Author: Vandana Vyas, College of Law for Women, AMS (Osmania University)

ADR (Alternative Dispute Resolution) is also known as an external dispute resolution mechanism. It is usually used to describe a wide range of options to resolve disputes in a more economical and time saving manner. Around the world there are four popular modes of dispute resolutions, namely, negotiation, mediation, arbitration, and adjudication, out of which mediation acts as the more preferable solution, as it helps the parties to reach an amicable resolution with the help of a neutral person (third party). Mediation and community dispute resolution has emerged as a vital tool for promoting access to justice and social harmony. This research article looks at and attempts to understand how mediation works in the developing nations like India, Cuba, China, Brazil, etc., with the help of some statistical data along with its comparison with the developed nations like USA, and UK. It also evaluates the progress of mediation and community dispute resolution in developing countries. Ultimately, this paper argues that strengthening community-based mediation helps significantly in lessening the burden on the courts along with providing satisfaction to its parties and preserving the relationships. Lastly, it also offers recommendations for how emerging nations might enhance their mediation and community dispute resolution framework. This study adopted an analytical approach for a better and clearer understanding of the concept.

KEYWORDS:

ADR, Mediation, Developing Countries, Comparative Study, Amicable Resolution.

In many developing countries, access to the formal justice system remains limited due to various economic constraints and cultural disjoins. As a result, the concept of ADR and community dispute resolution (CDR) have emerged as a vital alternative for resolving conflicts. Sacvan Bercovitch defines mediation as “a process of conflict management, related to but distinct from the party’s negotiations, where those in conflict seek the assistance of, or accept an offer of help from, an outsider to change their perceptions or behavior, and do without resorting to physical force or invoking the authority of law.”

Mediation, as a form of ADR, emphasizes negotiation, and mutual understanding rather than adversarial confrontation. Community Dispute Resolution, on the other hand, draws upon traditional, cultural, and indigenous practices that have historically governed interpersonal and communal relationships. Together, these mechanisms foster locally embedded solutions that reflect the values and realities of the communities in various countries including developed and developing.

Every civilized society had practiced mediation in some or the other form in order to get amicable settlement. The concept of mediation exists since the ancient time as can be seen in India in the epics of  Ramayana and Mahabharata, and also India’s independence is an example of what is possible through negotiation and mediation; Conflict resolution practiced traditionally in Africa are closely related to mediation; King Soloman of Israel considered as one of the most famous mediator; and the concepts like mutually beneficial agreements and settlements through peace and harmony which are the core heart of modern mediation was practiced by Prophet Muhammad about 1500 years ago.

In India, after the Afcon’s judgement the movement of mediation as one of the most effective ADR mechanisms, took off; especially in matrimonial and family disputes.

This article aims to examine the success of mediation and community dispute resolution in developing countries along with the power of mediation as a mainstream solution to enhance accessibility to justice and ease litigation’s burden upon litigation.

Mediation and Community Dispute Resolution (CDR) mechanisms have gained prominence in developing countries as accessible, culturally resonant alternatives to formal legal systems.

In India, Sec 89 and Order 10, Rule 1A of the CPC, 1908, brought mediation into the judicial system in 2002. In the Saleem Advocate Bar Association TN v. UOI case, the Supreme Court recognized the significance and meaning of mediation. Additionally, it has requested the High Courts to draft the Model Civil Procedure Mediation Rules. Further, in the landmark case of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. LtdThe Supreme Court noted that all the cases related to contracts, trade, consumer disputes, and also of tortious liability are amenable to mediation.

In Cuba, in the year 2005, Consultors Abogados Internacionales (CONABI) was established, which offers mediation services.

The 2015 Brazilian Mediation Law and the private organizations like JAMS, CPR, and others offer mediation services.

Further, apart from the above-stated judicial pronouncements and legislative developments, The Asia Foundations provides a program, i.e., Community Dispute Mediation Program, which support the developing countries in improving access to justice and social relations and reducing conflicts.

Despite these positive developments, scholarly critiques reveal persistent tensions between local legitimacy and formal legal standards.

The main goals of this study are:

• To demonstrate the efficiency of ADR mechanisms, particularly mediation in jurisdiction.

• To examine how mediation helps developing nations achieve legal access and social peace.

• To evaluate the advantages and limitations of mediation and community dispute resolution in comparison with formal and traditional court-based dispute resolution.

• To propose strategies and policies recommendations for strengthening mediation and community dispute resolution frameworks to enhance the litigation and judicial procedures along with reducing the burden on the formal courts.

• To analyze the role of legislative provisions, judicial precedents, international organizations, and NGOs in promoting and supporting community dispute resolution initiatives.

This study adopts comparative study along with the document review and case study analysis. It relies on statutory interpretations, judicial decisions, regulatory reports, and academic commentary. Key sources include, Journal on Conflict Management, and Mediation Compendium- A Guide for GenNxt by E-Mediation Writings (EMW).

 This study is anchored in the conceptual framework of legal pluralism which provides a robust lens for analyzing mediation and community dispute resolution in developing countries.

Legal pluralism

It recognizes the consistency of multiple legal systems in a single geography. In many developing countries, formal state law operates along with the other laws such as customs, religious or usages. This makes it important to know how mediation works outside the formal judicial institutions.

By applying this as a conceptual framework, the study interprets mediation not merely as a legal tool but as a socio-legal phenomenon which deeply exists in local entities.

This chapter discusses mediation in various countries alongside its developmental history.

Developing Countries:

India- Mediation was initially recognized indirectly in sec 89 of CPC, 1908, and Arbitration and Conciliation Act, 1996, which allowed courts to refer the matter to ADR. Only after the Legal Services Authorities Act, 1987, which allowed the Lok Adalat to develop; the mediation emerged. The Mediation Act, 2023, marked a significant development. According to the Survey of Dispute Resolution in India, 2023 report, arbitration and mediation are the most preferred forms of community dispute resolution, with 61% and 11% respectively, in the past 5 years. Through the various studies it can be concluded that the satisfaction level of the parties who opt for mediation or any related alternative dispute resolution mechanism.

China- China is the fastest-growing developing country in the world. Mediation has been a part of its judicial system since time immemorial. It is just that now it has been crafted into legislation. For the development of mediation, China has enacted ‘People’s Mediation Law’, and also made amendments to the Civil Procedure Law. The most effective change was the making of the Hong Kong Mediation Centre, which further created 2 councils for the betterment of the mediation system. It proves that China has not only seen mediation as an alternative but also understands it as an effective dispute resolution mechanism.

Mexico- In Mexico, there has been growing recognition of alternative dispute resolution (ADR). The 2008 Criminal Justice Reform and subsequent national codes brought alternative dispute resolution, including mediation, into the constitutional framework. Data from the Mediation Arbitration Centre (2019) shows a commendable increase in settlement rates in arbitration cases, consistently exceeding 75% in recent years. Apart from this, the virtual mediation system has also been introduced in Mexico, since 2020. A major development is seen in the 2024 enactment of general law on ADR mechanisms and growing participation in Online ADR platforms.

Cuba- As many people know that Cuba is a socialist nation. Since the 1990s, mediation has been practiced commonly in the nation. Several studies have led to the conclusion that social responsibility and community interests are more important to Cuban society, than individual interest. In 2005, the Ministry of Justice of Cuba enacted a decision authorizing the formation of mediation services in the country. Due to this resolution Consultores Abogados Internacionales (CONABI) was established. Once after the Cuban Civil Procedure Law 7/77 amended Decree Law No. 241 of 2006, conciliation became an option for conflict resolution.

Developed Countries:

UK- The concept of mediation was integrated into the judicial system of the UK via the Civil Procedure Rules (Part 31 and Part 44). Courts are actively working for the encouragement of mediation. In one such landmark judgement of Halsey v. Milton Keynes NHS Trust (2004) EWCA Civ 576, court held that it has the discretion to penalize a litigant for costing a creditor if they refuse a mediation that the court orders. According to the Centre for effective Dispute Resolution (CEDR) 10^th Audit, approximately 17000 mediations take place annually in England and Wales. It’s estimated that commercial mediation in UK saves businesses approximately £5.9 billion annually in managing time and legal costs, and the value of mediated cases each year is in the region of £20 billion.

USA- The USA was the first one to adopt mediation as part of the wider ADR movement of the 1970s. During its initial stage, mediation was only used to resolve the disputes of laborers. In 1947, Federal Mediation and Conciliation Services (FMCS) was created to facilitate the labor dispute, and it served as the most effective institutional provider of mediation for 40 years. Later the use of mediation also started in family, commercially, and community disputes. It got expanded further after the introduction of community mediation centers. Finally, law schools also began incorporating the concept of ADR and mediation in the curriculum, which helped the further development of mediation. The JAMS report of 2023 states that there has been a considerable increase in the cases of mediation i.e., about 7% above from 2022.

Japan- In Japan, there is growing importance on alternative dispute resolution and also in taking methods to enhance resolution success. According to the data provided in Japan Commercial Arbitration Association (2021), the settlement rate in alternative dispute resolution has been consistently rising, averaging around 80% in recent years. Moreover, studies have indicated that alternative dispute resolution mechanisms are significantly more cost-effective than the traditional litigation system in Japan, with one study published in the journal of Japanese Law estimating that arbitration can be up to 50% cheaper than other litigation practices. This shows the effectiveness of alternative dispute resolution in the developed countries like that of Japan in achieving successful resolutions while reducing financial burdens on parties involved.

The results can be analyzed as under the development in the developing and developed countries, their comparative analysis and geographical gap.

Developing nations: The study finds that the developing countries are performing much better in the development of mediation and community dispute resolution through judicial enactments and legislative reforms. Yet there is a need of adopting few legislative and judicial reforms in order to get effective results and to implement the mediation and community dispute resolution in full force.

Developed nations: The study also demonstrates that the effectiveness of alternative dispute resolution in developed countries is achieving successful resolutions while reducing the financial burden on parties involved.

Comparative analysis: In developing countries the success rate is low despite the initiatives because these countries face challenges such as weak legal system, lack of ADR mechanisms and feeling of distrust. The comparative analysis shows that while developing countries share common challenges- they also demonstrate a strong capacity to innovate through culturally grounded mediation practices.

Geographical gap: There is a geographical gap in existing literatures, with most studies focusing on specific regions such as China, Spain and Brazil. While these studies produce valuable insights for effectiveness of mediation in respective countries, it lacks comparative research across different regions. A more comparative approach would allow for better understanding of how cultural, legal, and socio-economic factors change the use of ADR.

Mediation and community dispute resolution stand as valuable ADR methods for resolving the disputes with cost effectiveness, more privacy and less judicial burden. These approaches embody values of dialogue, empathy, and mutual respect, offering communities an opportunity to resolve disputes in a manner that is culturally relevant, time-efficient, and cost-effective.   Mediation, with a collaborative nature, fosters higher satisfaction levels among parties and preserves relationships which results in social harmony, communal peace, and supports sustainable developmental goals.

The comparative analysis of global trends reveals that while developed nations like the United States of America, United Kingdom, and Japan have institutionalized mediation through legal reforms, technological development, and professional standards. Whereas the developing countries continue to rely on traditional and community-based systems. This blend of formal and informal mechanisms reflects diversity of justice landscapes but exposes few challenges, including lack of awareness, inefficient training, and weak legal recognition of mediated settlements, especially in developing countries. Therefore, such developing countries require to adopt some changes and developmental measures so that the concept of mediation and community dispute resolution mechanisms can be recognized and practiced more effectively, like that of developed countries.

Further, the developing countries like India, and China can improve their success in Alternative Dispute Resolution by adopting the proper training, and capacity building for mediators and developing digital mediation platforms and promoting them for broader access. International collaboration and knowledge-sharing can further enhance the quality and reach of mediation initiatives across the globe. If these recommendations can be implemented then mediation in developing countries will not only be an alternative choice but rather a preferred dispute resolution mechanism.

1.  E-Mediation Writings (EMW), Mediation Compendium: A Guide for GenNxt (2021).

2. Juan Pablo, Effectiveness of Mediation and Arbitration as Alternative Dispute Resolution Methods in Mexico, 4 J. Conflict Mgmt. 38 (2024), https://doi.org/10.47604/jcm.2383.

3. Astitva Kumar, Analyze the Laws of Developing Countries in the Field of Mediation, ICMCR (n.d.), https://icmrmediation.org/analyze-the-laws-of-developing-countries-in-the-field-of-mediation/.

4. The Asia Foundation, Community Dispute Mediation in Asia, https://asiafoundation.org/wp-content/uploads/2016/10/Community-Dispute-Mediation-in-Asia.pdf.

5. S. Susheela, Change Through Mediation, 1^st edition, Asia Law House (2017).

6. DNR. Rashika, Comparative Study of Mediation Frameworks in India, UK, and USA, Vol.6, IJRPR, (2025), DNR Rashika.pdf

7. Neha Astha, A Comparative Study on Mediation Mechanisms Between Developing & Developed Nations, Vol. 4 (01), CMR University, 171 (2025), 12.-A-Comparative-Study-on-Mediation-Mechanisms-Between-Developing-and-Developed-Countries.pdf

8. Survey of Dispute Resolution in India, 2023: Growth and Future of ADR in Indian by FICL and CTIL.

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