Adr

NATIONAL LAW UNIVERSITY ODISHA
ALTERNATIVE DISPUTE RESOLUTION
PROJECT ON:
WHY MEDIATION FAILS: OVERCOMING HURDLES IN THE PROCESS
[INTERNAL ASSESSMENT: SEMESTER VII]

UNDER THE GUIDANCE OF:
AKASH KUMAR
ASSISTANT PROFESSOR OF LAW
NATIONAL LAW UNIVERSITY ODISHA
SUBMITTED BY:
MANU MISHRA {2015/B.B.A. LL.B/033}

PRANJAL JAIN {2015/B.B.A.LL.B/039}
TABLE OF CONTENTS
RESEARCH METHODOLOGY...................................................................................................... 3
1. OBJECTIVES .................................................................................................................... 3
2. RESEARCH QUESTIONS .................................................................................................. 3
3. CHAPTERISATION ........................................................................................................... 3
4. SOURCES OF DATA ......................................................................................................... 3
5. MODE OF CITATION ....................................................................................................... 3
INTRODUCTION .......................................................................................................................... 4
CHALLENGES AND OBSTACLES IN MEDIATION PROCESS .......................................................... 6
1. LACK OF TRAINED MEDIATORS..................................................................................... 6
2. LACK OF TRAINERS ....................................................................................................... 7
3. LACK OF REFERRALS .................................................................................................... 7
4. LACK OF INFRASTRUCTURE .......................................................................................... 7
5. ABSENCE OF SUITABLE LEGISLATION .......................................................................... 8
6. RESISTANCE AMONGST BASIC ACTORS I.E. JUDGES, LAWYERS AND LITIGANTS ...... 8
6.1. JUDGES ..................................................................................................................... 8
6.2. LAWYERS ................................................................................................................. 8
6.3. LITIGANTS ................................................................................................................ 9
7. LACK OF MEDIATION MANAGEMENT ........................................................................... 9
8. LACK OF ADEQUATE FUNDS .......................................................................................... 9
9. MEDIATION PROCESS ITSELF ...................................................................................... 10
9.1. SELECTION OF MEDIATOR ...................................................................................... 10
9.2. MISUNDERSTANDING .............................................................................................. 10
9.3. MEDIATOR’S INTUITIVE BEHAVIOR ........................................................................ 10
9.4. POWER IMBALANCE ................................................................................................ 11
9.5. NEUTRALITY........................................................................................................... 11
ALTERNATIVE DISPUTE RESOLUTION Page 1 of 18

9.6. COMMITMENT TO RESOLVE DISPUTE ...................................................................... 12
10. LACK OF AWARENESS .............................................................................................. 12
SUGGESTIONS FOR ENHANCEMENT OF STANDARD OF THE MEDIATION PROCESS ............. 13
1. INSTITUTIONAL REFORMS ........................................................................................... 13
1.1. QUALITY CONTROL AND POPULARISING MEDIATION......................................... 13
1.2. MEDIATION AS A PROFESSION ................................................................................ 14
1.3. INDEPENDENT PROFESSIONAL MANAGEMENT ........................................................ 14
1.4. FINANCIAL SUPPORT AND MANAGEMENT .............................................................. 15
1.5. CASE MANAGEMENT .............................................................................................. 15
1.6. TRAINING OF JUDGES .............................................................................................. 15
2. LEGISLATIVE REFORMS ............................................................................................... 16
2.1. REFERRAL JUDGE ................................................................................................... 16
2.2. PROFESSIONAL AN ETHICAL STANDARDS FOR MEDIATORS ..................................... 16
2.3. MEDIATOR ACCOUNTABILITY ................................................................................ 16
2.4. ENFORCEMENT OF SETTLEMENT AND CONFIDENTIALITY ........................................ 17
2.5. TRAINING AND ACCREDITATION OF MEDIATORS ..................................................... 17
CONCLUSION ........................................................................................................................... 18

RESEARCH METHODOLOGY
The present study is essentially doctrinal study; research undertaken is descriptive in nature
with an analytical approach to the topic. Only secondary data has been used and examine in
the holistic manner for the purpose of the research.
1. OBJECTIVES
 To understand the purpose of Mediation.
 To understand the need of Mediation.
 To understand the challenges and obstacles in Mediation process.
 To identify the suggestions and recommendations in the Mediation process.
2. RESEARCH QUESTIONS
 Why conflict resolution (Mediation) important?

 What are the advantages of Mediation process?
 What are the challenges and obstacles in the Mediation process?
 What are the suggestions and recommendations for enhancing the quality of
mediation?
3. CHAPTERISATION
 Introduction
 Suggestions For Enhancement Of Standard Of The Mediation Process
 Challenges And Obstacles In Mediation Process
 Conclusion
4. SOURCES OF DATA
This project has been done by the help of secondary sources of law like books, articles, and
legal websites as well as other sources through e-law journals.
5. MODE OF CITATION
The mode of citation adopted herein is the Uniform citation.

INTRODUCTION
Alternative Dispute Resolution is an assortment of dispute resolution procedures whose

motive is to act as an alternative to the traditional litigation procedure and is generally
conducted with the help of a third party who is independent and neutral. Mediation,
Arbitration and Conciliation are some of the examples of ADR procedure. ADR is based on
the idea that a dispute is a problem between two or parties which can be solved together
rather than a combat to be won and it visualizes a participative and collaborative effort of the
disputant parties, facilitated by a neutral third party, to arrive at a resolution which is
acceptable to both the parties.1
The Centre for Effective Dispute Resolution (CEDR), has defined Mediation as “Mediation is
a flexible process conducted confidentially in which a neutral person actively assists parties
in working towards a negotiated agreement of a dispute or difference, with the parties in
ultimate control of the decision to settle and the terms of resolution.”2 Mediation provides an
efficient, effective, speedy, convenient and less expensive process to resolve a dispute,
mutual respect and civility.3
The statutory and judge-made definitions of mediation in the investigated legal system reveal
considerable differences in viewpoint and element of the definitions. However, there are
variation on a common core definition, which serves as a functional basis of the present
investigation: “Mediation is a procedure based on the voluntary participation of the parties, in
which an intermediary with no adjudicatory powers systematically facilitate communication
between the parties with the aim of enabling the parties to themselves take responsibility for
resolving their dispute.”4
Though it is true that the process of Mediation is quite informal, which means that it is not
governed by any formal ruled of evidence and procedure, but it is not a casual procedure. The
1
Saurabh Kulshreshtha, Alternative Dispute Resolution Mechanism: A Case Study of Delhi, 2012.
2
Susan Blake, Julie Browne & Stuart Sime, A practical Approach to Alternate Dispute Resolution, 2nd Edition,
Oxford University Press, 2011.
3
Chapter III, Mediation Training Manual of India, Mediation and Conciliation Project Committee, Supreme
Court of India.
4
Klaus J. Hopt, Felix Steffek, Mediation: Principles and Regulation in Comparative Perspective, Oxford
University Press, 2013.

process of mediation is structured and formalized with stages which are properly identifiable.
However, the process is altogether flexible than the normal court proceedings.5
The focal point of the mediation process is the selection of mediator. The mediator must be
selected on the basis of the issue at hand and his specific training, experience and references.
While selecting the mediator, it must be ensured that he is unbiased and has no interest in the
outcome of the issue at hand. The skills that can be analyzed for the selection of mediator
include interpersonal communication skills, patience, empathy, intelligence, optimism and
flexibility. The mediator manages the overall mediation process even though the parties from
the agreement, The mediator will be in charge of establishing the rules of conduct and
keeping the communications on track, Before the process of mediation, mediator must ensure
that the venue is neutral, with appropriate seating arrangement and security Mediator must
also ensure the emotional stability of the process through reducing aggressive behavior and
ensuring equal participation. The mediators must also facilitate the communication of the
parties through effective listening and noticing non-verbal cues during the discussion.6
In mediation, the mediator works together with both the parties to make the dispute resolution
process a success and doesn’t impose a decision upon the parties. A mediator’s role is very
evaluative and he facilitates, encourages and promotes communication between the parties.
He also motivates the parties to arrive at an amicable settlement.7
Mediation is a private process, i.e. the whole process is confidential in nature and is not open
to the public. Any part of the conversation done within the process cannot be revealed in civil
proceedings or elsewhere without the written consent of all parties. Any document submitted
in the Mediation is not admissible in the court of law.
5
Court of India.
6
G Jegadeesan, Mediation: An effective Dispute Settlement Machinery, Ifcai University Press, 2008.
7
Court of India.

CHALLENGES AND OBSTACLES IN MEDIATION PROCESS
1. Lack of trained mediators

2. Lack of trainers
3. Lack of referrals
4. Lack of infrastructure
5. Absence of suitable legislation
6. Resistance amongst basic actors i.e. Judges, Lawyers and Litigants
7. Lack of mediation management
8. Lack of adequate funds
9. Mediation process itself
 Selection of Mediator
 Misunderstanding
 Mediator’s intuitive behavior
 Power imbalance
 Neutrality
 Commitment to resolve dispute
10. Lack of awareness
1. LACK OF TRAINED MEDIATORS
The essence of mediation lies in the role of the mediator as a facilitator. The role of the
mediator is to create an environment in which parties before him are facilitated towards
resolving the dispute in a purely voluntary settlement of agreement. As a facilitator, the
mediator has to understand the underline issues between the parties. In order to do so, the
mediator has to open up communication between the parties and between the parties and
himself.8
Considering the techniques of mediation, imparting formal training for mediators is a

necessary. Now, it is accepted and put into practice by the various legal systems in the world
that training is being imparted to the persons for becoming mediators to mediate between the
parties. So far as India is concerned, the Mediation and Conciliation Project Committee,
8
Dr. Justice Dhananjaya Y. Chandrachud, Mediation – Realizing the potential and designing implementation
strategies, page No.6-7 sourced from the website of the Law Commission of India.

Supreme Court of India is conducting the training programme. However, it has been
experienced in the India overall that there is shortage of trained mediators in the country. In
the 3rd National Conference on Mediation held at New Delhi on 8th July, 2012, Hon’ble Mr.
Justice Siri Jagan, Judge, High Court of Kerala has expressed his concern regarding lack of
trained mediators.9
2. LACK OF TRAINERS
This point is co-related with the point regarding lack of trained mediators. The training for
mediation is being imparted by the trained persons who have got Training for Trainers
(TOT). The numbers of persons who are expertized in providing trainings of mediation are
not enough in number. The MCPC has prepared the training manual and the period of
training is described for 40 hours. As there is lack of adequate numbers of trainers, it hampers
the training programme of mediation and ultimately creates obstacles in the implementation
of the mediation.
Hon'ble Mr. Justice Sunil Ambawani10, has pointed out certain challenges in implementation
of mediation. One of which is regarding non availability of adequate numbers of trainers.
3. LACK OF REFERRALS
Section 89 of the Code of Civil Procedure provides for reference of cases to one of the mode
of alternative dispute resolution. It is obligatory on the part of the Judge to refer the case to
any one mode of alternative dispute resolution. However, experiences shows that the Judges
are not referring cases to the techniques of alternative dispute resolution. The figures
reflected from the Mediation Newsletter published by the Gujarat State Legal Services
Authority are just an instance to show that there is less number of references of cases to the
mediation.11
4. LACK OF INFRASTRUCTURE
Mediation being a process wherein there is need of focused attention for resolution of
disputes. It is being so there is need of a space required to run the mediation center. Not only
9
Report on Third National Conference on Mediation held at New Delhi on 8th July, 2012 page 26.
10
Judge, High Court of Allahabad, report of the Third National Conference on Mediation held at New Delhi on
8th July, 2012 page 9.
11
Mediation News Letter published by the Gujarat State Legal Services Authority, Volume I, Issue 5, Page 8.

that, but, it also requires sufficient space for accommodating mediators and the space for
separate as well as joint meetings of the parties. Further, there is need for space for waiting
room, and other infrastructure facilities such as sufficient staff, computers, facilities for
water, toilet facilities. The atmosphere of the mediation center needs to be informal and it
should be situated within Court premises or near the Court premises. During the 3rd National
Conference on Mediation held at New Delhi, Hon'ble Mr. Justice Sunil Ambawani12, and Dr.
Sudhirkumar Jain13, Judge, In-charge Delhi Mediation Centre at 3rd National Conference on
Mediation, has also highlighted the need of adequate space for a mediation center.
5. ABSENCE OF SUITABLE LEGISLATION
At present the legal provisions for referring the case for mediation is under Section 89 of the
Code of Civil Procedure. Now, so far as the Lok Adalats are concerned, there is legal
provision available in the Legal Services Authorities Act, 1987. The Arbitration and
Conciliation Act, 1986 deals with the Arbitration and Conciliation. But, so far as the
mediation is concerned, there is no separate legislation in existence. The entire process of
mediation is being carried out in the country is through the Mediation and Conciliation
Project Committee constituted by the Supreme Court of India. But, it has no statutory or legal
sanctity. Being a committee appointed by the Supreme Court of India its directions are being
followed in the country, but, for the purpose of proper implementation of the mediation
process at every level, it is necessary that some legislation on mediation is required.
6. RESISTANCE AMONGST BASIC ACTORS I.E. JUDGES, LAWYERS AND LITIGANTS
6.1.Judges
Judges may see mediation as potentially undermining their authority to make public
judgments and normative pronouncements. Also, professional incentives may discourage
judicial support for mediation, which may lead to the courts recommending mediation in
fewer cases than it actually should.14
6.2.Lawyers
Lawyers may be understandably concerned that mediation threatens their livelihood by

reducing the number of matters they handle or fees they charge. If more disputes are to be
12
Ibid page No.6.
13
Report of the Third National Conference on Mediation page 13.
14
Hiram E. Chodosh, Mediating Mediation in India sourced from the website of the Law Commission of India.

mediated, lawyers might view ADR as nothing more than an "alarming drop in revenues".
They may encounter pricing problems in how to charge for their role in a mediation.
Additionally, they may wonder about the value of their own role in a party-dominated
process and how they will act as zealous advocates when their parties do not want to settle
and engage in a process that calls for cooperation.15
6.3.Litigants
It is also seen that litigants may harbour anxiety about mediation as an alternative to the court
system. This is because they are fearful or exploitation, distrustful of private proceedings,
comforted by the familiarity of the court system, insecure about making decisions of their
own interests, or interested in vexatious litigation or in delaying the case for economic
reasons and may prefer the lawyer-dominated, public, formal and evaluative judicial
process.16
7. LACK OF MEDIATION MANAGEMENT
As stated earlier, in the country the entire mediation activities are being controlled by the
Mediation and Conciliation Project Committee, Supreme Court of India. In all most all High
Courts for mediation activities organizing committee of the sitting Judges of the Hon'ble
High Court is constituted so also at the District places District Judges and other Judicial
Officers are looking after the mediation activities.
However, considering their duty to perform judicial work first, they are unable to devote
enough time. This is also one of the reasons for not rapidly growing up of the mediation
activities. For any activity to be developed fully it is utmost necessary to have proper
management thereof.
8. LACK OF ADEQUATE FUNDS
There is need of suitable space for mediation center as well as sufficient numbers of devoted
staff members and proper infrastructure and management thereof. Further, some sort of fees
or honorarium is required to be paid to the mediators who are engaged in a mediation
process. For all these purposes, there is need of funds available for every mediation center. In
15
Ibid page No.19.
16
Ibid page No.20.

this regard, it is worthwhile to mention here that Hon'ble Shri V. Gopala Gowda17, the Chief
Justice, High Court of Orissa in his address at the 3rd National Conference on Mediation held
at New Delhi has also highlighted his concern about adequate funds for mediation centers.
9. MEDIATION PROCESS ITSELF
One of the challenges and obstacles in the mediation implementation is mediation process
itself. There are special points relating to this mediation process which creates hurdles in the
mediation process implementation. They can be referred to as follows: -
9.1.Selection of Mediator
Selection of an appropriate mediator is also a necessary step for successful mediation.

Selecting an appropriate mediator for type of dispute is essential to providing disputants with
the highest probability for a successful mediation.
Even though mediation is essentially a disputant driven process, a mediator's knowledge,

experience, skill and approach has a significant impact on the outcome of the mediation. If,
proper mediator is not selected for the given problem then it might hamper the entire
mediation process and may result in unsuccessful mediation.
9.2.Misunderstanding
Parties in conflict often misunderstand each other’s intentions and make negative
assumptions about each other. Consequently a statement that might have seemed innocuous
when two parties were friends might seem hostile or threatening when the same parties are in
conflict.18
9.3.Mediator’s Intuitive Behavior
Instinct helps mediators in their dialogue with parties. It contributes to their daily
management of the major steps and transitions in the mediation process; it also guides them
in their micro-interactions with parties. It helps each of their steps, sentences or gestures, so
to speak. At the same time, instinct may lead to entrapment words or behaviors, which can be
as many obstacles to the success of a mediation process. If mediators are not aware of how
misleading some intuitions can be, they run the risk of losing their efficiency in the process
17
Report of the Third National Conference on Mediation held at New Delhi page No.16.
18
Justice Sanjay Kishan Kaul, Souvenir, Third National Conference on Mediation 2012, page No.46 & 47.

and of undermining the establishment of a better quality relation between the parties and the
search for agreeable solutions.19
9.4.Power Imbalance
Free communication and the discussion of the issues at hand is the essence of mediation. If
either party appears to be in a dominant intellectual, physical, economic or emotional
standpoint, free negotiations at an equal footing would be disrupted and lead to an eventful
failure of the mediation.20
9.5.Neutrality
The concept of neutrality and impartiality are essential elements of the mediation process and
these terms are often used interchangeably in mediation agreements. The conventional
ideology about mediation is that the Mediators are expected to be completely neutral despite
of the human nature being inherently judgmental. Sometimes, there occurs such instance
where the breach of neutrality may arise due to an unconscious bias or unawareness which
may lead to "The Flat Earth" syndrome and is the concept of neutrality and impartiality are
essential elements of the mediation process and these terms are often used interchangeably in
mediation agreements. The conventional ideology about mediation is that the Mediators are
expected to be completely neutral despite of the human nature being inherently judgmental.
Sometimes, there occurs such instance where the breach of neutrality may arise due to an
unconscious bias or unawareness which may lead to "The Flat Earth" syndrome and is
identified when the mediator wanders into the territory of imparting opinions or advice
supplemented with lack of skill, inability to reframe, communication deficiencies, unequal
opportunities, attitude, temperament, one party focus, complacency factor and preconceived
stand, using judgmental language and overtones, cooperating and promoting one party's stand
leading to a hijack of the mediation process, the mediator having a tunnel-vision and having
their own idea of settlement also known as the "Mediator's Agenda", only focusing on
achieving a settlement rather than protecting the interests of both the parties etc. It is also
observed that many a times Mediators fail to maintain a neutral stand or to even create a
19
Ibid page 47.
20
Ibid page 47.

perception of neutrality which may lead to loss of trust by the parties or ultimately in the
failure of the mediation process.21
9.6.Commitment to Resolve Dispute
It is necessary for the successful of the mediation that the disputants must have a commitment
to resolve the dispute. If a disputant or Advocate informs the mediator that he or she has no
intentions to settle the case, it immediately puts the mediation in jeopardy. Often, disputants
and Advocates are frustrated with their prior efforts to settle the matter, or the disputants may
be overconfident in his or her likelihood of success in litigation if the matter does not reach
settlement.22
10. LACK OF AWARENESS
Lack of awareness about mediation amongst the rural people, who mistook mediation as
another form of Lok Adalat least realizing that the mediation process involved more
participation of the litigants and empowered them to find their own solutions.23 There is also
lack of awareness amongst judges, advocates and litigants regarding the effectiveness and
usefulness of the process of mediation.
21
Ibid page 48.
22
Ibid page 46.
23
Address of Hon’ble Mr. Justice Siri Jagan, High Court of Kerala in the Third National Conference on
Mediation held at New Delhi. Report on the Third National Conference on Mediation held at New Delhi on 8th
July, 2012, page 26.

SUGGESTIONS FOR ENHANCEMENT OF STANDARD OF THE MEDIATION PROCESS
As we have seen various reasons due to which the success of mediation process may not be
achieved, there are certain measures which may be taken to fully unlock the capability of
mediation in India. These may increase the use of mediation as alternate dispute resolution
mechanism and may also result in lowering the burden of cases on the courts.
The suggestive remarks are divided in to two categories: Institutional and Legislative
reforms. Institutional Reforms deals with the changes from a governance and administrative
point of view. However, Legislative Reforms relates to the statutory and regulatory changes
which are needed for the proper operation of Mediation in India.
1. INSTITUTIONAL REFORMS
1.1. Quality Control and Popularising Mediation
Firstly, the quality of Mediator and Infrastructure is a prime concern. For a positive impact
on the settlement rates in mediation, there should be well trained mediators present. A good
mediator helps in moulding the process favourably for the parties to objectively consider their
differences. Therefore, mediators who are empanelled in the court are required to be of the
highest quality. Also the infrastructure, such as the waiting area, various rooms for board
meetings and conference should add to the mental comfort of a simple mediatory process. If a
party is having good experience with the mediation process, he is likely to again opt for
mediation for solving future disputes, and may also recommend the same to others, thus
increasing the popularity of Mediation.
Secondly, to popularise Mediation, the role of judiciary is also very important. While the apex
court has again and again emphasised the tenability of various types of cases for mediation,
but only little has been done to implement this mandate. The judiciary should sincerely work
with the bar association through sessions and training workshops, to stimulate them about the
process of mediation.
Thirdly, the role of lawyers in advising their clients to go for mediation in case of any dispute
is also very crucial. For this, awareness should be spread among lawyers for them to accept
this mechanism. There should be a kind of mandate for lawyers to recommend mediation as

the very first possible recourse for dispute resolution, especially in cases where the settlement
rate is quite high.
Fourthly, Law schools and universities should cooperate with various institutions, and
individuals, who are highly experts in this field, to help conduct lectures and seminars on
mediation practice and techniques. The lack of awareness should itself not be present at the
student level, and thus should be addressed.
1.2. Mediation as a Profession
Firstly, Mediation practice should be professionalised and incentivised. Trained mediators

and lawyer, who can give their full time and energy in the centres of mediation, are important
for the expansion of operations at such centres. At present, the situation of mediation is that,
there is a voluntary initiative undertaken by some members at the bar, for a nominal fee. To
make mediation more lucrative, there is a need to increase the remuneration of such lawyers.
The court-connected programmes should make sure that for the time and efforts of the
mediators, they are paid enough, so that they continue this profession and doesn’t leave it
because of low pay scale.
Secondly, Lawyers who are specialised in mediation matters should be encouraged to

participate in mediation. As the format of mediation is different form adjudication, there are
stark variations in the technique of lawyers towards this process. Like arbitration, it is
important to have enough lawyers who are devoted to mediation work rather than litigation.
All of this would help in professionalising mediation to a great extent and will also help in
improving the quality.
1.3. Independent Professional Management
Firstly, for the efficient working of mediation centres, independent administrative decision
making is very important. In everyday working of mediation centres, there is a necessity of
involvement of trained professionals, who are having some familiarity with the legal system.
If administration is run by competent professionals or a HR department, it would result in an
improved management of inter-personal relationships at mediation centres. For this to
function well, sufficient personnel and infrastructure must be needed.

Secondly, Autonomy should be given to all the mediation centres except for the power of
policy making. Persons who are working in the mediation centres should have enough powers
and discretion to conduct their everyday operations. A loose analogy can be made here with
the world of corporate. So the High Court which has the jurisdiction may act as the Board of
Directors, whereas the person who is heading the mediation centre may act as Chief
Executive Officer, who will be accountable to the High Court for the performance of the
centre, and at the same time will enjoy autonomy of operations.
1.4. Financial Support and Management
Mediation centres require a great financial support for its improvement. However, only
increased funding would per se not do, the centres should also be given the autonomy to
utilise that fund in the way they think are beneficial for the centre. The autonomy should give
the freedom to the centres to make up their own budgets and obtain state fund from their
government. In addition to the state fund, Centre Government should also seek to support the
court- connected centres.
1.5. Case Management
Firstly, the court- connected mediation centres do not have a well functioned case
management procedure with them. Case management require consolidating mediation briefs,
co-ordinating the time of mediation, and management of case data. In the initial stage of any
mediation, a case manager is required to approach the parties and discuss the importance of
mediation. A manager helps the mediator from an administrative and management
standpoint. He is also required to follow up on whether the mediation was effective or not,
once it has begun.
Secondly, Recording of data consistently and accurately is crucial to improve the efficiency
of court- connected mediation centres. As it has been discussed earlier, a case manager helps
in collecting data, which is mostly used for the evaluation process of centres. In case of any
flaw in any mediation centre, necessary action is taken.
1.6. Training of Judges
There is a need to train existing and prospective judges about the fundamentals of mediation
to improve their understanding of its role as an ADR mechanism, and to train them for their
role in preparing parties for mediation. In addition to such basic training, continued training

and refresher courses should also be regularly conducted to keep them up to date with the
latest practices in ADR. Chief Justices of all High Courts should enforce a rigorous training
framework for all judges in courts within their respective jurisdictions. Furthermore, Chief
Justices should also monitor programmes focussing on continued training of judges.
2. LEGISLATIVE REFORMS
2.1. Referral Judge
As discussed, mediators and lawyers have expressed an urgent need to codify the norms
which should as a guide to judge when assessing the suitability of cases for mediation. These
norms should prescribe the types of cases where it should be mandatory to refer the case to
mediation and other cases where it will be on the discretion of the parties. Further, it should
be given that at any time during the litigation; the parties can opt for mediation and also it is
the duty of the judge to tell the parties about mediation.
Along with imposing a duty on the judges to refer matters, parties should also be incentivised
to adopt mediation, and should be penalised for not giving it a fair chance. The latter, for
instance, can be accomplished by courts imposing costs on parties who are recalcitrant about
the mediatory process.
2.2.Professional an Ethical Standards for mediators
A code of ethics, which would ensure fairness, transparency and accountability of mediators,
must be prepared. As discussed previously, this code may be drafted by a regulator
established under legislation, at the national level to oversee regulatory aspects of court-
connected mediation programmes in India. The aim of this code should not be to over-
regulate the mediation process but to build parties’ confidence in the mediators. The code
should also prescribe the possible consequences for failure of the mediators to adhere to its
norms. The consequence could be as basic as removal from a case (for a minor transgression)
to debarring them from the centre (for a major violation).
2.3.Mediator Accountability
Legislation should provide for the establishment of a grievance redressal framework to

enforce a uniform standard of accountability for mediators across court-connected mediation
centres. The framework should aim towards allowing an expeditious and time-bound disposal

of complaints against mediators. Moreover, it should also prescribe a penalty for when a
mediator is found culpable; inversely, a mechanism should be adopted to deter frivolous
complaints being pursued against mediators.
2.4.Enforcement of settlement and confidentiality
The main problem that is faced regarding enforcement of mediated settlement is that, there is
ample of ambiguity regarding the grounds for challenging such settlement. Therefore, precise
grounds for challenging mediated settlements should be prescribed. Also, with regard to
confidentiality of proceedings, litigation must carve out precise exceptions wherein the
confidentiality requirement may be waived legally. Legislation should also prescribe punitive
action against the illegal violation of the confidentiality of mediation proceedings.
2.5. Training and accreditation of mediators
The training of the mediators should be done by competent trainers who have a good
experience in the field of mediation. The national regulatory body must be tasked with
recognising such individual trainers or institute, provided they satisfy certain requirement
relating to the quality and intensity of the training.
Apart from training, accreditation of mediators based on educational and professional

background, basic and advanced training undergone by mediators, experience as a mediator
(including the types of cases mediated) etc., should also be made common practice. This
should not be taken to mean that all court-connected mediations should necessarily be carried
out only by an accredited mediator. Accreditation, while important to help judges choose
mediators for parties or for court-connected mediation centres to prepare a panel, need not
necessarily be made mandatory for all kinds of mediation. Accreditation should, therefore,
only be a way of signalling quality to parties interested in mediation.

CONCLUSION
Mediation success inherently depends upon the disputants’ commitment to the mediation
process and the abilities of the mediator and disputant to communicate effectively with each
other concerning the dispute. Common, avoidable pitfalls that undermine the likelihood of a
successful mediation might be as simple as the timing of mediation in the litigation process,
or as complicated as addressing contribution and subrogation interests involving multiple
parties and insurers. Nevertheless, in focusing on two key issues-the disputants’ commitment
to the process and effective communication between the parties-a mediator can provide the
disputants with the best opportunity to reach a negotiated settlement agreement.
The authors hope that by implementing some or all of these practices and by considering the
common causes of mediation failure discussed in this article, mediators, attorneys, and
disputants will have the additional tools necessary to provide them with the best opportunity
for a successful mediation.

Adr

Uploaded by

Copyright:

Available Formats

Adr

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Adr

Uploaded by

Copyright:

Available Formats

NATIONAL LAW UNIVERSITY ODISHA

ALTERNATIVE DISPUTE RESOLUTION

WHY MEDIATION FAILS: OVERCOMING HURDLES IN THE PROCESS

[INTERNAL ASSESSMENT: SEMESTER VII]

ASSISTANT PROFESSOR OF LAW

NATIONAL LAW UNIVERSITY ODISHA

MANU MISHRA {2015/B.B.A. LL.B/033}

2. RESEARCH QUESTIONS .................................................................................................. 3

4. SOURCES OF DATA ......................................................................................................... 3

5. MODE OF CITATION ....................................................................................................... 3

CHALLENGES AND OBSTACLES IN MEDIATION PROCESS .......................................................... 6

1. LACK OF TRAINED MEDIATORS..................................................................................... 6

2. LACK OF TRAINERS ....................................................................................................... 7

3. LACK OF REFERRALS .................................................................................................... 7

4. LACK OF INFRASTRUCTURE .......................................................................................... 7

5. ABSENCE OF SUITABLE LEGISLATION .......................................................................... 8

6.1. JUDGES ..................................................................................................................... 8

6.2. LAWYERS ................................................................................................................. 8

6.3. LITIGANTS ................................................................................................................ 9

7. LACK OF MEDIATION MANAGEMENT ........................................................................... 9

8. LACK OF ADEQUATE FUNDS .......................................................................................... 9

9. MEDIATION PROCESS ITSELF ...................................................................................... 10

9.1. SELECTION OF MEDIATOR ...................................................................................... 10

9.2. MISUNDERSTANDING .............................................................................................. 10

9.3. MEDIATOR’S INTUITIVE BEHAVIOR ........................................................................ 10

9.4. POWER IMBALANCE ................................................................................................ 11

ALTERNATIVE DISPUTE RESOLUTION Page 1 of 18

9.6. COMMITMENT TO RESOLVE DISPUTE ...................................................................... 12

10. LACK OF AWARENESS .............................................................................................. 12

SUGGESTIONS FOR ENHANCEMENT OF STANDARD OF THE MEDIATION PROCESS ............. 13

1. INSTITUTIONAL REFORMS ........................................................................................... 13

1.1. QUALITY CONTROL AND POPULARISING MEDIATION......................................... 13

1.2. MEDIATION AS A PROFESSION ................................................................................ 14

1.3. INDEPENDENT PROFESSIONAL MANAGEMENT ........................................................ 14

1.4. FINANCIAL SUPPORT AND MANAGEMENT .............................................................. 15

1.5. CASE MANAGEMENT .............................................................................................. 15

1.6. TRAINING OF JUDGES .............................................................................................. 15

2. LEGISLATIVE REFORMS ............................................................................................... 16

2.1. REFERRAL JUDGE ................................................................................................... 16

2.2. PROFESSIONAL AN ETHICAL STANDARDS FOR MEDIATORS ..................................... 16

2.3. MEDIATOR ACCOUNTABILITY ................................................................................ 16

2.4. ENFORCEMENT OF SETTLEMENT AND CONFIDENTIALITY ........................................ 17

2.5. TRAINING AND ACCREDITATION OF MEDIATORS ..................................................... 17

ALTERNATIVE DISPUTE RESOLUTION Page 2 of 18

 Why conflict resolution (Mediation) important?

The mode of citation adopted herein is the Uniform citation.

ALTERNATIVE DISPUTE RESOLUTION Page 3 of 18

Alternative Dispute Resolution is an assortment of dispute resolution procedures whose

ALTERNATIVE DISPUTE RESOLUTION Page 4 of 18

ALTERNATIVE DISPUTE RESOLUTION Page 5 of 18

CHALLENGES AND OBSTACLES IN MEDIATION PROCESS

1. Lack of trained mediators

1. LACK OF TRAINED MEDIATORS

Considering the techniques of mediation, imparting formal training for mediators is a

ALTERNATIVE DISPUTE RESOLUTION Page 6 of 18

ALTERNATIVE DISPUTE RESOLUTION Page 7 of 18

5. ABSENCE OF SUITABLE LEGISLATION

6. RESISTANCE AMONGST BASIC ACTORS I.E. JUDGES, LAWYERS AND LITIGANTS

Lawyers may be understandably concerned that mediation threatens their livelihood by