this Act recognises the
need to lift the veil of confidentiality in certain circumstances and has been largely viewed as
a successful legislation in terms of identifying exceptions to the confidential nature of
proceedings.245 Even though, confidentiality is integral to the process of mediation,
exceptions in light of public interest need to be recognised, or else consumers will have no
recourse against unscrupulous mediators.246 Such confidentiality is referred to as enumerated
confidentiality. Enumerated confidentiality is similar to absolute confidentiality with one
main difference; there are exceptions to the rule.247 These exceptions are created merely to
prevent abuse of absolute confidentiality.248

C. ENFORCEMENT OF SETTLEMENTS
Although there is evidence from other jurisdictions which indicates that parties
are more likely to comply with mediation settlements than court orders, the necessity for
recognising settlements as enforceable without court intervention stems from the fact that the
entire process of ADR is rendered redundant if parties need to go to court to obtain relief.249
In fact the need to recognise arbitration awards in India is also based on the same premise.250
In Australia, a mediated settlement agreement is a legally binding agreement and is
enforceable under the normal rules of contract law.251 Although there is no requirement under
common law that the settlement agreement be written, this is advisable to aid enforcement.
Conventionally a deed of agreement will be used as a settlement agreement.252 Some
Australian states require formalisation of certain types of mediated settlement agreements.
For example, in Victoria, mediated settlement agreements in civil matters must be
formalised.253 Courts may also embody settlement agreements in consent orders. This option
can provide an effective enforcement tool, since a failure to comply with such an order may
result in contempt of court.254

In USA, any settlement agreement reached through the mediation process

must be reduced to writing and executed by the parties. Neither the mediator nor any
organisation such as JAMS or AAA has the authority to enforce a settlement. Settlement
agreements may be enforced in the same way as any other contractual agreement – either
through arbitration (if the agreement contains an arbitration clause) or in court. 255 Japan
considers a settlement achieved at Administrative Mediation or Non-governmental Mediation

245
Id.
246
Foxgate Homeowners’ Association v. Bramalea California Inc., 78 Cal.App.4th 653 (2000).
247
Id.
248
Andrea Wykoff, Mediation and Confidentiality, 4 BOND UNIV. STUDENT L. REV. 1 (2016).
249
Thomas J. Smith, The Enforceability of Mediated Settlement Agreements, available at
http://www.nadn.org/articles/Tommy-Smith-Enforceability.pdf (last visited on March 3, 2018) (for further
discussion on enforcement, see Part III of this paper).
250
The Arbitration and Conciliation Act, 1996, §35.
(“Section 35: Finality of arbitral awards. -Subject to this Part an arbitral award shall be final and binding on the
parties and persons, claiming under them respectively. 36. Enforcement. - Where the time for making an
application to set aside the arbitral award under section 34 has expired, or such application having been made, it
has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same
manner as if it were a decree of the court”).
251
Nadja, supra note 144.
252
Id.
253
Id.
254
Id.
255
Id.
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as a mere agreement between the parties. If a party breaches the settlement, the other party
needs to obtain a court order before it can enforce the agreement.256

In India, arbitration awards and conciliation settlements are binding in the

same manner as that of a decree of a Court.257 This ensures that parties do not need to go to
court again to enforce the settlement.258 While conciliation and mediation are inherently
distinct processes as discussed in Part II and III, the fact remains that both processes place
importance on the principles of free consent of parties as well as finality of the outcome. This
allows us to draw a comparison when framing a provision. Following the framework laid
down for the finality of conciliation settlement agreements in the 1996 Act, the mediation
legislation must contain a similar provision, making a settlement final and binding. Such a
provision could be framed in the following manner:

Settlement Agreement- Final and Binding:

(1) The settlement agreement entered by the parties during the
mediation proceedings shall be final and binding and shall be
enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the
same manner as if it were a decree of the court.
(2) Recourse to a court against a settlement may be made only by an
application for setting aside such a settlement in accordance with
sub-section (4) and subsection (4)
(3) A settlement agreement may be set aside by the court only if-
(a) The party making the application furnishes proof that-
i. A party was under some incapacity, or
ii. The settlement agreement is not valid under the law for the time
being in force; or
iii. The mediator acted in a fraudulent or corrupt manner and consent
obtained by parties was vitiated by the actions of the mediator
(b) The court finds that the settlement agreement is in conflict with the
public policy of India.
Explanation. -Without prejudice to the generality of
clause (b), it is hereby declared, for the avoidance of any doubt, that
an award is in conflict with the public policy of India if the making of
the settlement was induced or affected by fraud or corruption in any
manner.
(4) An application for setting aside may not be made after three
months have elapsed from the date on which the party making that
application had signed the settlement agreement: Provided that if
the court is satisfied that the applicant was prevented by sufficient
cause from making the application within the said period of three
months it may entertain the application within a further period of
thirty days, but not thereafter.

This provision would prevent Courts from examining the contractual basis on
which the agreement was entered into and the settlement would be binding, while the option
of setting aside the agreement would still be possible to set aside.

256
Id.
257
The Arbitration and Conciliation Act, 1996, §§35, 73.
258
Id.
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VI. CONCLUSION
Through the course of this paper, we have argued in favour of the
implementation of a legislation to regulate mediation in India. In doing so, we have identified
the numerous flaws present in the Indian justice system as it exists, and the drawbacks of
adversarial litigation. While doing so, we have identified mediation in particular, among
other forms of alternate dispute resolution, to be suitable given the Indian socio-economic
milieu. Having identified the need to regulate mediation in such a way as to ensure
consistency and foster innovation, we have provided an overview of other major forms of
regulations in order to identify the perfect fit in Indian conditions.

We conducted a survey to understand the manner in which mediation centres

work, given the lacuna in regulation that exists. Our data indicates that the condition of
mediation centres in India is far from perfect. In fact, several high courts have made little or
no attempt to incorporate the Mediation Project Committee report recommendations within
their jurisdiction. Moreover, essential aspect of mediation such as protection of
confidentiality is maintained in several centres only through trust without the backing of any
legal document.

Most centres do not have a complaint mechanism to report mediators, and

those that do have no guidelines on the manner to deal with such complaints. While a
majority of respondents practice a mixture of evaluative as well as facilitative method of
mediation, nearly all respondents were of the opinion that the current post-litigation
mediation system that provides for judges or lawyers to conduct sessions are impeded by
their existing work load. The data also indicates that most mediators believe there exists a
palpable mistrust of the process of mediation from within the litigants as well as the legal
fraternity. While a wide variety of reasons are considered responsible for the same, lack of
awareness is the primary concern. Nearly all respondents held the opinion that passing a law
would resolve the existing systemic as well as perception problems in the current set-up. In
this paper we have argued for the implementation of a principle-based legislation for
mediation in India based on empirical data collected from these practitioners and institutions
across the country, along with taking examples from legal practices in other countries.

VII. ANNEXURE: MODEL QUESTIONNAIRE

A. GENERAL
1. Which city do you practise in? *
____________________________

2. Have the following been perceived as problems by the parties during mediation? (Tick as
many as applicable) *
Check all that apply
o Confidentiality
o Qualifications of mediators
o Parties did not have sufficient authority to settle the case
o Perception Barriers (fear regarding neutrality of the mediator, mistrust in the informal set up
etc)
o Time taken for dispute resolution
o Other: ____________________

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3. Are parties more inclined towards reaching a settlement when mediation takes place prior
to the framing of issues? (pre-litigation mediation)
Mark only one oval.
o Yes
o No

4. Is there a palpable mistrust in the process of mediation among the legal fraternity?
Mark only one oval.
o Yes, it is evident from the attitude of the judges.
o No, the judiciary along with lawyers is taking an active step towards promoting mediation
o Other: _____________________

A. REFERENCE MADE TO MEDIATION

If you are a private mediator, kindly ignore this section.

5. How many disputes are referred to your centre annually under Section 89 of the CPC?

Mark only one oval.

o Less than 100
o More than 100
o More than 500
o More than 1000
o More than 1500

6. Based on what parameter do judges refer cases under Section 89? (Tick as many as
applicable)
Check all that apply.
o Number of Parties involved
o Pre-existing relationship between parties
o Small Amount of claim
o Time taken to reach a settlement
o No prescribed parameter

7. If there exists no specific parameter, in your experience are there any particular type of
disputes that are best resolved through mediation? (Tick as many as applicable)
o Check all that apply.
o Family Disputes
o Consumer Disputes
o Labour Disputes
o Other: _____________________

8. Has the High Court in your state made any attempt to incorporate the Mediation and
Conciliation Project Committee (MCPC) guidelines within the rules related to Section 89,
CPC?
Mark only one oval.
o Yes
o No
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9. If no, have the courts made any other attempts to codify mediation guidelines?
Mark only one oval.
o Yes
o No

10. If yes, what other attempts have been made by the Court to codify mediation guidelines?

B. COMPLAINT MECHANISMS

11. In case parties are unhappy with the mediation process, are there any complaint
mechanisms in place for the aggrieved party to lodge a complaint?
Mark only one oval.
o Yes
o No

12. If there exists such a complaint mechanism, what is the nature of complaints that you
receive? (Tick as many as applicable)
Check all that apply.
o Quality of the mediator
o Other party not attending sessions
o Lack of trust in the process itself
o Other: _____________________

C. RIGHTS OF PARTIES

13. In what manner are parties guaranteed confidentiality?*

Mark only one oval.

o Mediator signs a confidentiality agreement.
o Parties and lawyers sign confidentiality agreements
o All of the above
o None of the above
o Other: ______________________________

14. How many instances of non compliance with mediation settlement agreements have been
reported at your centre in the last year? (Approximately)
Kindly ignore if you are an individual mediator.

____________________________________________

15. What kind of approach do you prefer to adopt in your mediation proceedings?

Mark only one oval.

o Facilitative
o Evaluative
o Mixture of Both
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(Note: Evaluative Mediation refers to making recommendations to the

parties in dispute. Facilitative style of mediation requires the mediator to act like a mere
facilitator for the entire discussion without actively making any suggestions or
recommendations.)

D. INFRASTRUCTURE REQUIREMENTS

16. Is there a requirement for space for Mediation Centres (rooms for mediation, space for
accommodating mediators and for separate as well as joint meetings of the parties) within
the Court premise?

Mark only one oval.

o Yes
o No, the existing setup is satisfactory considering the number of cases handled

17. According to you, are the Mediation and Conciliation Project Committee (MCPC) guidelines
laid down by the Supreme Court sufficient to provide a framework for mediation in India?

Please specify yes or no in 'other reasons'.

Mark only one oval.
o Yes
o No, they require legislative sanction
o Other:

18. Do the sitting Judges of the High Court determine which mediator will mediate a particular
dispute?

Mark only one oval.

o Yes
o No

19. If no, then please specify who does.

______________________________

20. If yes, does their duty to perform judicial work disallow them from devoting enough time?

Mark only one oval.

o Yes
o No

21. Is there a requirement to set up a separate management committee (such a committee

would make a roster for mediators within each centre, set up an approval process for
mediators) in each High Court?

Mark only one oval.

o Yes
o No

22. At your mediation centre, who pays bears the cost of a mediation proceeding?

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Mark only one oval.

o The parties
o The State
o Other:_____________________________

In case of other cost bearing entities, kindly specify in the space given above.

E. SELECTION OF MEDIATORS

Kindly ignore these questions if you are a lawyer not practicing mediation at a
centre.

23. What is the total number of mediators at your centre?

Mark only one oval.
o Less than 10
o Less than 20
o More than 20
o More than 50
o More than 100

24. What are the criteria for an individual to practice at your centre as a mediator?

Check all that apply.

o Must be a judge
o Must be a retired judge
o Must be a lawyer
o Must be a certified mediator
o Other:_____________________________

25. Considering sometimes mediators are from within the legal community, especially judges,
has neutrality of mediators ever been a concern while selecting a mediator?
Mark only one oval.
o Yes
o No

26. Do you think the MCPC guidelines that refer to training for mediators should be made
mandatory in India?

Mark only one oval.

o Yes
o No
o Other:_______________________________

27. Is there any requirement for institutional support that the state should provide for
mediators?

Mark only one oval.

o Yes
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o No

28. If yes, please specify

_________________________________

F. AWARENESS

29. Is awareness amongst litigants a major reason for the lack of popularity of mediation in
India?

Mark only one oval.

o Yes
o No

30. Are there any concrete steps that the Government can take to spread awareness amongst
the Indian masses?

Check all that apply.

o Nationwide campaigns
o Media campaigning
o Allocation of more funds to promotion of mediation in State budgets
o Making it mandatory for all law students to become trained mediators
o Other: ______________________________

31. In your opinion will the passage of a specific law for mediation help in promoting mediation
in India?

Mark only one oval.

o Yes
o No
o Other:

32. Respondent’s Name :____________________________________

Respondent’s Email Address: _______________________________

*Required

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