Mediation

Mohit Mokal on Mediator Ethics in India

Reading Time: 12 minutes

Introduction 

In India, in the absence of legislation presents an opportunity to consider and address thoroughly the regulation of the Mediation profession in India. The Advocates Act[1]regulates the profession of lawyers in India, however even that needs some amendments as recommended in the Law Commission report 266[2]and 184[3]which yet have to be implemented. The Arbitration and Conciliation Act[4]governs conduct of Arbitrators and the how to Arbitrate procedures. Part 3 of the Act, governs rules regarding Conciliation, which is read simultaneously with Mediation. However even Conciliation is regarded as a highly evaluative process where the Conciliator helps parties settle based on some legal principles by analyzing the submissions made before the Conciliator. Hence even the Act fails to account for fair and rational mediation principles.

There is a wide array of subjects on which there needs to be a central legislation. In my paper I will try and cover issues relating to the role of the Mediator, in terms of neutrality, conflict of interests, and confidentiality. Including also the need for a central standard method of training and certification of mediators, and finally the matter of fees and advertisement of mediators. I will try to explain the need and the utility of such regulations while mentioning what must be included in as such.

I will also discuss the different perspectives and give my opinions on the conflict between Evaluative and Facilitative styles of mediation, along will the discussion between the right of Confidentiality in mediation and its limits.

I have taken a basis of reference from the Mediators Institute of Ireland[5], and the Singapore International Mediation Institute[6]as they present exhaustive legislation and regulation keeping in mind the developing debates in the Mediation industry. At the heart of the Mediation process itself, is the interests of the parties and hence even regulation is framed as such to be as party oriented as possible.

Part – I

This section of the paper will focus on centralization and regulation by a single authority.

The primary step would be to establish a central authority (The Institute) to regulate the mediator profession. Without putting unreasonable restrictions on how Mediators conduct their processes, this authority must be responsible to safe guard the rights of both Mediators and parties from being abused in the process of mediation.

In Ireland this organisation is regarded as the Mediators Institute of Ireland, and in Singapore the Singapore International Mediators Institute.

The Institute may work on a membership based system, to help centralize and keep updated basic standards of practice across all mediators. This Institute could either have its own code of ethics or can adopt one provided by legislation.

At the beginning, the institute needs to certify mediators based on different levels of skill and experience, for example Level 1, 2, 3 and so on. Mediators must be provided with basic skills, at the basic level and gradually with advanced and specialised courses be allowed to graduate levels based on varying skills. From time to time, say a period of one year mediators should under go a refresher course if they have not participated in any in the past 12-18 months. This will help create a minimum standardized quality requirement and ensure mediators and trainers are both up to date with the modern standards of practice.

There must be certain minimum requirements for practicing professional mediators. These requirements may include, a basic certification from the institute, that would ensure the mediators have received standardized training and have verified their skill and competence from other professional mediators. This would also mean that the certified mediators have passed the appropriate minimum requirements tests with reasonably competence. Apart from this, in many jurisdictions including parts of Europe, and America, Mediators are required to have Professional Indemnity Insurance, in case they are claimed by clients for any potential breaches of confidentiality or any other conditions the mediator is bound by.

The Institute, must provide for a primary disciplinary hearing process where some other competent people not from the institute and others from it are sitting to hear and check for any alleged breach of ethics and code of conduct. They must check and adjudicate upon any breaches of confidentiality or other alleged violations of ethics by the Mediator. This will help regulate the conduct of the mediators, and would provide for an internal grievance redressal of clients before they must raise their claims in court, while maintaing as much confidentiality as possible and helping clients resolve any further disputes.

The institute must maintain, a detailed record of all its current practicing mediators who are members and are affiliated or certified with the institute. This list must preferably be online on the website, which can be easily accessed by potential clients or anyone else. The list must include details such as the experience of the mediator, any specializations, the level of qualification, and an average fee that the mediator might charge for any particular kind of dispute.

The institute must maintain as policy that every client and mediator, must sign into a mediation agreement that would ensure everyone is bound by a set guideline of procedure and process, which clearly demarcates the rights of both parties and mediators. This Mediation Agreement or Agreement to Mediate as commonly referred, must include points relating to protection of confidentiality of all persons in the mediation, including any trainee mediators sitting in for experience. It must clarify there exists no conflict of interest between the mediator and either of the parties, and the subject matter of the mediation. It must mention the current fee arrangement for the mediation, and who is responsible to pay for the same. Finally, it must clearly explain that the mediator cannot be called to court as a witness and shall not be bound to disclose anything confidential except as permitted by law. This Agreement to Mediate, although can be entered into orally, should be preferred to be in writing and signed by all parties and the mediator(s) before hand. Either way, it is the duty of the mediator to explain such contents of the agreement to mediate to the parties before the commencement of the proceedings.

The fees of the mediation must take into account and disclose in full, the amount being charged by the mediator for his fee, any other related costs, including the accommodation for example the hiring of a conference room or hotels for the conduct of mediations and other costs related to that. The fees of the mediator must take into account the experience and expertise of the mediator, the duration of the proceedings based on an hourly / daily / weekly basis, or a fixed minimum fee. However, the fees of the mediator must not vary according to the outcome of the mediation, whether it reaches settlement or not. The mediator’s financial interest must not be conflicted with the outcome of the mediation by any means. There must be strictly no bias in the minds of the parties that the mediator is effected by the outcome of the mediation process.

The institute must ensure, that the mediators who advertise their services are bound by some basic rules and principles. Any advertisement or promotion of mediators must be entirely truthful and could include the education, expertise, and the basis on which mediators charge their fees. However successful, no mediator must be allowed to make a promise of settlement to any potential clients, or be allowed to guarantee a settlement if the parties choose the mediator. This inducement as a promise of settlement, may adversely affect the parties conduct, their relationship with the mediator, and the outcome of the proceedings as a whole.

Any kind of record keeping for the mediations must ensure the confidentiality of the parties. The Institute, may provide regulations or at least a non binding standard with respect to how long the notes of the mediation can be kept with the institute or the parties. However, this must be ensured to be within the scope of current regulations on data privacy and freedom of information laws.

Part – II

In this section of the paper I shall discuss the debate regarding the balance of confidentiality rights of the parties and the mediators.

Firstly, to explain how confidentiality would operate in context of mediations, it is a clause in the agreement to mediate that operates regardless of whether there is a law providing for the confidentiality of the mediation process. By agreeing to the confidentiality clause, all parties, mediator(s) and trainee mediator(s),  and experts / advisors part of the proceedings will be bound by confidentiality, which prevents them from disclosing any part of the discussions of the mediations, any offers, admissions or concessions made by the parties during the mediation, the details of its outcome and other necessary details including the identity of the parties unless it fulfills the criteria providing for exceptions to this rule.

The rule of confidentiality would by default apply to everything in the mediation proceedings, except if it’s disclosure is provided for as an exception to the rule, or by express consent of the parties regarding the specific information sought to be disclosed.

For purposes for official recordkeeping only some parts must be disclosed. That may include, the length / duration of the mediation purposes, which may be required for the calculation of costs / fees and whether or not the parties were able to reach a settlement in the dispute. There must not be permitted any type of recording, in terms of audio / video, or even direct transcribing of the contents of the mediation discussions.

Mediators must make themselves aware, and prepare in advance, depending upon the jurisdiction they are practicing in, to learn about the relevant laws and regulations that allow for disclosure of confidentiality by law. Knowing there may be varying arguments relating to the exceptions depending on the jurisdiction, some things to keep in mind during these discussions must be situations of any risk of harm or damage to any person or their property which may be a crime in the particular state, any risk of self harm or abuse to any other person, including children, elders and women who might be in a position of disproportionate power in terms of family mediations, and any other general welfare issues which might be provided for under law. Apart from this general rule, confidentiality may be waived by either party when they bring a claim against the mediator or challenge the settlement agreement by creating doubt regarding the process. In these cases, to defend the claim against the mediator or the process, only those parts of the confidential information may be disclosed, which are necessary to defend such claim and justify any allegation made. Parties may also agree while reaching a settlement, upon what parts of the settlement must be disclosed for enforceability of the settlement agreement, and what parts must be kept confidential. Exceptional settlement agreements may also include the specific grounds under which the confidential information may be disclosed, by the consent of the parties signing the settlement agreement.

Note, as a general principle of law any information which is already available in the public domain shall not be treated as confidential even if used during the mediation process.

In circumstances where parties refuse to respect the process of mediation, and refuse to participate in good faith, by withholding information, or not attending the mediation sessions which are agreed upon in advance, the mediator might breach confidentiality to the extent of reporting any such actions which violate the sanctity of the process and helps parties take undue advantage of the confidentiality as provided for during mediations. Parties may be instructed in advance to swear on any Statutory Declaration or Oath which may be used in any kind of appeal or challenge to the settlement, to enter into the process in good faith and submit all information truthfully to their best knowledge. This may be of particular importance in cases involving separation of property type of disputes, so that parties can make well informed decisions based on true information and that the settlement may have fewer chances of being challenged based on submission of false information.

Apart from the abovementioned exceptions, there maybe some situations where the confidential information may be used. If the information is sufficiently anonymized so as to the identification of the parties is not possible, or while withholding specific information the confidentiality can be protected and yet some information may be disclosed, specifically for any educational or research purposes, or for record keeping and auditing and verification processes, such disclosures may be permitted.

There is no hard and fast rule regarding confidentiality, however keeping the abovementioned principals in mind some regulation and rules can and must be framed to regulate confidentiality in mediation proceedings.

Part – III

In this section of the paper I shall address the Evaluative and Facilitative type of mediation proceedings, and briefly mention the third type of Transformative approach to mediation.  Although there can be no one singular rule regarding what type of approach to use in a mediation, it might be of help to understand circumstances in which these different approaches might be helpful or not.

The Evaluative approach of mediation, focuses on the type of approach as provided for under Chapter 3 governing Conciliation under the Arbitration and Conciliation Act of India. Used by more traditional types of Mediators, especially in the Indian context, having most practicing mediators being retired or practicing judges of courts, or practicing advocates, they seem to take a very rights based approach and attribute the dispute to the boundaries of right and wrong, try to not very strictly adjudicate the dispute, based on the submissions made by the parties. Evaluative mediators end up usually making inquiries from the parties related to information they find more relevant for the purposes of the discussion and end up analyzing facts and legal rights of parties. Evaluative mediators are often engaged in even devising solutions and offering solutions based on their perspectives, which might even influence parties with regard to what might be in their interests and what might not. While respecting the rules of confidentiality, mediators might yet influence the autonomy of the parties while making their suggestions and hence in my opinion will end up violating one of the pillars of mediation; party autonomy. The voluntary nature of mediation is what provides parties the abilities to have a discussion and reach a settlement that is in their best interests and addresses their needs. More often than not, parties may challenge a settlement agreement they have arrived at as being recommended or worse imposed by the mediator if they feel it doesn’t meet their interests in the long term.

On the other hand, Facilitative mediation is when the mediator refrains from acting as a judge or an arbitrator and is only present as a neutral authority responsible for breaking impasses during the discussions and help facilitate the discussion so that the parties can reach a mutually agreeable solution on their own terms. Facilitative mediators try to act in the most neutral manner as possible, and refrain from sharing their own personal views on any matter during the mediation which might bias the mediation in favor of any party. Facilitative mediators diffuse heated adversarial positions taken by parties, not by telling anyone who is right and who is wrong, but rather by reframing, and helping each other understand the other’s perspective. There are many skills which may help mediators play this kind of role rather than resort to being an adversarial type of judge. Facilitative type of mediation ensures party autonomy and helps parties reach a solution in their best interests, themselves. This will help uphold the neutrality of the mediator and will ensure that parties act in their own best interests, and so they may have fewer reasons to challenge the settlement arrived at in the future.

There are times when parties are competent and well prepared to enter into fruitful negotiations and all the mediator needs to do is be facilitative and guide the process. There may also be times where parties come from unequal bargaining powers and are ill-informed of their rights and may be coerced by other parties into reaching a settlement not in their own best interests. Mediators may need to be evaluative in those cases to protect the rights of either party or ensure the settlement agreed upon is good in law.

Hence due to the varying circumstances in which parties may come to the mediation table, it must be decided on a case to case basis which kind of process may be more beneficial.

In the Singapore International Mediation Institute, code of conduct and rules of ethics briefly summarizes their position on the extent of evaluation during a mediation, which I tend to agree with personally. “With the consent of all parties, SIMI Mediators should draw on their

expertise and experience to assist the parties in developing sustainable settlements during the mediation. However, SIMI Mediators should rigorously guard against prescribing solutions or offering any statement, suggestion, or value judgment which may create an undue influence on any one party towards accepting a specific outcome.”[7]

Evaluation may be required to address some kind of imbalance in the procedure, however it must be balanced with the right of party autonomy which is a central pillar of mediation, that separates the process of mediation from other adversarial types of disputes.

A third type of approach might also be possible, one which is referred to as the Transformative approach to mediation. One which is sought to focus on transforming the relationship between the parties, rather than the actual outcome of the mediation. This approach may be more appropriate in cases of resolving family disputes or cases in which parties share a personal relationship which is more at risk and may matter more to parties rather than the outcome of the dispute. Note this may also be relevant in terms of parties sharing commercial relationships and is also something to be used depending upon a case to case basis.

Conclusion

Without the necessary regulation there is much scope for misinformation and parallel types of mediations which might permanently influence many people into disbelieving in the process of mediation.  In India as of now, Mediation is a form of dispute resolution which may help people take control of their own futures, helping people become more responsible and independent. Mediation is a process which can affect the well being of many people, and more importantly help people resolve their own disputes, with a little help if they are unable to do so themselves. It avoids people from getting tangled into the labyrinth of legal processes and cause an unnecessary piling of cases which could be resolved, faster, with more accuracy and efficiency helping people get what they need.

In summary of my points made above, I hope that as a country India can develop soon in the field of dispute resolution and become a capital like Singapore in Asia in helping people resolve their disputes by non adversarial means. India must create a central authority regulating the conduct of mediation proceedings, providing for centralized minimum standards of training and education to monitor and control the quality of mediators. It must help parties find the best available mediator for their dispute and clearly help them understand their rights and obligations to make best use of the mediation process.

By having some dialogue and discussion regarding the role of the mediator, there can be some consistency in the process and help even parties and mediators understand what is expected out of them.

There are yet other perspectives to the process of Mediation that I have not discussed and touched upon in my paper, and this paper should not be thought of as a conclusive overview of Mediation, but rather a well thought out discussion about some specific points I find relevant and most important with the current need of the hour in context of Mediation regulation in India.

[1]http://www.barcouncilofindia.org/wp-content/uploads/2010/05/Advocates-Act1961.pdf

[2]http://lawcommissionofindia.nic.in/reports/Report266.pdf

[3]http://lawcommissionofindia.nic.in/reports/184threport-parti.pdf

[4]https://www.wipo.int/edocs/lexdocs/laws/en/in/in063en.pdf

[5]http://www.themii.ie/code-of-ethics-and-practice

[6]http://www.simi.org.sg/Portals/0/Code%20of%20Conduct/SIMI%20Code%20Of%20Professional%20Conduct%20%5BJAN%202017%5D.pdf

[7]Clause 5.10, Singapore International Mediation Institute (SIMI)

Code of Professional Conduct for SIMI Mediators.

http://www.simi.org.sg/Portals/0/Code%20of%20Conduct/SIMI%20Code%20Of%20Professional%20Conduct%20%5BJAN%202017%5D.pdf

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