“. . . both were happy with the result, and both rose in public estimation. . . . I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing out private compromises of hundreds of cases. I lost nothing thereby–not even money; certainly not my soul.”
Disputes are bound to happen as it is a part of everyone’s life, it is inevitable. Every dispute which arises has three facets i.e.
The emergence of dispute is not wrong but what is more essential is how parties solve the dispute. An adversarial system of justice like litigating and arbitration and non-adversarial like mediation and conciliation are the two ways of addressing the disputes.
One of the ‘go to’ reforms in the legal community is the recommendation to Alternative Dispute Resolution mechanism (ADR). However, many issues relating to implementation of the ADR mechanisms have been highlighted such as lack of awareness, structural issues, lack of case management training and many other. Judicial reforms such as arbitration have wide acceptance till today, while judicial reform such as mediation has not been able to gather similar results.
Mediation has been accepted as the fastest growing dispute resolving method worldwide. Mediation comes up with congenial and creative solutions. It allows parties to relook at their mutual interests and rights. This helps in maintaining a good tempered interaction between the parties.
In the Code of Civil Procedure, 1908, statutory amendments were done to include different layouts of the dispute resolution including mediation for cases of civil nature. The Supreme Court observed in the case of Salem Advocate Bar Association v. Union of Indiathat regardless of the existing framework of alternative dispute resolution, there was inadequate case management to take dispute resolution outside the court system to implement the methods that were conceived in the Code of Civil Procedure. The Law Commission of India, before the amendments in the Civil Procedure Code, 1908 encouraged mediation as an alternative dispute resolution method which resulted in dialogues among various stakeholders.
It was in 2005, in the case of Salem Advocate Bar Association v Union of India, (2005) 6 SCC 344, where analysis was done which brought mediation into essence. In this case, a structure was formed and it set out the framework where model rules to be implemented by the High Courts, guidelines to case management, mediation centres related to court were established. Even after the establishment of court-connected mediation programmes, there have been limited studies and evaluations done for such programmes. The study of such mediation centres is necessary to further expand the role of the justice delivery system in India.
The method of mediation was introduced for the first in the Indian legal system through Arbitration and Conciliation Act, 1996. With the introduction of Section 30 (1) of the Arbitration and Conciliation Act 1996, strengthen those involved to examine the possibility of mediation and arbitration, although arbitration proceedings have been initiated, and thereby enables the arbitral tribunal to use mediation to resolve disputes. Due to the lack of proper enforcement of mediation rules, this provision, which encourages mediation, is almost missing. However, this has been partially corrected by the introduction of Section 89 of the 1908 Code of Civil Procedure (first introduced in Section 30 of the Arbitration and Conciliation Act 1996), which deals with examining the various methods of dispute settlement. ‘Judicial Mediation’ was also introduced by this section only. Depending on this, the Courts were satisfied that the issues between the disputing parties can be settled amicably by this methodology. The Court also assure the conflicting parties to seek other redressal mechanisms of mediation, arbitration, negotiation and other forms of alternate dispute resolution. Unlike other non-binding alternative dispute resolution mechanisms, there is no still proven statute that deals with the privacy concerns i.e. ‘confidentiality’ in the mediation process in India.
Benefits of mediation
Quick decision making: The reduced time required for mediation is a significant advantage over trial or arbitration as it can take place fairly early in the dispute. This also allows the mediator to concentrate just on relevant issues and ignore the rest of them.
Cost efficiency: Generally speaking, mediation is always less expensive than a trial compared to a trial because it requires little to no preparation, is less formal and complex than trial or arbitration, can happen at an early stage in the dispute, and is generally less formal and complex than trial and arbitration.
Protect relationships: In Order 32A of the Code of Civil Procedure, a mediation procedure is recommended for the resolution of personal or familial relationships. The reason is that ordinary judicial procedure could not be the most appropriate procedure in such a sensitive area. Therefore, mandatory mediation before a trial really helps protect relationships because usually court trials declare one person a winner while declaring the other one a loser, which causes rivalries to end and grudges to persist.
Supreme Court’s view: It has been held that mediation, conciliation, and arbitration are mandatory for matters brought to court by the Honorable Supreme Court of India in the landmark case of Salem Advocate Bar Association, Tamil Nadu v. Union of India. As a result, Mandatory Mediation would be more widely accepted in our legal system as a solution to current problems.
Challenges and recommendations
- Lack of awareness and apprehension of mediation: There has never been sufficient acceptance of mediation among the legal community. Mediation needs to be popularized by holding training sessions and seminars that provide judges with an understanding of mediation’s benefits. As a result, the mediation industry in India will be able to flourish. In addition, there should be an increase in public awareness of mediation. Mediators can help disseminate information about mediation’s benefits to the general public through coordination between the Judiciary and the Executive. The legal profession should facilitate mediation by advising their clients.
- Issues related to infrastructure and quality control: Mediation centres without adequate administrative support will have to deal with increased workloads as a result of a greater emphasis on mediation. Mediation often results in the sitting of cases, which tends to fly in the face of the basic principle of mediation, i.e. using mediation as a way to resolve disputes quickly. A professionalization of mediation in India is necessary to counter this situation. There should be incentives for people to become mediators on a full time basis. Incorporating compulsory mediation into the legal curriculum has been proposed by the Bar Council of India, which will definitely assist college students in pursuing mediation careers. Additionally, a regulatory body tasked with quality control is needed to support the development of mediation. In order to ensure high-quality mediation, regular training sessions should be conducted for mediators. A formal institution should be created for the accreditation of mediators, as well as the framework for training courses.
- Discrepancy in codification: It is urgently necessary to create a uniform legal code governing mediation. It is ideal for such legislation to make mediation compulsory before approaching a court or arbitral tribunal. It would be a significant step towards changing the establishment of mediation as a means for resolving disputes from what it is today to a mandatory first step. The Supreme Court directed the parties in the landmark Ayodhya case to seek mediation prior to hearing the case. Unfortunately, the lack of a binding factor has dissuaded parties from recognizing mediation, thus vitiating mediation proceedings in India. Legislation that provides procedural guidance and legal sanctity would be beneficial for parties.
During the course of writing this article, we have examined the need to incorporate mediation as an important component of the country’s dispute resolution framework. As a result, we have looked at the inadequacies of the current framework for mediation. We have highlighted the benefits and challenges of mediation in the Indian Judiciary. Mediation has become increasingly popular as a way for resolving conflicts following the COVID-19 pandemic. Mediation offers a fast and efficient remedy to the multitude of cases initiated during the pandemic. A proposed mediation law in India will heavily influence the future of mediation in India.As a result of mediation’s ability to swiftly and amicably resolve disputes, India is experiencing a rapid codification of its Mediation Act.
1.MAHATMA GANDHI, AN AUTOBIOGRAPHY: THE STORY OF MY EXPERIMENTS WITH TRUTH, 134 (6th ed. 1965)
2.Geetanjali Sethi, India: Mediation: Current Jurisprudence And The Path Ahead, MONDAQ (Jun. 24, 2020), https://www.mondaq.com/india/arbitration-dispute-resolution/957898/mediation-current-jurisprudence-and-the-path-ahead
3.ALOK PRASNNA KUMAR, AMEEN JAUHAR,KRITIKA VOHRA,ISHANA TRIPATHI, STRENGHTENING MEDIATION IN INDIA 5(Vidhi Centre for Legal Policy)(2016)
4. Manish T. Karia, Effective implementation of Mediation in India: The way forward, BAR AND BENCH (Mar., 1, 2022, 1.59 PM), https://www.barandbench.com/columns/effective-implementation-of-mediation-in-india-the-way-forward.
5.Salem Advocate Bar Association v Union of India, (2003) 1 S.S.C. 49 (India).
6.Arjun Pal, Impact of Mediation in India, RESEARCH GATE 1(2017)https://www.researchgate.net/publication/319393041_The_Impact_of_Mediation_in_India.
7. Kartik Adlakha, Mandatory Mediation in India- A boon or a bane to the legal system in the country?, CIARB (Mar. 1, 2022) https://www.ciarb.org/resources/features/mandatory-mediation-in-india-a-boon-or-a-bane-to-the-legal-system-in-the-country/
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