Editorial Team

[By Aarushi Lunia] The author is a second-year B.A. LL.B. (Hons.) student at West Bengal National University of Juridical Sciences (NUJS), Kolkata.      Introduction “…mediation is no longer an option; it is a necessity…” U.N. Secretary-General António Guterres (2018) Maintaining global peace is essential for resolving high-tension situations through harmony, and collaboration, the values shared by mediation. Mediation ensures security and helps address the rise in commercial disputes driven by growing global trade. As a developing nation, India’s significant trade and economic growth has led to a higher likelihood of disputes, even over minor issues. This underscores the need for effective mechanisms to resolve conflicts. Presently, the Indian judiciary system has 44,551,924 cases pending. This highlights the system’s flaws, and given the potential for high tensions in cross-border disputes, mediation stands out as a fair solution.[i]   Mediation refers to a method of resolving conflicts wherein two or more parties can reach a common ground with the help of a neutral third party. This third party is referred to as the mediator. A mediator is not a judge but is merely a facilitator to help parties reach an amicable solution.[ii] The Mediation Act of 2023 (hereinafter referred to as “the Act”) introduces certain uniformity and aims to promote mediation as a form of alternative dispute resolution mechanism in India. The Act is ineffective in regulating cross-border mediation in India, due to significant shortcomings that render decrees in such cases futile. This blog examines these issues, their challenges, and the prospects for cross-border conflict resolution. Current Infrastructure in India An effective dispute resolution process significantly impacts the economy, business practices, and access to justice while promoting ease of living for citizens.[iii] The current framework for governing mediation in India is primarily focused on domestic disputes. §89 of CPC, 1908 allows for out-of-court dispute resolution methods like arbitration, conciliation, Lok Adalat, and mediation. However, §89(2)(d)  introduces vagueness by requiring them to refer disputes to mediation rather than allowing parties to approach the mediators directly. It burdens the courts and lacks clear procedures for such cases referred to mediation. The Arbitration and Conciliation Act,1996 is a regulation that also provides provisions for mediation. §8A and §8B mention the power of the court in certain instances to refer to mediation or conciliation. The shortcoming of these provisions is that even after a successful mediation, the referral court has the final say on the agreement’s validity. As a dispute resolution mechanism, this limits mediation’s autonomy, making it especially difficult to regulate cross-border disputes involving multiple countries.[iv] The Commercial Courts Act, 2015 is beacon of hope in this development. It has been put in place to encourage the parties to resolve disputes via mediation, before litigation, by mandating a pre-institution mediation for commercial disputes. The Hon’ble Supreme Court in the case of M/s Patil Automation Private Limited and Ors. v. Rakheja Engineers Private Ltd. also highlighted the importance of this provision by holding the commercial suit’s dismissal because of the failure to invoke pre-institutional mediation. Mediation centres and institutions have also been set up which provide mediation services in case of cross-border disputes. A few amongst them are the following: 1) The International Centre for Alternative Dispute Resolution (ICADR)– The objective of this institution is to promote ADR as a method of dispute resolution mechanism, as opposed to the traditional way of litigation. The centre recommends mediation and arbitrations as the best forms of settlement mechanisms. Being an autonomous organisation, established by the government of India, it promotes mediation for both domestic and international disputes. 2) Private mediation centres– Many private mediation centres such as Indian Institute of Arbitration & Mediation, SAMA and CAMP Arbitration and Mediation Practice offer their specialised service in the resolution of cross-border mediation disputes. By offering successful training programmes to become an international mediator, they have aided in increasing the infrastructural prospects for cross-mediation in India. While current institutions play a valuable role, they are inadequate to meet the growing demands of cross-border mediation in India. This is primarily due to the lack of legal recognition for agreements reached in these institutions across different jurisdictions. As a result, dissatisfied parties can challenge the enforceability of such agreements in court, causing mediation to be viewed as ineffective, time-consuming, and merely procedural. This undermines the credibility of these institutions and creates a procedural burden for cross-border parties. Moreover, limited public awareness and resistance from pro-litigation advocates to adopt alternative dispute resolution (ADR) mechanisms pose significant obstacles to establishing an effective and enforceable mediation system. A comprehensive legal framework is essential for effectively managing the complexities of international mediation and supporting India’s economic growth in a globalized world. Lack of harmony between The Singapore convention and The Mediation Act, 2023 While the Act seeks to promote and facilitate mediation, including for international commercial disputes, it falls short in providing mechanisms for the enforcement of settlement agreements arising from international mediations, conducted outside India, even when an Indian party is involved. This might not be perceived as being in line with internationally recognised frameworks such as the United Nations Convention on International Settlement Agreements Resulting from Mediation popularly known as the “Singapore Convention” to which India is a signatory member. The inconsistency between the statutes harms India’s global trade and cross-border dispute resolution. The convention aims to promote mediation as a preferred method for settling cross-border commercial disputes.[v] The convention’s effectiveness is evidenced by the 57 countries that have signed it and the 14 that have ratified it. The Singapore Convention provides a standardized framework for enforcing international commercial mediation agreements across signatory countries.[vi] It is the sole international framework offering standardized enforcement for commercial mediation agreements. This is a positive development that should be aligned with the Act. Concerning international mediation conducted within India, §3(g) of the Act, which pertains exclusively to mediation conducted within India, including international mediation, defines international mediation as involving at least one non-Indian participant. §27(2) of the Act permits mediated settlement agreements to be enforced as decrees

[By Abeer Sharma] The author is a a second-year law student at Rajiv Gandhi National University of Law, Punjab.   Introduction The Consumer Protection Act of 2019, surfaced through minor amendments with the passing of the Mediation Act, 2023. Section 65, read in coherence with the Tenth Schedule of the Mediation Act, proposed various changes related to mediation, with the main difference seen under Section 37 of the Consumer Protection Act, in the form of Sections 37A and 37B, which comprehensively address the procedural aspects of the mediation process during consumer disputes. The rationale behind these sections is to ease the process for both consumers and courts, where a growing pendency of cases with prolonged adjournments is observed. However, there are still some persistent limitations under these newly notified sections, that need to be addressed. The Sections 37A and 37B with Their Limitations Earlier Section 37 and Chapter 5 of the Consumer Protection Act described the mediation process, where the power to refer any dispute to mediation was vested in the court with the parties’ consent. However, time limitations emerged under it and to overcome these, changes were made to Section 37, and Sections 37A and 37B were introduced. Section 37A addresses settlement through mediation, where if an agreement is fully, partially or not reached among the parties, the outcome is communicated to the commission through a report by the mediator. Based on this report, the future course of action is taken. Section 37B covers the recording of the settlement and passing order. In which within seven days of receipt of the settlement report, the Commission is bound to pass a suitable order and dispose of the matter.  Where if the agreement is reached only partially, the settled terms are recorded by the commission and other unresolved disputes are posted for further hearing. However, if no terms are reached, the commission continues to hear all the terms involved. The mediation process provided under Sections 37A and 37B is comprehensive and provides a clear procedure, but still, the existence of some pertinent limitations under it cannot be ignored, which are as follows: The Creation of Fragmented Hearing Section 37(A)(1) and Section 37(B)(2) of the Consumer Protection Act address disputes settled only in part, where the resolved issues are reduced to writing and signed by the parties, while unresolved issues continue to be heard by the commission. The division of settled and unsettled disputes causes a fragmentation of hearings, where parties are obliged to first, follow the process of mediation, moulding their whole mindset in context to it and if any of the parties disregard the process and adopt the status quo path of litigation in consumer court, it causes a drastic change once again. Similar observations were made in the cases of K. Srinivas Rao v. D.A. Deepa and B.S. Krishnamurthy v. B.S. Nagaraj, where the Supreme Court recognized the importance of mediation in matrimonial disputes but also highlighted the limitations, such as the risk of prolonged proceedings if mediation fails, which affects the overall efficiency of dispute resolution when transitioning back to litigation. Compulsion Upon the Commission The changes made under Section 37 include statements like “District Commission or State Commission or the National Commission, as the case may be, shall either on an application by the parties at any stage of proceedings refer the disputes for settlement by mediation”. The use of words like “shall either” implies that it becomes binding upon the commission to pursue the application when moved by the parties. In contrast, the older Section 37 used phrases like “it may direct the parties to give in writing, within five days, consent to have their dispute settled by mediation” where use of words like “may” provided discretionary powers to the commissions to adopt mediation process after examining all elements of the dispute. The current mandate for the commission to refer to a mediation process can result in the wrong usage of proceedings by a party through prolonging of process, thereby forcing the other party into a less advantageous position and derailing justice. The Completion of the Process Under the Specified Time Section 37(A)(3) of the Consumer Protection Act addresses the situation where no agreement is reached between the parties within a specific time. If the mediator believes that settlement is not possible, he shall submit the report and end the mediation process. In contrast, older provisions like Section 77(3) of Chapter 5 of the Consumer Protection Act specified that the mediation process should be conducted within a time frame set by rules and as per Consumer Protection (Mediation) Rules, 2020, Section 11(2) mandated the completion of the mediation process under 3 months from the first hearing with the mediator. This period could only to extended with the permission of the commission. The flaw in the present provisions is the broad scope of power given to the mediator, as ‘Specific time’ is not defined under the act, leaving it to the mediator’s discretion to end the proceedings, even against the wishes of the parties. This contrasts with earlier provisions where a three-month fixed time was provided for mediation, with a possibility of the extension only on the commission’s permission, thereby ensuring fair justice for the parties. The Solution from Mediation and Alternative Dispute Resolution (ADR) Practices Adopted in Other Countries As demonstrated above there are pertinent limitations in new mediation provisions under the Consumer Protection Act and solutions to the same will be explored under this head, through analysis of mediation and ADR provisions adopted in the consumer laws of other countries: The Solution to Fragmented and Specific Time Hearing Through the European Union and Canada European Union has evolved solutions to the issue of fragmented and prolonged hearings in its Directive 2013/11/EU on Consumer ADR. This directive incorporates provisions like Article 8, which prescribes ADR process to be streamlined and parallel to the consumer dispute process, with a direction for the resolution of the ADR dispute within a 90-day time frame from receipt of the

[By Inika Dular]The author is 2nd year B.A. LL. B.(Hons.) student at the Rajiv Gandhi National University of Law, Punjab Introduction Mediation is well-established and historically practised in India since its three-tiered Panchayati-Raj system of managing rural development. According to the recommendation of the Justice Malimath Committee and the 129th Law Commission of India, mediation was formally established in India by the Code of Civil Procedure (Amendment) Act, 1999. Despite being long acknowledged, there were difficulties due to no legal foundation. The Mediation Act of 2023 attempted to fill this gap. The Act, complementing the 1996 Arbitration and Conciliation Act, strives to lessen the workload of Indian District and Taluka Courts. As the Mediation Act completes one year of enforcement, this blog delves into the critical analysis of the legislation from observations throughout the year: firstly, the effectiveness of S.89 of the Code of Civil Procedure (CPC); secondly, understanding the Mediation Act; and thirdly, comparative international analysis and the way forward for mediation in India. Mediation Under Section 89 of CPC vs. Mediation Act 2023 Section 89 of CPC, along with Order X Rules 1A, 1B, and 1C, was inserted by following the recommendations of the 129th Law Commission and Arrears Committee. After the enactment of the Arbitration Act of 1940, S.89 CPC has been amended to encompass other ADR methods. Section 89 lays down an ambiguous legal basis for mediation in India, undermining ADR’s primary time-saving objective by requiring court involvement in settlement preparation. This was later done away with the 238th Law Commission report recommending eliminating the requirement of court reference in the cases of Conciliation and Lok Adalat disputes. Moreover, the legislation treats conciliation differently from mediation, despite being used interchangeably in modern times. The lack of relevant guidelines on settlement agreements, mediator regulation, and any procedures for penalising parties that prematurely terminate the mediation fails to offer clear principles, causing severe mediation failures. Whereas, the Mediation Act sets up a 120-day mediation-term extendable by 60 days under Section 18. A conclusive mediated settlement-agreement becomes legally binding on the parties involved as stated in Section 27, granting the execution comparable to a judicial order, following the guidelines outlined in CPC. Additionally, Section 30 of the Act provides for online mediation, allowing parties with a multi-jurisdictional presence to participate conveniently and economically. With the formal institutionalisation of mediation as a crucial alternative conflict resolution technique, this legislative move represented a significant advancement in the Indian legal system. The Act aimed to encourage peaceful and quick resolution of disputes, demonstrating India’s dedication to peaceful conflict resolution, complementing its commitment to the Singapore Convention on Mediation highlighting the country’s innovative role in promoting mediation procedures globally.  Limitations of the Mediation Act against the Arbitration and Conciliation Act Nevertheless, even within the commendable framework of the Mediation Act, there exist some noticeable lacunae. Notably, no formal procedures are in place to enforce mediated settlement-agreements resulting from foreign mediations, exposing a significant deviation from the global norms outlined in the Singapore Convention. The Act lost a crucial chance to establish a more inclusive legal framework at a time when mediation is becoming the go-to ADR method. To enforce international settlements made under Indian jurisdiction, ratification and implementation of the Singapore Convention is the need of the hour. The lack of such rules will have a major effect on the use of mediation, particularly when it comes to the settlement of international business conflicts. Furthermore, the Mediation Act regrettably misses the same level of precision as the Arbitration and Conciliation Act, which delineates clear guidance on the types of interim orders that can be issued. The Arbitration and Conciliation Act restricts the scope of such measures to only those mediations that are referred by a court or tribunal, explicitly excluding mediations that arise from Mediation Agreements. It is imperative to meticulously scrutinize the rules that are anticipated to be formulated under Section 52 of the Mediation Act to address and rectify these significant gaps. The current ambiguity permits varied interpretations and potential inconsistencies in practice in the process of mediator nomination. This can be rectified by mandating adherence to guiding principles analogous to those outlined in Schedule 5 of the Arbitration and Conciliation Act for the appointment of an arbitrator. Such a requirement could potentially complicate the mediator selection process, further necessitating the development of clear and precise guidelines to ensure consistency and fairness in mediation practices. Comparative International Analysis The government has incorporated elements of the Singapore Convention into Section 27 of the Mediation Act, aligning with international mediation frameworks. The Convention promotes the recognition of mediated settlement-agreements across jurisdictions under Article 3. At the same time, a corresponding EU Directive (2008/52/EC) seeks to standardize mediation practices within member states under Article 2, similar to how arbitral awards are enforced under the New York Convention. Global mediation infrastructure is further reinforced through institutions like the International Criminal Court and the International Centre for Dispute Resolution, which offer mediation as a first step towards conflict resolution. Independent entities, like the International Mediation Institute, ensure mediator neutrality and confidentiality, and privacy under Articles 6 and 7, respectively. The Singapore International Mediation Institute also upholds similar standards. However, discrepancies exist between the Act and international standards, revealing gaps in India’s alignment with global mediation practices. Strengthening the Mediation Act’s Framework Having been in practice for a year, several critical gaps have emerged that necessitate urgent attention to ensure the Act’s seamless operation. These gaps include, inter alia, the necessity for a thorough examination of the conditions that satisfy the criteria for exceptionality, warranting requests for temporary relief. Moreover, it is imperative to establish stringent standards for the selection of members of the Indian Mediation Council to cultivate both competence and confidence in the mediation process. Extending the Act’s purview to encompass non-commercial disputes involving government agencies is imperative. This extension addresses a significant gap in the current legal framework, ensuring that conflicts of this nature can be effectively resolved through the mediation process. By

    Nowadays, Alternate Dispute Resolution is becoming more and more popular among the masses due to its easy procedures and effective results. There and many types of alternate dispute resolutions, and mediation is one of them. To define mediation, it is a negotiation process wherein disputes are amicably resolved by the disputing parties through a neutral third party’s assistance. However, its nature is voluntary and it is usually non- binding on the parties in dispute. This whole process is said to revolve around the disputing parties and this factor makes the process more party-centered. The parties get to make the decision of the final outcome and reach an outcome. The mediator is there just as a facilitator. FUNCTIONS OF A MEDIATOR The major function of having a mediator is to basically have someone who takes an active role in order to help reach a consensus and decide on a settlement that is beneficial for both the parties and is inclusive of the participants’ needs. The most important elements required for people to accept the process of mediation are dignity and trust. The next characteristic elements that are crucial in a mediation process are impartiality and neutrality. The mediator is supposed to be completely unbiased at all times during the mediation process, and not take sides. The purpose of the mediator is to serve as a catalyst between the parties. He must ensure that he does not end up giving his opinions on the presiding case. However, he possesses power to give his suggestions and make the parties aware of the consequences that might arise of their actions if they take the case to court. There are a number of functions that a mediator has to carry out, for example: To establish a framework for cooperative decision making, To promote constructive communication, To provide for appropriate evaluations, To empower the parties, and To ensure outcome fairness. These functions clearly highlight that mediation follows a specifically creative and flexible nature and its paves a way to allow direct confidentiality, direct participation, and control by the parties. This further goes on to increase the parties’ self- determination and faith in the ongoing mediation process. Throughout this process, mediator assumes the roles of a neutral third party, and only aims at enhancing better communication and assisting the parties to work out a mutually acceptable resolution. TYPES OF MEDIATION APPROACH The mediation approach can be divided three categories on the basis of role playing by the mediator. Facilitative or ‘interest-based’ mediation, where the mediator does not direct the parties towards any particular settlement; Evaluative mediation, here the mediator makes suggestions as to the likely outcome of the dispute; and Rights-based mediation, here the mediator ensures that any mediated agreement reflects statutory rights and legal entitlements. None of the above prescribed categories are to be followed by the principle and it is on the discretion of the mediator to better match the method with the framework set up by the participants. Even if during the process, in the middle of the session, if the mediator realizes that the approach he started with doesn’t fit anymore, he is free to recognize whichever approach suits the process more and make the necessary shift in orientation through reframing the approach. ROLES OF THE MEDIATOR The roles of the mediator are as follows: Convener                                It is the mediator’s job to contact the other party and conduct the process of the initiation of the introductory meeting. Educator Having full knowledge on the subject of mediation, the mediator educates the disputing parties about the mediation process, suggests any other conflict resolution alternatives that could be adopted to solve the dispute at hand, lays down the issues to be addressed and elaborates on the options and principles that might be taken into consideration for research, states court standards, etc. Communication Facilitator One of the most important duties of a mediator is to facilitate communication among the disputing parties. The mediator seeks to ensure that each party is fully heard in the mediation process. Translator So as to ensure that there is no communication gap and none of the intentions of the parties are misunderstood in any way, the mediator can aid them by rephrasing or reframing communications so that they are better understood and received. Questioner and Clarifier In order to ensure that the parties and the mediator have a full understanding; it is the mediator’s job to probe issues and confirm understandings. Process Advisor Mediator often plays the role of an advisor who can be trusted to give suggestions during the mediation process for making progress in mediation discussions, which may include caucus meetings, consultation with outside legal counsel and consultation with substantive experts. Angel of Realities It is the mediator’s discretion to play devil’s advocate with one or both the parties. This can be done with respect to the practicality of the solutions that are being considered by any of the parties or the extent to which certain options are consistent with participants’ stated goals, interests and positive intentions. Catalyst The mediator mostly acts as a catalyst and can, from time to time, offer options for considerations, stimulate new perspectives and offer reference points for consideration. By doing so, mediator serves as a stimulant for the parties reaching agreement. Responsible Detail Person It is the mediator’s duty to manage and keep track of all necessary information, writes up the parties’ agreement, and may assist the parties to implement their agreement. Due to this description, the mediator has a very sensitive and difficult job. S/he should respect and encourage self-determination of the parties and preserve their objectivity and impartiality, while at the same time carry out their own role effectively. The key is for the mediator to move the parties through the mediation process in a way that is responsive to the parties’ needs and interests, as opposed to the self-interest of the mediator. If mediator become aware that s/he cannot maintain impartiality then s/he must immediately disclose this to