Indian courts today are facing a huge and increasingly unfamiliar increase in the docket of litigation. With the advent of covid-19 the number of cases has increased not only because of the increasing backlog, but also due to rising litigations owing to underperforming economy. In these times, the importance of ADR mechanisms increases multi-fold, owing to the simplicity in procedure, as well as the time restraints. One such ADR process is Mediation.
Black’s law dictionary defines mediation as a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a neutrally agreeable solution . Rule 4 of the Civil Procedure – Alternate Dispute Resolution Rules, 2003 (ADR Rules) defines mediation as:
“Settlement by ‘Mediation’ means the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit by the application of the provisions of the Mediation Rules, 2003 in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasising that it is the parties own responsibility for making decisions which affect them.”
Simply put, mediation is the process where a neutral party is responsible to bring the participating parties to a unified ground or formally called a ‘settlement’ as a means to resolve the dispute, which both of them agree to and are ready to implement. The neutral party thus, remains a facilitator, and not a jurist in any sense.
Such a practice gains unjustified importance today, since settling disputes amongst the parties themselves, does not only make the process amicable while keeping the door of further agreements open, but also saves the time and cost invested in litigation. Understanding the potential of this process, and its capability to strengthen international trade, the UN introduced the United Nations Convention on International Settlement Agreements Resulting from Mediation, more popularly known as the Singapore Mediation Convention.
SINGAPORE MEDIATION CONVENTION
The Singapore Mediation Convention was tabled for discussion in the UN in 2014, but faced severe backlash, especially by the European Union which insisted on regulating settlement agreements by domestic laws. It was only was in 2018, after three years of discussions and amendments by working committees, that the UNCITRAL adopted the Convention.
The International Settlement Agreements Resulting from Mediation was thus adopted in December 2018 and eventually introduced for signatures in August 2019, giving recognition to settlement via mediation. The convention has been signed by a total of 53 countries of which India is a part.
AIM AND SCOPE OF THE CONVENTION
The aim of the United Nations behind introducing such a convention is essentially to unify and harmonise the laws governing international trade, to not only benefit global corporations and first world countries but too also come to the aid of developing countries, by opening up unconventional yet legal methods of resolving disputes. Thus, the working idea remains to facilitate international trade, by making an amicable path of dispute resolution, which both the parties can walk on together, rather than taking two different paths and fighting to decide who is right, while keeping in mind that the procedure needs to be such which satisfies the legislative ideology of all countries regarding alternative dispute resolution mechanisms.
The convention stands applicable on Mediation Settlement Agreements (MSAs) which have been entered into by the parties to dispute to arrive at an amicable resort. Thus, the basic idea is to make mediation settlements or ‘agreement which is the result of a mediation’ enforceable. However, the prerequisite is that the parties should have their place of business in two different States. The Convention is not applicable on settlement agreements arising out of disputes related to family, inheritance of employment. Further, the Convention stands inapplicable on settlements which are a result of court proceedings or are enforceable as a judgement in the relevant State or are arbitral awards. The convention is applicable on all the countries which have signed it and have thereby given their consent to be bound by it and thus, must work towards refraining from acts that would defeat its purpose.
The Singapore convention removed what seemed to be the primary issue with Mediation for not being the preferred ADR mechanism- lack of enforceability. Needless to say, it was also the more preferred way for popularity of Arbitration. However, it should be pointed out that arbitration too had started losing its shine, owing to the increasing procedural complexities, delays and increasing costs. For instance, even with the Arbitration and Conciliation Act of 1996, the courts have been in a continuous tussle with the interpretation of the act and its applicability. Thus, the Convention is an example of recognizing an opportunity and making the most of it. Recognition of Mediation opens a new avenue for resolution of commercial disputes, removing the above-mentioned impediments.
Even though the Convention does not describe the term ‘commercial’ it is a matter a public record that the Working Committee did not want to restrain the meaning to only certain transaction, thus leaving it open to interpretation. The rationale behind exclusion of personal disputes seems to be the possibility, or rather the advantage of ascendancy one party might have over the other, coupled with the massive difference in public policies across states However, the former reasoning seems flawed owing to the possibility of dominance in commercial cases as well. The latter, however, is a more advanced reasoning based on factual occurrences. Already in-force Hague Convention on Private Laws presents the solution to exclusion of judgements from the said act, treating the loophole successfully.
As a part of the procedural requirements, the Convention requires the parties to present a written agreement which is to be enforced. Such an agreement should carry the signature of the parties or the mediator, or another document undertaking by the mediator himself that such a process was in fact used to resolve the dispute. Alternatively, the institute which had orchestrated the mediation can too attest a documentation as evidence. However, the farsightedness of the Convention is witnessed by allowing the parties to present any evidence which may be accepted by the competent authority. This resolves the issue pertaining to reluctance often portrayed by Mediators in signing the agreements. The Convention also makes provision for accepting electronic communications as well.
Article 5 of the convention is almost a guide for the competent authority to ensure that only those agreements are enforced which are not riddled with irregularities such as incapacity of either party to enter into an agreement or is null and void, yet to be concluded, or was further amended after conclusion. Other grounds include, pre-mature performance of obligations, lack of clarity, or granting relief would defeat the purpose of the agreement. It is indispensable that the Mediator follows proper conduct, is impartial, independent and commits to disclosing all information to the participants. Needless to say, there shall be no relief if the competent authority finds out that the relief will be contrary to public policy of the party (/ies) or the matter itself cannot be mediated. The inclusion of competent authority in verification becomes necessary since it has the potential to act as a check and balance system to make sure that the agreements are fair and impartial.
However, one glaring issue is regarding the code of conduct to be followed by the Mediators. The Convention neither defines, not gives reference to any document which will justify the code of conduct to be followed by the Mediators. Furthermore, establishing such a breach will pose a difficulty since in most jurisdictions’ mediators cannot be compelled to testify. Several times, mediators are apprehensive in signing agreements to avoid being sub-poenaed or simply to avoid being considered a party to the terms of the agreement.
Article 5 gives the Convention authority, and does not limit it to a touch-and-go mechanism, that is, the competent authority will not accept whatever agreement comes across its way with their eyes closed. The convention also lacks the opportunity for a second chance, since it includes no provision which might allow the parties to rectify the grounds on which the enforcement has been refused. However, this can be interpreted positively since it is these endless justifications and rectifications that make the process cumbersome, which were possible responsible behind arbitration turning into shorter form of litigation.
Article 6 of the Convention in a way recognises the principle of ‘sub judice’. A matter is called sub judice, when it is already being dealt with by another judicial institution. The aforementioned article states that where there is a parallel arbitration or court proceeding already in place with respect to enforceability of the agreement, the competent authority can adjourn the decision and further procure security from the defaulting party. Article 8 permits the States to adopt the convention with certain reservations, the effect of which shall takes place only after such a reservation comes into force.
The remaining articles of the convention, i.e. from 10 to 15, are in a sense boiler-plate, i.e., assigning UN as the depository, signature, ratification, etc, by the States, whether the States would prefer for the Convention to be applicable only in certain jurisdictions, and the procedure for amendment. The Indian Government by virtue of a notice dated 31st July 2019 approved it signatory status to the Convention.
While the convention in itself is a brilliant attempt towards recognising mediation as a legitimate ADR method, giving it the sanction that it deserved, there needs to be a clarity on whether the code of conduct will be jurisdiction specific, or a single document applicable to all. Furthermore, some protection must be granted to mediators and their integrity. The Indian legal system on Mediation still has a long way to go. To start with, as of today there is no single legislation dedicated entirely to mediation. There are sections and rules, such as S. 89 of the Civil Procedure Code, 1908, as well as the Mediation and Conciliation Rules of 2004, among others. However, there remains a need for an umbrella legislation which will not only include the aforementioned provisions in its ambit, but must also attempt to eradicate the various infirmities therein. Of course, the legislation needs to be drafted on the lines of the Convention, not only because India is a signatory to it, but also because the Convention captures the true purpose behind recognition of Mediation, i.e., amicable resolution of disputes without procedural or monetary drawbacks. The Indian legislation thus, must remain devoid of the lengthy procedures court sanctions, which has been plaguing the Indian Judiciary for years now, and focus on remaining crisp, yet comprehensive.
The convention has made some significant effort to simplify dispute resolution mechanism across the globe while giving legitimacy to mediation as a viable and enforceable method to resolve commercial disputes. Although the convention is at nascent stage, at the outset, it does come across as well drafted aiming to make a long-lasting impact on the dispute resolution industry. While some might argue that the Convention will prove to be a competition to its Arbitration counterpart, a contrary view is that the language if the Convention is simply aimed to compliment the New York Convention, thereby only maintaining its position of an alternative. With increasing international trade, the Convention is bound to increase ‘ease of doing business’ by providing a speedy resolution mechanism. The investors too might start giving preference to such a method which avoids endless court visits and sanctions. It will also act as harbinger of viability and stability in such turbulent times by reducing costs. The only hinderance the Convention faces is lack of domestic support in several jurisdictions, such as India itself, which will have to step up to compete with countries such as the Us or UK, where mediation is already a popular dispute resolution mechanism.