Mediation is a flexible dispute-resolution strategy. Worldwide, the two most important mediation principles are confidentiality and low-key. Regulators and politicians worldwide have grappled with the challenge of legislating a mostly informal process.[1]Despite several policy talks and parleys, regulation remains one of the most controversial and unsolved issues regarding mediation as a conflict resolution method.

When considering mediation regulation, one must consider the subject that has dominated ADR discussions, debates, and advances. Diversity-consistency problem. [2]

Regulators face the diversity-consistency challenge due to the constant conflict between consistency and diversity. Regulating mediation practice ensures stability and reliability, while flexibility and creativity ensure diversity. Diverse interests—customers, practitioners, service providers, and governments-drive diversity-consistency conflicts.[3]

Mediation consumers often appreciate adaptability, responsiveness, quality, and accountability.[4] However, regulators often introduce mediation clearance criteria and transparency requirements to safeguard consumers from unethical practitioners. This protects customers from shady businesses. While too much regulation and rule consistency may stifle innovation, and a completely unregulated system may harm uninformed customers.

Openness and approval standards are necessary to protect clients from unethical and potentially harmful acts. However, strict transparency rules may weaken the mediating process's secrecy and challenge the approach's efficacy. Thus, regulatory models must balance diversity and uniformity and instil these opposing ideals. Regulators must standardise some aspects of mediation while retaining its flexibility and creativity to create the ideal mediation environment. Mediation must be standardised for this.[5]

Mediation regulation may take many forms, and policymakers worldwide have adopted laws, rules, and norms to oversee the process. Because mediation is pliable and adaptive, there is no "one size fits all" approach to mediation regulation, and any legislation should be created in light of the country's socioeconomic backdrop. This is a viewpoint. Because of this, numerous nations have regulated mediation differently. Globally, there are four main types of mediation regulation. Market-contract regulation, self-regulation, formal regulatory frameworks, and formal legislative regulation. In this part, we examine all four alternatives and explain why the third strategy—establishing a formal legal framework is ideal for controlling the mediation process in India.

Self-Regulatory Approach
In contrast to the market approach, which centres primarily on the individual autonomy of the parties, the self-regulatory approach refers to community and industry-based initiatives that regulate the mediating process by embracing collaboration and innovation. This approach contrasts with the market approach, which centres primarily on the individual autonomy of the parties. Several self-regulation techniques incorporate both reflexive and responsive conceptions of regulation. Self-regulation can take many various forms. The responsive theory aims to foster cooperation between the regulated group and the government that oversees them.

The term "reflexion" alludes to "responsiveness," which highlights opportunities for individuals to become involved in identifying problems and developing their solutions. Codes, standards, benchmarks, and other similar instruments can be produced by commercial organisations, public organisations, or a mix of the two as part of the process of self-regulation.

Dispute resolution groups, private training institutes, chambers of business, and professional associations of attorneys, counsellors, and professionals in other fields are all examples of private entities. This method routinely involves public bodies such as government agencies, legislative bodies, courts, tribunals, publicly sponsored dispute resolution centres, and public education and training institutions in establishing approval and practice standards for mediators.

The self-regulation technique has been effectively applied in several countries, and the Australian National Mediator Accreditation System is recognised as a prominent example of self-regulation on an industrial basis.

The approval and practise standards, precedents, and model clauses utilised in the mediating process in Australia all play an important role as integral mechanisms of self-regulation. National Mediator Standards Body (NMSB) is an organisation established by the Australian National Mediator Accreditation System. NMSB is responsible for implementing the National Mediator Accreditation System (NMAS) and aids in setting assessment standards, both of which mediators who want to be accredited to the national standard must comply with. The practice of civil mediation in France is generally governed by the self-regulatory codes of conduct, accreditation criteria, and other norms established by industry associations and organisations specialising in mediation.

In the Netherlands, the requirements for mediators defined by the Netherlands Mediation Institute (also known as the "NMI") essentially serve as national benchmarks for resolving conflicts. Accreditation and individual certification of mediators are two ways the National Mediation Institute (NMI) offers an independent quality assurance system.

In a similar vein, the Civil Mediation Council, sometimes abbreviated as CMC, is the organisation that has been tasked with developing a nationwide pilot accreditation scheme for mediators in England. It has also been emphasised in a variety of other countries that such industry-driven self-regulatory methods to mediation standards are very desirable.[6]

Instruments of self-regulation include formulating model mediation agreements by organisations that support that industry. These instruments also encompass co-mediation, which utilises two mediators rather than one, and mediation client surveys.

When deciding whether or not mediation clauses are enforceable, the courts in Australia have frequently looked to such self-regulatory devices as a source of authority.[7] A different type of self-regulation that is becoming increasingly prevalent is represented by public and private sector commitments to first look to non-conventional methods of conflict resolution, such as mediation, before pursuing legal action.

These pledges highlight the institution's commitment to alternative dispute resolution techniques and provide the procedure to be followed when resolving disputes involving the signatory entity. In addition, these pledges typically provide the procedure to be followed when resolving disputes.[8]

The International Trademark Association (INTA) ADR promise, the CPR ADR Pledge, and the Individual and Corporate Commitments of the Mediation First Communities in Hong Kong are notable examples of such pledges. The UK Government Pledge 2001 was also an important step in this direction.[9]

Self-regulation poses several potential problems, the most significant of which are related to the availability of resources, both in terms of competence and financial support.

The self-regulatory strategy requires consistent input from important interest groups and subject matter specialists to work at its highest potential. The self-regulatory paradigm starts to lose its effectiveness and fall apart when industry and expert participation levels begin to decline. In addition, models of self-regulation are prone to excessive and monopolistic control by certain persons or groups that are not reflective of the interests of the wider economic spectrum.

This is a problem since self-regulatory models are used to regulate themselves. As a result, continued input from the sector and experts is necessary to ensure that the self-regulatory model functions at its highest potential. It is important to note that there is a severe shortage of knowledgeable and experienced professionals specialising in the field of mediation in India.[10]

Furthermore, the use of mediation as a method of alternative dispute resolution (ADR) is still in its early stages of development and has not yet gained widespread favour in India. Self-regulation would not be appropriate given the absence of a mediation community that operates at full capacity and the necessary level of industry competence. Protecting such persons from potentially exploitative behaviour by unethical mediation practitioners is vital since many Indian residents are unaware of their legal rights.

Additionally, it is essential to protect such individuals from their legal rights. Therefore, implementing a self-regulatory model under these kinds of settings might result in a select few people asserting their economic supremacy over the rest of the market. As a result, adopting a self-regulatory model in India would not be possible under any circumstances.

Formal Legislative Regulation
The formal legislative approach forms part of a formal regulatory approach discussed in Part C; however, this relies primarily upon formal legislative enactments, which are supported by legal institutions, such as the executive and the judiciary, to regulate the mediating process.[11] The formal legislative approach focuses upon the positive notions of law and aligns with the concept of an active state.

The presence of a formal legislative enactment about mediation would represent a strong endorsement of the mediating process by the state and result in recognition of mediation as a legitimate alternative dispute resolution mechanism. The State helps incorporate well-defined legal norms and policies into the regulatory process. The involvement of the State in most aspects of the mediation process is identified as a defining characteristic of the formal legislative approach in certain jurisdictions, such as France.[12]

Formal legislative enactments also help set goals of practice consistency, establish certainty on legal issues regarding the mediating process, and provide consumer protection. For instance, prior to the introduction of the Uniform Mediation Act ('UMA') in the United States of America, the mediating process was regulated in an inconsistent manner which led to considerable uncertainty and confusion. The UMA helped provide a uniform process and ensured that the integral tenets of mediation, such as evidentiary privilege and confidentiality, were accorded the same degree of protection nationwide.

In recent times, several developing countries have preferred a centralised and formal legislative enactment over other forms of regulation in order to govern mediation. This is because transitional democracies, eager to attract investment and enter into multilateral economic agreements, are compelled to demonstrate that their legal systems are democratic and friendly towards alternate dispute resolution techniques. International institutions and corporations are more likely to recognise formal legislative enactments as a clear indication of the Government's will over other informal regulation methods.

Moreover, formal legislative enactments help institutions and individuals unfamiliar with the localised legal scheme of a particular country identify the dispute resolution process. Accordingly, several developing countries, including Austria, Croatia, Montenegro, Serbia, Slovakia, Bosnia and Herzegovina, and Malta, have adopted the formal legislative and regulatory approach.[13]

Sector-specific legislation, which is tailor-made for a particular sector or industry, has been utilised extensively in other common law countries such as Australia, the United States, and England.[14] For instance, in England and Wales, mediation accreditation is done on a sector-specific basis to cater to the requirements of the individual sectors. India can explore the prospects of having similar sector-specific mediation legislation. While certain legislations, such as the Industrial Disputes Act and Companies Act, make a passing reference to mediation, no statutes that attempt to regulate mediation proceedings exist.

However, on the other hand, implementing excessively rigid legislative mechanisms may be counterproductive and result in stifling growth and innovation in mediation. Furthermore, the implementation of statutory regulations may, under certain circumstances, dilute the core ideals of the mediating process, such as party autonomy and confidentiality. Therefore, legislators must ensure that the legislation is not antithetical to the core values of mediation, which include party autonomy, confidentiality, and innovation. Accordingly, it is necessary that the legislative mechanism balances innovation with consistency and ensures that the central tenets of mediation practice are not undermined for uniformity.

Conclusion
Self-regulation is thought to have a wide variety of beneficial effects. Participants in the regulatory process are professionals who have an in-depth and nuanced understanding of the particular requirements and interests of the community they mediate between. In addition, the self-regulatory paradigm encourages innovation and is far more flexible and adaptive than traditional regulation. This is because people of the sector themselves participate in the decision-making process and contribute to advancing various principles.

A significant portion of the costs incurred is reabsorbed by the industry itself when self-regulatory models are used to regulate the mediation industry. This is because mediation experts and practitioners play a key role in mediation regulation when self-regulatory models are used. In addition, self-regulatory models have been associated with lower information collection costs, supervision, and enforcement.

The formal legislative approach remains India's most ideal and suitable regulatory approach. Introducing uniform national legislation regulating the mediating process would help establish consistency by resolving the disparities in the interpretation and phraseologies of the multiple Mediation Rules framed by different High Courts. Additionally, the introduction of a formal legislative enactment in India would legitimise the mediating process and, in addition, would help demonstrate the country's continued commitment towards nurturing alternative forms of dispute resolution. Accordingly, the formal legislative approach is ideal for India and is suitable for implementation in Indian conditions.

End-Notes:

1. The United Nations Commission on International Trade Law [UNCITRAL], Working Group on Conciliation, Report of the Working Group on Arbitration on the Work of its Thirty-Fifth Session, U.N. Doc. A/CN.9/506 (November 19-30, 2001); International Arbitration Conference: Mediation, Arbitration and Recent Developments, November 21, 2008, Liberalisation or Legalisation? (Nov. 21, 2008)
2. NADJA ALEXANDER, INTERNATIONAL AND COMPARATIVE MEDIATION: LEGAL PERSPECTIVES, Vol.4 75(1st ed., 2009); T. Altobelli, New South Wales ADR Legislation: The Need for Greater Consistency and Co- ordination 8 AUSTRALIAN DISPUTE RESOLUTION J. 20.
3. Institutionalization (co-option of mediation into court programs, government agencies and business and community organizations), legalization (case law on aspects of mediation), and innovation (experimentation with a number of different mediation models) have all been identified as major trends that have influenced mediation practice across the world.
4. Nadja Alexander, Mediation and the Art of Regulation, 2 QUT. L. J. 8(2008).
5. T Altobelli, New South Wales ADR Legislation: The Need for Greater Consistency and Co-ordination 6 AUSTRALIAN DISPUTE RESOLUTION JOURNAL 20 (1997).
6. For example, the United States of America, where the Texas Credentialing Association, which is an industry initiative, aims to cover all mediation credentialing in the state and Germany, where the Federal Ministry of Justice has indicated the desirability of such industry-driven regulatory approaches.
7. See, e.g., European Consumer Law Group, Soft Law and the Consumer Interest (2001) European Commission, available at www.ec.europa.eu/consumers/policy/eclg/rep03_en.pdf (Last visited on 30 October 2022); see also H Ballin, Director-General Administration of Justice and Law Enforcement (2007) as found in Nadja, supra note 144 (the Dutch Minster of Justice in his letter to the House of Representatives expressed his reluctance towards regulating mediation); see CEDR, Proposed Mediation Directive Adopted by European Commission (2004), available at www.cedr.com (Last visited on 30 October 2022) (the European Commission has advocated self-regulation of mediation).
8. AMERICAN ARBITRATION ASSOCIATION, ADR & THE LAW, 140 (22nd ed., 2008).
9. Department for Constitutional Affairs, Effectiveness of the Pledge available at www.justice.gov.uk (Last visited on 30 October 2022).
10. Greg Bond, Talking Mediation in India, KLUWER ARBITRATION BLOG, January 24, 2017, available at http://kluwermediationblog.com/2017/01/24/lex-infinitum-talking-mediation-in-india/ (Last visited on 30 October 2022); Laila Ollapally & G Aparna, Mediation an omission in the ADR Legislation, BAR & BENCH, available at http://barandbench.com/mediation-an-omission-in-the-adr-legislation/ (Last visited on 30 October 2022)
11. Stanley B. Lulman, Dispute resolution in China after Deng Xiaoping: Mao and Mediation Revisited, 11 COLUM. J. ASIAN L. 229 (1997).
12. J-P Bonafé-Schmitt, Global Trends in Mediation: Training and Accreditation in France, 11 ADR Bulletin 47 (2009) (translation by D Macfarlane).
13. Ales Zalar, Towards Primary Dispute Resolution Systems: Global Trends in Civil and Family Mediation: An Overview of Best Practice in Europe (2006).
14. Laurence Boulle, Mediation: Principles Process Practice 284-285 (2005).

Written By: Radhakrishnan H - Symbiosis Law School, Pune
Email: [email protected]