ADMINISTRATIVE LAW

(Project)

Topic - MEDIATION AS A TECHNIQUE FOR GOOD GOVERNANCE

SUBMITTED BY: SUBMITTED

TO :

Srijesh Kumar Singh (1828) Prof. (Dr.) I.P. Massey

Sukhvir Singh (1829) Professor, Administrative Law

B.A., LL.B. (Hons.) Dean, Faculty of Law

UG Semester – V

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SEMESTER

(JULY – NOVEMBER 2020)

Word Count – 21178

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Page 2 of 62
 TABLE OF CONTENTS

AIMS AND OBJECTIVES........................................................................................................4

CHAPTER I - INTRODUCTION..........................................................................................5

CHAPTER II - GOOD GOVERNANCE...............................................................................6

CHAPTER III - MEDIATION AND GLOBAL GOVERNANCE......................................7

CHAPTER IV - CONSENSUS BETWEEN DIVERSE GROUPS AND MEDIATION...9

A. The Efficiency Illusion...............................................................................................10

B. Durable Dispute Resolution to build consensus........................................................11

C. Mediation for maximum efficiency............................................................................12

CHAPTER V - MEDIATION AND INCLUSIVE DECISION_MAKING......................13

A. Mediation builds democratic capacity......................................................................14

B. Inclusive Power sharing for good governance..........................................................15

C. Building Optimal Conditions.....................................................................................20

CHPATER VI - EUROPEAN ADMINISTRATIVE LAW DISPUTES AND

ALTERNATIVE DISPUTE RESOLUTION......................................................................21

CHAPTER VII - INFLUENCES OF THE EUROPEAN UNION ON MEDIATION....24

CHAPTER VIII - COMMON CONSTRAINTS FOR ADR IN ADMINISTRATIVE

PROCEEDINGS....................................................................................................................26

A. The Relationship Between Citizens and Administrative Authorities.........................27

B. Constraints based on Rule of Law, Discretionary Powers, and Public Interest.......28

C. The Relevance of the Interests of Third Parties........................................................29

D. Equal Treatment and the Fear of Precedent.............................................................30

E. Transparency.............................................................................................................31

F. Prescribed Period for Administrative Proceedings..................................................32

CHAPTER IX - COMPARATIVE OUTLOOK WITH EUROPEAN NATIONS..........32

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CHAPTER X - INSTITUIONALIAZTION OF MEDIATION IN THE US....................37

A. Responding to Popular Dissatisfaction with the Courts...........................................38

B. Delivering Quality Resolution Faster.......................................................................39

CHAPTER XI - EXPANSION OF MEDIATION MANDATES IN THE US.................39

A. Mandating Mediation for Specific Disputes..............................................................40

B. Controlling and Incentivizing Mediation Behaviour.................................................41

CHAPTER XII - LAWS GOVERNING MEDIATION IN INDIA...................................42

A. Industrial Disputes Act..............................................................................................42

B. Civil Procedure Code and Rules...............................................................................42

C. Other Legislations.....................................................................................................42

CHAPTER XIII - TYPES OF MEDIATION RECONGNIZED IN INDIA....................43

CHAPTER XIV - SUITABILITY OF CASES TO BE SUBJECT TO MEDIATION....44

A. Case not suitable for mediation.................................................................................44

B. Cases suitable for mediation.....................................................................................45

CHAPTER XV - DEVELOPMENTS IN THE FIELD OF MEDIATION IN INDIA.....46

A. Current scenario of Mediation under statutory provisions.......................................47

B. Measures for effective implementation of Mediation in India...................................47

CHAPTER XVI – SUGGESTIONS ON PROMOTION OF MEDIATION IN INDIA..48

A. Institutional and Management Reforms....................................................................48

B. Legislative Reforms...................................................................................................51

CHAPTER XVII - CONCLUSION......................................................................................53

BIBLIOGRAPHY..................................................................................................................55

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 AIMS AND OBJECTIVES

This project tries to achieve the following aims and objectives:

 To define and analyze the mechanism of mediation and good governance

 To examine the effectiveness of mediation as a tool for the amicable settlement of
disputes.
 To critically examine the role of mediation as an inclusive power sharing tool for
good governance and its capacity to strengthen a democratic set-up.
 To analyze the European Scenario of Administrative law disputes and the role of
mediation process in dispute resolution.
 To analyze the common constraints for the mediation mechanism in administrative
proceedings.
 To undertake a comparative analysis of the scenario in the USA and India in using
mediation as a technique for good governance
 To dig deeper into the Indian scenario of mediation mechanism and the aspect of
Good Governance.

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 CHAPTER I - INTRODUCTION

Mediation's potential for remedying our most pressing global concerns, while increasingly
recognized by practitioners and local communities, is still largely unnoticed by scholars.
Good governance-the optimal exertion of societal influence for effective democratic culture-
is arguably our most pressing global need.1 One of mediation's ideal contributions is
democratic capacity-building.2 In Latin America, mediation has served as a catalyst for
judicial reform.3 The role of the ombudsman, which is increasingly one of mediation, has
been effective at tackling corruption. Mediation can be more impartial, fair, and reliable than
the court trials.

Mediation advances good governance, at micro and macro levels of society, by heightening
inclusive participation, egalitarian decision-making, and stakeholder responsiveness.
Impartiality is critical to mediation's governance legacy, along with transparency and
accountability. Yet these keys to good governance are vulnerable to abuse given the private
setting in which mediation occurs. If mediators and parties to mediation fail to safeguard the
integrity of their process, mediation's growing popularity may erode rather than elevate good
governance. There are many links between mediation and good governance.

This project tries to explain the mechanism of mediation as a tool for good governance. The
project will start with a brief introduction of the topic followed by defining and analyzing the
concepts of mediation and good governance under administrative law. The project will
further be focused upon examining how effectively the mechanism of mediation helps in
solving the disputes amicably thereby minimizing the conflict and the use of resources
required by the state for dispute settlement.

Then, the project will critically evaluate up to what extent is the mediation mechanism
successful in being an inclusive power sharing tool for good governance. The project will
then be centered towards evaluating the power of mediation to strengthen a democratic set-up
followed by an analysis of the European scenario of administrative law disputes and the role
of mediation in dispute resolution.

1
JULIUS COURT ET AL., ASSESSING GOVERNANCE: METHODOLOGICAL CHALLENGES 4 (2002).
2
See Alison Taylor & Jay Folberg, MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CONFLICT WITHOUT
LITIGATION (1984); See Aeyal M. Gross, The Constitution, Reconciliation, and Transitional Justice: Lessons
from South Africa and Israel,40 STAN.J. INT'L. L. 47, 56-57 (2004).
3
Thomas J. Moyer & Emily Stewart Haynes, Mediation as a Catalyst for Judicial Reform in Latin America 18
OHIO ST. J. ON DISP. RESOL. 619, 648 (2003).

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We will then highlight the common constraints for the mechanism of mediation in
administrative proceedings. The project will then undertake a comparative analysis of the
scenario in the USA and India in using mediation as a technique for good governance. The
project will end with a conclusion after digging deeper into the Indian scenario of mediation
mechanism and the aspect of good governance.

CHAPTER II - GOOD GOVERNANCE

In its literal meaning, governance is the act of governing. Understanding how acts of
governing have changed in recent years and continue to change lays an essential foundation
for beginning to evaluate governance and mediation. Many assume that governance merely
elucidates governmental activities. Governance, as defined by contemporary scholars,
however, is much different. It is non-traditional, and defies easy explanation. The nation-
state's nature and role has altered dramatically in recent decades.

It is increasingly dependent on and constrained by civil society, regional and international

bodies, and transnational mechanisms such as the global market. 4 At contemporary
governance's core is the transfer of powers, responsibilities, and rights from governments to
civil society's groups and movements, requiring collective action around shared interests. As
will become evident throughout this Article, historic boundaries and distinctions between
nation-states and their communities are increasingly blurred.5

New players affecting governance include regional and international groups, transnational
corporations and NGOs, as well as global communities. Shifting networks of influence and
information rather than predictable discrete entities are more and more likely to shape dispute
and conflict resolution. As a result, collaborative mechanisms seeking to encourage
deliberative and interactive relationships between these new networks, stakeholders, 6 and
government are necessarily emerging.7 Scholars go so far as to include mediation in their
descriptions of governance, at times interchanging mediation and governance.

4
Mark Bevir, The Hollow State, in ENCYCLOPEDIA OF GOVERNANCE (Mark Bevir, ed., 2006).
5
Chris Ansell, The Networked Polity:Regional Development in Western Europe, 13 GOVERNANCE 303-33
(2000).
6
CAROLINE NELIGAN, INCREASING ACCOUNTABILITY THROUGH EXTERNAL STAKEHOLDER ENGAGEMENT 4
(2003)
7
Martha Feldman & Anne Khademian, Inclusive Management: Building Relationships with the Public, CENTER
FOR THE STUDY OF DEMOCRACY (2004), http://repositories.cdlib.org/cds/04-12 (last visited Sep. 1, 2020).

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The UN Economic and Social Commissions for Asia and Pacific defines governance as “the
process of decision-making and the process by which decisions are implemented .... It is the
complex mechanisms, processes, relationships and institutions through which citizens and
groups articulate their interests, exercise their rights and obligations, and mediate their
differences.”8 In short, mediation might represent the contemporary paradigm for
governance. This modern evolution may challenge those envisioning traditional government
which does not include mediation among diverse interests. Scholars, describing emerging
global governance, do not restrict their lists of stakeholders or processes to the most
powerful. Instead, they emphasize negotiated networks, “associative governance”, and “state
society synergy”.9 Less powerful roles, responsibilities, and rights, particularly those
exercised in social movements and informal as well as formal social networks, are also key to
a comprehensive understanding of emerging global governance and influence.

Civil society includes social movements, with shared ideology and goals, as well as groups.
The noteworthy global surge in human rights awareness and litigation exemplifies the
influence of a civil society initiative in the form of a social movement. Under human rights
law, any alleged victim-citizen is free to initiate international dispute resolution. With civil
society's support and leadership, many are exercising their rights.

Citizen power, in relation to the mediation studied here, looks like that of an informal social
movement, or a network, as well as the power exercised in discrete mediations where
governance mandates citizen participation. As described in the next section on mediation and
its role with governance, “ordinary” community members are considered important
stakeholders in mediations along with more powerful interests, such as those of business and
government.

CHAPTER III - MEDIATION AND GLOBAL GOVERNANCE

Broadly defined, mediation is any force outside of a particular conflict that assists with
negotiation,10 resolution,11 and transformation of that conflict. The mediation reviewed in this

8
UNITED NATIONS DEVELOPMENT PROGRAMME, RECONCEPTUALIZING GOVERNANCE (1997); See also MARITA
THORNHILL ET AL., THE ENVIRONMENT AS CATALYST: UNDERSTANDING ENVIRONMENTAL GOVERNANCE FOR
SUSTAINABLE DEVELOPMENT 2, available at http://www.phelamanga.co.za/Environment%20as
%20Catalyst.doc.
9
Supra note 9 at 303-33.
10
STEPHEN GOLDBERG & FRANK E. A. SANDER ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, &
OTHER PROCESSES 17 (2003).
11
ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION 12 (1994).

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Article is much more narrowly defined, emphasizing the particular type of mediation that
overlaps with and has the potential for advancing good governance as described above.
Traditionally, government leaders have mediated international disputes.

While state-compelled mediation is still seen, particularly in response to political crisis, it is

increasingly complemented by informal, collaborative and facilitated processes initiated by
international organizations, such as the UN, and members of civil society, such as NGOs,
business, and citizens. Sustainability requires participation and local ownership. Excessive
reliance on outside experts who attempt to act for parties rather than empower them to act on
their own behalf has not worked.12

The outsiders cannot solve problems for communities at an international conference in India.
Expert prescription to international development too often falls short. At the same time, the
growing popularity of facilitative mediation where parties and communities (professional and
expert) are empowered to come together, make their own decisions through consensus-
building, and take responsibility for the consequences, is impossible to ignore.13

In facilitative mediation, the parties lead their own process and the mediator simply facilitates
and coaches’ parties.14 The University of Washington's Institute for Environmental Mediation
describes mediation as a process in which “those involved in a dispute jointly explore and
reconcile their differences and the mediator cannot impose a settlement.”15

Lebanon is one archetype of post-war reconstruction embracing facilitative mediated

processes at the community level, with a focus on development. 16 Lebanon is a culturally rich
nation with religious (Muslim and Christian) and social diversity (including Arabs,
Palestinians, Kurds, and Armenians), which disintegrated into civil war in1975.

Post-war Lebanon, however, is relatively stable. Among Lebanon's innovative grassroots

mediation processes is a community relations board that will mediate local dispute
resolution.17 Intracommunity and inter-religious dialogue is being used to elicit local views,
12
United Nations Development Programme; See also Mary Jo Larson & Xiapong Tian, Strengthening Women's
Role to Sustainable Peace: The Benefits of Flexibility, 23 CONFLICT RESOL. Q. 53, 54 (2005).
13
Janet Murdock, Forging New Frontiers: Spreading ADR in Brazil, AC RESOLUTION, Summer 2003, at 26.
14
John Lande, How Will Lawyering and Mediation Practices Transform Each Other? 24 FLA. ST. U. L. REV.
839, 839 n.1 (1997).
15
MINU HEMMATI, MULTI-STAKEHOLDER PROCESSES FOR GOVERNANCE AND SUSTAINABILITY: BEYOND
DEADLOCK AND CONFLICT 2 (2002), available at http://www.earthsummit2002.org/msp/book.htm.
16
INSTITUTE OF WORLD AFFAIRS, COMMUNITY-BUILDING IN POST-WAR LEBANON: A PROJECT TO ENHANCE
ETHNIC TOLERANCE AND CIVIC IDENTITY.
17
Id.

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guide expression, bring local and national leaders together on priority issues of shared
concern, and create ideas for reconciliation.18

CHAPTER IV - CONSENSUS BETWEEN DIVERSE GROUPS AND MEDIATION

Mediation naturally comes to mind when considering the good governance criteria of
consensus-building among diverse interests for sustainable resolution and efficient use of
resources, whether mediating a cross ethnic dialogue across a nation or litigation between
those from different countries.19 Simple logic advocates those agreements reached by
consensus are more sustainable and easier to implement than those imposed or forced.

With community stakeholders consciously creating space for dialogue, communication and
positive debate naturally increases civil society's buy-in and the resultant responsibility for
implementing change.20 Both are essential characteristics of sustainable reform. 21 With
business stakeholders, one corporate counsel noted that he never encounters resistance to his
contract provision instituting mediation as the primary mechanism for dispute resolution.
With both community and business stakeholders, some cultures prefer informal opportunities
to resolve disputes rather than formal, adversarial forums.

Mediation is often lauded for being less expense and time-consuming than litigation. 22
Mediation's legitimate potential for efficiently using resources by reducing expense and time
through collaborative consensus-building rather than adversarial dispute resolution is one of
its recognized contributions to good governance, satisfying criterion six as well as part of
criterion four described above. In evaluating whether mediation advances good governance,
though, the fourth and sixth criteria, in their entirety, must be satisfied through efficient and
long-term sustainable consensus-building. Increased speed alone does not constitute good
governance unless the resolution lasts.

18
Timothy L. Fort & Cindy A. Schipani, Adapting Corporate Governance for Sustainable Peace, 36 VAND. J.
TRANSNAT'L L. 377, 423 (2003).
19
Nancy Erbe, Optimal Strategy with Global Disputes: Blending the Best of Distributive and Integrative
Bargaining, XII BUS. RES. Y.B. 748 (2005).
20
Lynette Parker, Restorative Justice:A Vehicle for Reform?, presented at 2004 Annual Meeting of Latin
American Studies Association (Oct. 7-9, 2004).
21
Id.
22
FRANCIS O. SPAULDING, THE RAND REPORT, THE FEDERAL JUDICIAL CENTER STUDY AND ALTERNATIVE
DISPUTE RESOLUTION IN UNITED STATES DISTRICT COURTS (1999), availableathttp://www.fos-adr.com/fos-
art3.html.

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Presumably all participants must accept the legitimacy of the process and the outcome. Only
then, when mediation builds lasting agreement among diverse interests, is there true
efficiency as described by scholars evaluating governance. Thus, if litigation resolves conflict
entirely but mediation leads to a series of disputes, litigation may be the most efficient route.
Conversely, if on-going mediation is necessary to move forward with seemingly intractable
conflict like that in South Africa and the Middle East, where no other conflict mechanism
shows potential, mediation, when contrasted with the costs of on-going escalating conflict, is
arguably the most efficient alternative in line with good governance.

A. The Efficiency Illusion

Efficient use of resources is the sixth criterion recommended for evaluating governance. A
myopic focus on costs alone, however, can hinder good governance by prohibiting lasting
sustainable consensus among diverse interests. Economic concerns can overwhelm the
dispute resolution process and impede deliberation. 23 Rewarding quick results, for instance,
discourages a participatory process. Cost pressures often curtail work with the most
marginalized. A short-sighted view of efficiency can even create the illusion of success while
masking ineffectiveness, breaking trust and creating backlash.24

Interestingly, dispute resolution experts fault contracts for their failure to accommodate the
complex terms of collaborative efforts.25 Mediated process is sometimes the only way to
move forward when there is an impasse or costly escalation. 26 After two years of violent
conflict resulting in several deaths, the Bafanji and Balikumbat villages in Cameroon
received over three years of targeted assistance in mediation techniques. Community
members from these villages are now resolving a variety of issues via mediation.27

An on-going process, rather than ad hoc meetings, can improve the likelihood of success. 28
Some mediations only take five to ten months, but others may last for years. 29 The Nansen
Network, for example, started mediating cross-ethnic dialogue in the Balkans before the first
23
Robert F. Cochran, Jr., Lawyers and Virtues: A Review of Mary Ann Glendon's A Nation Under Lawyers:
How the Crisis in the Legal Profession is Transforming American Society and Anthony's T. Kronman's The Lost
Lawyer: Failing Ideals of the Legal Profession, 71 NOTRE DAME L. REV. 707, 710-11 (1996).
24
supra note 30
25
MICHAEL P. PAPPAS, A FLEXIBLE FRAMEWORK FOR THE PREVENTION AND RESOLUTION OF CONSTRUCTION
DISPUTES, PAPER PRESENTED AT CONFLICT STUDIES
26
Philip J. Harter, A Plumber Responds to the Philosophers: A Comment on Professor Menkel-Meadow's Essay
on Deliberative Democracy, 5 NEV. L.J. 379, 380 (2005).
27
supra note 26.
28
Id.
29
supra note 22.

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NATO bombs in 1999, and aspires to improve cross-ethnic relationships throughout the
region. To address such violent and complex conflicts, the parties may have to abandon time
limits.30 Efficacy, or the power to achieve desired, sustainable results, is the key to ferreting
out flawed attempts at efficiency that avoid addressing tough issues and thus create additional
conflict and costs for the future.

B. Durable Dispute Resolution to build consensus

Fortunately, scholars of good governance acknowledge the need for both the efficient use of
resources and the sustainability, or efficacy, derived from consensus. Mediation's growing
popularity and contribution to good governance may be due to its ability to facilitate
agreement between diverse contentious interests to create durable resolutions. The criteria
used for evaluating governance do not explicitly mention relationships.

They do stress mediation of diverse interests, consensus-building, and sustainable resolution,

the criteria explored in this section. All, like facilitative mediation itself, implicitly require
some degree of relationship, communication, and interaction. Thus, the literature and
interview data commending mediation's role in relationship building is referenced here.

As these global relationships grow, so does mediation and its popularity. In conversations
with counsel for multinational corporations doing business in Asia, one researcher found that
companies preferred mediation over the court system.31 “Mediation cuts through a great deal
of bureaucracy and can allow parties to face each other and resolve their differences in an
informal way.”32 There are cultures and countries, like Japan, that prioritize relationships and
inherently wish to avoid adversarial proceedings.33

In a study of sixty major corporations, eighty-one percent of respondents judged mediation as

more satisfactory than litigation, with fifty-nine percent highlighting the preservation of
relationships.34 The most popular corporate dispute resolution option is mediation.
Arbitration, mediation-arbitration, in-house grievance and fact finding, peer review, and
ombuds intervention are secondary. Mediation's success in the Philippines shows its

30
supra note 26.
31
SALLY A. HARPOLE, GLOBAL CENTER FOR DISPUTE RESOLUTION RESEARCH BARCELONA SYMPOSIUM ON
INTERNATIONAL ADR RESEARCH ISSUES (Feb. 22-23, 2002).
32
DAVID B. LIPSKY & RONALD L. SEEBER, THE APPROPRIATE RESOLUTION OF CORPORATE DISPUTES: A
REPORT ON THE GROWING USE OF ADR BY U.S. CORPORATIONS 3 (1998).
33
supra note 40.
34
Id.

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interpersonal and analytical strengths for building sustainable consensus. Mediators were
rated highly for both communication and problemsolving skills. Evaluating parties described
the traits of their effective mediators as:

(1) the ability to identify problems and issues,

(2) patience,
(3) sensitivity,
(4) listening with no pressure to settle, and
(5) impartiality.35

The community case studies from the Balkans, Cameroon, Nepal, and Ukraine strongly
illustrate mediation's value to good governance.36 In all, mediated consensus-building served
many diverse interests, satisfying part of the fourth criterion for evaluating governance.
Participants recognized their growing understanding of complex conflict dynamics within
their broader communities.37 Many express faiths in consensus, viewing it as easier to
implement than less collaborative forms of decision-making.38

Stakeholders are more likely to accept the terms of an agreement when it has been mediated
in good faith or with honest collaboration. 39 A lasting, durable resolution is the ultimate goal
of dispute intervention. Cameroon's experience provides particular hope. While it may be sui
generis, it builds a case for the importance of testing mediation's potential to advance non-
violent governance. If the process results in more efficient, sustainable decision-making than
alternatives to mediation, both the fourth and the sixth good governance criteria are met. In
short, “a good working relationship allows us to handle our differences efficiently.”40

C. Mediation for maximum efficiency

It makes sense to consider mediation only if it adds value or creates resilient efficiency,
strategically balancing efficiency with relationship-building as needed. Mediation's facilitated
consensus building benefits more complex conflicts involving diverse stakeholders and long-

35
Belle Abaya, The Philippine Mediation Experience: From Community Justice to Judicial Reform, AC
RESOLUTION 12 (2003).
36
supra note 26.
37
Nancy Erbe, Communications Theory and Restorative Justice: Approaches to Proactive Conflict Resolution,
IXX BUS. RES. Y.B. 696 (2005).
38
supra note 26.
39
supra note 35.
40
ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE 128 (1995).

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term relationships.41 The optimal guide would help parties maximize efficiency and ensure
durability through investment in the mediation of diverse interests as necessary. 42 It can begin
to do this by linking and de-linking issues. This same or another model could further guide
parties in agenda setting or prioritizing of issues. A transnational mining corporation and a
global network of environmental NGOs developed the beginnings of such a guide.'43

Mediation inherently delineates and prioritizes party issues. The process envisioned here
would be similar but occur prior to mediation-it would help parties decide whether mediation
is necessary and represents their most efficient alternative. It makes sense to reserve
mediation energy for the most intractable problems, rather than squandering scarce resources
on trivial disputes. Arbitration often efficiently creates lasting resolution with straightforward
business issues involving two parties from different countries. Such dispute resolution can
eliminate easily resolved issues. Mediation may be essential to progress with disputes
involving more than two parties, issues that are not readily resolved, or the valuing of lasting
relationships.

When building sustainable consensus among diverse interests, mediation satisfies the fourth
criterion of good governance presented in Part 1. 44 The interest of efficiency, while also key,
representing good governance's sixth criterion, 45 carries the danger of limiting mediation's
contribution. This is particularly true in the case of the most contentious conflicts which
require the greatest foresight. If practitioners and parties, though, are willing to utilize
problem-solving through collaborative relationship-building, when necessary, mediation will
receive the opportunity it needs to demonstrate its full potential for advancing good
governance.

CHAPTER V - MEDIATION AND INCLUSIVE DECISION_MAKING

International experts increasingly advocate the use of “transformative party-driven ... bottom-
up,” or mediated, conflict resolution.46 They recommend that citizens initiate the consensus

41
supra note 46.
42
Jonathan Stacey, A Global Partnership with a Mining Multinational: Exploring and Realizing the Capacity
for Strategic Biodiversity Conversation, PARTNERSHIP MATTERS 34-35 (2003).
43
Id.
44
Id.
45
supra note 1.
46
Robert A. Baruch Bush, Realizing the Potential of International Conflict Work: Connections Between
Practice and Theory, 19 NEGOT. J. 97 (2003); A. Marco Turk, Democratized Restorative Justice As A Lesson
For Criminology: Cyprus 1997- 2003, 29 THE CRIMINOLOGIST, June 2004, at 1-3

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building of good governance in emerging democracies. Others stress the importance of
“allowing conflicts to be raised, fought over and resolved.” 47 In many parts of the world, truly
participatory institutions are needed to satisfy good governance's fifth criterion: equal and
inclusive decision-making.

A. Mediation builds democratic capacity

Intra-national and cross-ethnic disputes often fall outside of international authority. Some
communities assert that the practice of mediated dialogue goes beyond broad participatory
governance and actually instils a culture of peace into their violent societies. 48 Without an
option like mediation, filling critical gaps in legal capacity, minority ethnic groups may see a
violent struggle for independence as their only alternative. 49 The participants in mediated
cross-ethnic dialogue throughout the Balkans specifically describe the concrete benefits of
conflict resolution training in mediation50 within an emerging democracy. They appreciated
discovering new principles and ideas for building good governance through equal inclusive
participation of diverse interests.51 One expressed surprise at the discovery that his conduct
during negotiations was not as democratic, or open-minded, as he thought.52

Mediation, as described by Balkans participants, can train effective citizens of a democratic

state, providing concrete opportunities for individuals to wrestle with understanding others'
perspectives, expressing their own interests, and otherwise exercising freedom of expression
in conflict resolution-all essential to good governance's fifth criterion: egalitarian and
inclusive decision-making. The truly impartial mediator, for example, gives all parties an
equal and public opportunity to be heard as part of providing democratic mediation. 53
Although confronting differences can be difficult, those involved receive the opportunity to
reach understanding, abandon "costly" attitudes, 54 and successfully balance rights and

47
supra note 18.
48
Lynette Parker, Restorative Justice: A Vehicle for Reform, presented at 2004 ANNUAL MEETING OF LATIN
AMERICAN STUDIES ASSOCIATION (Oct. 7-9, 2004).
49
Oliver P. Richmond, Mediating Ethnic Conflict: A Task for Sisyphus? INTERNATIONAL STUDIES ASSOCIATION
(1999), http://www.ciaonet.org/isa/rio01/index.html.
50
Supra note 26.
51
Id.
52
KEITH SWARTZENDRUBER, ELICITING PEACE: MEDIATING THE SANDINISTA-MISKITO CONFLICT (2002),
http://www. geocities.com/keithswartzendruber/eliciting-peacel.htm.
53
Id.
54
CHRISTINA ATAKO, UNIVERSITY OF CAMBRIDGE AND INTERNATIONAL BUSINESS LEADERS’ FORUM,
PARTNERSHIP MATTERS 18 (2003).

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responsibilities in order to create lasting resolutions, further satisfying another criterion of
good governance: sustainable consensus-building.55

B. Inclusive Power sharing for good governance

Up to this point, mediation's inherent capacity for advancing good governance has been
stressed. Mediation, by the nature of its process, facilitates broad participation among diverse
interests, freedom of expression, consensus-building for sustainable resolution, and
efficiency. With the remaining criteria for good governance, however-equal and inclusive
decision-making, impartiality, transparency, and accountability - mediation's presence has
strong potential to either advance or erode governance. This Part explores the first
requirement for ensuring that mediation elevates governance-the power-balancing needed for
equal and inclusive decision-making.

The IFC ombuds capture the challenge of mediating equalitarian decision-making in their
annual report, describing the multi-stakeholder process. "The reality is that there is often a
huge gap between the resources [and] power ... of the private sector companies which
undertake IFC/MIGA projects and the communities which are impacted by them. One of our
basic jobs is to help IFC and/or MIGA to bridge that gap."56

Likewise, a mediator working throughout the Pacific Rim sees the greatest challenge of
global dispute resolution as mediation's evolution "from an ad hoc process to a more
institutionalized one, whether that be within large global corporations, state court systems, or
government to government."57 How do we ensure the good governance criterion of equal
inclusive decision-making, or power sharing, with mediation in the face of entrenched power
accustomed to top-down decisions?

As processes from around the world are reviewed here, mediation's potential for either
promoting or eroding good governance, particularly equal and inclusive decision-making,
becomes clear. Good governance must be consistently linked by both mediators and
stakeholders to conscious internal scrutiny of potential power abuse.

Such assessment is particularly important when a stakeholder has a history of power abuse,
conscious or complicit. Transnational corporations have been involved, directly and
55
Supra note 26.
56
Aidan Davy, Companies in Conflict Situations: A Role for Tri-Sector Partnerships? BUSINESS PARTNERS FOR
DEVELOPMENT (2001).
57
Supra note 26.

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indirectly, in the most violent and challenging of disputes, particularly in developing
countries with oil, gas, and mineral resources. In one instance, guerrilla groups extorted
money from contractors in Colombia.58 Oil and gas rents can support corrupt governance.
Even though Shell invested more than $33 million per year in community development for
the Niger Delta, critics allege that corrupt officials and contractors siphoned off much of the
money and that Shell aimed to "buy favors."59 In a related example, a 2002 lawsuit accused
several corporations and banks of aiding and abetting South Africa's apartheid government
through their investments.60

Moyer and Haynes assert that a "properly functioning democratic society fosters the
'delimitation of government prerogatives and [creates] context for constraining arbitrary and
intrusive state power'."61 When those with power abuse and ignore the rights of those they
serve, they cannot be trusted to govern.62 A government oppressing a group of citizens
certainly cannot claim to be impartial.63 Likewise, corporations aligning with corrupt
governments cannot pretend to be mediating in good faith, as honest collaborators.

Developing civic society strong enough to weaken, or at least check, the monopoly of power
can prevent a reversion to violence. 64 Strong citizens are less likely to be manipulated by
government. Civil society can easily play the dual role critically needed with the most
troubling conflicts: continuing to check power abuse but also advocating for equal and
inclusive decision-making through mediation. In a comparison of violent and non-violent
strategies used by Chechen, East Timorese, and Palestinian separatists, peace researcher
Yo'av Karny from Israel concluded that non-violent conflict strategy shows the most promise
of success.65 Cameroon's success with mediation in transitioning from violent to non-violent
conflict resolution serves as an encouraging example.

58
Supra note 65.
59
Id.
60
Penelope E. Andrews, Reparations for Apartheid Victims: The Path to Reconciliation, 53 DEPAUL L. REV.
1155, 1163 (2004).
61
Moyer & Haynes, cited in Andrew Levin, Civil Society and Democratization in Haiti, 9 EMORY INT'L L.REV.
380, 400 (1995)
62
Aidan Davy, Companies in Conflict Situations: A Role for Tri-Sector Partnerships? BUSINESS PARTNERS FOR
DEVELOPMENT (2001).
63
Id.
64
Aneta Wierzynska, Note, Consolidating Democracy Through Transitional Justice: Rwanda's Gacaca Courts,
79 N.Y.U. L. REV. 1934 (2004).
65
Rudolph J. Rummel, Focus on: Power, Genocide and Mass Murder, 31 J. PEACE RES. 1 (1994)

Page 17 of 62
Collective desperation and increased violence motivated South Africa's Peace Accords, 66 with
government stakeholders purportedly taking the lead in power-sharing. According to Susan
Collin Marks, a South African mediator and principal with the global NGO involved with
Ukraine's mediations, the negotiation of South Africa's Peace Accords included everyone as
equals. "In many cases the government became just another player, not a referee or
participant with extra powers. One international observer... was astonished at the
government's readiness to be equal partners at the table."67

Several examples illustrate Mexican civil society's passionate embrace of mediation as an

avenue for managing violence.68 A former gang member, for instance, negotiates ceasefires
with rivals and devotes himself to mediation with victims and offenders of crime. 69 A
Catholic church advocates mediation as non-violent means to resolve conflict in "one of the
most violent neighbourhoods in Guadalajara."70 Does the growing popularity of mediation
with violent conflict in Mexico reflect good governance through equal and inclusive decision-
making? No published data was found to answer this question. Researching the reasons for
mediation's growth in global popularity with the most violent of conflict seems to be a
particularly important area for scrutinizing mediation's role with good governance in future
scholarship.

What is clear today is that to advance good governance in the face of corruption, mediation
must protect itself from corrupt stakeholders, ensuring the integrity of the process through
some type of viable oversight.71 Fundamental reform of all institutions involved with
governance is vital to moving forward with good governance. 72 In Latin America, for
example, masses of citizens criticize the administration of justice as "slow, and tending to
favor those in power."73 This is one of the reasons international experts laud a participatory
conflict-resolution process that includes the grassroots community. As in Latin America,
citizens and other stakeholders bearing the costs of corruption can raise and problem-solve
their concerns in participatory processes like mediation.

66
YO'AV KARNY, FATEFUL CHOICES: VIOLENCE AND NONVIOLENCE IN THE INDEPENDENCE STRUGGLES OF
SMALL NATIONS (2004).
67
Id.
68
NORBERT WUHLER LECTURE AT MASTER'S FORUM, STRAUS INSTITUTE FOR DISPUTE RESOLUTION (2003).
69
Id.
70
Supra note 69.
71
Id.
72
Supra note 35.
73
Id.

Page 18 of 62
Yet the institution of mediation itself can be corrupt. Consequently, it is not enough for one
participant in a mediation to assert equality. All participants must confirm inclusive decision-
making and power-sharing. To preserve credibility and garner support, mediation must find
ways to generate sincere collaboration that adequately considers power imbalance. Aspiring
to genuine collaboration requires the naming and confrontation of power abuse, partiality,
bad faith, and the other corrupt behaviors described earlier. As mentioned above, including
victims of corruption in mediation with the actors whose behavior is allegedly corrupt
increases the likelihood that these concerns will surface.

Mediation can also play a role in alleviating broader corruption. One World Trust, a global
NGO, evaluates effective participation with collaborative processes like mediation and
stresses linking macro and micro decision-making, or connecting the (macro) policy
decisions of the most powerful stakeholders, like business and government, with the
decisions made in micro process like mediation.74 If government and business share power
through their commitment to follow through in their agreements with less powerful
stakeholders, they demonstrate the equal and inclusive decision-making of good governance.

The AARHUS process mentioned earlier is a model for linking micro and macro decision
making. Yet it apparently gauged its success solely on progress, or the fact that it included
more NGO participants than any similar process, only addressing the first criterion of good
governance through broadening diverse participation. Good governance also requires equality
of influence in relation to final decisions. No data was found evaluating this criterion in the
AARHUS negotiation process.

The external evaluation of the IMF ombuds detailed later in this Article also does not
mention equality of influence or decision-making. The reader is left to wonder whether the
diverse list of citizens, employees, NGO representatives, and other participants with the
Peruvian process listed earlier, reflects token, true but unequal, or truly equal influence. 75 The
evaluation data describing tensions between the mediator and NGOs, as well as the mediator
and the most powerful stakeholders, though, infers the mediator's aspirations for equal
participation and treatment.76 NGOs criticize the ombuds mediator as biased toward IMF and

74
CAROLINE NELIGAN, INCREASING ACCOUNTABILITY THROUGH EXTERNAL STAKEHOLDER ENGAGEMENT 4
(2003).
75
CAO, REPORT ON THE TRAINING ACTIVITIES OF THE MESA DE DIALOGO Y CONSENSO CAO/CAJAMARCA
(2001-2002), available at http://www.cao-ombudsman.org/html-englishldocuments/MesadeDialogoyConsenso
CAOCajamarcaAssemblyO7 August2003englishtranslation.pdf.
76
Supra note 26.

Page 19 of 62
MIGA, while these same institutions criticize the same mediator as preferencing NGOs.
Apparently, the ombuds-mediator considered opposing perspectives well enough to raise
concern among both parties.

The research respondents evaluating mediated processes throughout the Balkans and in
Cameroon, Nepal, and Ukraine consistently lauded equal participation and treatment as the
most highly rated aspect of their mediation experience. 77 Researcher Baruch likewise found
that the most satisfied parties to mediation report the highest process control, participation in
decision-making, and freedom of expression.78 Students of mediation from over sixty
countries identify multicultural equivalence (i.e., inclusion of all voices) as the most
important variable of exemplary cross-cultural mediation.79

Democratic mediation, as used in this Article, describes the mediation process in which
participants themselves describe internal democracy. As a start, equal treatment of all parties,
irrespective of power, is necessary to satisfy the good governance criterion of equal and
inclusive decision-making for the mediation process itself. 80 Specifically, all concerned-
mediators and stakeholders-must consider and respect everyone's input.

Despite its challenges and difficulties, attempting inclusive decision-making through

mediated conflict is a prerequisite to good governance throughout the developing world,
particularly where a history and practice of community protest exists. 81 The parties'
agreement-and the dispute's resolution-will naturally be tested by time and impact on society.
Critiques by concerned civil society and communities may be necessary for genuine power-
sharing or the sustainability and effectiveness of dispute resolution over time. Nevertheless,
mediation advances governance in emerging democracies when it both emulates and spreads
democracy.

C. Building Optimal Conditions

77
Id.
78
Robert A. Baruch Bush, What Do We Need A Mediator For: Mediation's "Value Added" for Negotiators, 12
OHIO ST. J. ON DISP. RESOL.1 (1997).
79
Id.
80
LEOPOLDO BURGUETE ET AL., MANAGEMENT OF ENVIRONMENTAL-SOCIAL CONFLICTS IN MEXICO (2003),
http://www.mediate.com/pfriendly.cfm?id=1394.
81
Id.

Page 20 of 62
First and foremost, stakeholders need to be persuaded to talk with each other. Interviewees
identify corporations as one of the global stakeholders needing to better understand
mediation's value. As one corporate interviewee expressed, many are still unaware of
mediation and its benefits-education is needed.82 Interviewees relate this lack of appreciation
of mediation, for reasons unexplained, to their suggestion that corporations need closer
coordination between government and community affairs. Furthermore, in interviewees'
experience, having a designated senior-level corporate and government visionary who is
responsible for piloting and otherwise spearheading innovative efforts can be instrumental to
whether dispute resolution such as mediation occurs.83

Mandated participation, however, like IFC requirements, is problematic. 84 Mediation is a

voluntary process, fundamentally resting on the principle of party self-determination. 85
Mandating participation violates this principle. Exploring viable options that respect self-
determination, while increasing participation, are required. Sophisticated convening of
mediation, described earlier, is the most popular response.86 In the convening stage of
mediations, mediators privately talk with parties, help them identify their interests, look for
ways to respond to party concerns, and otherwise encourage inclusive participation.

Corporations and other businesses can be guided in recognizing their interests in managing
the risks of conflict, such as protecting their local and global reputations from the negative
press and protest that can result from destructive conflict. Seasoned business stakeholders do
recognize that social license to operate is essential. 87 Respect for what each stakeholder can
contribute and the reality that absent collaboration end results cannot be achieved should
motivate inclusive processes. One corporation found that inviting community participation
moderates "escalating... expectations of unconditional benefit."88

Advances are also possible with mediation itself. A realistic first step is attempting to
measure progress in the concrete process challenges faced with mediation's internal
governance as identified throughout this Article. The next section, for example, will describe
how stakeholders can create equal and inclusive decision-making that is responsive to their
interests through designing the mediation process itself. Conflict resolution scholar Susan
82
Supra note 26.
83
BUSINESS PARTNERS FOR DEVELOPMENT, KNOWLEDGE SHARING WORKSHOPS (2002)
84
BUSINESS PARTNERS FOR DEVELOPMENT, INTERNAL ASSESSMENT (2001).
85
Supra note 75.
86
Supra note 15.
87
BUSINESS PARTNERS FOR DEVELOPMENT, EMERGING LESSONS FOR TRI-SECTOR PARTNERSHIPS: A REVIEW
OF FOUR CASE STUDIES (2000).
88
Id.

Page 21 of 62
Opotow and Article interviewees advocate for mediation's inclusion across time, beginning
prior to and continuing after mediation. 89 They believe community engagement is best built
into complex dispute resolution from "the very beginning" when disputes are first named.
Global interviewees recommend starting with diverse representation of stakeholders, perhaps
through a coordinating group of stakeholders who convene other stakeholders and design the
mediation.

Mediation's capacity for facilitating equal inclusive decision making between stakeholders of
varying power is pivotal to its contribution to governance, particularly in emerging
democracies where citizens may be new to participatory institutions and dialogue across
difference. Mediation optimally trains citizens for these tasks. Powerful stakeholders,
however, must be willing to share power-linking their decisions with those made by less
powerful stakeholders-for equal inclusive decision-making to occur. Once powerful
stakeholders are willing to negotiate with the less powerful, however, mediation provides
several avenues for advancing governance, such as designing conflict and dispute resolution
to increase stakeholder responsiveness during and after mediation.

CHPATER VI - EUROPEAN ADMINISTRATIVE LAW DISPUTES AND

ALTERNATIVE DISPUTE RESOLUTION

What disputes should be considered administrative law disputes, and what are alternative
forms of dispute resolution in administrative proceedings? Without hoping to present an
answer to those important questions on the divide between administrative and private law that
will suffice for all European national legal systems and with some hazard of oversimplifying
this crucial demarcation, we will consider any dispute on the (non)application of a
competence by an administrative authority that changes the legal position of a person or good
in a way that no ordinary (legal) person is able to do, as subjected to administrative law and,
therefore, an administrative law dispute.90

National legal systems in Europe are familiar with either a specialized administrative court
system or special procedural rules on administrative law disputes between citizens and
administrative authorities. One common element of administrative dispute resolution in
countries that apply the rule of law is that citizens are entitled to appeal against an
89
NANCY ERBE, SURVEY REGARDING ADR AND GOVERNANCE (2004).
90
Agardy Peter, Mediation and the Insolvency Practitioner, 17 INSOLVENCY L.J., THOMSON REUTERS 135–146
(2009).

Page 22 of 62
administrative decision by an administrative authority and that they are able to request the
annulment of such a decision by a court when it is contrary to written or unwritten public law
(appeal procedure or judicial review).

This form of appeal is sometimes preceded by a (mandatory) administrative procedure in

which the contested decision is reviewed either by the administrative authority that made the
decision (internal review) or by another administrative authority on both questions of legality
and the use of discretion (objection procedure or administrative review).91 For the purpose of
this chapter, we will consider appeal procedures and objection procedures as normal forms of
administrative dispute resolution.

This chapter focuses on alternative forms of dispute resolution in administrative proceedings.

That subject is closely related to negotiated decision making by administrative authorities. It
is quite clear that there is an important relation between negotiated decision making and
forms of ADR like negotiation, conciliation, and mediation. The quality of administrative
decision making could benefit from the use of mediation techniques by administrative
authorities. ADR in administrative proceedings can refer to varied forms of dispute
resolution.

Arbitration is a technique where the disputants refer their dispute to one or more persons
(arbitrators or arbiters) by whose decision they agree to be bound; the decision is legally
binding for both sides and enforceable.92 Arbitration is often used for the resolution of
commercial disputes, particularly in the context of international commercial transactions. The
use of arbitration is also frequently employed in consumer and employment matters, where
arbitration may be mandated by the terms of employment or commercial contracts. There
aren’t many examples of arbitration in administrative law disputes for reasons that are
obvious when analysing the constraints for ADR in administrative law.

When national chapters refer to arbitration, it is to point out that arbitration in administrative
law is either rare93 or can only be used in disputes that resemble private law disputes in the
sense that disputants are able and allowed to arrange for the legal relationship between them
without breaching the law.94 Arbitration could be applied in disputes regarding public–private

91
Boulle, Laurence, MEDIATION: PRINCIPLES, PROCESSES, PRACTICE, LEXIS NEXIS BUTTERWORTHS . (2005)
92
Kimberlee k. Kovach & lela p. Love, Mapping Mediation: The Risks of Riskin’s Grid, 3 HARV. NEGOT. L.
REV 71, 106, 108 (1998).
93
CARDOZO J., CONFLICT RESOL. 117, 138–39 (2004).
94
JAMES J. ALFINI ET AL., MEDIATION THEORY AND PRACTICE (2d ed. 2006).

Page 23 of 62
contracts, concessions, and procurement but is not well suited to disputes considered classic
administrative disputes.

Therefore, this chapter will not focus on arbitration as a specific form of ADR. Mediation 95 is
a form of negotiation facilitated by a neutral third party (mediator) and/or experts. 96 It is
based on the continuing voluntary consent of all disputants. Unlike an arbitrator, the mediator
has no authority to impose a decision or other measures upon the parties. The goal of
mediation is generally to seek a future-oriented solution to the dispute (conciliation), thus
allowing the parties to move forward and continue their cooperation. Such a forward-oriented
perspective is perceived to enable value-added cooperative approaches.

The mediator uses various techniques to open or improve dialogue between disputants,
aiming to help the parties reach an agreement. The neutral third party, the mediator, must be
independent and impartial. Confidentiality and secrecy are to be observed during and after the
process of mediation by all parties concerned. The three basic elements of mediation
(voluntariness, impartiality, and confidentiality) can also be found in the 1980 UNCITRAL
Model Rules on Conciliation and are essential to a number of legislative acts on mediation in
European countries.97 The techniques of the mediator have been refined on the basis of
predominantly American research on the benefits of “principled bargaining.”98

Mediation has changed into a professional activity in which mediators have to be certified
and have to demonstrate they have expert knowledge on the mediation techniques. In most
cases, they must be linked to professional bodies that monitor and guarantee quality.
Mediation can theoretically be used before or during administrative proceedings like
objection or appeal procedures (administration-based and court-annexed mediation), and the
positive outcome is likely to have an effect on the outcome of these procedures and on the
contested decisions. In European countries such as the Netherlands, England, France,
Germany and other countries, mediation and mediation techniques are used in an increasing
extent to avoid or to settle disputes about governmental decisions in all sorts of administrative
law disputes.

95
Ellen e. Deason, The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial
Predictability? 85 MARQ. L. Rev. 79, 81–82 (2001)
96
Penelope e. Andrews, Reparations for Apartheid Victims: The Path To Reconciliation? 53 DEPAUL L. REV.
1155, 1163 (2004).
97
Robert A. Baruch bush, Realizing the Potential Of International Conflict Work: Connections Between
Practice And Theory 19 NEGOT. J. 97 (2003).
98
Alok Prasanna Kumar et. Al, Strengthening Mediation In India: Interim Report On Court Annexed
Mediations, VIDHI CENTRE FOR LEGAL POLICY, July, 2016.

Page 24 of 62
Since the mid-1990s mediation is on the rise as alternative form for settling disputes between
citizens and administrative authorities. The appeal of mediation is that it is flexible and
provides disputants with a quicker, cheaper, and emotionally less stressful manner to handle
their dispute than the complex and highly formal legal proceedings. Mediation also increases
the control the parties have over the resolution of their dispute. One of the goals of
stimulating mediation in administrative law disputes is to enhance the efficiency and
effectiveness of normal administrative proceedings by decreasing the number of court
judgments necessary to resolve administrative disputes.

Also, it is believed that using mediation or mediation techniques in administrative law

disputes will lead to higher acceptance of decisions and better relations (and trust) between
government and its citizens. Mediation also scores high on aspects of procedural justice;
parties have the opportunity to be heard and are able to take control of the process and the
outcome of dispute resolution.99 In recent years, several European countries have
implemented a policy to grow awareness among civil servants, lawyers, and judges about the
potential positive influence of mediation and the use of mediation techniques (effective
communication and conflict resolution skills) during administrative proceedings. National
legislatures have introduced legislation concerned with mediation in general, and in some
cases those regulations refer to mediation in administrative proceedings as well.

CHAPTER VII - INFLUENCES OF THE EUROPEAN UNION ON MEDIATION

In light of the comparative perspective of this chapter, a rather interesting question is whether
the use of mediation was triggered by the legislative acts of the European Union in any way.
There is no European Administrative Procedural Act. However, a mandate to codify general
rules on administrative (procedural) law for the European institutions can be found in Article
298 TFEU. It requires the European Parliament and the Council to adopt, in accordance with
the ordinary legislative procedure, the necessary provisions in order to achieve “an open,
efficient and independent European administration.”

It aims to ensure that the Union legislature develops, through legally binding rules, the
fundamental right to good administration enshrined in Article 41 CFREU based on the codes
of good administrative behavior developed by the European Ombudsman, the Parliament, and
the Commission. Although there certainly is a relation between good administrative behavior
and the use of mediation (techniques), there is usually no direct referral to it in legal
99
Id.

Page 25 of 62
documents. On the basis of the mandate enshrined in Article 298 TFEU, the European
Parliament’s “Working Group on EU Administrative Law (WGAL)” published a working
document “State of play and future prospects for EU Administrative Law” on 19 October
2011.

One of the recommendations to the European Parliament concerns the internal review of
administrative decisions of European institutions (objection procedures). Such procedures are
treated in many different ways throughout different EU agencies, bodies, and offices. The
working group recommends (nr. 13) that any future general instrument of internal review of
decisions “should attempt to draw conclusions from past experience and incorporate some
generally applicable provisions which foster alternative dispute resolution without prejudice
to judicial remedies.”

However, there is no codification of European administrative law at Union level at the

moment, and it appears that this future process of codification will not play an important role
where the development of ADR in administrative proceedings is concerned. 100 The principle
of national procedural autonomy also plays an important role in reaching the conclusion that
the primary goal of European law isn’t the harmonization of administrative procedural law in
all Member States. According to the principle of procedural autonomy, the national courts
perform their duties as “Union courts” within the context of the national system of judicial
protection and procedural law.

The European Union is not primarily concerned with the development of mediation or ADR
in administrative proceedings in the legal systems of the Member States. Some national
chapters refer to recommendation Rec (2001)101 adopted by the Committee of Ministers of the
Council of Europe on 5 September 2001 on alternatives to litigation between administrative
authorities and private parties. The impact of that recommendation is considered not very
significant to the development of ADR in general administrative law in the European
countries.102

The recommendation itself acknowledges some of the inherent problems of ADR in

administrative law disputes.103 Relevant for the development of ADR in European countries
seems to be the Mediation Directive that was to be implemented by May 2011 and is now
100
NANCY ERBE, SURVEY REGARDING ADR AND GOVERNANCE, (2004).
101
ANDREA STRIMLING, The Federal Mediation And Conciliation Service: A Partner In International Conflict
Prevention, 2 PEPP. L. REV. 418 (2002).
102
MARK E. WARREN, CIVIL SOCIETY AND GOOD GOVERNANCE, U.S. CIVIL SOCIETY PROJECT (1999).
103
ALAN RAU, EDWARD F. SHERMAN AND SCOTT R. PEPPET, PROCESSES OF DISPUTE RESOLUTION 600 (2002).

Page 26 of 62
applied in the Member States. The Directive concerns mediation in cross-border civil and
commercial disputes.104 This EU directive defines mediation as a confidential and structured
proceeding in which the parties, voluntarily and on their own responsibility, seek an amicable
settlement of their dispute with the assistance of a mediator. The Directive sets out
comprehensive provisions on confidentiality, court-mandated mediation, and the effect of the
statutes of limitations.

Also, it demands of Member States to set up a mechanism by which agreements resulting

from mediation can be rendered enforceable if both parties so request; the choice of
mechanism is left to the Member States. Strictly speaking, the directive isn’t relevant for
administrative law.105 Furthermore, the relevance the directive has is confined to cross-border
disputes. Despite those inherent limitations, several of the national chapters deservedly refer
to it as relevant for the development of mediation in administrative disputes.

In Germany, for example, the legislature implemented the Mediation Directive in such a way
that the implications are relevant for both civil and commercial disputes and administrative
disputes even if they cannot be considered cross-border disputes. 106 In most European
countries, however, the Mediation Directive was transposed into the national legal system by
introducing legislation for the use of mediation in all civil and commercial disputes. Few
European countries have introduced legislation that is specifically tailored to mediation in
administrative proceedings between administrative authorities and citizens.

CHAPTER VIII - COMMON CONSTRAINTS FOR ADR IN ADMINISTRATIVE

PROCEEDINGS

The use of mediation—or mediation techniques—can be incorporated into the process of

administrative decision making by interpreting existing legal standards and deduce a legal
duty for administrative authorities to strive toward consensus. Where appropriate and legal,
the existence of this duty can also have significant impact after a decision has been taken and
during administrative proceedings. Some have indeed argued that such a legal duty to strive
for consensus could be derived from the principle of due care. However, a traditional reaction

104
Gleditsch, Kristian S. And Michael D. Ward, Double Take: A Re-Examination Of Democracy And Autocracy
In Modern Politics, 361-82 J. CONFLICT RESOL. 41 (1997)
105
Aneta Wierzynska, Consolidating Democracy Through Transitional Justice: Rwanda’s Gacaca Courts, 79
N.Y.U. REV. 1934 (2004).
106
Robert A. Baruch Bush, Realizing The Potential Of International Conflict Work: Connections Between
Practice And Theory 19 NEGOT. J. 97 (2003)

Page 27 of 62
to the use of mediation in order to resolve administrative law disputes is that it is complicated
for a number of reasons.

The reaction is triggered by a number of elements in both the relation between administrative
authorities and citizens and the structure and characteristics of administrative law that at first
sight seem to be at odds with the idea of mediation and conciliation. In this section, we try to
give an overview of possible constraints for mediation in administrative proceedings; some of
these issues have been raised in the national chapters as well. It should be kept in mind that
this overview of potential constraints on mediation in administrative law disputes is not
meant to imply that those disputes are not well suited to mediation as a method of dispute
resolution.

A. The Relationship Between Citizens and Administrative Authorities

In countries where the rule of law is firmly established in the legal system, any administrative
authority will have to interact with its citizens while taking into account its special position.
In general, such a legal system will allow the amendment of the legal position of a citizen by
a unilateral decision of an administrative authority, although several European countries
implemented legislation that would equally allow an administrative authority to serve the
general interest by using the form of a contract with citizens to come to a similar change of
the legal position of the citizen. 107 Therefore, the relationship between citizens and
administrative authorities is, in a traditional view, de jure asymmetrical, authoritarian, and
hierarchical.

This view of the relationship seems contradictory to the idea of facilitated negotiation to end
a dispute in administrative proceedings. In most western countries, however, legal scholars
observe a tendency towards cooperative arrangements between administrative authorities and
private actors. There are a number of reasons for this tendency. One is that the legal systems
are overloaded with complex regulations, and the executive is unable to look after the
execution of the public interest without the help of its citizens. Furthermore, the idea that
citizens are nothing more than the object of the actions of the administration is obsolete.
Administrative authorities strive towards good governance and a service-oriented approach to
decision making by allowing meaningful participation in the decision-making procedure.

Susan Opotow, PSYCHOLOGY OF IMPUNITY AND INJUSTICE: IMPLICATIONS FOR SOCIAL RECONCILIATION,
107

POSTCONFLICT JUSTICE (2002).

Page 28 of 62
Unlike the private law relations between private actors, the core of the legal relation between
administrative authorities and citizens is unequal. In fact, most legal systems acknowledge
that the relation between them is de facto asymmetrical; in many situations, the
administrative authority can be characterized as the Repeat Player and the citizen as the One
Shotter.108 The latter usually has less experience, less financial means, and less legal
expertise. Many principles underlying administrative proceedings in the countries that are
discussed in this book regard this inequality as a reason to attempt to level it out by allowing
the administrative courts a more active role than its private law compeer and by not allowing
the parties to dispose of their rights or their obligations by the concurrence of the wills.

B. Constraints based on Rule of Law, Discretionary Powers, and Public Interest

Administrative law is concerned with the exercise of powers of a public law nature. Such
powers entrusted to various agents within the public administration are essential for the
discharge of the public tasks or duties assigned to these offices. Related to the issue discussed
in the previous paragraph is the constraint for ADR in administrative proceedings that lies in
the fact that decisions and actions of administrative authorities must be to the benefit of the
public interest based on the competences awarded to it by the legislator and in conformity
with the law.

The implications of the acceptance of the rule of law in the legal systems of the European
Union are important. Negotiating the settlement of an administrative law dispute after the
decision was taken by the administrative authority can only be lawful if the authority is
legally competent to amend its previous decision. Any exercise of power by an administrative
authority is subject to boundaries. The administrative authority does not have full discretion
in exercising its powers. Every decision relating to the exercise of powers under public law is
bound by the statutory rules governing the matter in question.

Even when those rules imply that the administrative authority has no discretion, the use of
mediation or mediation techniques might be useful.109 In that case, the authority must
however limit itself to explaining the situation or suggesting alternatives for the conflict that
has risen. Reviewing the decision will not solve the dispute. In other cases, the statutory rules
may also mean that the authority has a margin of discretion. Discretionary power means that

108
Oliver p. Richmond, Mediating Ethnic Conflict: A Task For Sisyphus? INTERNATIONAL STUDIES
ASSOCIATION, WASH. D.C. (1999)
109
Susan Collin Marks, WATCHING THE WIND: CONFLICT RESOLUTION DURING SOUTH AFRICA’S TRANSITION
TO DEMOCRACY 18 (2000).

Page 29 of 62
in response to an objection or appeal the administrative authority can investigate whether
using its discretionary power in a different way can lead to a decision that is more in keeping
with the interests of the interested parties.

However, this discretion is always subject to certain restrictions. 110 Even when the statutory
provisions offer administrative authorities’ discretion in the way that they are able to decide
on a particular issue like the application for a permit, the rule of law demands that these
discretionary powers are applied in a purpose-specific manner. In any case, they should
reflect the specific goal(s) that the legislator had in mind when attributing the competence to
the administrative authority, and the result of the application of the competence should be to
the benefit of the public interest. The fact that the legislator attributes competences to
administrative authorities with a specific purpose (a specific general interest) in mind is a
restriction of some importance when negotiating in administrative proceedings.

Any agreement that entails an obligation for a citizen or administrative authority that has no
basis in any statute or is seen as irrelevant to the use of the discretionary power that has led to
the conflict in the first place has to be considered at odds with the rule of law. It is not
unthinkable that any of the parties to such an agreement will claim that concluding the
settlement to the dispute constitutes abuse of power by the administrative authority (de
´tournement de pouvoir) and that it therefore could not by it. The consequence of this is that
the possibilities for government authorities to modify the contested administrative decision in
order to reach out an agreement are sometimes limited.

C. The Relevance of the Interests of Third Parties

Another constraint for ADR in administrative proceedings that administrative law scholars
frequently put forward is the fact that many conflicts either involve or will, in some way,
influence the legal position of third parties that are not involved in the proceedings. A dispute
between the applicant of a building permit and the administrative authority that refused the
application cannot be solved entirely by reaching an agreement that implies that the
competent authority will retroactively accept the application; any neighbor that was happy to
hear the application was initially denied will probably start administrative proceedings when
information on the change of position of the administration reaches him.

Emily Stewart Haynes, Mediation as an Alternative to Emerging Postsocialist Legal Institutions in Central
110

and Eastern Europe, 15 OHIO ST. J. ON DIS. RESOL. 257 (1999).

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To be certain that the use of ADR could indeed lead to a binding resolution of the conflict,
any interested third party should be included in the (facilitated) negotiations. It is often these
sorts of issues that bring up important questions of effectiveness, efficiency, and legitimacy
of the involvement of the administrative authority or the administrative court in facilitating
the settlement of a dispute in another manner than by judgment; it is primarily the task of the
administrative authority to take a decision that is both in conformity with the law and
reasonable. The answer lies of course in the general interest of amicable dispute settlement in
a civilized society, in the fact that a judgment is seen as ultimum remedium and in the costs
of adjudication in general. Still, a relevant question remains. What time, costs, and efforts
should administrative courts or authorities invest in possible dispute resolution by way of
mediation or negotiation? This is a question that any legal system will have to answer, and
the answer will probably differ considerably in light of the cultural and historical
backgrounds of the legal system of a specific country.

D. Equal Treatment and the Fear of Precedent

Another substantive issue that is relevant when it comes to ADR in administrative

proceedings is the principle of equality as a principle of good governance. This basic
principle for any behavior of any administrative authority implies that all equal cases shall be
treated equally and unequal cases shall be treated differently in a way that reflects the
differences between the cases on the basis of legally allowed and objective reasons.

When an administrative authority is negotiating the way it shall exercise its discretionary
power, there is more at stake than the single use of the competence in that particular instance.
Any administrative authority is obliged to act and decide systematically and consistently and
treat equal cases equally. This will limit the possibilities of an administrative authority
negotiating on the use of a discretionary power, as the use of the power in this one instance
will have to be repeated when the same conditions are met in another case. Successful
application of any method of ADR is only in order when an administrative authority is
willing to change the way it uses this particular competence in any similar case that the future
might bring and therefore is willing to change its policy for legitimate and objective reasons.
In any other situation, the result of ADR will be considered (unwanted) precedent for future
use of the competence. The principle of equality could therefore be considered a complicating
factor when considering mediation in administrative proceedings.111

111
BONDY AND MULCAHY, MEDIATION (2009), p. 34.

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E. Transparency

One of the key elements of mediation as an important form of ADR in administrative

proceedings is that the facilitated negotiations are confidential of nature. Mediation is seen as
a confidential process, and parties will usually have to agree to this confidentiality when the
process of mediation starts with the help of a (professional) mediator. Negotiations for the
settlement of a conflict are deemed to be more open, free, and informal when the parties
involved don’t have to worry that what they say, write, or bring to the table during the
process will be used against them in a later stage of the conflict.

The EU Mediation Directive that is concerned with cross-border civil and commercial
disputes states in Article 7(1) that member states shall ensure that, unless the parties agree
otherwise, neither mediators nor others involved in the mediation process shall be compelled
to give evidence in civil and commercial judicial proceedings or arbitration regarding
information arising out of or in connection with a mediation process, except where this is
necessary for overriding considerations of public policy of the Member State concerned or
where disclosure of the content of the agreement resulting from mediation is necessary in
order to implement or enforce that agreement. It follows from the above that confidentiality is
an important aspect of the mediation process.

In this respect, the nature of mediation and one of the basic principles of administrative law
seem in conflict with each other. 112 Access to information of the administration is to be seen
as one of the most important characteristics that will allow for public participation and
contribute to the accountability and legitimacy of the functioning of the administration.
Governmental documents are an important source of information for citizens and will
encourage integrity, efficiency, and effectiveness in public administration. This is reflected in
the legislation in many of the EU member states and in several important international
agreements and treaties. Seeking government transparency is a citizen’s right and resolving
administrative law disputes in a confidential manner might infringe on that right. The chapter
on administrative proceedings in the UK explicitly states on this aspect of mediation that it is
important to recognize that good administration may be best served by a visible dispute
resolution mechanism that is accountable to the rule of law.113

F. Prescribed Period for Administrative Proceedings

112
DE GRAAF AND MARSEILLE, MEDIATION AND ALTERNATE DISPUTE RESOLUTION (2007), 81–98.
113
MARSEILLE AND DE GRAAF, MEDIATION AND PROCEDURES (2012), 136–137.

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A last potential constraint that is of a more formal nature but could be of some importance
when a process of mediation starts in a conflict between an administrative authority and
interested parties is the fact that administrative proceedings like internal administrative
review (objection procedure) or an appeal procedure will, in most cases, have to be initiated
within a prescribed short period, and the procedure itself has set time frames for getting to the
end of the procedure within a certain prescribed period of time.

In any case in which the administrative authority has taken a decision that has lead to a
conflict and ADR is a serious option for resolving it, one should understand that attempting to
resolve the conflict using an alternative process will probably not suspend the statutory
appeal period that applies for initiating the “normal” administrative procedures. All parties
must keep in mind that there is the possibility that the appeal period, the period for treating
the internal review, or the judicial review procedure by the administrative court will expire.
However, in many of the discussed legal systems, the law will allow for suspension of time
prescriptions and other measures that allow administrative proceedings to accommodate (or
not oppose) the possibility that either long negotiation or mediation between the parties could
result in the amicable dispute resolution.

The EU Mediation Directive, although not applicable to administrative proceedings,

stipulates in Article 8 that member states shall ensure that parties who choose mediation in an
attempt to settle a dispute are not subsequently prevented from initiating judicial proceedings
or arbitration in relation to that dispute by the expiry of limitation during the mediation
process. This becomes relevant when mediation is used in administrative law disputes.

CHAPTER IX - COMPARATIVE OUTLOOK WITH EUROPEAN NATIONS

In this section, we will allow for a comparative analysis on the basis of the information
contained in the chapters on the national legal systems. The analysis is designed to answer
certain questions in a comparative manner by analysing the European national legal systems.
Quite a lot of countries have embraced the potential of mediation (by a third party) and
mediation techniques (by civil servants in their behaviour to citizens) in light of a service-
oriented approach and the finding that this method could be to the benefit of the quality of
decision making, the settlement of administrative law disputes, and the relationship between
government and its citizens.

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The chapter on the Dutch legal system stipulates that mediation techniques are deemed to be
part of the internal review procedure or administrative appeal. The Dutch ministry of Interior
and Kingdom Relations is indeed actively supporting and stimulating administrative
authorities that are willing to use the so-called Informal Pro-active Approach Model for
handling applications for internal review. The model basically consists of a public servant
ensuring quick and direct personal contact with the citizen concerned (telephone call or
informal meeting) and using communication skills such as listening, summarizing, and
questioning from an open, unbiased approach and certain conflict management techniques
that can lead to de-escalation and conflict resolution.

The results—measured by the percentage of initiated internal review procedures that were
cancelled after informal approach was applied—are very positive. 114 Where the Dutch policy
seems to reinvest in (informal) objection procedures, in Austria and Germany the objection
procedure is becoming rare. The section on alternative dispute settlement in the chapter on
Austria discusses the possibility to revise a final administrative decision by way of petition.
Although the formal objection procedure was almost completely removed from the Austrian
administrative system of adjudication, the chapter also refers to the potential importance of
the possibility of the administrative authority to voluntarily amend, change, or retract the
contested decision in light of objections against it.

Without explicit provisions on the matter, the same development seems a fortiori present in
German public administration. The extensive abolishment of the objection procedure by the
German Lander € has led to a variety of informal actions by administrative authorities to
avoid unnecessary procedures before the administrative courts. Administrative authorities
actually invite affected parties to make use of the right of petition to open informal
communications on the contested decision. Even the decision itself may be accompanied by
openings for informal communication to avoid affected parties going to court; in many cases,
the administration is able to clarify inconsistencies and resolve the potential dispute.

The administration has proven very resourceful in setting up complaint management systems
that will allow for an informal approach and possible solution to the conflict before an appeal
is lodged with the administrative court. 115 In the UK, the policy on “Transforming Public
Services” certainly seems to have the same goal in mind. It strives to develop a range of

GOLANN (2009) AND GOLDBERG ET AL. (1985).

114

115
Junhyuk, P, Conflict Management and Mediation Theory: South Africa’s Role in Burundi’s Civil Conflict.
INTERNATIONAL AREA REVIEW, 13(3), 180-201 (2008).

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policies and services that will, as far as possible, help people to avoid legal disputes in the
first place and provide tailored solutions where they cannot.

There seem to be no countries in which there is an explicit provision that prohibits

administrative authorities to resort to mediation or mediation techniques for either the
improvement of the quality of decision making or the settlement of administrative law
disputes. A number of authors do however point out that public law is substantively at odds
with the concept of negotiated settlement. As an example, we could refer to the legislation on
settlement in Belgium. The provision on the possibility of settlement during court
proceedings states that “any dispute that is susceptible to be controlled via a settlement, may
be the subject of a mediation”.

The article continues: “The legal persons governed by public law can be a party to mediation
in cases established by law or by Royal Decree.” This is an explicit reference to the fact that
all national legal systems will allow settlements only on those subjects where the law allows
the parties to dispose of the rights and duties involved; parties will generally not have at their
disposal those rights and duties that are part of administrative law. 116 If we also consider that
the core guiding principle of all decisions of administrative authorities shall be to the benefit
of a specific general interest, the conclusion should be that there is not much room for a legal
compromise in administrative proceedings.

Practically, all chapters on the national legal system emphasize this particular point.
Nevertheless, it follows from the aforementioned developments in The Netherlands, Austria,
Germany, and several other countries that mediation, mediation techniques, and informal
communication could mean a significant effect in the number of court proceedings avoided.

Several European countries have introduced legislation or soft law specifically tailored to
mediation. In the UK, Article 3.1 of the Pre-Action Protocol for Judicial Review states that
the disputants should consider whether some form of ADR would be more suitable than
litigation and, if so, endeavor to agree which form to adopt. Both parties may be required by
the court to provide evidence that alternative means of resolving their dispute were
considered for litigation should be a last resort and claims should not be issued prematurely
when a settlement is still actively being explored. Parties are warned that if the protocol is not
followed, the court must have regard to such conduct when determining costs. Although these
incentives for parties to resort to ADR are potentially strong, the preaction protocol also
Erbe, D.N., Appreciating Mediation’s Global Role in Promoting Good Governance, HARVARD NEGOT. L.
116

REV. 355 (2006).

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refers to the obligation that judicial review must be filed promptly and, in any event, not later
than 3 months after the grounds to make the claim first arose and furthermore states that no
one shall be forced to use mediation mechanism.117

In July 2012, the German legislator implemented the EU Mediation Directive and adopted the
so-called Act to Promote Mediation and Other Methods of Out-of-court Dispute
Resolution.29 While the EU Directive is applicable to cross-border commercial disputes
only, the implementation does not distinguish between cross-border and domestic disputes
and is also concerned with mediation in public law matters.

The question on whether or not to include a separate concept of in-trial mediation along with
out-of-court mediation was a major controversial issue. Whereas the draft bill originally
proposed by the German government provided for such a concept, it was adopted in a
modified manner. Instead of being an independent concept in the legislative act, it is now
mentioned as one of the potential methods for judicial conciliatory proceedings.

The new civil procedural code that was introduced In Romania in 2012 demands the courts to
organize a pretrial session to inform the parties about the possibilities of mediation and
recommend its use; court proceedings are only allowed to continue if parties have refused
mediation. A specific legislative act on mediation with a similar goal was already adopted in
Romania in 2006.118 According to this law, mediation may commence either at the initiative
of parties or at the recommendation of the judge when the parties consent to that
recommendation; court proceedings will be suspended as long as a settlement is negotiated
with the help of a mediator.

Mediation can only be allowed in disputes where the object of the mediation is not against the
provisions of the law or against the public order. Although there are some clear incentives for
the court to stimulate mediation as a form of ADR, there still seem to be some important
questions on the general issue of allowing administrative authorities to negotiate the
application of public law competences that should always be applied to the benefit of the
general interest.

A successful mediation process will start and end with a contract between the disputants. The
agreement that is intended to end the dispute can be qualified as a public law contract in any

117
Cloke, K., MEDIATING DANGEROUSLY: THE FRONTIERS OF CONFLICT RESOLUTION. SAN FRANCISCO (Jossey-
Bass Publishers, 2001).
118
Adesola, S.A., Entrenching Democracy and Good Governance: The Role of ICT, INTERNATIONAL JOURNAL
OF RESEARCH IN ENGINEERING, IT AND SOCIAL SCIENCES (2012).

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legal system, but not every system of administrative law will allow the administrative
authority to amend the legal position of a person or good by way of a contract. This brings us
to the question of the effects of the agreement in administrative proceedings. Some legal
systems that are discussed in the national chapters have explicit provisions on such contracts,
and the authors refer to those provisions.119 Although we could imagine that it is relevant for
the development of mediation in administrative law that the agreement shall have a direct
binding effect on the legal position of the private party involved in the mediation, this doesn’t
seem the case in practice.

The chapter on German administrative law stipulates that a formal contract is only more
likely to be concluded when the resolution of the dispute has a third-party effect. In other
cases, the willingness of the administrative authority to compromise or settle the dispute will
most likely lead to the informal agreement that the administrative authority will either
withdraw or change the contested decision. This possibility of the administrative authority to
take a new decision that it knows the private party will agree with seems to be the
predominant legal effect of a successful mediation in administrative proceedings.

During the internal review procedure, such an informal agreement could lead to a decision on
the application for internal review that will be accepted by all parties,120 or—when the
agreements mean that the contested decision should remain as it is—the application for
internal review could be withdrawn. If mediation is successful during court proceedings, the
appeal could of course also be withdrawn.121 However, if the agreement entails the obligation
of the administrative authority to take another decision, it could be wise to wait for the new
decision.

In most of the legal systems, the procedural provisions will allow for the pending appeal to be
extended to encompass the new decision as well; in that case, the appeal against the new
decision—that all parties now accept as the outcome of the mediation—will be deemed
inadmissable because the interest needed to bring the case to court is lacking since the
applicant has accepted that specific decision in the mediation procedure. If the agreement
covers all aspects of the dispute, including costs, and the administrative authority has indeed

119
Kressel, K.P., Dean, G.P. and Associates., MEDIATION RESEARCH: THE PRACTICE AND EFFECTIVENESS OF
THIRD-PARTY INTERVENTION, CALIFORNIA JOSSEY-BASS PUBLISHERS (2009).
120
Walter, B.F., Conflict Relapse and the Sustainability of Post-Conflict Peace, GRADUATE SCHOOL OF
INTERNATIONAL RELATIONS AND PACIFIC STUDIES, UNIVERSITY OF CALIFORNIA, SAN DIEGO (2009).
121
Folberg, J. and Taylor, A., MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CONFLICTS WITHOUT
LITIGATION. SAN FRANCISCO: JOSSEY-BASS PUBLISHERS (1984).

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satisfied all obligations that were agreed upon, the appeal could be withdrawn safely by the
applicant.122

CHAPTER X - INSTITUIONALIAZTION OF MEDIATION IN THE US

Mediation has become an integral part of the American legal system over the past 30 years. 123
Once limited to collective bargaining124 and divorce,125 mediation now has widespread
application in a range of disputes: small claims, family, business, personal injury, medical
malpractice, and labor and employment.126 Now mediation is connected with state and federal
courts and at both trial and appellate levels. Mediation is also used by many administrative
agencies in their quasi-judicial127 and quasi-legislative rule-making activities.128 And in the
private sector, businesses now include mediation clauses in contracts with each other, with
their customers, and with their employees, in case future disputes arise.

The “institutionalization” of mediation, a term used to describe how public and private
entities have adopted mediation as a standard and legitimate process for resolving disputes, 129
has historic origins in court reform. To appreciate the growth of mediation, especially its
emergence as substance-specific procedure in state legislation, this Article must go back to
the judicial reform movement in the last quarter of the twentieth century. The first section of
this Part briefly explains the perceived shortcomings with judicial dispute resolution that
reformers sought to repair with alternative dispute resolution (“ADR”). The second section
then focuses specifically on mediation and the arguments that drove its institutionalization:
improved efficiency and quality of justice.

122
Kleiboer, M., 1996. Understanding Success and Failure of International Mediation. THE JOURNAL OF
CONFLICT RESOLUTION, 40(2), pp.360-389.
123
Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute Resolution
Movement Is Re-Shaping Our Legal System, 108 PENN. ST. L. REV. 165, 185–88 (2003).
124
24 PA. CONS. STAT. § 11-1121-A; Public Employee Relation Act of 1970, 43 PA. CONS. STAT. § 1101.101
(2009).
125
Jay Folberg, Ann L. Milne & Peter Salem, The Evolution of Divorce and Family Mediation, in DIVORCE AND
FAMILY MEDIATION: MODELS, TECHNIQUES, AND APPLICATIONS 4–7 (Jay Folberg, Ann L. Milne & Peter
Salem eds., 2004)
126
Susan E. Raitt et al., The Use of Mediation in Small Claims Courts, 9 OHIO ST. J. ON DISP. RESOL. 55, 56
(1993); Thomas J. Stipanowich & J. Ryan Lamare, Living with ADR: Evolving Perceptions and Use of
Mediation, Arbitration, and Conflict Management in Fortune 1000 Corporations, 19 HARV. NEGOT. L. REV.
1, 18–19, 44–51 (2014); Mary F. Radford, Is the Use of Mediation Appropriate in Adult Guardianship Cases, 31
STETSON L. REV. 611, 616–21 (2002); Roselle L. Wissler, Court-Connected Mediation in General Civil Cases:
What We Know from Empirical Research, 17 OHIO ST. J. ON DISP. RESOL. 641, 652–53 (2002); Eric Galton,
Mediation of Medical Negligence Claims, 28 CAP. U. L. REV. 321, 321–24 (2000).
127
TEX. GOV’T CODE ANN. § 2260.052 (West 2008)
128
CAL. PUB. RES. CODE §§ 21168.5, 21168.6 (West 1995)
129
Bobbi McAdoo, Nancy A. Welsh & Roselle L. Wissler, Institutionalization: What Do Empirical Studies Tell
Us About Court Mediation? 9 DISP. RESOL. MAG. 8, 8 (2003)

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A. Responding to Popular Dissatisfaction with the Courts

The history of mediation’s institutionalization begins with the modern American judicial
reform movement of the mid-1970s and early 1980s.130 During this judicial reform period,
jurists and legal scholars sought to improve delivery of just settlements and to rehabilitate the
popular legitimacy of courts131 through the use of alternative methods of dispute resolution. 132
The goals of the judicial reform movement were to employ new approaches to dispute
processing, so-called “process pluralism,” in order to relieve pressure on congested courts by
reducing delay and eradicating unnecessary costs; involving communities in dispute
settlement processes; enabling access to justice; and making dispute resolution more
effective.133

Some judicial reformers advocated delegalizing formal judicial procedures and creating
“multi-door courthouses”134 and “community courts”135 that could offer a range of dispute
settlement processes and allow for better quality of justice depending on the nature of the
dispute and the needs of the parties. Others sought to capture disputes that never made it to
the courts136 and instead channel them to informal and non-adversarial community-based
settings such as Neighbourhood Justice Centres.137 Both sets of reformers focused on
mediation as an alternative method for dispute resolution, 138 the former group seeking to
incorporate mediation into courts and the latter seeking to establish dispute settlement
programs that, though external to courts, were complementary to the judicial system.139

B. Delivering Quality Resolution Faster

Legislatures, courts, and administrative agencies incorporated mediation into public

institutions at a time when reformers sought to make the state’s dispute processing more
130
Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 ANN. REP.
A.B.A. 395, 397 (1906).
131
CHRISTINE B. HARRINGTON, SHADOW JUSTICE: THE IDEOLOGY AND INSTITUTIONALIZATION OF
ALTERNATIVES TO COURT 9–10 (1985).
132
Frank E.A. Sander, Alternative Methods of Dispute Resolution: An Overview, 37 U. FLA. L. REV. 1, 1 (1985)
133
Seth Hufstedler & Paul Nejelski, A.B.A Action Commission Challenges Litigation Cost and Delay, 66 A.B.A.
J. 965, 965–69 (1980)
134
Frank E.A. Sander, Varieties of Dispute Resolution, Address at the National Conference on the Causes of
Popular Dissatisfaction with the Administration of Justice (Apr. 7–9, 1976), in 70 F.R.D. 79 (1976)
135
John C. Cratsley, Community Courts: Offering Alternative Dispute Resolution Within the Judicial System, 3
VT. L. REV. 1, 2–19 (1978).
136
William L.F. Felstiner, Richard L. Abel & Austin Sarat, The Emergence and Transformation of Disputes:
Naming, Blaming, Claiming…, 15 L. & SOC’Y REV. 631, 633–37 (1980).
137
Kimberlee K. Kovach, Privatization of Dispute Resolution: In the Spirit of Pound, but Mission Incomplete:
Lessons Learned and a Possible Blueprint for the Future, 48 S. TEXAS L. REV. 1003, 1010–11 (2007).
138
ROGER COTTERELL, THE SOCIOLOGY OF LAW: AN INTRODUCTION 291–92 (2d ed., 1992).
139
Richard Danzig, Toward the Creation of a Complementary, Decentralized System of Criminal Justice, 26
STAN. L. REV. 1, 7–9 (1973)

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accessible, efficient, effective, and just. Mediation’s ability to provide an informal,
consensus-based process, with a neutral third-party facilitator, made it popular among
reformers. Today, most public institutions employ their own mediators, 140 contract with
private mediators for mediation services, or refer disputing parties to a freestanding
mediation center. Across the country, almost all parties that turn to state institutions to
resolve civil disputes are required to participate in some form of ADR and demonstrate their
efforts to settle the dispute before a judge or agency decision maker will hear the case.141

CHAPTER XI - EXPANSION OF MEDIATION MANDATES IN THE US

In recent years, particularly since the early 2000s, legislatures have increasingly deployed
mediation as a means to regulate private parties’ dispute resolution. This phenomenon is a
distinct departure from legislatures’ previous role in institutionalizing mediation. In earlier
phases of mediation’s institutionalization, legislatures enacted statutes authorizing courts and
administrative agencies to develop mediation programs, as the Oklahoma example above
illustrates. Now, legislatures also embed mandatory mediation clauses directly into
substantive law.142 Parties must mediate in order to assert or defend rights under statutes
governing, for example, certain kinds of commercial contracts, insurance coverage, property
transactions, and employment.143 Legislatures use mediation to regulate disputing parties in
two different ways.

First, they build mandatory mediation requirements into specific statutes to manage private
citizens’ disputes directly, even before they turn to the government for assistance. 144 Second,
not only do legislatures mandate that parties mediate specific disputes, but they also instruct
parties on how to mediate. Rather than leaving the mediation process unspecified or, in the
alternative, delegating to courts and administrative agencies the task of developing rules for
mediation, legislatures themselves design mediation procedure by building additional legal
requirements into statutes. Through these mediation statutes, the legislature extends the
breadth and depth of its control over private-party dispute processing.

140
OKLA. STAT. ANN. TIT. 12, § 1801 (2015).
141
SARAH R. COLE ET AL., MEDIATION: LAW, POLICY & PRACTICE (2013– 2014 ed. 2013).
142
Stephen N. Subrin, Fudge Points and Thin Ice in Discovery Reform and the Case for Selective Substance-
Specific Procedure, 46 FLA. L. REV. 27, 27–29 (1994).
143
Lydia Nussbaum, ADR’s Place in Foreclosure: Remedying the Flaws of a Securitized Housing Market, 34
CARDOZO L. REV. 1889, 1891, 1908 (2013)
144
Supra note 163.

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This Part explores both categories of statutory regulation. Section A presents statutes that
embed mediation as mandatory dispute resolution procedure. These statutes impose a legal
obligation to mediate on parties with certain kinds of disputes. Section B demonstrates that
many statutory mandates to mediate go beyond requiring parties to try settling their disputes
in mediation. Some legislatures, when constructing statutory mediation requirements, tack on
additional legal obligations that control parties’ settlement negotiations and shape the
outcome of the mediation process.

Not only do these laws directly regulate parties’ behaviour in mediation, but they can also
influence the parties’ relationship by creating leverage and incentivizing settlement. These
requirements transform mediation from its classical conception as an informal, delegalized,
outcome neutral process—what made mediation so popular during the judicial reform
movement—into a highly structured, formal process, with rules and procedures spelled out in
statute.

A. Mandating Mediation for Specific Disputes

States create legal obligations for private parties to mediate in a variety of contexts, including
disputes relating to commercial contracts, insurance coverage, property rights, employment,
and health.145 Many of these statutory mediation requirements appear to have developed
organically, in an ad hoc fashion, perhaps to respond to concerns about local industry
practices, advocacy for consumer protection, or a desire to alleviate civil court dockets. One
common area in which states deploy these statutory mediation mandates involves disputes
between private contracting parties, often relating to manufacturing and distribution
contracts.

For example, agricultural cooperatives in Maine and the handlers of their agricultural
products,146 or electricity cooperatives in Texas and the cable operators who erect electric
utility poles, all have a statutory requirement to mediate disputes.147 Florida, Texas, Virginia,
and Wisconsin require mediation for disputes involving motor vehicle manufacturers and
franchise car dealers.148 Maryland regulates private contracts between beer manufacturers and
beer distributors. It requires mediation if a new entity takes over the manufacturing and wants

145
53 PA. STAT. AND CONS. STAT. ANN. § 6924.505 (2015)
146
ME. REV. STAT. ANN. TIT. 13, § 1958-B (2015).
147
TEX. UTIL. CODE ANN. § 252.005 (West 2015).
148
FLA. STAT. ANN. § 320.3210 (2015); TEX. OCC. CODE ANN. § 2301.522 (West 2015).

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to replace the old distributor with a new distributor, but the two distributors, old and new,
cannot agree on a buyout amount for the distribution contract.149

Illinois requires telecommunications carriers to mediate with consumers upon request; 150
similarly, Michigan requires informal alternative dispute resolution, including mediation, for
complaints valued under $1,000brought against telecommunication carriers.151 In almost all
of these contract disputes, the mediation mandate attaches directly to the parties, without the
requirement of filing a claim with a court or administrative agency. Many states also impose
legal obligations to mediate absent state institutional intervention in the insurance context.
For example, claims involving condominium insurance in Washington, 152 hazardous waste
liability insurance in Oregon,108 and fire, earthquake and automobile insurance in
California,109 are all subject to statutory mediation requirements. Similarly, in Texas,
disputes over reimbursement of out-of-network health insurance claims must also be
mediated.153

B. Controlling and Incentivizing Mediation Behaviour

As legislators increasingly embed mediation mandates into substantive statutes, many also
specify in statute how the disputants shall utilize or behave in the mediation. Statutes regulate
parties in mediation by 1) controlling who can and cannot participate; 2) mandating
information exchange; 3) requiring parties to take negotiations seriously; 4) prescribing
topics for discussion; 5) making mediation a condition precedent to a formal proceeding; and
6) incentivizing settlement.154 This type of regulation, whether purposeful or inadvertent,
transforms mediation into a highly formalized, choreographed process with built-in
procedural rules, rights, and restrictions.

CHAPTER XII - LAWS GOVERNING MEDIATION IN INDIA

A. Industrial Disputes Act

Mediation first came to be legally recognised as a method of dispute resolution in the

Industrial Disputes Act, 1947.155 Conciliators appointed under Section 4 this Act are assigned

149
MD. CODE ANN. art. 2B, § 21-103 (2015).
150
220 ILL. COMP. STAT. ANN. 5/13-713 (West 2013).
151
MICH. COMP. LAWS ANN. § 484.2203a (West 2008).
152
WASH. REV. CODE ANN. § 64.35.605 (West 2007)
153
OR. REV. STAT. ANN. § 465.484 (West 2013)
154
NEV. REV. STAT. ANN. § 107.086 (LexisNexis 2011).
155
Industrial Disputes Act, 1947 Act No. 14 of 1947.

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with the duty to mediate and promote settlement of industrial disputes with detailed
prescribed procedures for conciliation proceedings. If used appropriately, it’s a cheap and
quick process. However, only a few cases have been resolved and the very intent of having
such provision has been frustrated. Unfortunately, large numbers of matters which ought to
have been resolved by this provision are still pending in courts and new matters are filed
every day.

B. Civil Procedure Code and Rules

Therefore, in 2002, an amendment to the Code of Civil Procedure, 1908156 (CPC) was
brought in. Section 89 read with Order X Rule 1A provided for reference of cases pending in
the courts to ADR. In addition, Order XXXIIA of the CPC recommends mediation for
familial/personal relationships, as the ordinary judicial procedure is not ideally suited to the
sensitive area of personal relationships. This allowed the courts to refer the pending disputes
to alternative dispute resolution methods. Though many courts in India now have mediation
centres, there is no accurate data available to show that this provision has been utilised
successfully.

Under this, consent of the parties was made mandatory and the court could refer cases for
arbitration, conciliation, judicial settlement through Lok Adalat, or mediation. Moreover, the
Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation under Rule 5(f)
(iii). These allow the court to refer cases for mediation even when the parties are not ready
for reference for mediation if there is an element of settlement.

C. Other Legislations

Section 442 of the Companies Act, 2013,157 read with the Companies (Mediation and
Conciliation) Rules, 2016, provides for referral of disputes to mediation by the National
Company Law Tribunal and Appellate Tribunal. Further, the Micro, Small and Medium
Enterprises (MSME) Development Act, 2006 mandates conciliation when disputes arise on
payments to MSMEs.

Moreover, particularly, family and personal laws including the Hindu Marriage Act,
1955 and the Special Marriages Act, 1954 require the court in the first instance to attempt
mediation between parties. Section 32(g) of the Real Estate (Regulation and Development)

156
Code of Civil Procedure, 1908 § 89.
157
Companies Act, 2013 § 442.

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Act, 2016158 provides for amicable conciliation of disputes between the promoters and
allottees through dispute settlement forum, set up by consumer or promoter associations.

CHAPTER XIII - TYPES OF MEDIATION RECONGNIZED IN INDIA

In India, there are various types of recognised mediation and some of them are listed as
follows:

i. Statutory/Mandatory
There are some kinds of disputes that are required by law to be subjected to the mediation
process, such as disputes in labour and family law. In India, r. 5(f)(iii) of the Civil Procedure-
Mediation Rules, 2003 provide for mandatory mediation, though recourse to it is rare. Apart
from that, there are certain specific provisions in the other legislations which provide certain
kinds of dispute to be referred to mediation.

ii. Court Ordered

Some sort of alternative dispute resolution is required by most jurisdictions in India before
resolution through the judicial process. As soon as a case is filed, the parties are provided
with a number of ADR options out of which they must select and pursue one unless exempted
by the court.  This can be further divided into two types: (a) Court-Annexed and Court-
referred.

Under Court-Annexed Mediation, the mediation services are provided by the court as part of
the judicial system. The Court maintains a list of skilled and experienced mediators who are
available to the parties. The Court appoints a mediator and sets a date by when the mediation
must be completed. The results of the mediation are confidential, and any agreement reached
is enforceable as a judgement of the court.

Since the case is referred to a court-annexed mediation service, the overall supervision is kept
on the process and there is no feeling of abandonment by the system. The litigants, lawyers
and judges become participants in the system and the settlement is achieved by all the actors
in the justice delivery system. The same lawyers who appeared in the case represent their
clients before a mediator and the litigants are also allowed to participate. The popular
acceptance for mediation also improves as it is the integral and impartial court-system which
is seen as extending an additional service. The dispensation of justice becomes well-

158
Real Estate (Regulation and Development) Act, 2016 § 32(g).

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coordinated. However, under Court-Referred Mediation, the court merely refers the matter to
a mediator.

iii. Private
In private mediation, mediation services are offered on a private, monetary basis by qualified
mediators to the Court, general public, and the commercial and governmental sectors for
dispute resolution through mediation. Recourse may also be taken to private mediation in
pending cases or pre-litigation disputes.

iv. Contractual
Parties to a contract may include a mediation clause to resolve disputes as part of the terms of
their agreement as it can effectively resolve contractual disputes before they turn into a
protracted legal battle. The conditions of the mediation and the selection of the mediator are
mentioned in the contract. The mediation results can be enforced as judgements of a court.

v. Voluntary
Parties to a dispute may decide to seek mediation off their own accord, without being
compelled by the law, the court or a contract. This can be done at any time and is controlled
by the parties.

CHAPTER XIV - SUITABILITY OF CASES TO BE SUBJECT TO MEDIATION

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. Pvt. Ltd., 159 the Supreme
Court laid down guidelines pertaining to the kind of cases that would be eligible for ADR.

A. Case not suitable for mediation

In the aforementioned case, the court ruled the following cases and disputes to be non-
suitable for subjecting to mediation.

 Representative suits under Order 1 Rule 8 CPC which involve public interest or
interest of numerous persons who are not parties before the court.
 Disputes relating to election to public offices.
 Cases involving grant of authority by the court after enquiry, as for example, suits for
grant of probate or letters of administration.
 Cases involving serious and specific allegations of fraud, fabrication of documents,
forgery, impersonation, coercion etc.
159
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. Pvt. Ltd, (2010) 8 SCC 24.

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  Cases requiring protection of courts, as for example, claims against minors, deities
and mentally challenged and suits for declaration of title against government.
 Cases involving prosecution for criminal offences.

B. Cases suitable for mediation

All other civil suits and cases (other than the ones mentioned previously) were to be
considered suitable for ADR. This includes a variety of cases involving the following aspects:

i. Trade, Commerce and Contracts

 Disputes arising out of contracts (including all money claims);
 Disputes relating to specific performance;
 Disputes between suppliers and customers;
 Disputes between bankers and customers;
 Disputes between developers/builders and customers;
 Disputes between landlords and tenants/licensor and licensees;
 Disputes between insurer and insured;
ii. Cases from strained relationships
 Disputes relating to matrimonial causes, maintenance, custody of children;
 Disputes relating to partition/division among family members/co-parceners/co-
owners;
 Disputes relating to partnership among partners.
iii. Cases requiring the need for continuation of the pre-existing relationship
 Disputes between neighbours (relating to encroachments, nuisance etc.)
 Disputes between employers and employees;
 Disputes among members of societies/associations/Apartment owners Associations;
iv. Cases relating to tortious liability
 claims for compensation in motor accidents/other accidents;
v. Consumer disputes
 Disputes where a trader/supplier/manufacturer/service provider is keen to maintain his
business/professional reputation and credibility or `product popularity.

CHAPTER XV - DEVELOPMENTS IN THE FIELD OF MEDIATION IN INDIA

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The 129th Law Commission of India Report recommends courts to refer disputes for
mediation compulsorily. In the landmark case of Afcons Infrastructure,160 the Supreme Court
observed that that all cases relating to trade, commerce, contracts, consumer disputes and
even tortious liability could normally be mediated. The 2018 amendment to the Commercial
Courts Act 2015 (Section 12A),161 made it mandatory for parties to exhaust the remedy of
pre-institution mediation under the Act before instituting a suit. Settlements arrived at in this
process are enforceable by law. The period of mediation would not be computed for the
purposes of limitation under India’s Limitation Act. 162 Effective implementation of this
provision can be major boost for economic growth.

In the case of MR Krishna Murthi v. New India Assurance Co. Ltd.,163 the Supreme Court,
asked the government to consider the feasibility of enacting an Indian Mediation Act to take
care of various aspects of mediation in general. The Court further directed the government to
examine the feasibility of setting up a Motor Accidents Mediation Authority (MAMA) by
making necessary amendments in the Motor Vehicles Act. In the interregnum, NALSA was
directed to set up Motor Accident Mediation Cells, which can function independently under
the aegis of NALSA or can be handed over to MCPC.

The new Consumer Protection Act, 2019,164 under Section 37-38 and Chapter V, provide for
disputes to be first referred to mediation and the procedure to be followed as per Section
74(3) of the Act read with Section 101(2)(zf) and Section 102(2)(p) of the Act. The Central
government and the state government, respectively, have been empowered to make rules for
providing for the persons in the consumer mediation cell. As regards international disputes,
India is a signatory to the United Nations Convention on Mediation (the Singapore
Convention), which gives mediation settlements the force of law.

A. Current scenario of Mediation under statutory provisions

Despite having the above stated statutory recognition, mediation has not been able to achieve
great success in India. The Mediation and Conciliation Project Committee (MCPC) was
established by the Supreme Court in April 2005 to oversee the effective implementation of

160
Id.
161
The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts
(Amendment) Act, 2018 NO. 28 OF 2018 § 12A
162
The Limitation Act, 1963 ACT NO. 36 OF 1963
163
MR Krishna Murthi v. New India Assurance Co. Ltd 2019 SCC OnLine SC 315.
164
The Consumer Protection Act, 2019 No. 35 of 2019 §37-38.

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mediation. The endeavour of the MCPC was to give a boost to court-annexed mediation and
to help mediation in growing not as an ‘alternative resolution mechanism’, but as ‘another
effective mode of dispute resolution’.

From the websites of several High Courts, it can be ascertained that most High Courts have
their separate set of rules governing Mediation and Conciliation. Barring for a few High
Courts, there is no data available to show the status of mediation cases referred,
successes/failure of matters, and number of settlements arrived at and effectively
implemented. If the object of the MCPC was to reduce backlog, more attention is required
towards framing of a national policy with an appropriate legal framework. The success and
popularity of mediation is restricted and there is a need for urgent measures to promote and
support its effective implementation.

B. Measures for effective implementation of Mediation in India

There is an urgent need for a uniform statue exclusively governing the mediation process in
India. Mediation legislation exists in more than 18 other jurisdictions, including Singapore,
Malaysia, and Ireland (plays regulatory role). The Singapore International Arbitration Centre
(SIAC) and the Singapore International Mediation Centre (SIMC) have framed SIAC-SIMC
Arb-Med-Arb Protocol (AMA Protocol) to manage disputes in accordance with an “Arb-
Med-Arb” clause for commercial contracts.

In India, parties mainly opt for court annexed-mediation, for which the respective High
Courts have their own set of Rules. Private mediation is less preferred due to lack of
recognition. As the above provided enactments have been introduced or are being introduced
in our country, what we simultaneously need is a quick evolution of the mediation
mechanism. For this, the mediation process, be it private or court-annexed, would require
practical recognition by the legislature and the judiciary.

The judiciary mostly deals with matters that require adjudication, but there are situations
where mediation techniques would be more appropriate and beneficial to the parties.
Therefore, identification of such matters and situations by parties, lawyers and judges
becomes extremely crucial and important in the promotion of mechanism.

CHAPTER XVI – SUGGESTIONS ON PROMOTION OF MEDIATION IN INDIA

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One of the reasons for the sluggish growth of Mediation is that there are hardly any national
and international mediation centres that are providing affordable and quality training.
Unfortunately, mediators can currently exaggerate their skills and experiences in ways that
cannot be contradicted, as mediations are conducted in closed rooms and in confidentiality.
Thus, evaluating the competency of a mediator is challenging. Therefore, there is an urgent
need to create a regulatory framework for fostering confidence and ensuring that ethical
practices are followed in the mediation process.

However, there can be certain measures which may be taken to fully unlock the potential of
mediation in India. These will expand the use of mediation as a dispute resolution mechanism
and also result in easing the caseload burden on the courts. Having assessed the present state
of court-connected mediation in India, the suggestions have been divided into two categories:
institutional and management reforms, and legislative reforms.

A. Institutional and Management Reforms

These reforms deal with the changes from a governance and administrative standpoint,
relevant for existing and future mediation centres.

1. Quality control and popularising mediation

i. Quality mediators and infrastructure
Mediator and infrastructure quality is a prime concern. As discussed in the preceding
chapters, well trained mediators can positively impact the settlement rates in mediation. They
are also crucial to moulding the process favourably for the parties to objectively consider
their differences. Hence, it is imperative that the mediators empanelled in the court-connected
programmes are of the highest quality and possess the requisite domain expertise.

Further, the infrastructure such as waiting areas, board rooms and conference rooms should
reinforce the cognitive comfort of an informal and open mediatory process. A party to a
mediation process (the lawyer included), having had a good experience with the process is
likely to opt for mediation for subsequent disputes, and is likely to recommend it to others,
thus enhancing the popularity of the mechanism.

ii. Increased judicial involvement

To popularise mediation, the role of the judiciary has already been discussed at length. While
the Supreme Court has repeatedly emphasised the suitability of certain types of cases for
mediation, little has been done to implement this mandate. The judiciary should look to

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actively engage with the bar associations through workshops and training sessions, to
sensitise them about the process of mediation, promoting it as an integral part of the justice
dispensation.

iii. Increased user awareness through data dissemination

A concerted effort needs to be made to inform potential users about the efficacy and other
benefits of mediation. Data currently recorded by mediation centres gives information about
some of these benefits (such as expediency of the process, impressive settlement rates, among
other things) and must be widely disseminated to enhance user awareness. This can be done
through structured and planned campaigns using mass media and social media to endorse and
advertise mediation as a viable alternative to litigation.

Mediation centres should also disseminate relevant information about mediators empanelled
with them, such as their areas of expertise and years of experience, to enhance public
confidence and involvement. All information should be made easily available in vernacular
languages to make it widely accessible. This could be done through information manuals
which are available for free distribution in all court premises.

iv. Role of lawyers

Given the fiduciary relationship between lawyers and their clients, it is important to sensitise
lawyers about the process of mediation so that they may, in turn, advise their clients to
mediate disputes whenever suitable. Without awareness and acceptance of mediation among
lawyers, parties are unlikely to acknowledge the feasibility of mediating their disputes. It may
be useful to consider some mandate for lawyers to recommend mediation as the first possible
recourse for dispute resolution, especially in cases which reflect high rates of settlement (such
as matrimonial disputes). Additionally, greater emphasis should be placed on educating and
training law students about the process of mediation and its advantages. Minimal training in
ADR mechanisms could also be made a prerequisite to practise law in India. For existing
lawyers, an annual sensitisation workshop could be implemented as a bar council obligation.

2. Mediation as a profession
Professionally trained mediators, lawyers and non-lawyers, who can devote their time and
energies to the mediation centre full–time, are crucial to expand the operations at such
centres. At present, mediation works as a voluntary initiative undertaken by few members of

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the bar, and other individuals in the legal fraternity, for a nominal fee. To make the practice
of mediation more lucrative, offering greater remuneration for mediators is a must, especially
since unlike their counterparts in arbitration, they earn very nominal fees for their services.

The court-connected programmes should ensure that mediators are paid reasonable amounts
for their time and efforts, to ensure that they are committed to this cause in the long run.
While passionate volunteers have been beneficial in the initial phases, it is necessary to
professionalise mediation to further strengthen the mediation framework.

In addition to full-time mediators, it is also necessary to encourage the participation of

lawyers specialising in mediation matters. Given its non-adjudicatory format, there are stark
variations in the approach of lawyers towards mediation proceedings. Like arbitration, it is
important to have enough lawyers who are devoted to mediation work rather than litigation.
This would add to professionalising its practice and improving the quality of legal services
rendered to parties during mediation.

3. Financial support and management

Mediation centres require greater financial support. However, increased funding is not
enough per se; the mediation centres must have the autonomy to utilise the funds, subject to
accountability regarding the same. This autonomy should entail the freedom to draw up their
own budgets and seek funds from the state government annually. In addition to state
governments, the Union Government can also create a mechanism to support court-connected
mediation centres.

4. 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.

B. Legislative Reforms

These relate to the need for a statutory framework for the operation of mediation in India.

1. Referral judge

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Mediators and lawyers have expressed a need to codify the norms which must guide judges
when assessing the suitability of cases for mediation. These norms should prescribe types of
cases where referral to mediation should be mandatory and where it should be discretionary.

Further, it should specify that parties may, at any stage during the litigation, opt for mediation
to resolve their dispute and it must be the duty of the judge to make the parties aware of this
option. 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. Professional and 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).

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.

4. Enforcement of settlement and confidentiality

The major problem regarding enforcement of mediated settlements is the ambiguity regarding
the grounds for challenging such settlements. Therefore, legislation should stipulate precise
grounds for challenging mediated settlements by parties. Furthermore, regarding
confidentiality of proceedings, legislation must carve out precise exceptions wherein the
confidentiality requirement may be legally waived. Legislation should also prescribe punitive
action against the illegal violation of the confidentiality of mediation proceedings.

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 5. Training and accreditation of mediators
Mediators should be trained by competent trainers who have experience and expertise in this
field. The aforementioned national regulatory body may be tasked with recognising such
individual trainers or institutes, provided they satisfy certain requirements relating to the
quality and intensity of the training. The draft training manual prepared by the Mediation and
Conciliation Project Committee (“MCPC”) could be utilised to design a comprehensive
training framework for mediators. The training standards and governing framework should be
revised every two years to ensure updated training standards and international best practices.

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.

6. Encouraging the alternatives to court-ordered mediation

There are other modes of mediation, such as private mediation, community mediation and
pre-litigation mediation, which could prove to be equally effective in resolving disputes and
reducing the burden on the court systems. These are prevalent in India to some extent but are
presently not covered within any legal framework. These can supplement court connected
mediation in improving the use of ADR mechanisms in India.

i. Private mediation
Even as private mediations are being availed of by parties to settle high value commercial
and family disputes, parties in court referred mediation are referred exclusively to court-
connected centres, making India an outlier when compared with other jurisdictions. Well-
regulated and professionally conducted private mediation could, therefore, be explored as a
viable mediation option that could reduce the burden of some of the court-connected
mediation centres.

ii. Community mediation

Community mediations are a time-tested traditional mode of dispute resolution in India,
especially through the village or caste panchayat. The latter is not without its problems48 and

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panchayats have been known to perpetrate further injustice rather than resolve disputes49;
however, it may not be a good idea to discard community mediation altogether. Suitably
reworked and covered within a modern, liberal framework, private and community mediation
can present viable mediation options to people in India.

iii. Pre-litigation mediation

Although the Supreme Court has given some impetus to pre-litigation mediation in
matrimonial cases50, there exists no overarching framework for these services. This results in
a lack of uniformity across centres, with only some offering pre-litigation mediation services.
An institutionalised pre-litigation model can supplement the court-connected model.

CHAPTER XVII - CONCLUSION

Mediation is on the rise as an important form of ADR in administrative law. Although all
forms of administrative proceedings could potentially benefit from the positive influence of
mediation on the relationship between disputants (administrative authorities and private
actors), there seems to be an emphasis on the exploration of the possibilities of mediation in
those disputes that are not yet brought before administrative courts. Most legal systems that
are discussed in this book actually have growing policies to implement mediation, mediation
techniques, and communication skills within all processes that demand civil servants of
governmental agencies to interact with private parties. When public law decisions are at the
basis of the conflict, the structure and core aspects of administrative law will have an
important role in deciding whether mediation could have a role in resolving the dispute.

There are a number of reasons for doubting the potential positive effects of mediation in
administrative proceedings; the unequal relationship between administrative authorities and
private parties in legal issues and, in fact, the predominance of the rule of law, the principle
that governmental powers shall be applied consistently in a purpose-specific manner and to
the benefit of the general interest, the access to information that allows for transparency, for
public participation and will contribute to the accountability and legitimacy of the functioning
of the administration. Nonetheless, it seems important to recognize that mediation could also
be relevant in administrative court proceedings and that it is of eminent importance to remove
obstacles that would impede on that potential.

This means that the procedural rules should facilitate, accommodate, and allow for amicable
settlement of administrative law disputes by using mediation (techniques). Some relevant

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issues have come up in this chapter. First, it could be of some importance to inform parties of
mediation. Second, the procedural provisions could—if necessary—be amended in such a
way that administrative proceedings will be suspended for the time an amicable solution is
under serious negotiation. Third, when an agreement is concluded, it should be clear to
parties what legal effect such an agreement has on the pending administrative proceedings.
These are all procedural issues that need clarification in several legal systems.

Any expert in administrative law will agree that negotiating the rights and duties between
administrative authority and private actors is a challenging task when there is a discretionary
competence of the administrative authority. Even if there is room to negotiate, there are
numerous substantive criteria to be met. There is a risk that either administrative authorities
will allow more than what a private actor is entitled to according to law or that the private
actor agrees to receive less than the law would give. It is in that respect that we feel that any
legal system that allows mediation and negotiation in administrative law disputes to lead to
compromise will have to recognize that such a system would also benefit from a stable,
robust, and easily accessible system of judicial review and the same should be made
applicable in India taking cue from the jurisdiction like European Union and its nations as
well as the US.

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MR Krishna Murthi v. New India Assurance Co. Ltd 2019 SCC OnLine SC 315.................42
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The Consumer Protection Act, 2019 No. 35 of 2019 §37-38..................................................42
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