Role of Mediation in Cross-Border Dispute-An Effective Alternative Dispute Resolution  & Conflict Resolution Strategy

Role of Mediation in Cross-Border Dispute-An Effective Alternative Dispute Resolution  & Conflict Resolution Strategy

Author: Silvy Sheetal

Introduction- Role of Mediation in Cross-Border Dispute-An Effective Alternative Dispute Resolution  & Conflict Resolution Strategy

War and external aggression have withered the lives of human beings. While dispute settlements have breathed life into charred relations. The idea of justice delivery is prevalent since antiquity, but a resolution has always been a rare phenomenon. 

From the king to the mediators we have paved the way to dispute settlement by resorting to amicable and systematic settlements. The European Union Directive of 2008/52 states mediation is a structured process whereby parties voluntarily attempt to reach an agreement with the assistance of an impartial mediator. Such settlement is consequently written and mostly in form of a contract. 

The process of mediation may be a government directive, a voluntary initiative of the parties, or an order of the court.  Such specialized communication techniques have always come to the rescue in the amicable settlement of pending disputes. 

What is Cross Border Dispute? Role of Mediation in Cross-Border Dispute-An Effective Alternative Dispute Resolution  & Conflict Resolution Strategy

Article 2 of the Directive 2008/52/EC European Parliament and the Council states cross-border dispute is one where one of the parties is a citizen or domiciled in some other country other than the country in which the mediation, a dispute has arisen, where mediation is initiated,  

The Directive 2008/52/EC of the European Parliament and of the Council of 21st May 2008 and the United Nation Convention on International Settlement Agreements Resulting from Mediation work to facilitate cross-border conflict resolution. 

International trade, commerce, communication, insurance, and employment agreement, civil and penal matters are the major reasons for disputes among people living in different countries. 

In this era of globalization, new dimensions of communication and growth are increasing, adding to the same number of loopholes in their implementation and propagation of the existing law. Cross-border disputes involve parties from different countries, cultures, and backgrounds. Here geographical and language barriers may become a hindrance. 

Types of cross-border disputes-Role of Mediation in Cross-Border Dispute-An Effective Alternative Dispute Resolution  & Conflict Resolution Strategy

The cross-border disputes are vast depending on the enabling laws seeking to resolve them.

Domestic cross-border disputes- 

where municipal laws are used in the process of mediation.

International Commercial cross-border disputes- 

where international law is used. 

The areas are vast but the prevalent ones as civil and cross-border disputes which include family matters, and consumer, commercial and penal mediation. Most countries have chosen a mediation law which may be a general framework or in the field of mediation. 

The process to resolve cross-border disputes-Role of Mediation in Cross-Border Dispute-An Effective Alternative Dispute Resolution  & Conflict Resolution Strategy

An expert with specialized techniques called a mediator helps facilitate amicable solutions to resolve disputes. There may exist a co-mediator in cross-border disputes. Owing to the nature of the mediation the parties need to decide the language for their discussion and the language of framing the resolutions. 

Further, the seat of the mediation shall affect the application of the law be it international or the one prevalent at the place which is to be the seat of mediation. Such a mutually acceptable agreement becomes binding on both parties to the mediation. 

By the gathered information and explaining grievances, the mediator impartially and competently fixes the terms and conditions to arrive at a practical and clear agreement. The Singapore Convention of 2018, strives to bring enforceability to mediation settlements. 

Online dispute resolution as a solution to cross-border e-disputes-Role of Mediation in Cross-Border Dispute-An Effective Alternative Dispute Resolution  & Conflict Resolution Strategy

Interconnecting technology with international e-disputes adds to the efficacy of the settlement award. Such Digi steps of dispute resolution fill the existing gaps and loosen the loopholes. 

In the recent era, there has also been the use of AI-based dispute resolution mechanisms that based on system knowledge fed by the makers and through predictive analysis provide algorithm-based solutions. 

The digital paradigm may occur as a hindrance but in near future, technology will soon divide human beings both on the side of the mediators as well as the party’s side. Such e-settlements do not call for the physical presence of the parties and resolve disputes. 

Why arbitration is preferred in cross-border disputes? Role of Mediation in Cross-Border Dispute-An Effective Alternative Dispute Resolution  & Conflict Resolution Strategy

Legal individuals, private as well as public individuals can seek mediation. The arbitral awards tend to have greater binding power and enforceability rather than the settlement contracts made in mediation. 

Because the arbitrators may be judicial members or non-judicial members with formal training while the mediators are non-judicial members without any formal training. 

Because of the minute intricacies involved, the parties have to decide whether to choose arbitration or mediation.  Approximately 170 countries have acceded to the New York convention submitted to the recognition and enforcement of foreign arbitral awards. 

The case of Bhatia International v. Bulk Trading SA (2002) 9 SCC 552 is considered a case of judicial overreach in Indian Arbitration for it lays down how Part 1 of the 1996 act must be followed in a strict sense for all the arbitrations in India and can be done away in international arbitration if the parties wish to do so. 

The main issue raised was whether the court has the power to grant interim relief under Section 9 of the Arbitration and Conciliation Act, 1996.  The seat of arbitration was in Paris and the contending parties were from Paris and India. The argument taken up was that since these are international arbitration Section 9 would not be applicable.  

The court held that part I of the act gave effect to the UNICTRAL model law and granted interim relief to cases held outside the court of India. While the parties in international commercial arbitration in an express or implied consonance can agree to do away with any such provision of the act. And the excluded provisions will not apply automatically. This way the Indian courts could set aside foreign judgments. 

Mediation as a choice in Cross Border Dispute-Role of Mediation in Cross-Border Dispute-An Effective Alternative Dispute Resolution  & Conflict Resolution Strategy

The International Mediation Institute has highly accredited the use of mediation in cross-border dispute resolution. Mediation is a collaborative process. The parties stand in each other's shoes and get a better understanding of the problem at hand. This procedure allows the commercial player to settle the business deal gone sour. 

Advantages of Mediation in Cross-Border Disputes-Role of Mediation in Cross-Border Dispute-An Effective Alternative Dispute Resolution  & Conflict Resolution Strategy

Enforceability-

Article 6 of the Directive requires member states to provide for the enforcement of mediated settlement agreements that result from mediation.

Time and Cost in the judiciary-

A delayed settlement turns futile when the benefactors of the some are already ruined in the waiting period. Such a prolonged waiting period escalates a series of hatred and enmity between the parties. While mediation works to establish stability between the conflicting parties.

Confidentiality of mediation-

There are various aspects of the conflict laid down be it their internal policies, trade secrets, per capita income, faulty bye-laws, etc. The mediator owes the responsibility to present before the parties only the requisite information while putting a veil on the other aspects.  

Understanding between the Parties-

Mediation meetings bring a better understanding of the issue and parties learn better about the disturbances created in each other’s territories over faulty practices.

The idea of mediation is still in the shadows. The lack of facilitation centers, and government initiatives to recruit capable mediators in cross-border initiatives has been slow and redundant.  Encouraging the process of mediation can do wonders in delivering justice.