Mediation is a flexible dispute-resolution strategy. Worldwide, the two most
important mediation principles are confidentiality and low-key. Regulators and
politicians worldwide have grappled with the challenge of legislating a mostly
informal process.Despite several policy talks and parleys, regulation remains
one of the most controversial and unsolved issues regarding mediation as a
conflict resolution method.
When considering mediation regulation, one must consider the subject that has
dominated ADR discussions, debates, and advances. Diversity-consistency problem.
Regulators face the diversity-consistency challenge due to the constant conflict
between consistency and diversity. Regulating mediation practice ensures
stability and reliability, while flexibility and creativity ensure diversity.
Diverse interests�customers, practitioners, service providers, and
governments-drive diversity-consistency conflicts.
Mediation consumers often appreciate adaptability, responsiveness, quality, and
accountability. However, regulators often introduce mediation clearance
criteria and transparency requirements to safeguard consumers from unethical
practitioners. This protects customers from shady businesses. While too much
regulation and rule consistency may stifle innovation, and a completely
unregulated system may harm uninformed customers.
Openness and approval standards are necessary to protect clients from unethical
and potentially harmful acts. However, strict transparency rules may weaken the
mediating process's secrecy and challenge the approach's efficacy. Thus,
regulatory models must balance diversity and uniformity and instil these
opposing ideals. Regulators must standardise some aspects of mediation while
retaining its flexibility and creativity to create the ideal mediation
environment. Mediation must be standardised for this.
Mediation regulation may take many forms, and policymakers worldwide have
adopted laws, rules, and norms to oversee the process. Because mediation is
pliable and adaptive, there is no "one size fits all" approach to mediation
regulation, and any legislation should be created in light of the country's
socioeconomic backdrop. This is a viewpoint. Because of this, numerous nations
have regulated mediation differently. Globally, there are four main types of
mediation regulation. Market-contract regulation, self-regulation, formal
regulatory frameworks, and formal legislative regulation. In this part, we
examine all four alternatives and explain why the third strategy�establishing a
formal legal framework is ideal for controlling the mediation process in India.
In contrast to the market approach, which centres primarily on 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. This approach contrasts with the market approach,
which centres primarily on the individual autonomy of the parties. Several
self-regulation techniques incorporate both reflexive and responsive conceptions
of regulation. Self-regulation can take many various forms. The responsive
theory aims to foster cooperation between the regulated group and the government
that oversees them.
The term "reflexion" alludes to "responsiveness," which highlights opportunities
for individuals to become involved in identifying problems and developing their
solutions. Codes, standards, benchmarks, and other similar instruments can be
produced by commercial organisations, public organisations, or a mix of the two
as part of the process of self-regulation.
Dispute resolution groups, private training institutes, chambers of business,
and professional associations of attorneys, counsellors, and professionals in
other fields are all examples of private entities. This method routinely
involves public bodies such as government agencies, legislative bodies, courts,
tribunals, publicly sponsored dispute resolution centres, and public education
and training institutions in establishing approval and practice standards for
The self-regulation technique has been effectively applied in several countries,
and the Australian National Mediator Accreditation System is recognised as a
prominent example of self-regulation on an industrial basis.
The approval and practise standards, precedents, and model clauses utilised in
the mediating process in Australia all play an important role as integral
mechanisms of self-regulation. National Mediator Standards Body (NMSB) is an
organisation established by the Australian National Mediator Accreditation
System. NMSB is responsible for implementing the National Mediator Accreditation
System (NMAS) and aids in setting assessment standards, both of which mediators
who want to be accredited to the national standard must comply with. The
practice of civil mediation in France is generally governed by the
self-regulatory codes of conduct, accreditation criteria, and other norms
established by industry associations and organisations specialising in
In the Netherlands, the requirements for mediators defined by the Netherlands
Mediation Institute (also known as the "NMI") essentially serve as national
benchmarks for resolving conflicts. Accreditation and individual certification
of mediators are two ways the National Mediation Institute (NMI) offers an
independent quality assurance system.
In a similar vein, the Civil Mediation Council, sometimes abbreviated as CMC, is
the organisation that has been tasked with developing a nationwide pilot
accreditation scheme for mediators in England. It has also been emphasised in a
variety of other countries that such industry-driven self-regulatory methods to
mediation standards are very desirable.
Instruments of self-regulation include formulating model mediation agreements by
organisations that support that industry. These instruments also encompass
co-mediation, which utilises two mediators rather than one, and mediation client
When deciding whether or not mediation clauses are enforceable, the courts in
Australia have frequently looked to such self-regulatory devices as a source of
authority. A different type of self-regulation that is becoming increasingly
prevalent is represented by public and private sector commitments to first look
to non-conventional methods of conflict resolution, such as mediation, before
pursuing legal action.
These pledges highlight the institution's commitment to alternative dispute
resolution techniques and provide the procedure to be followed when resolving
disputes involving the signatory entity. In addition, these pledges typically
provide the procedure to be followed when resolving disputes.
The International Trademark Association (INTA) ADR promise, the CPR ADR Pledge,
and the Individual and Corporate Commitments of the Mediation First Communities
in Hong Kong are notable examples of such pledges. The UK Government Pledge 2001
was also an important step in this direction.
Self-regulation poses several potential problems, the most significant of which
are related to the availability of resources, both in terms of competence and
The self-regulatory strategy requires consistent input from important interest
groups and subject matter specialists to work at its highest potential. The
self-regulatory paradigm starts to lose its effectiveness and fall apart when
industry and expert participation levels begin to decline. In addition, models
of self-regulation are prone to excessive and monopolistic control by certain
persons or groups that are not reflective of the interests of the wider economic
This is a problem since self-regulatory models are used to regulate themselves.
As a result, continued input from the sector and experts is necessary to ensure
that the self-regulatory model functions at its highest potential. It is
important to note that there is a severe shortage of knowledgeable and
experienced professionals specialising in the field of mediation in India.
Furthermore, the use of mediation as a method of alternative dispute resolution
(ADR) is still in its early stages of development and has not yet gained
widespread favour in India. Self-regulation would not be appropriate given the
absence of a mediation community that operates at full capacity and the
necessary level of industry competence. Protecting such persons from potentially
exploitative behaviour by unethical mediation practitioners is vital since many
Indian residents are unaware of their legal rights.
Additionally, it is essential to protect such individuals from their legal
rights. Therefore, implementing a self-regulatory model under these kinds of
settings might result in a select few people asserting their economic supremacy
over the rest of the market. As a result, adopting a self-regulatory model in
India would not be possible under any circumstances.
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. The formal legislative
approach focuses upon the positive notions of law and aligns with the concept of
an active state.
The presence of a formal legislative enactment about mediation would represent a
strong endorsement of the mediating process by the state and result in
recognition of mediation as a legitimate alternative dispute resolution
mechanism. 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.
Formal legislative enactments also help set goals of practice consistency,
establish certainty on legal issues regarding the mediating process, and provide
consumer protection. 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. 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, several developing countries have preferred a centralised and
formal legislative enactment over other forms of regulation in order to govern
mediation. This is because transitional democracies, eager to attract investment
and enter into multilateral economic agreements, are compelled to demonstrate
that their legal systems are democratic and friendly towards alternate dispute
resolution techniques. International institutions and corporations are more
likely to recognise formal legislative enactments as a clear indication of the
Government's will over other informal regulation methods.
Moreover, formal legislative enactments help institutions and individuals
unfamiliar with the localised legal scheme of a particular country identify the
dispute resolution process. Accordingly, several developing countries, including
Austria, Croatia, Montenegro, Serbia, Slovakia, Bosnia and Herzegovina, and
Malta, have adopted the formal legislative and regulatory approach.
Sector-specific legislation, which is tailor-made for a particular sector or
industry, has been utilised extensively in other common law countries such as
Australia, the United States, and England. 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 legislation. While certain
legislations, such as the Industrial Disputes Act and Companies Act, make a
passing reference to mediation, no statutes that attempt to regulate mediation
However, on the other hand, implementing excessively rigid legislative
mechanisms may be counterproductive and result in stifling growth and innovation
in mediation. Furthermore, the implementation of statutory regulations may,
under certain circumstances, dilute the core ideals of the mediating process,
such as party autonomy and confidentiality. Therefore, legislators must ensure
that the legislation is not antithetical to the core values of mediation, which
include party autonomy, confidentiality, and innovation. 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
Self-regulation is thought to have a wide variety of beneficial effects.
Participants in the regulatory process are professionals who have an in-depth
and nuanced understanding of the particular requirements and interests of the
community they mediate between. In addition, the self-regulatory paradigm
encourages innovation and is far more flexible and adaptive than traditional
regulation. This is because people of the sector themselves participate in the
decision-making process and contribute to advancing various principles.
A significant portion of the costs incurred is reabsorbed by the industry itself
when self-regulatory models are used to regulate the mediation industry. This is
because mediation experts and practitioners play a key role in mediation
regulation when self-regulatory models are used. In addition, self-regulatory
models have been associated with lower information collection costs,
supervision, and enforcement.
The formal legislative approach remains India's most ideal and suitable
regulatory approach. Introducing 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
Written By: Radhakrishnan H
- 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)
- 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.
- 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.
- Nadja Alexander, Mediation and the Art of Regulation, 2 QUT. L. J. 8(2008).
- T Altobelli, New South Wales ADR Legislation: The Need for Greater Consistency and Co-ordination 6 AUSTRALIAN DISPUTE RESOLUTION JOURNAL 20 (1997).
- 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.
- 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 30 October 2022); 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 30 October 2022) (the European Commission has advocated self-regulation of mediation).
- AMERICAN ARBITRATION ASSOCIATION, ADR & THE LAW, 140 (22nd ed., 2008).
- Department for Constitutional Affairs, Effectiveness of the Pledge available at www.justice.gov.uk (Last visited on 30 October 2022).
- 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 30 October 2022); 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 30 October 2022)
Stanley B. Lulman, Dispute resolution in China after Deng Xiaoping: Mao and
Mediation Revisited, 11 COLUM. J. ASIAN L. 229 (1997).
- J-P Bonafé-Schmitt, Global Trends in Mediation: Training and Accreditation
in France, 11 ADR Bulletin 47 (2009) (translation by D Macfarlane).
- Ales Zalar, Towards Primary Dispute Resolution Systems: Global Trends in
Civil and Family Mediation: An Overview of Best Practice in Europe (2006).
- Laurence Boulle, Mediation: Principles Process Practice 284-285 (2005).
- Symbiosis Law School, Pune
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