Raja Reeshav Roy and Aditya Anand, both students of National Law University, Jodhpur discusses Mediation as a mechanism for Dispute Resolution in India.
“Discourage litigation. Persuade your neighbours to compromise whenever you can point out to them how the nominal winner is often a real loser, in fees, expenses, and waste of time.” – Abraham Lincoln
The sudden arrival of Corona Virus epidemic and partial closure of courts for a long time has forced us to think over alternative dispute resolutions methods with mediation being the most viable alternative. It can also be said that in recent times, Mediation might have found a new interest in India and at its forefront is Our Apex court. Recently a three-judge mediation panel placed a report in front of the Supreme Court of India with regards to the ongoing protest at Shaheen Bagh in New Delhi. Last year as well a constitution bench of the Supreme Court-appointed a three-member mediation panel in the Ayodhya dispute which also submitted a report before the judgement was produced. In another instance last year, a division bench of the Supreme Court asked the central government to look over the feasibility of Motor Accident Mediation Authority so that it can be set up in every district to look over the cases of Motors Accidents and further speeding the process of compensation in accident cases. In this article, we will be analysing the importance of mediation in the modern world and how a recognised system for mediation might act as a solution to India’s Overburdened Judicial system.
The term “mediation” is defined as an intervention between conflicting parties to promote reconciliation, settlement, or compromise. Mediation is seen as a means of resolving disputes outside of the judicial system by voluntary participation in negotiations structured by agreement of the parties and usually conducted under the guidance and supervision of a trained intermediary.
Mediation is derived from a Latin word ‘mediare’ where the word simply meant to be ‘in the middle.’ It is a well-known non-binding alternative dispute mechanism all over the world involving a neutral third party to find a midway point amongst the dispute between the parties, intending to reach at a mutually acceptable solution. It facilitates the affected parties to communicate realistically and in a problem-solving manner, elucidate the concerns and empower them to envisage their own solutions. In other words, it insists the parties for choosing what is right for them in a pragmatic manner by bringing objectivity to the dispute.
The concept of mediation reminds one of those dispute mechanisms which were widely prevalent in ancient and pre-British India. In the ancient Indian legal system, we had made use of a system called ‘Panchayat System’ or ‘Nyaya System’ where the respected and impartial individuals played a crucial role in resolving the community dispute. Besides in the pre-British period, the combined process of mediation and arbitration was popular amid business community to resolve their conflicts. Even today, the tribal community in some part of India make use of panchas or wise individuals to reach an amicable solution to their dispute.
Why Mediation is an important tool for overly burdened Indian legal system?
‘Justice delayed is justice denied,’ the frequently cited words of William Goldstone best describe the condition of present justice delivering system. For instance, in 25 high courts of our country, more than 43 lakh cases are pending and over 8 lakh cases are ten years old. India has been ranked at 68th place amongst 126 nation in world justice report 2019 (rule of law index).
In the case of Kartar Singh v. the State of Punjab, the SC declared that right to a speedy trial is a fundamental right embedded in the guarantee of life and personal liberty preserved under article 21 of Indian constitution. Mediation provides for a system of a speedy trial and can be used to achieve the objectives that were expressed by the Supreme Court in the Kartar Singh case. Mediation also involves minimal cost when we compare it to arbitration or litigation. The core benefit of mediation is that it encourages parties to communicate, negotiate and reach at harmonious compromise while protecting their concerned interest. In contrast, adversarial litigation does not advocate such facilities even if the parties are willing to do. If the mediation procedure is well-established and deep-rooted, it portrays a scenario where people can settle the dispute while incurring least losses.
Mediation and Indian legal scenario
The concept of mediation was introduced in Modern Indian Legal system in the latter half of the twentieth century with the implementation of Arbitration and conciliation act, 1996. Section 30 of the act insists parties utilize mediation even if the arbitration proceeding has been started and it authorizes arbitral tribunal to use mediation to resolve the dispute.. In 1999, the Code of Civil Procedure (Amendment) Act, 1999 (CPC Amendment Act) was implemented, which introduces section 89 with reference to different modes of dispute resolution. The concept of ‘judicial mediation’ was also introduced with this amendment, through which the court can encourage parties to seek out other forms of alternate dispute resolution. However, there is no statutory authority which governs the process and guarantees the element of ‘confidentiality’. It was only in 2011 the apex court handed out the judgment which declared that the mediation proceeding should be ‘confidential’ in nature. Furthermore, the Supreme Court held that all cases about consumer disputes, commerce and trade could be mediated. The law commission of India, in its 129th report, suggested that it should be made mandatory for courts to refer the dispute to mediation.
The recent trend has suggested that mediation has emerged as the most preferred means to settle the patent dispute. Eminent intellectual property scholar Late Shamnad Basheer had appropriately said that adversarial proceeding, because of its acrimonious features, always results in a waste of time, money and resources, therefore alternative dispute mechanism should be promoted to settle down the conflicts.
Mediation legislation in other countries
More than 80 countries and international organizations have established a concrete mediation law to encourage alternative dispute resolution and counterbalance the ill-effects produced by the dwindling system of litigation. China has enacted people’s mediation law and published more than 70 regulation to promote and utilize mediation in resolving a dispute. While hearing cases, the Supreme People’s Court has announced and adopted the policy of ‘Priority for mediation’ and combining adjudication with mediation. The Russian parliament adopted laws on mediation in 2010 and since then it is an integrated part of their justice delivering system. The United States of America has introduced a court ordered and court-sponsored mediation system. There exist many statuary authorities which provide for more than 2500 legal rules related to mediation.
The world is slowly recognising various modes of Alternate Dispute Resolution, with mediation being an important tool of it. With an ever-increasing number of pending cases in India, It is high time that mediation is given importance over litigation. In a country like ours where litigation is tiring both physically as well as financially, a step towards making mediation a more recognised channel for solving disputes will be a welcome step. With an overburdened judiciary, we stand at a crucial juncture today where we need to find some kind of solution to the pitfalls of litigation.
It is often seen that proceedings before the ADR forums are challenged in front of courts even after coming to some sort of consensus during mediation; this acts as a barrier at times and also shakes people’s faith in the process. The true confidence in mediation can only be fostered when some sort of legal recognition and a way to enforce it legally is provided.
The Supreme Court has already indicated towards a need for Indian Mediation Act, this proposal by the Supreme Court if properly pursued and implemented can act as a game-changer for our dispute resolution mechanism.
Traditionally, Mediation in India has been used in various forms by various groups, so there won’t be any inherent problem of accepting it as such. As suggested by the Supreme Court, It is very important to set up a dedicated mediation statue. If implemented properly, it will need a large number of professionals who will be needed to bring the process of mediation at the forefront and to smoothen the whole process. India has a strong network of law schools and in our opinion, these law schools are a very important place of learning where a strong base for mediation can be set and students can be trained in a dedicated manner to pursue their careers as professionals in the field of mediation.
Taking a cue from Albert Einstein’s quote “in the middle of difficulties lies an opportunity”¸ this is the perfect time for India to look for an opportunity in promoting methods of alternative dispute resolution with mediation being its flag bearer.
Raja Reeshav Roy is a fourth year student and Aditya Anand is a second year student from National Law University, Jodhpur.
Rautray, S., Shaheen Bagh Mediators Submit Report, Supreme Court to Hear Case Tomorrow, The Economic Times (accessed on 28 June 2020) <a href=”http://<https://economictimes.indiatimes.com/news/politics-and-nation/shaheen-bagh-protests-court-appointed-interlocutors-file-report-in-sealed-cover-in-sc/articleshow/74279250.cms?from=mdr>.
Ayodhya Mediation Panel Files Settlement Document in Supreme Court, The Hindu, (accessed on 28 June 2020),<a href=”http://<https://www.thehindu.com/news/national/ayodhya-mediation-panel-files-settlement-document-in supreme-court/article29698305.ece>.
M.R. Krishna Murthi v. The New India Assurance Co. Ltd., Civil Appeal No. 2476-2477 of 2019.
Definition Of mediation, Merriam-webster.com, (Accessed 28 June 2020), https://www.merriam-webster.com/dictionary/mediation.
Law Reform Commission Ireland, Report on: Alternative Dispute Resolution: Mediation and Conciliation, (LRC 98-2010, November 2010).
1070-71, Black’s Law Dictionary. (9th ed. 2009).
Alexander Bevan, Alternative Dispute Resolution 18 Sweet and Maxwell, London, (1992).
R.V. Raveendran, Mediation – An Introduction, (accessed on 28 June 2020), http://bombayhighcourt.nic.in /mediation/index_articles.htm
Anil Xavier, Mediation: Its Growth and Origin in India, (accessed on 28 June 2020), http://www.arbitrationindia.org/pdf/mediation_india.pdf.
Out of 43 lakh cases pending in High Courts, over 8 lakh a decade old, (accessed on 28 June 2020), https://economictimes.indiatimes.com/news/politics-and-nation/out-of-43-lakh-cases-pending-in-high-courts-over-8-lakh-a-decade-old/articleshow/69974916.cms.
Arbitration and Mediation: Need of the Hour, (accessed on 28 June 2020), https://www.indialegallive.com/constitutional-law-news/special-report-news/arbitration-and-mediation-need-of-the-hour-71112.
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
Kartik Adlakha, Mandatory Mediation in India – A boon or a bane to the legal system in the country? (accessed on 29 June 2020_, https://www.ciarb.org/resources/features/mandatory-mediation-in-india-a-boon-or-a-bane-to-the-legal-system-in-the-country/.
James Melamed, A View of Mediation in the Future, 1(8) the Indian Arbitrator (2009).
David Spencer and Michael Brogan, Mediation law and Practice, 68 (2006).
Kenneth R. Feinberg, Mediation – A Preferred Method of Dispute Resolution, 16 PEPP. L. REV. 5 (1989).
Vasily Ivanovich Vlasov, Galina Borisovna Vlasova, et.al., Comparative Analysis of Mediation Procedures and the Judicial Settlement of Conflicts, XX European Research Studies Journal, (2017).
Vyapak Desai and Sahil Kanuga, Mediation proceedings are confidential says Supreme Court (accessed on 29 June 2020), www.indialawjournal.com/volume4/issue_1/article_by_desia_kanuga.html.
Afcons Infra Ltd v. M/S Cherian Varkey Constructions, (2010) (8) SCC 24.
Law Commission of India, Report on Urban legislation mediation as alternative to adjudication, Report Number 129, (August, 1988).
Sagnik Dutta, Trying mediation, (accessed on 29 June 2020), http://www.frontline.in/the-nation/trying-mediation/article6189578.ece.
Tang Houzi, Worldwide use of mediation, (accessed on 29 June 2020), http://www.cityu.edu.hk/slw/ADR_Moot/doc/Worldwide_Use_of_Mediation_(by_Prof_Tang_Houzhi).pdf.
Jiang Heping and Andrew Wei-min Lee, from the traditional to the modern: Mediation in China, (accessed on 29 June 2020), HTTPS://weinsteininternational.org/mediation-in-china/.
Kingsley Napley, A Global Trend towards Mediation: Views from Lawyers in 13 Countries, Dispute Resolution Law Blog, (accessed on 28 June 2020), <a href=”http://<https://www.kingsleynapley.co.uk/insights/blogs/dispute-resolution-law-blog/a-global-trend-towards-mediation-views-from-lawyers-in-13-countries>.
Supra, Note 22.
Supra, Note 22.
Supra, Note 3.
IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.