Business Beyond Legalities - Non-Lawyer Mediators In Commercial Mediation
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Category: Arbitration & ADR
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BUSINESS BEYOND LEGALITIES: NON-LAWYER
MEDIATORS IN COMMERCIAL MEDIATION
Meghana Narayanan & Manasa Ravi, O.P. Jindal Global University
ABSTRACT
The paper explores the potential for non-lawyers to become commercial mediators due to their solution-oriented perspective and subject-matter expertise, in light of The Mediation Act, 2023 which allows for the practice. Historically, mediation predated formal legal systems, with community leaders previously driving the system. Despite this heritage, legal professionals have come to dominate this field. The paper highlights the issues faced by lawyers as mediators, including their competitive and adversarial approach developed through legal practice which vastly differs from mediation training that values collaborative communication. The Indian approach through the new Act is juxtaposed against international standards such as the Singapore Convention, as well as Mediation practices in the United Kingdom to identify the benefits of accommodating non-lawyer mediators.
This analysis, supported by surveys, further upholds the importance of diversification and recognising the skillset of professionals from other backgrounds in the commercial mediation space. As such, the paper calls for a shift away from the monopoly of legal practitioners, promoting a diverse and interdisciplinary pool of mediators, strengthening the alternative dispute resolution in commercial contexts.
I.
Introduction
Centuries before the emergence of the modern legal system, Ancient India relied on a community-driven approach to dispute resolution, led by village heads. Mediation, as a practice, did not originate with legal experts; rather, its roots lie in the wisdom of “village elders, sociologists, community activists, psychologists, and others”1 who understood the importance of resolving conflicts informally. Despite this foundation emphasising the value of fostering harmony and consensus without the rigid structures of formal law, over time, legal professionals have come to dominate the field of mediation.
This paper argues that individuals from non-legal backgrounds can play a significant role as mediators, particularly in commercial mediation, and develops this argument across four parts: Part I sets the context by exploring why lawyers often face challenges as mediators, their reluctance to involve non-legal mediators, and an analysis of the Mediation Act 2023 to determine whether it accommodates non-legal mediators. Part II outlines four key advantages of appointing individuals from non-legal backgrounds as mediators in commercial mediation. Part III examines the international position on non-lawyers as mediators, situating India within a global framework to evaluate its stance and practices. Finally, Part IV concludes with a comprehensive analysis and recommendations for the future, highlighting the potential to expand the role of non-legal mediators in India.
1 Adversaries at the Table
The Lawyer Problem Right from the onset of law school, students are taught to assume the role of a competitive and argumentative advocate for their clients’ rights, undermining their potential as facilitators of disputes. As such, lawyers view the mediation process as a soft approach. They often hinge on the obligations and legal consequences of a failed mediation, while the true objective is to find a mutually agreeable solution. A mediator from a legal background also tends to look at the past—as is done in the law—to determine the party at fault, whereas commercial dispute resolutions must be forward-looking and solution-based.2 Since “linear thinking and linear systems such as rules, ethical codes, adversarial orientation, and consistent predicable
1 Anil Xavier, Lawyer Mediator, Non-lawyer Mediator – Who is better?, INDIAN INSTITUTE OF
ARBITRATION AND MEDIATION, https://www. arbitrationindia. com/. 2 Ronan Feehily, The Role of the Lawyer in the Commercial Mediation Process: A Critical Analysis of the Legal and Regulatory Issues, 133 S. AFRICAN L. J. 352 (2016). procedures”3 form the fulcrum of legal approaches, these approaches are in stark contrast to the foundational principles of mediation. This is owing to the fact that lawyers are taught to scientifically apply the law to the facts at hand, while disregarding other aspects such as social and cultural values. As such, Matt Wise notes that lawyers are likely to evaluate mediation as an application of law to each side rather than facilitate dialogue between the parties. 4 Clients typically approach lawyers or courts with stories of perceived injustice, rather than with legal arguments.
Lawyers or courts can only address these injustices when there is a clear right and remedy involved—without a right, there is no remedy. In contrast, mediators are trained to focus on the parties' shared personal or commercial interests and seek to resolve disputes in a way that goes beyond the legal framework and avoids reducing the situation to a mere “legal case. ”5 Despite these glaring concerns, lawyers have established dominance over the practice of mediation, defending it through doctrines such as the unauthorized practice of law doctrine, which restricts the practice of law to individuals with the necessary legal educational qualifications, licenses, and professional enrollments.
6 Practicing in court without the authority to do is also illegal under Section 45 of The Advocates Act7 and critics often assert that allowing non-lawyers to mediate promotes this unauthorised practice of law, despite mediation being a non-court driven process. 8 Lawyers view ‘problem-solving’ as their exclusive domain, thereby monopolising the field of mediation. As a consequence, non-legal mediators are often perceived as ‘encroaching’ on this territory, leading to tensions between the two.
2 The Mediation Act, 2023
What Does It Say?
The definition of ‘mediation’ in Section 2(h) of The Mediation Act, 2023 (“The Act”) clarifies it to be a voluntary process where the mediator does not have the authority to impose a settlement.9 This presence of the third party lacking authority distinguishes mediation from
3 Id. at 361.
4 Matt Wise, Separation between the Cross-Practice of Law and Mediation
Emergence of Proposed Model Rule 2.4, 22 HAMLINE J. PUB. L. & POL'y 383 (2001).
5 ANIL, supra note 1.
6 Andrea Kupfer Schneider, Shattering Negotiation Myths
Empirical Evidence on the Effectiveness of Negotiation Style, 7 HARV. NEGOT. L. REV. 143 (2002).
7 The Advocates Act, 1961, § 45, No. 25, Acts of Parliament (India).
8 David A. Hoffman & Natasha Affolder, A Well-Founded Fear of Prosecution
Mediation and the Unauthorized Practice of Law, ABA Dispute Resolution Magazine, p. 20 (2001).
9 The Mediation Act, 2023, § 2, No. 32, Acts of Parliament (India).
litigation, wherein the process can be initiated by one party alone, and the judge holds the authority to impose a binding decree. Section 3(1) of the Act defines a ‘mediator’ as an individual selected to facilitate mediation, either by the parties themselves or through a mediation service provider.10 Furthermore, Section
5 of the Act stipulates that court-annexed mediation will be conducted by mediators empanelled
with the respective courts. 11 However, the Act remains silent on the eligibility criteria for inclusion in these mediator panels. As such, this ambiguity creates significant opportunities for non-lawyers to participate in the mediation field, particularly in private mediation, unless otherwise subsequently specified by the government. Moreover, the Act distinguishes litigation from mediation by using the term ‘pre-litigation’ to establish mediation as an alternative to litigation. This clear distinction ensures that the unauthorised practice of law doctrine will not be attracted if a non-lawyer acts as a mediator, since mediation is not a forum of law per se. Additionally, Section 8 of the Act does not mandate the requirement of a legal practitioner, and allows any individual to exercise the responsibilities of a mediator.
12 This establishes a framework within which non-legal mediators are empowered to facilitate commercial resolutions. II.
Non-legal Mediators: Untapped Potential What is required to be a lawyer is not always what is needed to be a mediator. Ronan Feehily asserts that lawyers have predominantly acted as gatekeepers of the commercial mediation process, often without a true grasp of its core principles. He emphasises the need for effective training to enhance lawyers' proficiency in commercial conflict resolution. Following this logic, non-lawyers, who already possess commercial expertise, can also be trained to excel in this domain.13 The mediation process underscores the importance of ‘self-determination’, i.e., the parties themselves determine the result of the dispute, and as such, this principle has attracted individuals from different backgrounds, including psychologists, social workers, etc.14 This section of the paper highlights four advantages of non-legal mediators in the commercial mediation space.
10 The Mediation Act, 2023, § 3(1), No. 32, Acts of Parliament, 2023 (India).
11 The Mediation Act, 2023, § 5, No. 32, Acts of Parliament, 2023 (India).
12 The Mediation Act, 2023, § 8, No. 32, Acts of Parliament (India).
13 RONAN, supra note 2.
14 ANDREA, supra note 5.
1. Subject Matter Expertise
Non-legal mediators with specialised subject matter expertise are uniquely positioned to understand and effectively address the underlying issues in a mediation session. They possess a strong foundational understanding of the technical and procedural knowledge in that particular field. Drawing from their first-hand experience, they can discern the priorities and expectations of each party, enabling them to explore potential zones of agreement while keeping the discussion focused and productive. Hence, they bring in an interdisciplinary approach to the mediation table.
For instance, in a case that was referred to the World Intellectual Property organization (WIPO) mediation center for mediation, a mediator with significant experience in commercial agreements relating to the medical supplies sector was able to effectively resolve a dispute, find common ground, and finalise a settlement agreement between two companies in the medical supplies industry that had entered into supply and license agreements to market pharmaceutical products across several European countries. 15 Commercial disputes often tend to revolve around financial issues and unfulfilled expectations, rather than legal issues. A skilled non-legal mediator will utilise the mediation table as a forum to help surface each party’s unfulfilled expectations.
Additionally, understanding the dynamics of a business organisation, including the hierarchy of employees, and the various phases and aspects of conducting business (planning, decision-making, and controlling), is an important advantage that non-legal mediators possess in commercial mediation. 16 Utilising business professionals as non-legal mediators can also prove to be important for cost-effectiveness as their familiarity with the field and technical terms helps reduce the time and expense required to familiarise the mediator with the context. The essence of mediation is to act as an alternative to legal resolution systems, where the incorporation of law is neither necessary not required to enhance mediation.
17 The knowledge regarding subject matter is more important than the law governing it, which can be addressed by choosing the right mediator, one that is well-versed with the topics surrounding the dispute.
15 WIPO, https://www.wipo.int/amc/en/mediation/case-example.html.
16 James E. Meason & Alison G. Smith, Non-Lawyers in International Commercial Arbitration: Gathering
Splinters on the Bench, 12 NW. J. INT'l L. & BUS. 24 (1991). 17 Matt Wise, Separation between the Cross-Practice of Law and Mediation: Emergence of Proposed Model Rule 2.4, 22 HAMLINE J. PUB. L. & POL'y 383 (2001).
2. Evaluative Approach
Scholars have often differentiated between "facilitative" and "evaluative" styles of mediation, suggesting that non-lawyers should be allowed to engage in facilitative mediation, whereas evaluative mediation should remain the exclusive domain of legal professionals. Evaluation in mediation is an inherently complex process and can be classified as explicit or implicit evaluation, with each further divided into intentional or unintentional actions. Explicit evaluation involves activities such as offering specific advice, providing opinions on likely court outcomes, presenting mediator proposals, or sharing pertinent information. Nonlegal mediators can ground the commercial mediation process in reality— weighing consequences and reaching a middle ground that involves compromises on both parties’ ends— rather than establishing a perfect right for one side, as seen in legal processes.
Criticisms advanced against non-lawyers include their inability to evaluate the outcome of the dispute if it proceeds to trial. 18 However, this wrongly assumes that mediation’s purpose is to assess legal outcomes, when its objective is to find a mutually agreeable solution. For legal advice in a dispute, the parties often have their own counsels guiding them through the process, ensuring that the parties are engaging in the mediation with knowledge of the law. Mediators are trained to accelerate this discussion which glosses over the advantages and disadvantages of litigation, but the legal particulars are not a mandate. While non-legal mediators might not be in a position to fully elucidate the consequences of proceeding to litigation or the costs involved in the same, a lot of parties also do not look for such an opinion.
19 Moreover, mediation sessions should ideally steer clear of discussions centered on legal issues. Therefore, when questions of legal rights and remedies are not at the forefront, what necessitates a mediator who possesses legal expertise? Implicit evaluation, on the other hand, involves subtler techniques like non-verbal cues (e. g. , facial expressions, gestures, or silence), which may convey approval or disapproval. Mediators also engage in evaluative practices through selective option generation, reframing, and realitytesting to assist parties in reaching informed decisions and creative solutions that address their wants and interests. 20
18 Robert P. Burns, Some ethical issues surrounding mediation, SSRN ELECTRONIC JOURNAL (2002).
19 WORLD LAW ALLIANCE, https://worldlawalliance.com/can-non-lawyers-be-the-best-mediators.
20 ANDREA, supra note 5, at 55.
Given the commercial expertise that many non-lawyers possess, they are well-equipped to undertake evaluative mediation in addition to facilitative mediation. Their deep understanding of industry-specific practices, combined with appropriate mediation training, enables them to navigate complex disputes effectively and facilitate equitable outcomes. As a result, non-legal mediators can help avoid a ‘zero-sum’ game, wherein the parties’ goals are so inextricably linked, that only one may be able to achieve their objective.21
3. Neutral Perspective and Leveraging Personal Experience
Lon Fuller described mediation as the ability to guide parties toward a mutual understanding of their relationship, not by enforcing rules, but by assisting them in developing a new, shared perspective that encourages them to focus on one another. 22 Advocates are accustomed to the adversarial system of resolving disputes, and as such they might find it difficult remain neutral while assuming the role of a mediator. It may take years to overcome the tendency to strongly side with one party, and therefore, coming from a non-legal background can be advantageous in maintaining impartiality during a mediation session.
Professor Spiegelman has explained this through a demonstration of a property dispute between neighbours where the law favours one of the parties disproportionately and a mediator, without the knowledge of such law, would allow them to negotiate a beneficial agreement that is ideal since the two parties would co-exist next to each other, and a solution where one wins and other loses would be non-beneficial in the long run. 23 In a mediation, the parties must display ‘individual responsibility’ for their decisions taken during the session, and must be keen to take part in the process.
24 Any factors that prevent this, including hesitancy towards the process and undue influence by one party over the other (which is particularly common in commercial disputes), can be accounted for and resolved to the extent possible, by the non-legal mediator due to their familiarity with power dynamics in the commercial world. Furthermore, non-legal mediators can be highly effective in caucus sessions due to their ability to maintain neutrality and focus on practical solutions. In private meetings,
21 RONAN, supra note 2, at 360.
22 Lon Fuller, Mediation-Its Forms and Functions, 44 S. CAL. L. REV. 305, 325 (1971).
23 Paul J. Spiegelman, Certifying Mediators
Using Selection Criteria to Include the Qualified-Lessons from The San Diego Experience, 30 U. S. F. L. REV. 677, 693-97 (1996) 24 Andrew J. Pirie, The Lawyer as Mediator: Professional Responsibility Problems or Profession Problems, 63 CAN. B. REV. 378 (1985). without the influence of legal jargon or strategies, they can help the parties see beyond their immediate positions, reminding them of broader implications of a failed mediation. Besides the facilitative and evaluative approaches previously discussed, non-legal mediators can also undertake a ‘transformative approach’. 25 This is a rather neutral approach wherein the mediator creates opportunities for each party to recognise the other’s needs. It hinges on the importance of acknowledgment. The non-legal mediator, being previously involved in such transactions himself, is well placed to recognise both sides’ interests.
The mediator can also incorporate relevant anecdotes in their opening statement that reflect the current situation, helping the parties feel at ease and confident that they are in capable hands, while demonstrating an understanding of the parties’ circumstances. “The essence of the process and procedures described as commercial mediation is the idea that each party should put its interests above its rights and/or duties in law and in good faith reach out to the other party to do the same. ”26 As such, appointing a mediator whose approach is not rooted in legalities is beneficial for commercial mediation. Business relationships are created with the objective of sharing wealth, and hence, commercial disputes benefit from more consensus-based resolution systems as opposed to adversarial litigation.
27 Given this, a mediator with a commercial or business background is well-equipped to persuade parties to recognise the mutual business advantages that mediation offers over litigation. The mediator can also overcome impasses through highlighting the parties’ business interests as opposed to their legal rights. The benefits of such an outcome can be also highlighted by the mediators by drawing from their own experiences.
4. Training
It is not the case that a non-legal mediator will be bereft of the know-hows of mediation since it is mandatory to undergo a rigorous training session to be a qualified mediator. Section 38(c) of the Mediation Act, 2023 lays down the guidelines and qualification requirements for the same.28 Furthermore, as per section 38(g), the mediation council will make an effort to organise such training sessions and workshops.29 Through such training, these mediators master
25 Ersa Yildiz, Should Mediators in Workplace Disputes Be Lawyers?, 6 ANKARA B. REV. 169 (2013).
26 RONAN, supra note 2, at 355.
27 Id. at 354.
28 The Mediation Act, 2023, § 38(c), No. 32, Acts of Parliament, 2023 (India).
29 The Mediation Act, 2023, § 38(g), No. 32, Acts of Parliament, 2023 (India).
essential Alternative Dispute Resolution (“ADR”) principles that have been refined over the past 50 years. These include concepts like BATNA (Best Alternative to a Negotiated Agreement), WATNA (Worst Alternative to a Negotiated Agreement), and ZOPA (Zone of Possible Agreement). 30 Rather than possessing a legal background, it is more important for the mediator to be facilitative and an active listener. “Listening, not litigating, is all important. ”31, says John Turley, an experienced mediator who conducts B2B and B2C mediations in marketplaces, and advocates the need for non-legal mediators. This approach opens opportunities for more individuals to enter what was once an exclusive field, generating more jobs, even for retired professionals who wish to continue to pursue their interests in the commercial sector.
It can also bring in individuals from different backgrounds, races, genders etc, thus ensuring more diversity. 32 This is also a method for individuals from non-legal backgrounds to increase access to justice. Non-legal mediators can also contribute to educating and training future mediators, while adopting a pedagogy style that involves simulations of commercial disputes to illuminate the different kinds of disputes that can arise— varying in length of opening statements, gender composition, number of parties etc. 33 III. International Standards: Evaluating India’s Position The international standards on mediation can be derived from the United Nation Commission on International Trade Law, which established the Singapore Convention on Mediation in
2019.34 The Convention governs international settlement agreements of commercial disputes
resulting from mediation.35 The definition of mediation under the convention is broad and places emphasis on the requirement of a neutral third-party, but does not mandate any licensing or other qualifying requirements.36 These regulations take into consideration the intersectionality of mediation with other regulated professions such as social work and
30 Salim Uqdah, The Mediator’s Spectrum
Four Reasons to Consider Non-Attorney Mediators, MILES MEDIATION AND ARBITRATION (Jan. 20, 2025, 6:12 PM), https://milesmediation.com/blog/; WILLIAM URY, ROGER FISHER, GETTING TO YES (Houghton Mifflin 1981). 31 John Turley, Non-Lawyers Can Be Great Mediatiors; But, Are Lawyers Really Necessary in Mediation?, MEDIATE, (Jan. 20, 2025, 6:45 PM), https://mediate.com/.
32 SALIM, supra note 22.
33 Nolan-Haley, Jacqueline M., and Maria R. Volpe, Teaching Mediation As a Lawyering Role, Journal of Legal Education, vol. 39, no. 4, 571 (1989).
34 United Nations Convention on International Settlement Agreements Resulting from Mediation, 2018.
35 United Nations Convention on International Settlement Agreements Resulting from Mediation, 2018, art. 1. 36 Nadja Alexander & Shouyu Chong, An introduction to the Singapore convention on mediation perspectives from Singepore, 22 Tijdschrift voor mediation en conflict management 37–56 (2018). psychology. 37 Mediation is often defined as a profession that derives ethically from other professions as it cannot exist independently from them. 38 These practices do not emphasise on law as being inseparable from mediation, and in many jurisdictions that the international convention regulates, it is not necessary to be a lawyer in order to be a mediator.
39 Recognising that some disputes entail technical expert knowledge, mediation frameworks often appoint two mediators to co-mediate such cases—one being an industry professional familiar with the subject matter and the other a lawyer knowledgeable about the legal issues involved. 40 This emphasises that the focus rests on the requisites of subject-matter knowledge. A study on international commercial mediation, conducted by Clark and Sourdin, puts forward
findings
related to lawyer-mediators, which were collected through structured interviews. 41 The study highlighted that mediation is a process distinct from law, which focuses on an interestbased and client-based approach. 42 Mediation advocacy has been recognised as a distinct skill and involves comprehensive training courses which equip the mediator with the necessary conflict resolution skills. 43 These findings establish that the skill requirement for mediation is distinct from legal courses, making it open to individuals from all backgrounds.
However, the Singapore International Dispute Resolution Academy (SIDRA) 2022 survey, collected from respondents across the world involved in the process of Alternative Dispute Resolution, reflects the reality of the practice, revealing that mediators often have a legal background, with only a minority emerging from other fields, indicating the domination of lawyer-mediators. 44 India has ratified the Singapore Convention as a step toward promoting the ease of conducting business internationally. 45 The Mediation Act was drafted to align the domestic laws with international standards, deriving significantly from the Singapore Convention. The ethics of mediation, which are enshrined in The Commercial Courts Act, further mirrors the
37 Zachary Calo, Mediation Ethics after the Singapore Convention, 14 AM. J. MEDIATION 73 (2021).
38 Id.
39 Nadja Alexander & Shouyu Chong, The Singapore Convention on Mediation
A Commentary, Global Trends in Dispute Resolution, https://www.amazon.com/Singapore-Convention-Mediation-Commentary- Resolution/dp/9403514817.
40 Seng Onn Loong & Dorcas Quek Anderson, Mediation, Reserch Collection of Yong Pung How School of
Law (2015). 41 Bryan Clark & Tania Sourdin, Views from the coal face: The development of international commercial mediation, SSRN Electronic Journal (2024).
42 Id.
43 Id.
44 Nadja Alexander et al., SIDRA Survey 2022, Singapore International Dispute Resolution Academy,
https://sidra.smu.edu.sg/research-program/appropriate-dispute-resolution-empirical-research/sidra-survey-2022.
45 V. K. Ahuja, The Singapore Convention on Mediation and India, 11 INDIAN J.L. & JUST. 19 (2020).
requirements in the Singapore Convention. 46 By ratifying the convention and drafting laws in accordance with its principles, India demonstrates adherence to the global standards with the promotion and governance of mediation as an alternative to cumbersome litigation. Notably, the Mediation Act resembles the international norms with the accommodation of non-legal professionals. This indicates a willingness to embrace a diverse and inclusive mediation framework, potentially paving the way for greater interdisciplinary participation in the future. The practise of Alternative Dispute Resolution expanded in the United Kingdom (“UK”), which was one of the first countries to establish laws for mediation, implemented through the Civil Procedure Rules 1999. 47 This rapidly raised awareness amongst judges and lawyers about the potential of these practices.
48 While this law does not require mediators to be lawyers, lawyers have dominated the field of ADR in the UK, raising concerns about "juridification"— the assimilation of alternative processes like mediation and arbitration into formal legal systems to maintain the profession's control over dispute resolution. 49 A survey conducted on mediators in London found that there was a lack of expertise in skills, but no particular profession was ideal for the role. 50 The results indicated, “Lawyer mediators had legal and settlement expertise, while mediators from other professional backgrounds had mental health and mediation expertise, but each group lacked the expertise of the other. ”51 The participants expressed that mediation should be studied as a discipline, separate from other professional endeavours, as the skills required are unique and the training is paramount to be a mediator.
52 The study reveals that lawyers working as mediators, as well as mediators from other professional backgrounds, collectively agree that skills such as patience, respect for autonomy and objectivity, are skills that are independent from the legal profession and are acquired through the training and practice of mediation. India, while having a rather later advent towards the practice of Alternative Dispute Resolution, reflects a reality similar to the UK, when it comes to the professional background of mediators in the country. While the law does not restrict the practise to legal practitioners, the field is 46 United Nations Convention on International Settlement Agreements Resulting from Mediation, 2018, Rule 12.
47 The Civil Procedure (Amendment) Rules, No. 1008 (L. 8), Acts of Parliament (United Kingdom).
48 Hazel Genn, Central London County Court Pilot Mediation Scheme
Evaluation Report, 5/98 Lord Chancellor's Department, Research Series 15 (1998).
49 Penny Brooker & Anthony Lavers, Mediation Outcomes
Lawyers' Experience with Commercial and Construction Mediation in the United Kingdom, 5 PEPP. DISP. RESOL. L.J. 161 (2005). 50 LC Neilson, 'Mediators' and Lawyers' Perceptions of Education and Training in Family Mediation, Mediation Quarterly, San Francisco: Jossey-Bass 12(2) (1994).
51 Shamaine Lim, Mediation in the Family Court of Singapore, 18 SING. L. REV. 251 (1997).
52 Id.
nonetheless dominated by them. However, India has the benefit of deriving from these studies, recognising the independence in skills and training to develop a comprehensive pool of mediators in its budding stage. With education and awareness of mediation across professions, this much needed diversity can be achieved. IV. Conclusion: The Way Forward While lawyers have historically dominated the mediation field, this paper has demonstrated that non-lawyer mediators are not disadvantaged by their professional background. Mediation as a discourse is enshrined in principles of mutual collaboration, which is independent of the understanding and application of law, and which is propounded by mediators themselves in the United Kingdom as well as internationally.
The Mediation Act, 2023 is a transformative step by India to incorporate mediators from different professions, allowing for subject expertise and varying perspectives that are invaluable for the growth of alternative dispute resolution. Moreover, the Act adheres to international standards which further promotes global commerce. The International Finance Corporation’s (World Bank Group) manual on commercial mediation suggests that not all good mediators are lawyers. Hence, one must choose a mediator that understands the “underlying substance of the dispute”. 53 Additionally, it puts forward that a good mediator need not necessarily have legal expertise, but must possess local credibility, cultural and ethical sensitivity, and appropriate training.
The report not only advocates for the participation of non-lawyers in the mediation process but also emphasizes the importance of training other stakeholders in a commercial project, such as project team members, in mediation. Furthermore, in the commercial alternative dispute resolution space, International Commercial Arbitration has proved to be one of the most popular routes undertaken. Even in this space, the qualification criteria for arbitrators includes industry expertise, training, and demeanor. 54 The Arbitration and Conciliation Act, 1996, also permits parties to appoint nonadvocates as arbitrators. 55 The importance of adopting strategies to encourage non-lawyers to undertake mediation roles cannot be emphasised enough, as there is a stark deficiency of diversity even in countries where they were always allowed to participate.
However, the shift toward inclusivity must be 53 Lukasz Rozdeiczer, Alejandro Alvarez de la Campa, Alternative Dispute Resolution Manual: Implementing Commercial Mediation, 50, 38481 INTERNATIONAL FINANCE CORPORATION (Jan. 20, 2025). 54JAMES, supra note 11, at 33.
55 The Arbitration and Conciliation Act,1996, No. 26, Acts of Parliament, 1996 (India).
accompanied by rigorous training and adherence to ethical standards, ensuring that all mediators—legal or non-legal—are equipped to facilitate fair and effective outcomes. In light of the above, is it not time to reconsider the legal practitioners’ monopoly over mediation practise?