The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
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1 Introduction1.1 Legislations Governing Mediation In India
1.1.1 1. Section 4 of the Industrial Disputes Act, 1947[1]
1.1.3 3. Civil Procedure- Mediation Rules, 2003 (Rule 5(f)(iii))
1.3.1 1. Convening the process
1.3.2 2. Initiation of mediation
1.3.4 4. Negotiation and generation of opinions
1.3.5 5. Reaching the settlement
Mediation-Disputes are an inevitable part and parcel of our everyday lives. Despite taking relevant care and precaution, no individual can give an infallible affirmation with respect to disputes arising in any personal or commercial association. Owing to the same, all the contracts have a dispute resolution clause, pre-deciding the mode of dispute resolution in advance to ease the process and save the time and energy of the parties. We can all agree that no two people can have an unconditional agreement over anything and there will always be a conflict of opinion.
Therefore, having a dispute is a normal course of events, however, how the same is deal with holds paramount importance. The litigation system in India ever since its inception is looking forward to an effective method of resolving disputes and one of such practices is Mediation. It has been widely accepted that its effectiveness is still under trial. Mediation is a non-adversarial method of dispute resolution wherein a certify neutral third party uses specialize negotiation skills and techniques to help the parties in dispute achieve an amicable resolution.
The first-ever legislation recognizing Mediation as a statutory practice is the Industrial Disputes Act, 1947. Under Section 4 of the Industrial Disputes Act, conciliation officers are appoint and charge with the duty of mediating and promoting the settlement of industrial disputes.
The amendment made to the CPC by virtue of which Section 89 was in itself a giant leap ahead towards promoting mediation and other means of Alternate Dispute Resolution. Section 89 of the CPC empowers the courts to recognize the scope in a dispute and adapt conciliation, judicial settlement including settlement through Lok Adalat or mediation as methods of resolution subject to the consent of parties. It is pertinent to note here that the said amendment amongst others was challenged in Salem Bar Association v. Union of India[3] vide a batch of writ petitions wherein the Hon’ble Supreme Court observed that the same was inserted keeping in mind the pendency and backlog of cases coupled with the judicial burden. The Hon’ble Court confirmed it to be a welcome step and thereby quashed the writ petitions retaining the impugned amendment.
Civil Procedure- Mediation Rules provide for mandatory mediation and allow courts to refer cases for mediation if there is an element of the settlement.
Section 442 of the Companies Act, 2013 and Companies (Mediation and Conciliation) Rules, 2016 directs upon the Central Government to maintain a panel of qualify mediators and conciliators facilitating the mediation of disputes between the parties.
In addition to the aforementioned legislation, MSME Development Act, 2006; Hindu Marriage Act, 1955; Special Marriage Act, 1954; RERA Act, 2016 also has provisions leading to alternate dispute resolution methods wherever necessary.
Mediation can broadly be categorize into the following categories:
(a.) Court Annexed- Under the court-annexed mediation, the mediation services are provided by the court as part of the judicial system. A mediator is appointed by the court from its panel of mediators. The proceedings remain confidential and any agreement reached between the parties is enforceable as a judgment of the court.
(b.) Court Referred- Under court-referred mediation, the court merely refers the matter to a mediator.
The first step is to commence the proceedings which are often the most tricky and cumbersome. There is a varied range of procedures to choose from:
In accordance with Section 89 and Order X Rule 1A of the Code of Civil Procedure, 1908 the court is require to direct the party to opt from the available ADR remedie i.e. Arbitration, Conciliation, Judicial Settlement, Lok Adalat, or mediation. Pursuant to the suitability and facts of the case, the judge making the reference, known as the referral judge, directs the parties to the most suitable and permissible form of dispute resolution.
In civil matters, the reference to ADR is done once the pleadings are complete and issues are to be fram. However, the court may at its own discretion refer parties to mediation even at the later stage or whenever it deems fit.
Pursuant to the reference, the referral judge volunteers and jointly meet the parties wherein the pros and cons of opting mediation are discuss and are categorically dealt with until both the parties are satisfy. The process also involves explaining the concept, process, and advantages of mediation.
After the consent to mediate, the referral judge pass the relevant order also know as the referral order which initiate the process of mediation. Details such as the name of the judge, parties, case no. etc. are mention on the order. The details of the mediator are also mention in the referral order.
The mediator and the parties introduce amongst each other and more importantly, the mediator establishes his neutrality. The motive behind this process is to create a constructive environment conducive to negotiations. It is relevant to note here that there is no standard set of rule and regulations to be follow, make the process flexible. However, decency is to be maintain by the parties during the course of mediation.
Pursuant to the introduction, an open statement is make by the court with an intention to explain to the party the concept of mediation, the role of mediator, and the advantage and ground rules of mediation. Thereafter, it is confirm by the mediator that the parties understood the process. Finally, at this stage statements are also sought from the negotiators on behalf of parties in dispute.
It is an important duty endowe on the mediator to provide clarity on the mediation proceedings and remove vagueness. Once the agenda is develop, the parties present their case and negotiate around the agenda. Additionally, the time and venue for the negotiate session along with the issue to be discuss are also state by the mediator.
The rounds of negotiation between the parties continue in the form of joint sessions as well as separate sessions that are to be attend by the parties as per the directions of the mediator. In joint session, both the petitioner and defendant are given a chance to explain their case follow by a presentation by their respective counsels. Once, the joint session is complete it is the discretion of the mediator to separately meet the parties.
The separate session are mean for the mediator to understand the dispute at a deeper level and comprehend the underly interests of the party.
Once the joint sessions/separate sessions are conclude and party have make their submission and present their case before the mediator, the mediator weighs the argument and presentations and
makes a note of term of settlements that he deem would be the best fit for the party. If the parties disagree and fail to reach a settlement, the case is sent back to the referral court.
Subsequently, once again these terms of settlements are orally confirm before the parties. Finally, an agreement is sign between the parties where they undertake to abide by the consent terms. The settlement has a binding nature of the contract and is enforceable in a court of law.
Lack of knowledge and awareness of the non-adversarial system of dispute resolution is why people opt for traditional litigation methods by default. However, the binding effect and depth of the procedure remain the same. With the passage of time, the ADR ecosystem in India is improve which in practicality is beneficial for the judiciary considering the backlog and pendency in cases. Mediation or any other form of ADR methods being cost-effective, flexible, and efficient is beneficial for the parties as well. It was widely recognize and accept in the metropolitans and other develop areas
but if it will be successfully able to reach and cater to remote areas is a question yet to be answer.
[1] Industrial Disputes Act at, https://labour.gov.in/sites/default/files/THEINDUSTRIALDISPUTES_ACT1947_0.pdf
[2]https://districts.ecourts.gov.in/sites/default/files/Section%2089%20CPC.pdf
[3] Salem Bar Association vs. Union of India (2003) 1 SCC 49
[4] https://www.mca.gov.in/Ministry/pdf/CompaniesAct2013.pdf
[5] https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-1-liability-state-tort/law-commission-report-no-129-urban-legislation-mediation-alternative-adjudication/
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