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Why India Needs Mandatory Mediation



This article is co-authored by Tara Ollapally, CAMP Arbitration & Mediation Practice.

 


Introduction: Tend and Befriend Responses to Conflict

Conflicts are ubiquitous, unavoidable, and almost always uncomfortable. An inevitable consequence of human interaction, conflict, if managed well can be a source of innovation, creativity, growth and meaningful relationships.


Any conflict originates from differences. Differences in ideas, values, or perceptions of facts. These differences if not handled well will lead to disagreements, and disagreements if not respectfully managed will lead to disputes which eventually could lead to all-out conflict. If it is escalation of the differences that causes conflicts, it is also inversely true that to resolve conflicts we must de-escalate the situation to resolve them more efficiently. The importance of handling a conflict at the earliest stems from the intrinsic link between cause and consequence.[1]


The primary reason for conflicts is the urge to protect something or someone deeply attached to the conflicting parties.[2] Christopher Moore gives a particularly easy understanding of different types of conflicts, since resolving the different types of conflict will require different approaches. He calls it the ‘Circle of Conflict’[3]. As per Moore, conflicts are divided into 5 types, Value Conflicts, Relationship Conflicts, Structural Conflicts, Interest Conflicts, and Data Conflicts.


Responses to Conflict

Neurobiology research, first understood and described by Walter Cannon in 1932 has understood the human stress response to most commonly be Fight, Flight, Freeze[4] - to get aggressive and fight, to run away from the conflict or to freeze and not take any action hoping for the situation to pass.[5]


Recent research from UCLA has shed light on another common response to stress – Tend and Befriend[6]- to build a connection between the conflicting parties, allowing for vulnerability and understanding.[7] This research shows that humans have used social relationship not only as a basic accommodation to the exigencies of life, but also as a primary resource for dealing with stressful circumstances.[8]


In this article we share that Mediation as a dispute resolution process promotes the Tend and Befriend response. To holistically address disputes, systems must be designed to evoke this natural human response. A mature legal system that acknowledges building bridges and fostering relationships as a way our species responds to conflict will make mediation a recognised process in its dispute resolution system.


Mediation as a way to enhance the Tend and Befriend response


Formal legal systems are traditionally an adversarial process wherein conflicting parties are set up as adversaries and a determination of right/ wrong is made by a neutral third person. This process triggers the fight response in conflict.


Mediation, as a dispute resolution process, is designed around enhancing collaboration and brings two conflicting parties together to understand, dialogue and reach an amicable solution. It creates a conducive environment whereby the parties are able to form a connection and build on it. It triggers the response under stress to affiliate and connect.[9] The ‘tend and be-friend’ approach is built on this response, where human beings come together to protect themselves. Mediation provides instrumental social support that involves providing tangible assistance as part of a social network of mutual assistance and obligations[10].


Although collaborative processes were ingrained in our traditional social system, 300 years of the formal court system has greatly impacted the collaborative response in conflict. The wise old person in the village who the community turned to and evoked the “tend and befriend’ response was replaced by the powerful village head who incited the response to fight. Formal systems that were built on the Anglo Saxon model completely replaced traditional systems that promoted dialogue, preserved relationships and focussed on win/win outcomes.


To nurture and reacquaint ourselves to the tend and befriend response, strong action is needed. The Mediation Bill, 2021 which is currently under consideration at the Parliament proposes mandatory mediation for civil and commercial disputes. We welcome this step and believe that if well implemented, it could provide the impetus to develop a whole new way to resolve disputes – a way that is not only inherently natural but also badly needed in our country today.


Mandatory Mediation for India

“Constitutional morality is not a natural sentiment. It has to be cultivated." - B.R. Ambedkar, Annihilation of Caste


India has consistently used strong laws to drive social change - whether it was the 1843 Indian Slavery Act that abolished slavery and helped changed minds about this abominable practice or The Hindu Child Marriage Restraint Act, 1929 replaced by the prohibition of Child Marriage Act, 2006 that prohibited child marriage and imposed sanctions for the same or the The Child Labour (Prohibition and Regulation) Act 1986[11] that prohibited the employment of children under 14 years or the Protection of Women from Domestic Violence Act, 2005; India has successfully used strong laws to bring about social transformation.

To encourage a collaborative mind set, mediation must be strongly encouraged through legislation. A culture of ‘mediation first’ can be effectively promoted through policy. Countries round the world have successfully experimented with mandatory mediation models to not only reduce burden on courts but also encourage behavioural change when responding to conflict.


Mandatory Mediation Internationally

Italy serves as one of the most leading examples of a successful mandatory mediation law and policy. Voluntary mediation was first introduced as an option to disputants in Italy in 2003 but was hardly used. In 2010 Italian lawmakers introduced mandatory mediation legislation, recognising a clear reluctance by parties to engage in mediation and to address the heavily overburdened courts. Legislative Decree No. 28/2010 required mandatory mediation for certain kinds of disputes.[12] Before a filing in court, parties and lawyers are required to engage in an initial mediation session with an ability, thereafter, to easily opt out of mediation. Tax reliefs were offered to parties who engaged in the mediation process, and it was to be quadrupled if an agreement was achieved. This mandatory initial mediation session model has not only drastically increased the number of cases that attempted and settled in mediation but also recorded a substantial decrease in the number of court filings.[13]


In Singapore, Mediation is divided into court-annexed and private. In 2010, the State Courts increased the use of mediation in civil disputes by adopting the 'ADR Form at the Summons for Directions' stage. Both attorneys and clients are required to sign a document certifying that they have explored ADR possibilities and indicating their decision regarding the same. In 2012, a "presumption of ADR" was implemented, which requires all civil cases to be automatically directed to mediation or other types of ADR unless one or more parties opted out. Refusing to employ ADR for reasons considered unacceptable by the registrar results in financial fines under Rules of Court Order[14].


Mediation in the European Union has also had more success when it involves elements of mandatory nature.[15] Turkey introduced mandatory mediation for certain categories of disputes and has recorded a drop of up to 70% in court filings in those categories[16]. Greece, and the UK are also using strong mandatory mediation policies to increase the culture of collaboration and reduce pendency in courts.


India is in desperate need of multiple solutions to address the crisis of 4.7 crore cases pending in our courts[17]. An efficient [18] process that promotes a culture of dialogue and respectful understanding must be a choice for every Indian. India attempted mandatory mediation by amending the Commercial Courts Act, 2015, which did not yield desired results. Unfortunately it did not include a strong sanction for non-appearance and provided an exception for cases that needed interim relief. This became the Achilles heel in the law and rendered it practically useless. The draft Mediation Bill 2021 that is currently pending before the Indian Parliament proposes mandatory mediation for all civil and commercial cases before the institution of a suit. If it is drafted in a manner that ensures a strong push towards mediation but also allows for disputants to easily access the courts after a meaningful initial attempt, we are creating the possibility of a mediation first culture that will reduce court filings and promote peace. Needless to say, strong professionals who understand the process and are skilled to facilitate dialogue and resolution is a non-negotiable element in making this policy a success.


Conclusion

As a human species, we now know that our human brain is capable of evoking a response of tend and befriend under stress. This response stimulates the evolved neocortex part of our brain where rational decisions and creative problem solving is possible[19]. As a legal system we are in desperate need of options and alternatives – our courts, the only option for dispute resolution in India, are facing an impossible case load that is only increasing. As a society, our ability to dialogue, understand each other and collaborate is essential for us to be able to solve our most urgent problems on which our survival depends.


Laws play a significant role in influencing behavioural change. A law that encourages dialogue and collaboration of the disputants and promotes an efficient process that finds quick, sustainable resolution seems like a win/win option for India.


We welcome India’s move to introduce mandatory mediation. All eyes now, on a well drafted law that will get the disputant to the mediation table but also preserves every Indian’s fundamental right to access to justice.


 

References

[1] Sriram Panchu, Mediation: Practice and Law (The Path to Successful Dispute Resolution), 3rd Edition. [2] Beer and Packard, The Mediator’s Handbook, 4th Edition. [3] Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 3rd., (San Francisco: Jossey-Bass Publishers, 2004) [4] Canon 1932 [5] Shelley E. Taylor, Laura Cousino Klein, Brian P. Lewis, Tara L. Gruenewald, Regan A. R. Gurung, and John A. Updegraff, Biobehavioral Responses to Stress in Females: Tend-and-Befriend, Not Fight-or-Flight, Psychological Review 2000, Vol. 107, No. 3, 411-429 (https://scholar.harvard.edu/marianabockarova/files/tend-and-befriend.pdf) [6] ibid [7] Derba Gerardi, Perspectives on Leadership, The American Journal of Nursing, (September 2015), Vol 115 No 9, 61. [8] Shelley E. Taylor, Tend and Befriend Theory, Handbook of Theories of Social Psychology. Sage Publications, 2011. [9] Shelley E. Taylor, Tend and Befriend: Biobehavioural Bases of Affiliation under Stress, Current Directions under Psychological Science, (December 2006), Vol 15 No 6, 273. [10] Shelley E. Taylor, Tend and Befriend Theory, Handbook of Theories of Social Psychology. Sage Publications, 2011. [12] Disputes related to condominiums, property, division of goods (or partition), family-business covenants and agreements, wills and inheritance, leases, loans, business rents, medical and paramedical malpractice, libel, insurance, and banking and financial contracts. Legislative Decree No. 28 of 4th March 2010, Italy. [13] Leonardo D’ Urso, Italy’s ‘Required Initial Mediation Session’: Bridging The Gap between Mandatory and Voluntary mediation https://www.adrcenterfordevelopment.com/wp-content/uploads/2020/04/Italys-Required-Initial-Mediation-Session-by-Leonardo-DUrso-5.pdf [14] Code of Ethics and Basic Principles of Court Mediation, available at http://www.subccourts.gov.sg, under “Civil Justice Division, Court Dispute Resolution/Mediation”. [15] Giuseppe De Palo; Romina Canessa, Sleeping - Comatose Only Mandatory Consideration of Mediation Can Awake Sleeping Beauty in the European Union, 16 Cardozo J. Conflict Resol. 713 (2014). [16] Tuba Bilecik, Turkish Mandatory Mediation Expands Into Commercial Disputes, http://mediationblog.kluwerarbitration.com/2019/01/30/turkish-mandatory-mediation-expands-into-commercial-disputes/ [17] Over 4.70 crore cases pending in various courts: Govt https://economictimes.indiatimes.com/news/india/over-4-70-crore-cases-pending-in-various-courts-govt/articleshow/90447554.cms?from=mdr [18] In private mediation nearly 70% of cases settle within 3 months. In court mediation programs, specifically at the Bangalore Mediation Centre of the Karnataka High Court the settlement rate is 66% in 90 days (Strengthening Mediation in India: A Report on Court-Connected Mediations, Vidhi Centre for Legal Policy Table 8) [19] Cloke, K., 2013. Bringing Oxytocin into the Room: Notes on the Neurophysiology of Conflict

 

About the Author

Mohit Mokal is a Senior Associate, Mediation at CAMP Arbitration & Mediation Practice and Tara Ollapally is the Co-Founder & Mediator at CAMP Arbitration & Mediation Practice. The opinions expressed in this article are those of the authors. They do not purport to reflect the opinions or views of Indic Pacific Legal Research LLP or its members.