“My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realised the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul.”
–Mahatma Gandhi
Alternate dispute resolution (“ADR”) mechanisms have become the front runner in the dispute resolution space, with mediation gaining a great deal of traction in the last couple of decades. This is so not only with respect to disputes amongst individuals, but companies as well. It is seen that a myriad range of civil disputes such as disputes arising out of contractual relationships, family or matrimonial relationships, employment, partnerships, tortious disputes and consumer disputes can be resolved through mediation.
While mediation is based on the principle of self-determination by the parties to reach a resolution, the role of a mediator is crucial in facilitating the same. The general concern for ethical standards is nowhere greater than in relation to mediation. This concern for standards in mediation is somewhere understandable, given the lack of structure on procedural or substantive rules in mediation. Mediation being an informal process, therefore, requires a mediator to bear the globally recognised principles[1] of impartiality, neutrality, self-governance and confidentiality in mind. In the Indian context, the Courts have adopted these principles while further supplementing them. A mediator is not bound by provisions of Code of Civil Procedure, 1908, or Evidence Act, 1872, and is guided by principles of fairness and justness.[2] Additionally, Indian Courts typically have a mediation centre[3], wherein formulated rules also have qualifications, duties and guiding principles for ethics laid down for their empanelled mediators.[4] To understand the ethical standards applicable, one must also understand the role of a mediator[5] which includes:
- Facilitating voluntary resolution of a dispute between the parties;
- Communicating the view of each party to the other;
- Assisting parties in identifying issues;
- Reducing misunderstandings;
- Clarifying priorities;
- Exploring areas of compromise; and
- Generating options to solve the dispute.
A lot of importance is laid on a mediator treating all parties equally, as also, the mediator must not impose any term(s) of settlement on parties. Trust is the foundation in this entire process, which can be built only if a mediator observes high ethical standards. Some of these best ethical practices have been discussed in this piece below:-
Confidentiality
Maintaining confidentiality is one of the key elements. Parties must be assured of confidentiality of the documents, statements and information revealed during mediation.[6] Ensuring confidentiality of the proceedings is the solemn duty of a mediator. To meet this end, he must communicate the confidentiality obligations to the parties, restrain from making any public statements about the mediation and disallow requests for recording of the sittings. Indian courts have recognised confidentiality in mediation and the Supreme Court has stated that parties and mediator were to inform the court only about the success or failure of the mediation and submit a copy of the final agreement, if any, reached.[7]
Integrity and Impartiality
As they say, effective altruism consists of honest and impartial attempt to work out what’s best for those affected, and a commitment to do what’s best, whatever that turns out to be. It goes without saying that a mediator should be objective, impartial and a person with integrity.[8] It is really hard to define integrity in a short phrase as it consists of so many actions that form value. Integrity is about doing the right thing; it is being incorruptible, honest, and above all, doing all these things when no one is around to see it. A mediator must disclose all possible conflict of interest, which may cast a shadow over his impartiality and integrity to mediate the dispute.[9] One should avoid mediating in case there exists any direct conflict of interest.[10] This responsibility continues even after being appointed as a mediator, in the sense that he must not take any personal or professional engagement with any party that would impact his impartiality.
He must refrain from privately communicating with either party or their representatives.[11] While private sessions with parties are not barred, he must not disclose information communicated to him in confidence and not bend the truth, even if it may seem in the interest of settlement.[12] In fact, communication by a mediator with the Court is also limited to the extent of informing the Court of failure of a party to attend the proceedings, settlement of dispute, etc., so as to ensure neutrality of the mediator.[13]
The ability to understand the dispute is corollary to the concept of integrity and impartiality. Therefore, the mediator must also evaluate his technical understanding of the subject-matter and his ability to effectively resolve the dispute.
Biases, pre-existing notions, pre-existing knowledge in relation to the parties or subject matter of dispute may cloud the ability of a mediator to mediate the dispute. A mediator should either recuse himself from proceedings or be removed if there exists any such instance.
Neutral Intermediary
Neutrality and impartiality are two sides of the same coin. A mediator must clearly understand that he is not a judge or an arbitrator who decides “who is right?” and “who is wrong?”. His role is to assist parties in arriving at a resolution, which is beneficial and acceptable to all stakeholders. His words, manner, attitude, body language and process management must reflect an impartial and even-handed approach. Any recommendation regarding the settlement or its execution in court should be neutral.
Ensuring informed consent of parties
The mediator must ensure that parties are fairly informed and have an adequate understanding of the procedural aspects of the mediation process, such as the role and methods followed by the mediator and enforceability of the settlement. For an effective mediation, the mediator ought to make parties understand that they are required to make a self-determination about the settlement and reach an agreement voluntarily without any compulsion. Parties must be apprised of their right to withdraw from the mediation at any point in time.
Avoid harm to the parties or third parties
The mediator must ensure that mediation does not ensue any harm to the parties or third parties. If the relationship of the parties is deteriorating due to the conduct of parties such as temperament, argument, etc., the mediator must modify the procedure to be followed. When a settlement is likely to impact a third party, the mediator must take information about the third party and encourage parties to consider the interests of such third parties.[14]
Conclusion
The mediator is the guardian of the process. Without strictly adhering to the ethical standards, the mediator would not be able to reflect on the precepts of BATNA, WATNA and MLATNA[15], to enable the parties to move towards a settlement. If the parties have reposed their faith and trust and decided to try to resolve their dispute through mediation, it is crucial that the sanctity of the process is maintained, which is dependent on the ethical standards to be followed by the mediator. Only then can the process be an effective and rewarding one for both the mediator and the parties involved.
At the present stage, there is no gainsaying that mediation is emerging as a viable alternative, it is still at a very nascent stage in India. The true potential of mediation still remains untapped. To create and sustain mediation as a viable method to resolve disputes, it is central amongst others that the mediator discharges his role positively to avoid any clouds of ethical concerns.
[1] For example, The Standards of Ethics and Professional Responsibility for Certified Mediators by the Supreme Court of Virginia, available at http://alumni.hsc.edu/s/1845/images/gid2/editor_documents/barassoc/ses3c-vasctmediatorstandards.pdf?gid=2&pgid=61&sessionid=a93543c6-9dbe-414e-a19e-73ea9a4d5f86&cc=1; European code of conduct for mediators, https://www.euromed-justice.eu/en/system/files/20090128130552_adr_ec_code_conduct_en.pdf; ICC Mediation Rules, 2014, available at https://iccwbo.org/dispute-resolution-services/mediation/mediation-rules/ JAMS Mediators Ethics Guidelines, available at https://www.jamsadr.com/mediators-ethics/ and The Model Standard of Conduct of Mediators, 2005 approved by the American Bar Association House of Delegates on August 09, 2005.
[2] Rule 11 of Delhi High Court’s Mediation and Conciliation Rules, 2004 and Rule 12 of Bombay High Court ADR Rules: Civil Procedure Alternate Dispute Resolution and Mediation Rules, 2006.
[3] For example, The Supreme Court of India’s Mediation and Conciliation Project Committee established in 2005; The Delhi High Court Mediation and Conciliation Centre also known as “Samadhan” established in May 2006.
[4] Delhi High Court’s Mediation and Conciliation Rules, 2004; Bombay High Court ADR Rules: Civil Procedure Alternate Dispute Resolution and Mediation Rules, 2006 etc.
[5] Rule 16 of Delhi High Court’s Mediation and Conciliation Rules, 2004 and Rule 16, Bombay High Court ADR Rules: Civil Procedure Alternate Dispute Resolution and Mediation Rules, 2006.
[6] Rule 20 of Delhi High Court’s Mediation and Conciliation Rules, 2004 and Bombay High Court ADR Rules: Civil Procedure Alternate Dispute Resolution and Mediation Rules, 2006.
[7] Moti Ram (D) Thr. L.Rs. and Anr. v. Ashok Kumar and Anr (2010) 14 (ADDL.) SCR 809.
[8] The United Nations Guidance for Effective Mediation was issued as an annex to the report of the Secretary-General on Strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention and resolution (A/66/811, 25 June 2012); Rule 27 of of Delhi High Court’s Mediation and Conciliation Rules, 2004 and Bombay High Court ADR Rules: Civil Procedure Alternate Dispute Resolution and Mediation Rules, 2006.
[9] Rule 12 of Ethics to be followed by Mediator, Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018; Rule 8 of Delhi High Court’s Mediation and Conciliation Rules, 2004 and Bombay High Court ADR Rules: Civil Procedure Alternate Dispute Resolution and Mediation Rules, 2006.
[10] Mediation Training Manual of India, Mediation and Conciliation project Committee, Supreme Court of India, available at https://www.mediate.com/pdf/MT%20MANUAL%20OF%20INDIA.pdf.
[11] Rule 12 – Ethics to be followed by Mediator, Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018.
[12] Mediation Training Manual of India, Mediation and Conciliation project Committee, Supreme Court of India, available at https://www.mediate.com/pdf/MT%20MANUAL%20OF%20INDIA.pdf.
[13] Rule 23 of Delhi High Court’s Mediation and Conciliation Rules, 2004 and Bombay High Court ADR Rules: Civil Procedure Alternate Dispute Resolution and Mediation Rules, 2006
[14] Mediation Training Manual of India, Mediation and Conciliation project Committee, Supreme Court of India, available at https://www.mediate.com/pdf/MT%20MANUAL%20OF%20INDIA.pdf.
[15] BATNA stands for ‘Best Alternative to a Negotiated Agreement”; WATNA is ‘Worst Alternative to a Negotiated Agreement’ and MLATNA stands for the ‘Most Likely Alternative to a Negotiated Agreement.’