15

MEDIATION IS HERE TO STAY!

Anil Xavier*
The article gives an overview of various dispute resolution processes
emphasizing the advantage and benefits of mediation as the only method
which empowers people to take control of their own lives and find creative
solutions that work for them. The article also looks at the various techniques
of mediation. It further moves on to see the history and present scenario of
mediation in India and looks at how mediation can contribute in bringing in
social harmony and communal harmony and thereby create a loving and
caring world.

I. CONFLICTS & DISPUTES

Conflict is a part of life. Everyone has differing points of view and we all need
to figure out how to live with each other. No matter how trivial the conflict, it
causes serious stress for everyone involved. Many of us get into situations
that are not as easy to get out of as they were to get into. These range
from family clashes that seem simple to solve to full-blown legal issues.
No matter how we feel, think or believe, there is unity in our diversity. Finding
that one thing we all have in common is the first step to solving any problem.
No matter how far apart we are in our feelings, thinking or beliefs, finding that
common ground would enable us to come together and find a solution that we
all can live with.

*Anil Xavier is a lawyer, practicing primarily at the High Court of Kerala. He is an IMI Certified

Mediator and also a Member of the Independent Standards Commission of the International
Mediation Institute at The Hague. He is a Charter Member and currently the President of the Indian
Institute of Arbitration & Mediation. Xavier is also a Senior Fellow of the Dispute Resolution
Institute of the Hamline University School of Law, USA. He is also the Secretary General of the
Mediators’ Council of India. He can be reached at anilxavier@arbitrationindia.com.
364 Ô Indian Yearbook of International Law and Policy (2009)

People with problems, suffers from mental trauma and obviously yearns relief
as quickly as possible preferably in an inexpensive way.
Most people imagine a dramatic courtroom battle when they think of resolving
legal issues. What they may not realize is that court is not always the best
place to settle a dispute between private parties. Former US Supreme Court
Chief Justice Warren Burger has said, “The notion that ordinary people want
black-robed judges, well dressed lawyers and fine courtrooms as settings
to resolve their disputes is incorrect. People with problems, like people
with pain, want relief, and they want it as quickly and inexpensively as
possible.”1
In the past, parties in dispute often felt they had no choice but to take the
matter to court. Now, a growing number of people are choosing another option
that allows them to avoid the aggravation and expense of a lawsuit. People
have started to realize that court is not always the best place to settle their
disputes. They are looking at an option to find workable solutions by sitting
down and talking face to face. The option is MEDIATION!

II. BEHIND DISPUTE RESOLUTION

Behind almost every human conflict someone feels dismissed, discounted,
disenfranchised or disrespected. Unresolved tensions that may have simmered
below the surface can resurface and make situations difficult. Even if angry
words are not spoken, an appearance of “peace” may not be truly peaceful at
all. Underneath the still waters, there may be a turbulent bed of
emotions. Mediation seeks to help parties find an authentic peace. Case
adjudication or dispute settlement through conventional litigation system focus on
rights and remedies and resolve the case, but not the problem. Mediation
focuses on needs, empowerment, restructures perspectives or relationships and
seeks to resolve the underlying problem. Law is being utilized as a modality for
healing and helping, not only for resolving problems. In our experience, we have
seen that “an open mind and an extended hand will always work.”
Imagine sitting in a room in one of three chairs. A second chair is filled by
someone with whom you are in conflict. The third, by a person whose intention
is to provide an empathic structure for what is present in the room. That third
person creates a neutral space of openness, listens attentively and open-
heartedly to each person, acknowledges the universal feelings and needs they
are expressing, supports the growing connection between the two as
understanding emerges and develops, helps them open to new possibilities as
 Mediation is here to stay! Ô 365

they create solutions which take everyone’s needs into consideration. That third
person is the Mediator.

III. THE MEDIATOR

They are those who have been trained to work with people in these situations.
Mediators, as the name implies, mediate between two people or groups of
people and help them to reach a solution which works for everyone involved.
Through the confidential private meetings with the parties, the mediator is able
to understand the needs of the party and the mediator assists the parties to
arrive at a “win-win” situation with an agreement in which the solution to the
dispute is favorable to both parties and thus not only resolves the problem but
also strengthen the relationship among them by giving a more humane verdict.
“Blessed are the peacemakers: for they shall be called the children of
God”,2 the words may not be the same, but a similar philosophy exists in all
religions. Reconciliation, love and peace have enormous moral, spiritual and
ethical value.
Mahatma Gandhi has said, “My joy was boundless. I had learnt the true
practice of law. I had learnt to find out the better side of human nature
and to enter men’s hearts. I realized the true function of a lawyer was to
unite parties riven asunder. The lesson was so indelibly burnt into me that
a large part of my time during the 20 years of my practice as a lawyer
was occupied in bringing about private compromises of hundreds of cases.
I lost nothing thereby – not even money, certainly not my soul.”3

IV. WHAT IS MEDIATION?

Of all mankind’s adventures in search of peace and justice, mediation is among
the earliest. Long before law was established or courts were organized, or
judges had formulated principles of law, man had resorted to mediation for
resolving disputes.
Mediation is a process of dispute resolution in which one or more impartial third
parties intervenes in a conflict or dispute with the consent of the participants and
assists them in negotiating a consensual and informed agreement. It can also be
said as a confidential process of negotiations and discussions in which a “neutral”
third party or mediator assists in resolving a dispute between two or more parties.
Mediation presents the opportunity to express differences and improve
relationships and mutual understanding, whether or not an agreement is reached.
366 Ô Indian Yearbook of International Law and Policy (2009)

It is generally considered to be a non-adversarial approach to the resolution of

conflicts or disputes. The general role of the mediator is to facilitate
communication between the parties, assist them on focusing on the real issues
of dispute and to generate options that meet the respective parties’ interests or
needs in an effort to resolve the dispute.
The most important feature of Mediation is that it provides a solution that both
parties can live with, instead of a verdict imposed by a court. Both parties are
involved in suggesting possible solutions to the conflict.
Mediation is based on the voluntary cooperation and good faith participation of all
parties. The mediator cannot force the parties to resolve their differences. But the
mediator can help the parties reach a solution agreeable to both of them. If the
parties work out all or some of their differences, the resolution - or agreement - is
put in writing and signed by both the parties. Mediation may be able to plow
beneath the surface of frequently vexatious litigations by addressing the
underlying conflicts. The mediator acts as a bridge to iron the wrinkles of
differences affecting the parties.
Mediation differs from arbitration, in which the third party (arbitrator) acts much
like a judge in an out-of-court, less formal setting but does not actively
participate in the discussion. Unlike a judge or an arbitrator, a mediator does not
decide what is right or wrong or make suggestions about ways to resolve a
problem. A mediator seeks to help parties to develop a shared understanding of
the conflict and to work toward building a practical and lasting resolution.
Mediation serve to identify the disputed issues and to generate options that help
disputants reach a mutually-satisfactory resolution. It offers relatively flexible
processes; and any settlement reached should have the agreement of all parties.
This contrasts with litigation, which normally settles the dispute in favour of the
party with the strongest argument.
Mediation is different from counseling, therapy or advocacy. The mediator does
not take sides or push for any one solution. Mediators maintain a neutral role.
Mediation focuses on the future, not the past, and what will resolve the conflict.
Mediation does not replace the need for legal advice or counseling if your
“rights” in a situation are the concern.

V. WHY MEDIATION?
If you have given up on negotiating a settlement of your dispute directly with
the other party, mediation may be the best way to solve it. Compared to a
lawsuit, mediation is quick, private, fair, and inexpensive. And, if your dispute is
 Mediation is here to stay! Ô 367

with someone that you need to deal with in the future – such as an employer,
landlord, neighbour, business partner, or co-parent – mediation will help you
resolve your disagreement without destroying your relationship.
In a lawsuit, no matter whether you have won or lost, it is usually a loss.
Litigation is public. People lose their sense of privacy. It is slow, it is
overburdening. Mediation and other forms of conflict resolution empower people
to take control of their own lives and find creative solutions that work for them.
Further we avoid the economic disadvantage because we spend so much on
litigation.
Abraham Lincoln has said, “Discourage litigation. Persuade your
neighbours to compromise whenever you can… the nominal winner is often
the real loser in fees, in expenses and waste of time.”4

VI. ADVANTAGES OF MEDIATION

As mentioned earlier, in addition to the fact that it is voluntary, mediation is a
much less formal process than arbitration or litigation. Sessions are usually
scheduled at a time and location convenient to all parties. Because the parties
are directly responsible for developing the terms of an agreement, they are
more likely to keep the agreement. Participants in mediation reach agreements
about 80% of the time and keep those agreements about 90% of the time. Even
if a written agreement is not reached, parties may lay groundwork for future
agreements by opening lines of communication.
Advocates of mediation say that mediation can address each of these issues,
namely, diverting cases from court, building bridges between communities and
transforming society into a more tolerant, understanding people.
Another benefit is that mediations remain under wraps, whereas court cases are
usually in the public domain. The process is also far less intimidating than a
courtroom. Most often, the parties feel empowered by the process as they have
been directly involved in negotiating the outcomes.
The driving motivation behind mediation is to find a solution. Mediation need not
be viewed as a process by which the mediator helps people come to a
resolution. It could be viewed as a process by which the mediator helps people
go to the next step; whether it is clarifying a thought process, communicating
with another person, or simply organizing a person’s thinking. The mediator can
support and focus the party’s thinking.
368 Ô Indian Yearbook of International Law and Policy (2009)

VII. WHO CAN MAKE A GOOD MEDIATOR?

There is no simple answer to this question. There can be no one predictor of
success as a mediator. Successful mediators come from many different
backgrounds and have varied life experiences. A competent mediator is an
effective conflict manager. Competence depends partly on the type of the
dispute and the parties’ expectations. It also depends on whether the mediator
has the right mix of acquired skills, training, education, experience and natural
abilities to help resolve the specific dispute.
A good mediator will probably have many of the following qualities, Overall
“people” skills, good verbal and listening skills, ability to think “out of the box”,
helping people work together as a team, impartial, respect for the parties, the
ability to gain the parties’ confidence, knowledge of the mediation process,
bringing about a balanced approach to control of the process, initiative and the
confidence to use it, reflective, trustworthy, dependable, keeping information
confidential and the ability to remain calm under pressure.
I have often found that one of the core strengths of a mediator is to have a
sense of humour and the ability to use humour appropriately to lighten the tone
or refocus people away from a slide into some very unhelpful place. It is a skill
that parties appreciate but it is not necessarily one that they think of when they
look to appoint a mediator. Apart from the above qualities, knowledge on
mediation process, ethical standards and the code of conduct are some of the
important norms that a mediator should possess. Before we go further, I would
like to give one discussion of mediation in history shortly before world-war II.
“Far East: Mediation: It’s Wonderful5 The war between Thailand and
French Indo-China ended last week. The victor was Japan. Nobody had
asked Japan to mediate the quarrel, which had gone on intermittently in
the swampy jungles along the Mekong River since October, but
fortnight ago Tokyo offered its services. When the offer was not
immediately accepted, Japan became insistent, threatening. Nipponese
warlords insisted that, as “the most stabilizing power in the Far East,”
Japan alone had the right to settle Oriental differences. Under duress
Vichy, then Thailand, accepted.
Last week the stage was set for mediation, Nipponese style. The
Japanese cruiser Natori steamed into Saigon harbor. Off the southeast
Indo-Chinese coast appeared two Japanese aircraft carriers, two
cruisers and two torpedo boats. Planes from the carriers cruised low
over the city. At an appointed hour six French and six Thai delegates
 Mediation is here to stay! Ô 369

were taken aboard the Natori, where seven white-uniformed Japanese

officers headed by Chief of the Japanese Military Mission in Indo-China
Major General Raishiro Sumita received them with bows and toothy
smiles.
Tea was served; then the delegates prepared to mediate. Before either
Thailand or Indo-China could present a claim or grievance, Japan handed
both a bill for her services as mediator – to be paid in advance. She
demanded: a virtual monopoly over Indo-China’s production of rice,
rubber and coal; a free hand to exploit Indo-China’s natural resources;
military garrisons along the Chinese frontier; Japanese inspectors at all
Indo-Chinese customs houses; a naval base at strategic Camranh Bay
and defense concessions at Saigon; air bases throughout Indo-China.
From Thailand she demanded a naval base in the Gulf of Siam for a fleet
of 15 battleships, cruisers and auxiliary craft. Unless the terms were
accepted on the spot, it was intimated, naval units would go into action
and invasion of both countries would follow. The delegates signed.
Smiles returned to Japanese faces, tea cups were refilled and an
armistice creating a twelve-mile buffer zone between the Indo-Chinese
and Thai forces was quickly arranged. Peace talks were postponed for
a later meeting in Tokyo, when claims would be settled and peaceful
collaboration in the New Asiatic Order discussed.
The bows were deeper and smiles toothier as Japan’s mediators sent
the delegates ashore.”
Reading it now, many mediators may wonder, how this could ever happen. We
should understand that people are not born into this world knowing how to solve
conflicts. As we grew up we observed others: our parents, teachers, elders,
leaders etc. as to how they resolved conflicts. We copied them, imitated them
or tried to improve on them and we began to use different strategies out of the
different problem-solving methods we saw and copied. But when we were
faced with bigger issues, more complicated issues, we found nothing worked to
resolve the dispute. But we continued doing the best we could, having no idea
there could possibly be other methods that could have more peacefully and
successfully resolved our disputes. I firmly believe that to make mediation
effective and professional, appropriate training on mediation techniques should
be mandatory. If conflict resolution skills and mediation strategies are taught to
all people, humanity would be able to live in peace with themselves, each other,
and our environment.
370 Ô Indian Yearbook of International Law and Policy (2009)

Michael McIlwrath, Chairman of the International Mediation Institute at the

Hague has stated, “To emerge as a profession, mediation must be globally
understood and accepted; where competent mediators apply transparent
high standards, and are instinctively regarded as professionals regardless
of their background; where users see mediation as an opportunity and are
more inclined to accept than reject a proposal to engage a mediator;
where there are enough competent mediators from all cultures and
technical fields that the most suitable mediator can easily be identified.
The creation of IMI is an opportunity for mediation to leave behind its
status quo as a local niche activity and become a truly global profession.
But can the leading players drive the necessary changes to the current
environment to make it happen?”6

VIII. TECHNIQUES OF MEDIATION

A. FACILITATIVE STYLE OF MEDIATION
In a classic mediation, the mediator’s mission is purely facilitative. The mediator
does not give an opinion on the likely outcome at trial or legal issues, but only
seeks to help the parties find solutions to the underlying interests or problems
giving rise to the litigation. Generally, in this kind of mediation, the mediator’s
expertise in the process of mediation, rather than in the subject matter of the
litigation, is viewed as paramount. Some mediation professionals view facilitative
mediation as the preferred approach because the mediator preserves the
principle of complete impartiality by not giving an assessment or prediction of the
outcome of the case at trial. A facilitative mediator creates an environment in
which parties work together collaboratively as problem-solvers. The mediator uses
techniques that place full responsibility for resolving the dispute on the shoulders
of the participants.

B. EVALUATIVE STYLE OF MEDIATION

In the evaluative approach, the mediator is more likely to give a view of the
case. The mediator’s opinion – including, for example, a legal and/or factual
evaluation of the case, and sometimes an assessment of potential legal
outcomes – is used as a settlement tool. An evaluative mediator assists the
participants in breaking impasses by contributing her views of the merits of the
legal case, the consequences of failure to settle, and the benefits of particular
settlement proposals. For instances, if each side has strongly conflicting views
of the legal merits, the neutral might try to break the impasse by giving an
 Mediation is here to stay! Ô 371

evaluation of the merits of the dispute. By predicting the likely outcome in the
adjudicatory forum, the neutral gives the participants a basis against which to
assess the attractiveness of emerging options for settlement. If the case is not
settling, the neutral might suggest how failure would impact on the interests of
each party. If each side has strongly conflicting views of the benefits of a
particular settlement proposal, the neutral might give an assessment of how the
proposal benefits each side. The neutral might even present a proposal for
adoption by the participants. This approach generally requires mediators who
are experts in the subject matter of the case. Most evaluative mediators also
consider the interests of the parties in attempting to facilitate a settlement.
Many mediators blend facilitation and evaluation, applying each approach in
varying degrees at different times during the mediation process, depending on
the needs of a given case.
There is a third model, which is also popular, called the Transformative style. In
their 1994 publication, “The Promise of Mediation”,7 Robert A. Baruch Bush
and Joseph Folger explicitly outlined a framework for the practice of
transformative mediation. As stated earlier, problem-solving mediation is aimed
at resolving specific disputes between parties and coming up with a mutually
acceptable solution to the immediate, short-term problem. In problem-solving
mediation, the mediator normally plays a very active role in guiding the process.
Instead, Bush and Folger proposed that mediation can effect much deeper
changes in people and their interpersonal relationships, beyond just remedying a
short-term problem. They proposed a way of practicing mediation that seeks to
address deeper levels of social life. In the preface of their seminal work, they
stated that, “mediation’s greatest value lies in its potential not only to find
solutions to people’s problems but to change people themselves for the better, in
the very midst of conflict.” By employing a specific perspective on mediation
practice as well as specific techniques, they believe mediation possesses the
power to change how people behave not only toward their adversary in a
particular conflict, but also in their day-to-day lives thereafter. Mediation, in their
opinion, can transform individuals. For mediators who adhere to the framework
of transformative mediation, achieving this type of long-term change is more
important than solving a specific problem between parties.
Typically, settlement-oriented mediation is not considered successful unless a
settlement is reached. Transformative mediation, however, is successful if one
or both parties becomes empowered to better handle their own situation or the
parties better recognize the concerns and issues of the other side.
Transformative mediation is a relatively new concept, though many mediators
372 Ô Indian Yearbook of International Law and Policy (2009)

had been acting in this way for a long time, but did not have a name for their
style until Bush and Folger defined transformative mediation as a concept.
Because empowerment and recognition are phenomena that happen to people,
the transformative approach is usually thought to be useful in interpersonal
conflicts such as family conflicts, conflicts between neighbors, and conflicts
between co-workers.

IX. INDIAN PERSPECTIVE

A. HISTORY
Mediation is not something new to India. Centuries before the British arrived,
India had utilized a system called the Panchayat system, whereby respected
village elders assisted in resolving -community disputes. Such traditional
mediation continues to be utilized even today in villages. The mediator, an expert
in the process of dispute resolution, controls the proceedings, much like a tribal
chief serving in the role of peace-maker. But under the ancient methods if
mediation failed, the same person was authorized to render a binding decision.
Another dispute resolution pro-cess, lok adalat, has received more favorable
attention since its re-intro-duction in the 1980s. Originally, lok adalat was an
ancient method for dispute resolution used by tribal people. The Legal Services
Authority Act (1987) promoted the resurgence of lok adalat to provide litigants
with the -means to resolve their disputes early and affordably. The ancient
concept of settlement of dispute through mediation, negotiation or through
arbitral process known as “Peoples’ Court verdict” or decision of “Nyaya-
Panch” is conceptualized and institutionalized in the philosophy of Lok Adalat.
In essence, lok adalat may be compared to settlement con-ferences as they
are traditionally con-ducted in the United States, except that the neutrals in lok
adalat are senior members of the Bar.
Mediation is, in fact, the oldest and historically most effective way that societies
have resolved their differences outside of resorting to the courts or violence.
Today, it is has become the new buzzword in law.

B. PRESENT SCENARIO
According to recent statistics, in India, the judge population ratio is 12 - 13 judges
per million. This is the lowest in the world, as compared to 135 to 150 per 10 lakh
people in advanced countries. A study conducted by the Ministry of Finance
reveals that at the current rate it will take 324 years to dispose of the backlogs of
 Mediation is here to stay! Ô 373

cases in Indian courts. 8 “California’s population was almost touching 38

million. In India, that’s the number of cases pending in courts across the
country”9 – providing this peculiar comparison was none other than the Chief
Justice of India, Mr. Justice K G Balakrishnan.
The denial of justice through delay is the biggest mockery of law, but in India it
is not limited to mere mockery; the delay in fact kills the entire justice
dispensation system of the country. The legal system is simply not equipped to
handle the number of cases filed. It is often said that litigation is an unwelcome
houseguest that stays for years or decades together. This has led to instances
of people settling scores on their own, resulting in a growing number of criminal
syndicates and mob justice at least in some parts of the country reflecting the
frustration of the people and loss of confidence in the rule of law.
A recent study also concluded that 70 percent of the “winners” in litigation
were unhappy in the end. One can safely assume that close to 100 percent of
the “losers” in litigation were also unhappy. To make rule of law a reality, the
arrears will have to be reduced. Speedy justice is an assurance extended to a
citizen under the right to life guaranteed by the Constitution.
The present India faces corruption, dowry death, rape, thugs and dacoit, thefts,
unemployment problems like suicide, drugs which also leads to social insecurity
and anarchy. As per National Crime Record Beaureu, New Delhi the total crime
recorded in India in the year 2006 is 5102460 which forms 455.7 % of the total
IPC crimes recorded. These figures can form only a part of the reported cases.
In many places in India people are so uneducated that they are scared to call
for legal aid and so many fades away as unreported deaths/crimes. This is almost
3-4 times higher than the rates of crimes in Foreign Nations. The Prison Statistics
(2005) of the country shows alarming results of 358368 inmates against the
capacity of 246497 in 1328 prisons. Whether it is due to the lack of proper legal
system or social systems and customs prevailing, it is high time to find a solution
for it.

X. ROLE OF MEDIATION
The legal system rarely takes the psychological or emotional factors of either
party into account. Litigation is said to be cold, hard, and uncaring. Both parties
are instructed not to talk to each other and neither side gets to voice their
concerns. Mediation uses the psychological power of empathy to create mutual
understanding between parties to address concerns, promote emotional healing,
and preserve ongoing relationships.
374 Ô Indian Yearbook of International Law and Policy (2009)

The role of mediation is not confined to bring in social harmony but also
communal harmony. The development of a more proximate, indigenous
mediation mechanism will help to prevent deeply rooted conflicts from erupting
into communal violence. Mediation seeks to handle such situations more
effectively than the courts which end in a win for a section at the expense of
the other section. However in the case of mediation, it is a win-win situation
that is involved which benefits both sections. Here again, the aspect of peaceful
and amicable settlement of disputes becomes the best way to tackle such
sensitive and volatile issues affecting the people at large. Mediation also helps in
restorative justice through its variety approaches and restoring the offender in
community by giving correctional practice thereby giving everyone a second
chance. Sometimes victims of crime need answers and apologies more than
they need to know perpetrators are being punished; and sometimes offenders
need to find out just who they’ve hurt to realize what they’ve done is wrong.
There is no conflict without emotion. There can be no resolution of a conflict
without addressing the underlying emotions that gave rise to it and sustained it.
Matrimonial disputes can shake the entire social fabric of existing families. They
have such an effect upon the society and impact the whole society as such.
Such matrimonial disputes arise mainly out if minor differences which seeks
adjustment from husband and wife or even parents. These disputes when
coming to the court will assume such dangerous proportions that leads to an
adverse result. It is essential for the sustenance of a family which has been
declared by many international conventions as the basic fabric of the society. It
is here the role of mediation comes to the forefront. Through mediation such
minor differences are solved amicably even before attaining dangerous
proportions.
Through the confidential private meetings with the parties, the mediator is able
to understand the needs of the party and the mediator assists the parties to
arrive at a “win-win” situation and thus not only resolves the problem but also
strengthen the relationship among them. This avoids hostility within the
community and improves harmony. A conflict free environment makes the
community more focused, optimized and disciplined by setting up standards and
values and principles. Mediation helps to maintain peace and solidarity among
the members by facilitating settlements among conflicting parties.

XI. COMMUNITY MEDIATION

The roots of community mediation can be found in a community which is
concerned to find better ways to resolve conflicts, and efforts to improve the
 Mediation is here to stay! Ô 375

system. It gives people in conflict an opportunity to take responsibility for the

resolution of their dispute and control of the outcome.
But where do people go to get the problem resolved by mediation? The system
has to be authentic, legally acceptable and the mediators should be trained and
under ethical guidelines and review. Even though, presently there are court-
annexed mediation centres, they cater the requirements of litigants, whose cases
are pending before courts and referred to the centre. Where do people find
good mediators, who can assist the parties to settle the issue before it
aggravates to a litigation? Moreover the system should function as a vehicle to
create harmony in the society and promote legal compliance in general.
Community Mediation service should not be too late or too remote from the
community level to nip the budding emergence of conflicts. It is in this context
that the Indian Institute of Arbitration & Mediation (IIAM) thought of the
possibility of establishing Community Mediation Clinics as an inexpensive option.
The motto is; “Resolving conflicts; promoting harmony.”
IIAM Community Mediation Service will serve as a mechanism in bringing into
the consciousness of the society the effectiveness of grassroots-level
arrangements to bring forth harmony in community, providing a safe
environment for people to air grievances to reach a peaceful resolution.
Community mediation means neighbours helping neighbours to solve problems
and resolve disputes.
Setting up of Community Mediation Clinics in all villages of each state with a
view to mediate all disputes will bring about a profound change in the Indian
Legal system. Conflict management programs with the formation of such
centres will serve to defray tensions in societies and prevent them from erupting
into violence. It is also a process that can mould a more peaceful society.
Community Mediation Clinics enhances access by helping to bring justice to the
society. It aims to prevent the underlying conflict (or the need to go to court)
and advance compliance with the law in general. People would get a platform
near home to settle their cases without the trappings of a court. It helps
preserve relationships by avoiding the embarrassment of being hauled into court,
and by giving people the opportunity to air concerns that a court would rightly
ignore when evaluating a legal claim. Through a system that resolves disputes
before it requires adjudication, it is hoped the legal system will be freed up to
deal with more serious cases.
The Mediation Clinics would function with an efficient team of mediators who
are selected from the local community itself. The people so selected would be
376 Ô Indian Yearbook of International Law and Policy (2009)

given an orientation program by IIAM, and a certificate of recognition would be

issued. IIAM will also implement high standards of ethics as laid down by the
International Mediation Institute (IMI), The Hague, Netherlands (which has
endorsed the IIAM Community Mediation Service). The mediators so selected
will be persons who will be having a good repute in the local area to whom
people shall have faith because of his/her integrity and sense of fairness in
public dealing; and shall include educated youth, ladies and elders. People
having experience in dispute resolution and community interactions will be
preferred. Peacekeeping is a profession and can be a vocation. It is a belief, a
value and a way of life. We have many people in our community who believe in
peace and practice peace making.
IIAM Community Mediation Service has the potential to shape powerful conflict
transformation partnerships. Such approaches often have the power to heal
even profound social wounds, so that the system can become a vehicle for
creating a loving and caring world.
We are mindful that cultural “clicks” do not happen overnight. We must devise
workable ways of implementing them and build broad public support for those
changes. As Mahatma Gandhi has said, “There is not a single virtue which
aims at, or is content with, the welfare of the individual alone. Conversely,
there is not a single moral offence which does not, directly or indirectly,
affect many others besides the actual offender. Hence, whether an
individual is good or bad is not merely his own concern, but really the
concern of the whole community, nay, of the whole world.”10
While launching the IIAM Community Mediation Service, the Chief Justice of
India, Hon’ble Mr. Justice K.G. Balakrishnan had hoped that Community
Mediation Clinics could be established in at least 100 villages by 2010 and in
every village by 2015. Such peace building processes could be greatly
strengthened if organizations, people and society join together and cooperate. As
a business opportunity and simultaneously to fulfill the Corporate Social
Responsibility, we urge corporate houses, public spirited individuals, associations
and clubs to join in implementing the IIAM Community Mediation Program,
which has a clearly defined mission and a vision statement, combined with a
sound implementation strategy and a plan of action firmly rooted in ground
realities. We can join together for an enduring process of positive social
transition.
 Mediation is here to stay! Ô 377

XII. CONCLUSION
India has huge potential to become an economic superpower. Its population
stands at over a billion, making it the second largest population in the world.
The middle class alone is greater than the population of the United States or the
European Union. India is also the fourth largest economy in the world and has
the second largest GDP of developing countries. But in spite of all this, India
has failed to live up to expectations, and foreign investment has not been as
high as expected. No amount of prosperity or development is either possible or
worthwhile, if it is not accompanied by social infrastructure, one of which is a
good legal system and an efficient dispute redressal mechanism, which provide
the citizenry the assurance that they live under the protection of an efficient
legal regime.
The expectations of parties of legal services are changing. The new
requirement is “resolution” and not “litigation.” Mediation is now being projected
as a truly global profession. ADR is thought of as the alternative to going to
court. Yet, a good case can be made that one or more of these so-called
“alternatives,” especially mediation, have become the commonly accepted way
of resolving legal disputes and that going to court is now the true alternative.
Inevitably, negotiation and mediation are becoming the most commonly accepted
vehicles for the resolution of lawsuits in the United States and perhaps around
the world.
So let us welcome the new world of dispute resolution and the new
alternatives!
378 Ô Indian Yearbook of International Law and Policy (2009)

REFERENCE
1. Justice Warren E. Burger, Former Chief Justice, U.S. Supreme Court, Address at the Chief
Justice Earl Warren Conference on Advocacy: Dispute Resolution Devices in a Democratic
Society (1985).
2. MATTHEW 5 : 9.
3. MAHATMA GANDHI, THE STORY OF MY EXPERIMENTS WITH TRUTH (PART II,
CHAPTER XIV).
4. MICHAEL BURLINGAME, ABRAHAM LINCOLN, THE OBSERVATIONS OF JOHN
G. NICOLAY AND JOHN HAY, 81.
5. TIME MAGAZINE, February 10, 1941, http://www.time.com/time/magazine/article/
0,9171,932551,00. html.
6. IMI ANNUAL REVIEW (2009), http://imimediation.org/annual-review-2009.html.
7. See generally, ROBERT A. BARUCH BUSH AND JOSEPH P. FOLGER, THE PROMISE
OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT
AND RECOGNITION; CONFLICT RESEARCH CONSORTIUM, TRANSFORMATIVE
MEDIATION, http://www.colorado.edu/conflict/peace/treatment/tmedtn.htm.
8. K. D. RAJU, ALTERNATE DISPUTE RESOLUTIONS SYSTEM: A PRUDENT
MECHANISM OF SPEEDY REDRESS IN INDIA, Working Paper, http://papers.ssrn.com
/sol3/papers.cfm?abstract id=1080602.
9. UN Commission on Human Rights, The written statement of the Asian Legal Resource Centre
(ALRC) at the Sixty-first Session in Geneva, Delayed justice dispensation system destroying
rule of law in India, E/CN.4/2005/NGO/107 (March 31, 2005).
10. MAHATMA GANDHI, ETHICAL RELIGION (1930).