Evolution of mediation from the time of Magna Carta

This article is written by Astitva Kumar, a research associate at ICMCR. The article is the result of extensive research and analysis on mediation and how it evolved from the time of the Magna carta.

Introduction

Magna Carta, also known as the “Great Charter”, is the most precious and pious document in the historical advancement of the legal field. Laying down principles of rights, duties, and law for the first time, Magna Carta envisaged the purpose of individuals’ rights to justice. Magna Carta, not just laid down the principle of law and justice but made a successful attempt to “balance power between the government and the governed”.[1] Besides establishing the Rule of Law for the entire legal industry, Magna Carta became the starting point of formal mediation between parties. While focussing on the principles of the Magna Carta, people at times ignore the fact that the greatest legal document of history, was signed after a process of mediation agreed upon by the parties. Magna Carta thus became the starting point of the evolution of Mediation. Evolving from the principles of the Magna Carta, Mediation has begun utilizing technology to yield efficient results. Beginning with no legislative or procedural guidance, Mediation today has a specific International Law that revolves around the principles and procedures involved in the same. Starting as a dubious concept falling outside the preview of the legal system to a current stand, where courts and judges are suggesting Mediation to parties for speedy and efficient resolution.

The article is divided into 5 sections each dealing with a progressive approach to help the reader understand the basics and build a perspective about the evolution of Mediation. (I) Historical Background, the section deals with the historical background of the Magna Carta, and helps to establish the importance of the same (II) Principles of the Magna Carta, the section acts as a link between the principles of the Magna Carta and the principles of Mediation. It further helps to form a comprehensive view, that Mediation is not contrary to the beliefs of the Magna Carta, but an inherent part of the same. (III) Evolution of Mediation, the section deals with the reasons for the advancement of Mediation. (IV) Codification of Mediation, this part of the article talks about the development of mediation in International law. It helps to form concrete evidence of the development in the field of Mediation and (V) Impediments to Success, the section caters to the loopholes of Mediation. It explores the fact that even though there is a tremendous advancement in the field of Mediation, there exist certain roadblocks that prevent its development.

Historical Background

Magna Carta is an English Charter that was issued in 1215. It formed the first formal document of legal advancement. It acted as the beginning of a long historical development that has led to the current system of constitutional law. Most of those concepts that still influence western political constitutional doctrine were developed and defined in the text. Magna Carta has had a direct influence on many common law fundamental documents, including the United States Constitution, Declaration of Independence, and Bill of Rights, to name a few, and is thus regarded as among the most significant events in the history of democracy, civil rights and obligations, and common law in general.[2]

The original reason for the formation of the Magna Carta was the disagreement between the Church and the King. The State was troubled by the absolute right of the Monarch, thus leading to discrimination and injustice towards the public. King John’s policies were not only disadvantageous for the people but also arbitrary. Charging exorbitant taxes from the people to fill in the State treasury was one of the arbitrary policies formulated by the King. John rapidly lost the allegiance of his two most important supporters in England, the barons, and the Catholic bishops, as a result of his severe and uncertain reign. Their demands for political changes were repeatedly denied by the king, resulting in a civil war in the spring of 1215. King John did not take the acts of the barons seriously until the rebels arrived and entered London. Then came the talks, which culminated in the signing of a paper.[3]

Evolving from the principles of the Magna Carta, Mediation has begun utilizing technology to yield efficient results. Beginning with no legislative or procedural guidance, Mediation today has a specific International Law that revolves around the principles and procedures involved in the same. Starting as a dubious concept falling outside the preview of the legal system to a current stand, where courts and judges are suggesting Mediation to parties for speedy and efficient resolution.

The evolution of the Magna Carta stands upright even in the 21st century. The ideas of freedom, democracy, privacy all enunciated in the document hold relevance in the technological era. As the liberties guaranteed to people are under threat and encroachment by the Government, it is the objective and the principles of the Magna Carta, the great revolution that pulls back the authorities within the boundaries. Magna Carta is an English Charter that was issued in 1215. It formed the first formal document of legal advancement. It acted as the beginning of a long historical development that has led to the current system of constitutional law. Most of those concepts that still influence western political constitutional doctrine were developed and defined in the text. Magna Carta has had a direct influence on many common law fundamental documents, including the United States Constitution, Declaration of Independence, and Bill of Rights, to name a few, and is thus regarded as among the most significant events in the history of democracy, civil rights and obligations, and common law in general.

The Magna Carta was soon released as a formal document that took the control of law away from the King and the Government. Magna Carta was a step towards a revolution in the legal industry. Magna Carta has traveled a long path through history, spreading around the globe as a result of its implications and impact. More than 800 years later, its simple principles of liberty and equality have become a vital and inseparable part of humanity’s genetic makeup. The monarch and the nobility fought over the Magna Carta’s terms for about a generation after it was signed, and it was regularly rewritten, changed, enhanced, and modified. For example, it was the 1225 version, which was significantly shorter than the original, that was formally ratified by the new King Edward I. Magna Carta’s spirit was revived during the legendary Putney debates of 1647.

Principles of Magna Carta

Magna Carta was “a symbol of democracy, justice, human rights and perhaps above all the rule of law for the whole world”. The emphasis on justice and rule of law was one of the most important principles established by the Magna Carta. Magna Carta emphasizes the fact that law should not be in absolute control of the Government or the King. Insistence on law free from the control of King and Government becomes the first principle that lays down the evolution and principle of Mediation.[4] Moreover, the law treating everyone equally helped in demonstrating the right of participation of parties in a free flow of justice. Magna Carta, emphasizes one of the most basic doctrines, “No One is Above Law”.[5] The principles of the Magna Carta took away absolute power from the King and brought them all under the preview of law equally. The principles established work upon the development of the world, a development that envisages efficient justice to be delivered to every individual of the country. Another important principle of the Magna Carta is its insistence upon rule of law. The document lays down that no person shall be punished or harassed or had to undergo a long and tiresome process unless mentioned in the procedures of law. Being a symbol of justice and rights, Magna Carta, explicitly laid down the aforementioned principles. Furthermore, Magna Carta also talked about certain underlying principles. These principles were not given much importance during the time of their formation, but are of extreme importance in the present society.[6]

The world focuses on the principles established in Magna Carta. What often goes unnoticed is the development of the Magna Carta. It is often by-passed and sidelined that the Magna Carta, the greatest document in legal history, is a result of “Partially Significant Mediation Mechanism”. Being acquainted with the tussle between the barons and the King, Pope Innocent, tried to foster talks between both the parties to reach a conclusive and amicable solution. However, the process did not prove to be fruitful, since the King was adamant about his supremacy at the same time, the rebels were not ready to concede to the arbitrary reign of the King. The failure of a peaceful resolution attempt led to the rebels advancing to violent methods. The rebels took up arms and decided not to stop until their demands were met. The deteriorating situation eventually led to the start of the Baron’s War. After multiple wars, the Barons and the King failed to subside their powers. “On June 10, 1215, both sides met on a meadow at Runnymede on the south bank of the River Thames. This was a traditional place for assemblies and was on neutral ground between the two sides. Over the next ten days, the two sides mediated their dispute, using the Archbishop of Canterbury as a mediator.”[7]

The aforementioned perspective about the development of the Magna Carta justifies the presence of Mediation and Alternative Dispute Resolution Techniques even bore the issuance of codified law in the world. Besides, being an establishment of Rule of law in the world, Magna Carta becomes the first formal presentation of an acknowledgment of Mediation. “Magna Carta finds the formal origins of government by agreement between the governor and the governed, the acknowledgment of the limited power residing in any one organ of government, and the framework for the development of the rule of law which is such a vital component of our liberal democracy”[8] The process laid the foundation of modern-day Mediation. Both parties produced written offers, which they presented to the Archbishop, who worked with the parties to reach a negotiated conclusion. Over a ten-day timeframe, the Archbishop’s realistic efforts yielded a legal settlement that was documented and duly signed by both parties. This written pact came to be known as The Magna Carta (The Great Charter).[9] The lords reaffirmed their devotion to King John, and copies of the Magna Carta were formally distributed. Only four of the copies created in 1215 have survived, one of which is owned by the Lincoln Cathedral in the English city of Lincoln.

Furthermore, the underlying principle of co-existence as enunciated in the debate between the Church and the State, co-relates to the principle of Mediation. Mediation envisages the goal of coexistence and co-relation. The concept of parties arriving at a common and compromised suggestion uplifts the spirit of the Magna Carta. Just as the State and the Church collaborated on their demands, similarly, parties should arrive at a common stance. Clause 40 of the Magna Carta, refers to cost and money impeding justice. The document envisages the creation of a system that not only resolves disputes but also cost-effectively resolves them. Mediation facilitates the furtherance of both the objectives and conforms to the ideals of the Magna Carta.[10] Similarly, Clause 24 of the Magna Carta, permits individuals to resort to private and out-of-court judicial systems. Though during the era, litigation was a preferential method of resolution since it benefitted the State as well. But, the sheer inclusion of private and out-of-court settlements justifies the significance of Mediation and other ADR mechanisms.

After rigorous wars between the King and the rebels that did not lead to any fruitful results, emphasizes the importance of Mediation. Even after using might during wars, the parties eventually returned to peaceful and compromising efforts. Laying the foundation of Mediation, Magna served its purpose of principles and development.

Evolution of Mediation

Magna Carta established that Mediation is a viable and preferable method of Dispute Resolution. An important development that happened in due course of time, was the adoption of mediation before judicial and violent methods. It was seen that wars do more harm than good, thus, it is beneficial for parties and the society to adopt viable means of Mediation and Negotiation before opting for legislative and violent methods. Over the ages, the judiciary and Legislature have acknowledged that there are legitimate reasons why conflicts should be settled in ways other than via litigation. For instance, in the context of arbitration, it has long been understood that the function of the courts in which the parties have agreed to arbitrate is limited. The agreed-upon arbitration might be limited to determining questions of law and delivering reward enforcement In recent years, the private provision has increased. The use of alternative dispute resolution (ADR) has been re-encouraged as a means of resolving disputes. way of resolving issues privately when litigation is prohibitively expensive or is not acceptable. The insistence of the State on State adjudicated methods of litigation has subsided over the years. Mediation and ADR techniques have been accepted whole-heartedly by the authorities and the public.

The most significant shift from a judicial approach to an alternative dispute resolution approach was seen after the 2008 financial crisis in Europe. The crisis highlighted the discrepancies and fallacies in the principles envisaged through Magna Carta. Clause 39 and clause 40, promised equality of individuals before the law, and disputes to be settled with due process of law to achieve a justiciable stand. However, “financing access to justice at a time of tightening of state budgets; setting the proper scope of the private sector provision of justice; and, strengthening access to justice in the courts through technology and reformed processes”[11] suggested a need for reformation. Since the State was bound by the principles of Rule of Law and equality to all, it developed the practice of Alternative Dispute Resolution. The insistence on Clause 40 of the Magna Carta, to provide an expeditious and effective way of justice to parties, the process of ADR, stands validated. The United States, adoption and evolution of the Mediation, began in the early 20th century. The labor and social unrest for the delay and discrimination injustice, called upon newer methods of interpretations and judicial resolutions. Mediation is a middle path of authoritative and unregulated settlement that was popularized during the era.

The core principle of Anglo-American Jurisprudence is that each individual has a right to be heard by a jury. With the advancement of time and legislation, the jury has lost its relevance in civil matters. “The discovery process grinds slowly toward an often anticlimactic struggle between parties left traumatized by the process. Along the way, the “principle,” initially deemed worthy of vindication at all cost, can become elusive to the point of obscurity.”[12] Civil matters are adjudicated either by a judge single-handedly or are mutually settled between the parties. The second part has been given extreme importance in the current scenario. The competitive nature of parties is tried to be controlled and subsided through amicable intrusion.

Lately, ombudsman systems for certain industries have grown in favor as an alternative to arbitration and ADR for private conflict settlement. The system for financial services and insurance is the most developed in the United Kingdom. This mechanism is completely free to consumers and has effectively handled a large number of claims originating from either one-off disputes or massive systemic mis-selling by the industry. Its function is autonomous, and its rulings are binding on the firm, but not on the customer, who has the right to take legal action if he or she is unsatisfied.[13] Mediation is the modern-day version of this time-honored technique, which predates even the famous jury trial. Mediation fosters an environment in which the lifeblood of litigation, posturing, and gamesmanship, is replaced by diverting the parties’ creative efforts to work on a mutually beneficial solution. The benefits of mediation include its low cost (a fraction of the expense of litigation), non-binding informality (if it fails, the parties return to court without prejudice), and versatility.

The latest development in the field of Mediation has been the advent and inclusion of technology. As technology becomes an inherent part of human life, an urgent need is observed to include the same in the mediation system. Since mediation is mere facilitation of talks and negotiations between parties, technology would be a huge asset to the process. contemplating the use of an Online Court for Online Dispute Resolution (ODR). The notion was first examined in a Civil Justice Council Report, which proposed a three-stage framework: I avoidance (through data and case evaluation); ii) resolution (by online facilitation and mediation); and, iii) litigation (by an online court and with a reduced need for lawyers).[14] Evolution at a gradual pace has been observed with Mediation, the advent of technology would cause an exponential increase in its working or would turn the industry into a complex shell. It would be an interesting and unexpected change in Mediation, the results of which are extremely unpredictable at this juncture.

Codification of Mediation

Codification Mediation began at a different rate for different countries. Each country resorted to Mediation as an alternative mode of settlement of disputes. “The Principles of Civil Procedure of the USSR and the Union Republics envisaged both community courts and arbitral tribunals as alternatives to traditional state court proceedings.”[15] Arbitral Tribunals began to be seen throughout the world in 1917. The National Organization of Mediators was founded to help establish a professional community of mediators. These initiatives were supported by developments aimed at the transfer of the peaceful settlement of disputes from a court-administered process to one implemented by out-of-court mediators.[16]

The advancement of Mediation continued on an individualistic basis for a long time. Till that time, international law was developed. The UNCITRAL Model Law on International Commercial Conciliation came into force in 2002. Though the title did not deal effectively and explicitly with Mediation, the procedures, and the principles, aligned with the principles of Mediation. It wasn’t until very recently that Mediation was adopted as the basic component of the Law. In 2018, the Model Law was amended to become the Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation.[17] “The Model Law provides uniform rules on enforcement of settlement agreements and also addresses the right of a party to invoke a settlement agreement in a procedure. It provides an exhaustive list of grounds that a party can invoke in a procedure covered by the Model Law. The Model Law can be used as a basis for the enactment of legislation on mediation, included, where needed, for implementing the United Nations Convention on International Settlement Agreements Resulting from Mediation.”

Apart from the UNCITRAL Model Law, multiple international and national centers facilitate mediation. Research dedicated institutes like International Mediation Institute and World Mediation Organization have been working tremendously to facilitate and engender mediation as a primary way of dispute resolution. Meditations have evolved into facilitative, evaluative, and transformative. The development of others and mediation as a mandatory practice is still under development in various countries. Various international organizations have also been trying to popularize mediation as a necessary and preferable practice. Each organization possesses its own rules and regulations based on the principles of UNCITRAl Model Law. For Example, WIPO Mediation Rules, have guided international parties to successful mediation in several cases. Inclusion and acceptance of Mediation at an international level become a revolutionary point in the history of mediation. Mediation might have taken a long time to evolve and develop, at the current juncture is not only being recognized as a plausible option but being adopted as a primary settlement.

Impediments to Magna Carta

Though Mediation has been evolving at an exponential rate and has been accepted by society, certain provisions of the process act as roadblocks to the principles of the Magna Carta. The process of justice by the Magna Carta has to be open, public, and accessible by all. On the contrary, Mediation is a confidential process that remains between the two parties, making it a skeptical mode of achieving justice. The evolution of the law necessitates transparent and accessible decision-making that may be appealed to a higher court. Indeed, without it, our legal system cannot grow. The clauses of the Arbitration Act 1996, which have allowed opt-out agreements barring recourse to the court and severely restricting rights of appeal to the court in cases where there is no opt-out since their first enactment in 1979, were seen by some as suppressing the advancement of some aspects of English commercial law. It’s a risk that has to be addressed more broadly.[18]

Another impediment to the success of Mediation is the lack of uniformity. Each organization around the world has its mediation rules.[19] They are bound by their own rules and not by any international law. Though the principles remain the same, the discrepancy in rules becomes a serious impediment to accepting Mediation uniformly. But, unlike other roadblocks to success, the loopholes and the absence of a uniform law, become an opportunity to develop Mediation for the benefit of the society at large. The inclusion of technology almond with the creation of awareness about the same, create an environment of hope for the same.

Conclusion

Justice Welby rightly said, the Magna Carta, “has set the bar high for all of us today”. The Legal field has evolved at an exponential rate, but the roots remain intact. The principles established by the Magna Carta, are yet to be fulfilled. Mediation was one of the underlying objectives that started evolving from the Magna Carta. “Deciding cases according to law and delivering timely justice – which still carries the force of law today, by virtue of the 1297 enactment.”[20] As a result, it is important to redesign our judicial system to equip it for the present and, to the greatest extent feasible, to future-proof it. The only way to do this is to stabilize its funding, make good use of its facilities, allocate work effectively, and capitalize on the benefits that technology and digitalization can provide. This will secure access to justice in the twenty-first century while also preserving one of Magna Carta’s main legacies for the present and future.

Mediation has almost as long a history as the conflict itself. Disagreements will arise in man’s desire for a better existence. The greatest mediators can resolve these conflicts in an unobtrusive, efficient, and, most importantly, the fair manner for both sides.

Mediation is faster than judicial proceedings. The expense is also lower, and it assists the parties concerned in reaching an acceptable agreement. Conflict resolution also provides substantial benefits to firms and individuals engaged in a disagreement since it emphasizes their interests while keeping their concerns at the sidelines.

[1] Magna carta Changed the World, David Cameron Tells Anniversary Event, BBC News, Published on 15th June, 2015

[2] How Does Magna carta Influence the Modern Perceptions of Civil rights, Daily History, Available at: https://dailyhistory.org/How_does_The_Magna_Carta_influence_the_Modern_Perceptions_of_Civil_Rights%3Fgna

[3] Causes and effects of the Ma Carta, SK Online Education, Available at: http://www.skwirk.com/p-c_s-1_u-105_t-279_c-929/causes-and-effects-of-the-magna-carta/nsw/causes-and-effects-of-the-magna-carta/introduction-to-democracy/democratic-development

[4] Magna carta Changed the World, David Cameron Tells Anniversary Event, BBC News, Published on 15th June, 2015, Available on: https://www.bbc.com/news/uk-33126723

[5] J.C. Holt, Magna Carta, Cambridge University Press, Clause 9, (1992).

[6] Hon’ble Wayne Martin AC, Significance of Magna Carta, Speech at Saint George Cathedral, Delivered on 14th June, 2014, Available at: https://www.supremecourt.wa.gov.au/_files/Magna_Carta_St_Georges_Cathedral_Evensong_CJ_14_June_2015.pdf

[7] Stewen. W. Seymour, The Magna Carta: A Sabbatical in England, Samuels Law Blog, Published on 9th Aug, 2016, Available on: https://samuelslaw.com/2016/08/magna-carta/

[8] Hon’ble Wayne Martin AC, Significance of Magna Carta, Speech at Saint George Cathedral, Delivered on 14th June, 2014, Available at: https://www.supremecourt.wa.gov.au/_files/Magna_Carta_St_Georges_Cathedral_Evensong_CJ_14_June_2015.pdf

[9] Stewen. W. Seymour, The Magna Carta: A Sabbatical in England, Samuels Law Blog, Published on 9th Aug, 2016, Available on: https://samuelslaw.com/2016/08/magna-carta/

[10] Lord Thomas, The Legacy of Magna Carta: Justice in the 21st Century, Speech at Legal Research Foundation, (Delivered on, 25th September, 2015) Available at: https://www.judiciary.uk/wp-content/uploads/2015/10/the-legacy-of-magna-carta-lcj.pdf.

[11] Lord Thomas, The Legacy of Magna Carta: Justice in the 21st Century, Speech at Legal Research Foundation, (Delivered on, 25th September, 2015) Available at: https://www.judiciary.uk/wp-content/uploads/2015/10/the-legacy-of-magna-carta-lcj.pdf.

[12] Thomas J Pryor, Wonders of Mediation WIPO, New Jersey Law Blog, 23rd February, 2012, Available on: https://www.njlawblog.com/2012/02/articles/alternative-dispute-resolution/the-wonders-of-mediation/

[13] ibid.

[14] Tom Stipanowich, The International Evolution of Mediation: A Call for Dialogue and Deliberation, Mediate India Blog, Published on: 16th February, 2016, Available on: https://www.mediate.com/articles/StipanowichS7.cfm

[15] P.I. Bardin, The Principles of Civil Procedure of the USSR and the Union Republics, Soviet Law and Government, Vol. 1, 1962, Art. 4, Published on 8th Dec, 2014. Available at: https://doi.org/10.2753/RUP1061-1940010158.

[16] Marrie-Anne Birken and Kim O’Sullivan , Evolution of Mediation in Central Asia: The Perspective of the European Bank for Reconstruction and Development, p. 208, Available at: https://doi.org/10.1163/9789004407411_014

[17] UNCITRAl Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation , United Nations, 2018. Available at: https://uncitral.un.org/en/texts/mediation/modellaw/commercial_conciliation

[18] Lord Thomas, The Legacy of Magna Carta: Justice in the 21st Century, Speech at Legal Research Foundation, (Delivered on, 25th September, 2015) Available at: https://www.judiciary.uk/wp-content/uploads/2015/10/the-legacy-of-magna-carta-lcj.pdf.

[19] Anil Xavier, Absence of Universal Mediation Procedure & Ethical Norms – The Risks Faced by the Mediator, Indian Institute of Arbitration and Mediation, Published on 13th November, 2018, Available at: http://www.arbitrationindia.com/pdf/mediation_ethics.pdf

[20]J.C. Holt, Magna Carta, Cambridge University Press, Clause 9, (1992).