Mediation Championship Post 2: Environmental Governance in India – Can Mediation Help?

As the scope, viability and popularity of mediation continues to spread across various industries in the Indian sub-continent, one area that has lacked focus is environmental law. Disputes including the protests against the Sterlite Copper plant in Tamil Nadu or the stand-off between environmental activists and government authorities over the Mumbai Metro project owing to the large-scale felling of trees, could have been de-escalated or even avoided by engaging in mediation as a means of early intervention.

Traditionally, the primary judicial body concerned with the resolution of environmental disputes in India is the National Green Tribunal (“NGT”), which does not even mention, much less mandate, the usage of mediation as a pre-litigation measure. The overburdened and understaffed structure of the NGT is clearly apparent as environmental disputes aren’t being disposed off in a speedy manner, which can easily be achieved by adopting a pro-mediation stance. Section 6 of the First Schedule of The Mediation Act 2023 does not help much either, explicitly barring any environmental dispute from being eligible to be settled via mediation, within the jurisdiction of the Act.

In India, environmental law disputes are classified as matters of public law, owing to its implication on both private parties and the larger societal fabric. Exclusion of mediation clauses is thus regarded as a necessary requirement within such statutes, with its potential to undermine specialized statutory objectives. Another rationale for such exclusion is that the power asymmetries which stem from environmental disputes are resolvable only by State apparatus, and, therefore, non-delegable. However, for a developing nation with a growing economy, India needs a transparent and inclusive mediation framework to build trust and confidence for state authorities and citizens of society to participate in dialogue when in dispute.

Considering that mediation as a concept in India is widely regarded for its ability to effectively manage and resolve conflicts amongst various stakeholders, it is clearly being underutilized in cases of Indian environmental disputes. Importantly, we have positive precedents that demonstrate the value of dialogue, for example – the multi-stakeholder facilitated dialogue concerning Chilka Lake in Odisha (South-Eastern India), which led to the revival of the traditional fishing livelihood for thousands of locals, or high-stake talks surrounding the Uttarakhand Forest dispute, (North India), where mediation helped facilitate peaceful negotiations between the forest authorities and prejudiced communities.

Internationally, mediation has proven effective in resolving climate disputes. The Love Canal Waste Dispute in USA and the New Zealand based Whanganui River Settlement are strong examples of mediation being engaged to settle, both, inter and intra-state conflicts. Given the general trend of multiplicity of stakeholders and the complicated nature of environmental disputes, it becomes all the more imperative to invoke mediation in handling such conflicts and disagreements peacefully

Can the laws get Mediation-enabling?

An effective way to ensure the positive effects of mediation be realised is by introducing mediation in legislations and statutes that concern environmental governance and protection. For instance, Indian legislations such as the Environment (Protection) Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, do not acknowledge “conciliation” or “mediation” in their bare texts, thereby losing out on incentivizing parties to settle disputes before approaching the courts.

India could take inspiration from other jurisdictions, for example – South Africa, whose Section 34 of the National Environmental Management Act explicitly recognizing mediation as an alternative to the traditional legal dispute resolution. European countries such as Germany and the Netherlands too follow a similar framework, often requiring parties to consider mediation before or during environment and land-based litigation.

Introducing new clauses centered around mediation or amending existing ones would also lead to a far more objective and accomplished end-result. Invoking mediation would not only invite technical assessments by introducing objective criteria into decision-making, but also create transparency in each parties’ interests and needs, allowing them to co-create out-of-the-box remedies in natural-resource disputes. Moreover, enforcing agreements that are both benefit- sharing and community-developing by means of mutual agreements is only possible when the relevant legislations explicitly recognize the process of mediation. While the Indian Judiciary has been pushing for mediation to be recognized, these efforts are rather conservative.

Given the fact that mediation in India is commonly associated with servicing matrimonial, consumer and community disputes; our work is cut out – collect case studies, structure frameworks, design process templates for multi-stakeholder participation, build capacity for competent neutrals, and, only then, may be gun for legislative changes that will bring mediation into the forefront for environment disputes.