Pertinence of Mediation: A Socio-Economic Outlook

Article by: Krupali Amit Vadgama & Pranav Pratap Singh

Introduction:

With the release of the Indian Mediation Act, 2023 the Preamble to which reads as “An  Act to promote and facilitate mediation, especially institutional mediation, for resolution of disputes, commercial or otherwise, enforce mediated settlement agreements, provide for a body for registration of mediators, to encourage community mediation and to make online mediation as acceptable and cost-effective process and for matters connected therewith or incidental thereto[1]”, Mediation has been in limelight in the entire legal landscape.

However, there has been a long history of the process of Mediation proving its usefulness and yet remaining ignored. This ultimately leads us to a situation where, unlike Arbitration, which is the other most prominent form of ADR there is not much perspective and knowledge about Mediation in India.

This Article provides insight into a necessary aspect of Mediation, and how it fits in as a much better-than-thought mode of dispute resolution specifically catering to the distinct and divergent Indian population subject to their realization.

Why Mediation for Disputes?

We have all seen Mediation making a heroic entry when it comes to the speedy, robust, or cost-effective mode of Dispute resolution but one aspect that many fail to acknowledge is that Mediation can do wonders, which more often than not remain untouched by our conventional practices.

This runs on the underlying assumption that a dispute generally arises out of not merely legal contraventions but a clash of Interests as well. They may arise from failed relationships or the emotional bent of the parties.

Mediation, along with ensuring that the dispute no longer exists, ensures that the parties develop a greater-than-previous bond and also look forward to continuing their relationship from where they left before the conflict arose. In these terms, Mediation provides for a Win-Win situation where no party is left dissatisfied or disgraced. The significance of ensuring a Win-Win Situation is that it leaves scope as well as creates opportunities for future business to take place between the parties.

Mediation – A Sustainable Approach

While all the passive action in mediation unfolds in confidentiality, the real influence is imprinted on the larger population, given its socio-psychological efficacy by the altitudinal approach for resolution based on the heights and shapes of the grievances. A distinct procedure that once practiced is viewed as the best business-friendly ADR option given its outcome is but a quid-pro-quo; that too client-driven.  The nature of the exercise is such that it compels parties and many people to think from an interest-appraisal perspective – to acknowledge each other’s interests. In doing so, the behavioural patterns of the people – curb the emergence of a conflict at its budding stage itself. This practice increases the likelihood of people opting for mediation as their preferred mode of dispute resolution.

With a larger population and a comparatively smaller judiciary, the nation has been in a situation that seems like a pressure cooker. Another unique aspect of mediation is the availability of capacity-building and training new mediators at the grassroots level. It can act as a game-changing forum shopping option that shall slowly gain popularity and can keep up with its demands, meaning where litigation is slow and faces a backlog due to the limited judicial officers at the disposal of the work, a comparatively larger number of mediators can be available for the public given its versatility/flexibility in choosing a person with expertise as well as legal soundness. It helps the State in achieving socio-politico-economic goals by individual’s answerability towards the approach; a double-bulls eye achieved by thus ensuring social welfare (shaping powerful conflict-strength partnership) and empowerment.[2] It is more like promoting justice than a manifestation of justice, unlike the conventional view towards justice.

Unfortunately, a study on the future of mediation also highlights a social concern that might overwrite the very feature of mediation that attracts more people to choose this option where legalism and formalism are needling in posing disadvantageous progress, which has some good in it, whose actual value is questionable.[3]

Integrative Mediation

When deliberation is forced upon the socio-psychological impacts and perspectives of Mediation, it becomes essentially crucial to highlight a process known as Integrative Mediation. More often than not, in a Mediation Session, clients might not be able to control their emotions, and this can have a detrimental impact on the entire process of Mediation making it prone to failing. Fortunately, Integrative Mediation paves the way for addressing the same. In integrative mediation, a mediator with the requisite skill set is accompanied by one or more mental health professionals who handle the task of dealing with the emotional spurts of the conflict.[4] It might as well happen that counselling by a Mental health Professional may automatically draw a bridge between the two parties and help in an unprecedented way.

In the current times, where we are living a life of alienation and a life where people are actually more fixed on the pixels of their screens than in those who are actually around them, it becomes crucial to keep in account mental health-related issues.

As per PharmEasy close to 60-70 million people in India, suffer from mental health disorders with 2.6 lakh suicides happening per year.[5]. As per NCRB data, in the year 2021, the average suicide rate rose to 12 for every 1,00,000 people.[6]

From a broader perspective, the social fabric of the entire country can be slowly and gradually preserved and improvised upon through Mediation, as its fundamental principles state that it is a process where parties reach an amicable settlement that no other mode of dispute resolution guarantees.

Economic rationales of Mediation

The next segment of this blog focuses on the impacts that Mediation has on the economic parameter.

We often understand Mediation as a process targeted toward overcoming psychological barriers and accept its existence as a speedy and informal process. But there seems to be a reluctance when we talk about mediation as a cost-effective process and opine that, mediators, through their strategic and rational thinking, can help the parties to avoid emptying their pockets.

One example of this is caucusing, or which should rather be termed the economic rationale for Mediative caucusing.[7] A caucus is a private session where the Mediator engages privately with the parties one by one and tries to make them open up about their reservations which hinders them from coming to a settlement. Moreover, it is entirely mediative in nature, hereby meaning to say that caucusing is unique to Mediation. Through caucusing, the Mediator strategically controls the flow of crucial information from one party to the other. All of it ranging from the amount of information that has been disseminated to the order in which it has been disclosed has deeply ingrained psychological impacts that are crucial for resolving the dispute.

Thus, this economic rationale can be presented in the form where the Mediator, strategically disseminates knowledge about the economic reservations and financial considerations of one party to the other in such a way that it brings them a step closer to the settlement. This is simply an addition to the existing cost-effectiveness of Mediation.[8]