Mediation As A Practice In India

Contents  hide 

1 Introduction

2 Nature of cases suited for ADR

3 Advantages / Disadvantages

3.1 Some of the arguments against the concept of mediation are as follows:

4 Effective implementation and growth

5 Conclusion

5.1 Related

Introduction

Every person who has been subjected to the judicial process in India is familiar with the time and cost incurred in litigation in India. The legislature has time and again addressed the issue of judicial pendency and backlog of cases. Various legislations like the Industrial Disputes Act, Arbitration and Conciliation Act, MSME Act, etc. make evident the need for outsourcing disputes for adjudication by court-appointed authorities. The concept of alternate dispute resolution has evolved substantially since the year 1996 and India is constantly making efforts to develop an ambient ecosystem to develop the ADR practice in its jurisdiction. This article throws light on the mediation practice in India.

Mediation is one of the widely used ADR mechanisms available. The legislation dates back to 1996 however the earliest instances of mediation can be traced back to the times of Mahabharata when Lord Krishna acted as a mediator to resolve the disputes between the Kauravas and Pandavas.

While some statutes make it a mandate for parties to resort to mediation in the pre-litigation stage, some parties induce a mediation clause in the contract for an easy and amicable resolution of disputes.

Nature of cases suited for ADR

Most disputes have a tendency to be resolved by way of mediation but the ambit of the dispute resolution to date substantially covers commercial disputes such as breach of contracts, disputes between bankers and customers, developers and builders, tortious disputes, etc.

In Afcons Infrastructure Ltd. and Anr. Vs. Cherian Varkey Construction Company Limited and Ors.[1], the Hon’ble Apex Court laid down certain guidelines regarding the nature of disputes to be, and not to be adjudicated by ADR. As discussed in length by the Hon’ble Supreme Court representative suits under Order 1 Rule 8 involving public interest, disputes relating to the election of public offices, serious allegations of fraud, forgery, impersonation, claims against minors, suits for declaration of title against the government, and cases involving prosecution for criminal offenses among others are not suitable to be adjudicated vide ADR methods. On the other hand, all other civil suits and cases were to be considered suitable for ADR.

The legislature and other ADR organizations are constantly making conscious efforts to increase their reach and cover under its purview as many disputes as possible.

Advantages / Disadvantages

Mediation is a lucrative alternative as opposed to the traditional adversarial method of resolving disputes considering the efficiency in terms of time and money accounted for by the parties. There are several other reasons which make mediation or any other form of ADR a more feasible option and they are:

(a). The control of the proceedings lies within the parties and not vest with the adjudicating authority. The parties vide mutual consent decides the scope of proceedings along with the issues to taken up during its course. The process helps the parties reach a mutually agreeable solution.

Apart from what is state hereinabove, the process also allows the parties to settle their long-term and underlying interest at each stage. When the parties themselves design the outline of adjudication and agree to the terms of the settlement, there is compliance with the same.

(b). The parties directly participate in the negotiations and present their perspective before the adjudicating authority.

(c). Since it is based on voluntary consent, the parties can opt-out of the proceedings at any stage they feel fit.

(d). The proceedings along with the terms and conditions remain confidential between the parties and mediator resulting in effective communication and easy adjudication.

(e). The proceedings are flexible and can modify to the demands of each case. It allows the parties to carry on with their day-to-day activities.

(f). Mediation promotes finality. Once a settlement is achieve there is no scope for an appeal or revision.

(g). Apart from being cost-effective, upon a successful settlement, the court fee is also refund in the cases of court-referred mediation.

Some of the arguments against the concept of mediation are as follows:

1. In the absence of formal rules or procedures to follow, the mediators lose their access to a lot of judicial tools to investigate the matter deeply and get people to testify or check the veracity of their statements.
2. The process lacks a mechanism to identify or cull out unfair procedures with the parties involved. An aggressive party may take advantage of a timid one despite the best efforts made by the mediator.
3. There is always a chance of unsuccessful compromise between the parties and in that case parties. Once again resort to the money and time-intensive adversarial system of traditional litigation.

Effective implementation and growth

The first and foremost step in effective implementation is to introduce a uniform statute exclusively governing the mediation process in India. Despite having a statutory presence in various legislations, there is no exclusive statute governing mediations and there appears to be an urgent need for the same. Although India is now a signatory to the United Nations Convention on International Settlement Agreements, it comes as a surprise to see that exclusive mediation legislation doesn’t exist in India. More than 18 other jurisdictions including Singapore, Malaysia, Singapore, Ireland, etc. have exclusive mediation legislation.

There is a need to demarcate the difference between adjudication and settlement, and an understanding needs to develop that role of the judiciary is merely adjudicatory when there are disputes that require mediation techniques for effective resolution. In the process of such identification, lawyers and the judiciary play a crucial part.

The following steps may taken:

1. Grassroot level awareness and easy access to mediation.
2. Development of a legislative framework and practice.
3. Mediation Centres should have proper infrastructure and uniform patterns.
4. Mediation must develop as a full-time profession as it encompasses the legal, analytical, and emotional skills of a lawyer.
5. Incentives and recognition to lawyers practicing mediation.
6. High ethical standards should follow
7. Theoretical and practical training in mediation can impart in law schools and even to law professionals. Law schools can make mediation a part of their curriculum.
8. Mediation drives should conduct by courts at various levels wherein the judiciary can take an active part.

Conclusion

Mediation as a practice is surely developing and has come a long way in India. Law professionals and students constantly engage in the process and getting certifications which are leading to the growth of opportunities. In the field. However, the judiciary and other government bodies ought to intervene and actively participate in the growth. Of this method of ADR. There is also a need to create a regulatory framework for fostering. Confidence and ensuring ethical practices are follow in the mediation process.

---

[1] Afcons Infrastructure Ltd. & Anr. Vs. Cherian Varkey Construction Co. (P) Ltd. & Ors,  (2010) 8 SCC 24