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Mediation : A Universal Path to Dialogue

Introduction


At the heart of dispute resolution lies a simple truth: most conflicts can be resolved through dialogue. Mediation institutionalises this idea, offering a structured but flexible process where a neutral third party, the mediator, facilitates communication between disputing parties to help them reach a voluntary settlement. Unlike arbitration, mediation does not impose a binding decision; instead, it empowers parties to craft their own solutions.


Globally, mediation is gaining unprecedented recognition. With the adoption of the Singapore Convention on Mediation (2019), mediation is no longer confined to domestic disputes but has become a vital tool in international commercial conflict resolution.


International Legal Frameworks


1. Singapore Convention on Mediation, 2019

The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) provides a uniform framework for the enforcement of mediated settlement agreements across borders.¹ With over 55 signatories (including India, China, and the U.S.), it gives mediation global enforceability similar to the New York Convention for arbitration.


2. UNCITRAL Model Law on International Commercial Conciliation, 2002

UNCITRAL also adopted a Model Law on Conciliation (later amended to include mediation). ² It provides procedural clarity for international mediation, ensuring confidentiality, neutrality, and recognition of settlement agreements.


Mediation Practices Around the World


  • United States: Court-annexed mediation is widely used in civil, family, and employment disputes. In many states, mediation is a mandatory first step before litigation. ³

  • United Kingdom: Mediation is encouraged through the Civil Procedure Rules (CPR), and courts may impose cost penalties for unreasonably refusing mediation. ⁴

  • Singapore: The Singapore International Mediation Centre (SIMC) has emerged as a leading global hub, especially for commercial disputes in Asia.

  • Europe: The EU Mediation Directive (2008/52/EC) promotes mediation in cross-border civil and commercial disputes. ⁵

  • Africa & Asia: Community mediation, rooted in traditional practices, is being formalised within modern justice systems (e.g., Rwanda’s Abunzi committees, India’s Lok Adalats).


Mediation in India


India has long recognised mediation through court-referred settlements under Section 89 of the Code of Civil Procedure, 1908, endorsed in Salem Advocate Bar Assn. v. Union of India (2005).⁶

The passage of the Mediation Act, 2023, marks a historic shift by:

  • Making pre-litigation mediation mandatory for certain disputes.

  • Granting statutory enforceability to mediated settlement agreements.

  • Establishing the Mediation Council of India to institutionalise the process. This reform positions India as a future hub for global mediation, in line with the Singapore Convention.


Notable Case Law


  • Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1 (1983): The U.S. Supreme Court strongly endorsed the federal policy favouring arbitration and mediation. ⁷

  • Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24: The Indian Supreme Court emphasised the role of mediation in reducing court congestion and preserving relationships. ⁸


Advantages of Mediation

  1. Preserves Relationships: Especially valuable in family, employment, and commercial partnerships.

  2. Confidentiality: Discussions remain private, unlike public litigation.

  3. Flexibility: Parties design the process and outcomes.

  4. Time and Cost Efficient: Settlements can be reached faster than court trials.

  5. Enforceability: With the Singapore Convention, mediated settlements gain international legitimacy.


Challenges and Criticisms

  • Non-binding nature: A party may withdraw, making mediation ineffective.

  • Power imbalances: Without careful facilitation, stronger parties may dominate negotiations.

  • Awareness gaps: In many jurisdictions, mediation is still underused compared to arbitration or litigation.


Conclusion

Mediation reflects the future of dispute resolution, a future based on collaboration rather than confrontation. With the Singapore Convention providing global enforceability and domestic reforms like India’s Mediation Act, 2023, the world is witnessing the mainstreaming of mediation as a parallel system of justice.

As disputes grow more complex in a globalised economy, mediation reminds us that at the core of every conflict are people, and often, the simplest path to resolution is dialogue.



References

  1. United Nations, Singapore Convention on Mediation (2019), available at: https://uncitral.un.org.

  2. UNCITRAL Model Law on International Commercial Conciliation, 2002.

  3. Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques (Harvard Negotiation Law Review, 1996).

  4. Civil Procedure Rules, UK, Part 31 (CPR).

  5. EU Mediation Directive 2008/52/EC.

  6. Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344.

  7. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983).

  8. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.

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