Growth of Mediation: Important Legislations across the World

“Discourage litigation. Persuade your neighbors to compromise where you can. Point out them how the nominal winner is often the real loser – in fees, expenses and waste of time.

-Abraham Lincoln

Introduction to Mediation as a form of Alternative Dispute Resolution (ADR)

        Mediation is an effective ADR mechanism can be seen by these 4 benefits of the process such as

  1. Informality – No court rules or legal precedents are involved in mediation. There are no fixed solutions in mediation. Parties can look to developing creative solutions to resolve matters and the solution rests with the parties themselves.
  2. Privacy and confidentiality – The mediation conference takes place in a private setting such as a conference room at any of the Arbitration Associations. Mediation is not a matter of public record. Its confidentiality is maintained.
  3. Time and cost savings – Without the formalities found in litigation, mediation usually results in substantial costs savings.
  4. Control – Parties have control over their participation in mediation.

United Nations Convention on International Settlement Agreement Resulting from Mediation (known as “Singapore Convention on Mediation”)

  1. establishes a harmonized legal framework for the right to invoke settlement agreements as well as for their enforcement.
  2. Right time for the India to become a Party to the Convention;
  3. Impact of becoming Party to the Convention will have mediation and mediators.
  4. Impact do you consider the Singapore Convention would have mediation sector It and particularly on the enforceability of settlement agreements.
  5. Impact do you think becoming Party to the Convention might have on other forms of dispute resolution.
  6. Legal impact will be becoming Party to the Convention have across the globe.

Institutional Mediation in Singapore: Singapore Mediation Centre and Singapore International Mediation story

  1. Why game changer?
  2. Fear of Arbitration losing its status as the most preferred form of alternative dispute resolution.
  3. Effect of the shift from Arbitration to Mediation
  4. But the United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention”) would promote the widespread international enforceability of settlement agreements.
  5. Dependent on adoption and acceptance
  6. Uncertainties in the operationalization of the Singapore Convention
  7. IMPACT:
  • More mediation laws
  • Greater focus on the conduct of mediation
  • More institutional mediation
  • More mediation

Ratification of Singapore Convention on Meditation by several countries including India
Status of Convention

  1. 46 COUNTRIES AS SINGATORIES: 46 countries, including the world’s two largest economies – the United States and China – as well as three of the four largest economies in Asia, China, India and South Korea signed the Convention on the day it opened for signature. Another 24 countries attended the signing ceremony in Singapore to show their support for the Convention.
  2. On 25 February 2020, Singapore and Fiji became the first two countries to deposit their respective instruments of ratification of the Convention at the United Nations Headquarters in New York. With the third instrument of ratification deposited by Qatar on 12 March 2020, the Convention entered into force on 12 September 2020.
  3. As of 5 August 2022, the Convention has 55 signatories, of which eight are parties to the Convention.

Draft India Mediation Bill 2021

  1. The Bill introduces the concept of “PUBLIC POLICY” as a ground for challenging any settlement. This concept appears to have been taken from the Arbitration and Conciliation Act 1996. However, the Bill does not specifically define its broad contours, leaving with the possibility of misuse by parties attempting to derail settlements.
  2. The Bill enables a party to challenge the settlement on grounds of “GROSS IMPROPRIETY”, without even defining the term. In absence of a defined term, interested parties can argue bias on part of the mediator to challenge a settlement, leading to protracted litigation thereby derailing the objective of the Bill.
  3. The Bill provides for “COMMUNITY MEDIATION’’ for the purpose of maintaining peace, harmony and tranquility amongst the residents of, or families in, a community.
  4. NOT COST-EFFECTIVE APPROACH: The Bill seeks to introduce mandatory pre-litigation mediation, requiring the attendance of parties in at least two mediation sessions. Such an approach not only imposes the process of mediation on unwilling parties having no intention to settle, but also burdens them with the added cost of mediation (Section 30 provides that costs of mediation shall be borne by the parties). This approach may not prove to be cost- effective.
  5. Need to restrict the mandatory pre-litigation mediation process to only a few matters where mediation has been shown to be successful.
  6. NO PROVISION FOR INTERNATIONAL MEDIATION: The Bill also fails to specify under what provision would an international mediation take place in India, which relates to non-commercial dispute arising under a foreign law.

Conclusion

The first step in this direction would be to have a set of guidelines in place for Public Sector Undertakings to resolve the dispute through mediation. Being the largest litigator, the government ought to set an example for the public. The various Convention on Mediation, in essence, makes it easier to enforce settlement agreements reached through mediation. Once it comes into effect in a sizable number of jurisdictions, it will also expand the options for enforcement by facilitating quick access to courts in jurisdictions where relevant assets or operations are situated. A useful new tool for international conflict resolution in cross-border commerce is the Convention on Mediation, with Singapore convention on mediation, things are going to grow only further in a positive direction.