In this era, complexity of conflicts and stakes involved therein are all time high. Nowadays, disputes are concoctions of wide-ranging interests and many a time pose such problems that even our legal arsenal doesn’t possess their solutions. With a surge in quantum of cases being filed everyday and our judicial system witnesses intimidating backlog, an escape route or troubleshooting mechanism is undoubtedly warranted.
Alternative Dispute Resolution or ADR has gained much respect across continents and has been astonishingly instrumental in reduction of cases being filed before the courts. ADR consists of several informal dispute resolution mechanisms and mediation is one of them. Mediation essentially is a facilitative process where a third person assists the parties in conflict to come about a mutually satisfactory settlement. It’s fundamentally voluntary, confidential and is best suited to problems that require multiple sessions.
Mediation as a platform entails a ‘structured opportunity’ for parties to personalise the decision making process and comes up with creative solutions. It empowers them to make decisions about themselves rather than having a judge or arbitrator to impose upon them. It can be employed by everyone and in almost all types of conflicts, ranging from industry oriented commercial matters to those belonging to family, irrespective of the stakes involved. One party is expected to understand other party’s interests, to cede some ground, to alter positions and to arrive at a mutually acceptable and favorable agreement. Hence, instead of one winning, albeit with considerable costs, and the other losing, mediation provides a win win situation to both. Moreover, it restores goodwill and accounts for post-dispute continuance of healthy relationship, as the feeling of animosity that develops when a party loses a battle in court is totally obviated. ‘Principled negotiation’ and not ‘positional bargaining’ is the new mantra.
A mediator is expected to be neutral and can be chosen by the parties themselves. Their role consists of holding joint as well as private (caucus) sessions with parties and escorting them to reach a settlement. A good mediator maintains the flow of negotiation and ensures smooth and continuous talks. They are not authorised to advise the parties on law or technical matters. Furthermore, there might arise situations where due to emotion or poor communication it becomes difficult for parties to deal with issues. Here, a mediator is supposed to guide them and help overcome obstacles.
Although mediation has been in practice since Vedic times, it received a legislative partial nod by passing of Industrial Disputes Act, 1947, section 4 of which stated, “duty of mediating in and promoting the settlement of Industrial disputes.” However, mediation as a dispute resolution forum was explicitly recognised in 1999 with the insertion of section 89 to The Code of Civil Procedure and was brought into force with effect from July 1, 2002. Ahmedabad Mediation Centre was the first lawyer-managed mediation centre in India and Chennai Mediation Centre holds the title of being the first court annexed mediation centre.
In India, parties can avail themselves of mediation in two ways. Firstly, they can anytime appoint a mediator and resort to private mediation. All they require is to agree upon a neutral third party and to decide the venue, frequency and minimal procedures. Private mediation is relatively flexible and parties are free to choose the functioning and whereabouts of the process.
Secondly, while the parties have filed a suit before a court, they could be always directed to a court-annexed mediation centre. Here, however, strict procedures are to be adhered to. The Apex Court in Afcons Infrastructure Ltd v. Cherian Varkey Construction Pvt. Ltd. (2010) 8 SCC 24
In a suit when pleadings have finished, prior to framing of issues, the concerned court decides up on a preliminary hearing for appearance of parties and acquaints itself with facts and nature of the dispute. Then it’s determined whether the matter falls into the category of cases that are required to be tried by courts and hence, is not fit to be referred to ADR.
Only if they fall in the ADR-suitable category, one of the five modes is chosen. The words “where it appears to the Court” clearly show that it’s not mandatory for all matters to be referred to ADR. Rule 1-A of Order 10 asks court to give the option to parties to choose any ADR process. If the parties do not consent to arbitration or conciliation, it’s open to the court to refer the matter to mediation, judicial settlement or Lok Adalat.
The trend has been to refer to mediation, cases that are complicated in nature, requiring multiple sittings and round of negotiations over a period of time. If the court finds the matter suitable, it briefly records the reason and refers the dispute to mediation. Normally, original record of the case is not sent to the forum, but if the case is referred to a court-annexed mediation centre that is under the former’s control, the original document may be available. If mediation fails, then court proceeds with the hearing but if there is a settlement, the terms are examined and a decree is made vis-à-vis Order 23 Rule 3 of the Code of Civil Procedure, 1908.
It would be pertinent to note that if mediation settlement contains disputes that are not the subject matter of filed suit, court may direct that section 21 of the Legal Services Authority Act, 1987, will govern the same. Mediation here is deemed to be a Lok Adalat. In addition to that, if any of the terms of agreement is illegal or unenforceable, the court will intimate the parties and help avoid litigation on the same in future.
If the parties resort to private mediation, it’s up to them to decide when, how and if the agreement they have arrived at will be binding. On the other hand, court–annexed mediation prescribes a different procedure. As court retains control and jurisdiction over the process, the terms will have to be placed before it for recording the settlement and disposal. The court resorts to principles and directions enunciated in Order 23 Rule 3, and formulates a decree/order.
One of the modes of determining the efficiency of justice delivery system of a country is to take into account the speed and effectiveness with which disputes are settled. While judges in India have recognised mediation’s potential in tackling docket explosion in an efficacious manner, lawyers have been a bit sceptical and positioned themselves on the conservative side. The latter’s view comprises of concerns which, at the very outset, seem viable. They don’t wish to expose their clients to uncertainty, don’t want to lose out on extra income that is brought by perpetual hearings as a result of extensive delays and move out of familiar environment of courts. The current scenario is reminiscent of 1980’s west when lawyers found themselves in deep dilemma as to whether to welcome this forum or not.
Anyhow, the situation is changing, albeit slowly. Opening of various court-annexed mediation centres has installed the trust factor and prospective litigants now feel comfortable to depend on them. Corporations that do business on international level have started to recognise the importance of mediation. It’s not surprising as mediation being confidential protects their image, is quick, simple and less expensive, all of which are core requirements of a multinational. Additionally, decision to implement the outcome rests with them. This aspect is taking care of lawyer’s fee also, as these corporations tend to pay them well.
Whilst the western nations have absorbed this model and made it an effective tool for resolving disputes, common man in India is still unaware of the process and benefits it brings along. Therefore, government needs to take more initiatives and set up justice delivery mechanisms beyond court-assisted mediation. As of now, only commercial institutions rely upon it. The aim should be to make it accessible at all levels and in all communities.
It should be taken into account that Tis Hazari Mediation Centre, Karkardooma Mediation Centre in Delhi and Bangalore Mediation Centre have shown mediation’s adaptability and success amongst Indian populace with a settlement rate over 60% and 62%. It is not only comforting but also very much inspiriting that matters pending for years have been settled within a few days by qualified mediators.
With the former President of India Pratibha Patil inaugurating Mediation Manual, Supreme Court directing courts to adopt mediation to resolve matrimonial and high stake commercial disputes and Indian Institute of Arbitration & Mediation establishing community mediation clinics across states, the scenario is surely optimistic. Recent set-up of Association of Mediators, a national body of mediators, is an encouraging sign and is an apt example of what could be reasonably called, the need of the hour. As Joseph Grynbaum rightfully said, “An ounce of mediation is worth a pound of arbitration and a ton of litigation!” It’s time to start investing heavily and accept that mediation is there to complement and not supplant judicial process.
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