A.J. Jawad*

Mediation received statutory recognition in India in 2002, when the Code of Civil Procedure was amended to include section 89 which mandated the referral of pending civil cases to any of the five Alternative Dispute Resolution mechanisms mentioned therein. Even prior to section 89, there did exist a reference to mediation under section 30 of the Arbitration and Conciliation Act, 1996, though it was only recommendatory in nature. Section 89 would have also been a dead letter but for the judgment of the Supreme Court in what is commonly known as the Afcons’ Case which created a strong framework for referral to ADR. The conundrums that existed in the wording of section 89 were also clarified by the Supreme Court in this case.

Starting from 2005, court-annexed mediation centers started coming up in various High Courts. Lawyers were trained in mediation through experts both foreign and domestic. In 2005 the Supreme Court of India formed a committee called as the “Mediation and Conciliation Project Committee” (MCPC) which started aggressively promoting the use of mediation as part of the case management process in courts and organized training programs in the High Courts and District Courts. Guidelines were framed for 40-hour mediation training programs and indigenous trainers were trained and entrusted the job of conducting the training programs. The Afcons’ case in 2010 gave a much-needed impetus to the use of mediation under the court-annexed programs.

While court-annexed mediations have become ubiquitous in many High Courts and some District courts, mediation in the pre-litigation stage still remains a distant dream in spite of the sprouting of private institutions offering mediation services. New legislations such as the Commercial Courts Act, 2015, which was amended in 2018 to include section 12A mandating pre-litigation mediation, did not have the desired effect. Provisions under the Companies Act, 2013, recommending mediation remain ineffective and there are hardly any referrals by the National Company Law Tribunals. The Ministry of Corporate Affairs created a pool of mediators by conducting its own training programs. But their services remain mostly under-utilized, if not un-utilized. The amended Commercial Courts Act came with its own drawbacks. Apart from the failure of most courts to operationalize the pre-litigation mediation mandate, the provision itself suffers from some inherent lacunae, primary being the entrustment of the mediation exclusively to the National and State Legal Services Authorities who do not have the resources. More importantly, such a mandate does not fit into their raison d\’être.

Pre-litigation mediation, notwithstanding its distinct advantages like time and cost effectiveness, is yet to gain the traction and acceptability as a go-to option before resorting to the conventional, time and cost intensive systems like litigation or arbitration. The reason is obvious – mediation is yet to be professionalized in India. For pre-litigation mediation to become the go-to system of first resort, there is a need to have a pool of professional mediators whose skill and qualifications would be impeccable. Unfortunately, India still suffers from a lack of understanding of the fine nuances and skills that go into the mediation process. To understand how mediation is perceived, notwithstanding the various developments that have taken place in India, we can, for instance, have a look at Rule 4 of the Companies (Mediation and Conciliation) Rules, 2016 that prescribes the qualification of panel of mediators and conciliators to be constituted under section 442 of the Companies Act:

Rule 4. Qualifications for empanelment.— A person shall not he qualified for being empanelled as mediator or conciliator unless he —

(a) has been a Judge of the Supreme Court of India ;

(b) has been a Judge of a High Court; or

(c) has been a District and Sessions Judge ; or

(d) has been a Member or Registrar of a Tribunal constituted at the National level under any law for the time being in force; or

(e) has been an officer in the Indian Corporate Law Service or Indian Legal Service with fifteen years’ experience; or

(f) is a qualified legal practitioner for not less than ten years; or

(g) is or has been a professional for at least fifteen years of continuous practice as Chartered Accountant or Cost Accountant or Company Secretary; or

(h) has been a Member or President of any State Consumer Forum; or

(i) is an expert in mediation or conciliation who has successfully undergone training in mediation or conciliation.(emphasis supplied).

Even the rules framed by the High Courts suffer from the same lacuna. Rule 5(1) of The Tamil Nadu Mediation Rules, 2010 for instance is almost in pari materia with the Rule 4 ibid. and states under Rule 5(2) as follows: 

(2) A person other than those specified in sub-rule(i), for being a person, empanelled as a mediator, should have undergone the training in the Centre or shall be a member of any institution recognized by the High Court as experts in mediation and training mediators.

It can be seen from the above that the qualification of “training and expertise in mediation” is given the least priority for empanelment as a mediator. This shows a lackadaisical approach to mediation based on the erroneous premise that it is only an ad hoc process that can be conducted by any one, even without any training in the process skills. Such an approach to mediation is also evident from the Supreme Court ruling in Salem Advocate Case where it was held that it is not necessary for lawyers and judges to undergo training in mediation. It is a paradoxical situation where, on the one hand court-annexed mediation training programs are conducted with great gusto and on the other, the regulatory framework pays scant regard to the need for training and process expertise in mediation. 

THE WAY FORWARD:

There is a crying need today to recognise and accord the status of a distinct profession to mediation instead of treating it as a tack-on to the legal profession. In order to professionalise mediation, what is first required is to prescribe the qualification. Entry to every profession is regulated by the requirement of qualification and licensing. Under the court-annexed mediation scheme, a 40-hour basic training program is prescribed. However, there is no evaluation or assessment of the trainees once the training is completed. They are simply recognised as mediators and allowed to mediate cases referred by the courts. No doubt a formal accreditation certificate is issued after they complete ten successful mediations. However, as experience has shown, under the court-annexed scheme, where there is no effective system for party feedback or a proper mentoring system, one simply doesn’t know how the mark for accreditation is reached. In a captive environment like the court system this may work. But it will just not work in the pre-litigation mediation arena as the market would have very high expectations from the professionals offering mediation. Therefore a threshold qualification in at least three of the following domains is mandatory:

1. Process skills training
2. Basic working knowledge of law, legal systems and fundamental principles.
3. A working knowledge of behavioural sciences to deal with the human relational aspects, emotions and difficult behaviours.

Such a qualification should not be confined to a 40-hour basic training but at least be given the status of a diploma course, with nothing less than a 60-hour training, adjunct to any undergraduate degree qualification such as law, psychology or any other discipline. As to how the course design and structure should be is for the experts and academics to brainstorm and decide.

The second need would be to have a proper system of accreditation. What is happening today is that, accreditation of mediators is done by the very institutions that train the mediators. This raises the issue of credibility as no one knows how effective these courses are and how competent the faculty is. An independent accreditation body having a pan-India presence, will need to be established on the lines of the International Mediation Institute (IMI) and the Singapore International Mediation Institute (SIMI) that would assess and accredit the mediators at different levels. Both these institutions are not-for-profit body corporates that have evolved globally accepted guidelines and regulations for accreditation of mediators at different tiers. Countries like Australia, Brazil and the UK have their own institutions and systems for accreditation. Australia for instance has established the National Mediator Accreditation System (NMAS) that prescribes the Approval Standards, Practice Standards and maintains a register of Nationally Accredited Mediators and a Mediator Standards Board. 

In the absence of an independent statute governing mediation, a self-regulatory mechanism emanating from the mediators themselves, by way of prescribing qualification and an impartial and independent accreditation system would go a long way in establishing credibility of mediation as a profession and provide the market with the incentive to use it as the first option for dispute resolution. If pre-litigation mediation has to move forward, a conducive environment for its acceptance by the end-user has to be created. There are enough templates the world over and these can be honed and adapted for the culture-specific needs of the country.