MEDIATION – OUTSIDE THE COURT SOLUTION

The Author of this article is Ms. Ishika Arora who is pursuing BCOM.LLB from Banasthali Vidyapith, Rajasthan.

“Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.” – Martin Luther King

Conflict is an omnipresent phenomenon in every society and so is the need to resolve it, to ensure the balance between peace and harmony. In India, dispute resolution has been practiced in several formal and informal forums such as courts, lok adalats, tribunals, panchayats, gram panchayats, and community settlements and has grown from the position of village elders sitting under a banyan tree and resolving disputes to gaining statutory recognition. Mediation owes its roots to the methods of dispute resolution devised and utilized by several religious sects before the emergence of formal legal and judicial systems worldwide.

Mediation is a process[1]:

Ø  Of facilitated negotiation;

Ø  In which the neutral third party uses specialized communication and negotiation techniques;

Ø  It is voluntary, confidential, transparent and flexible in which parties themselves work out solutions of their disputes.

Mediator does not decide the disputes but he help the disputants to arrive at an outcome. In mediation, the reference is by court to a mediator, or mediation centre. It is a process where the court retains control, and if the party fails to arrive at a conclusion, the matter is adverted for adjudication to the court. However, if the settlement is arrived through mediation, it is placed before the court, and an order is passed recording the settlement.

The aim behind the mediation process is that it should be quick, inexpensive and confidential. In Motiram v. Ashok Kumar,[2] a bench of Supreme Court held, “Mediation proceedings are totally confidential in nature, unlike proceedings in court which are conducted openly in the public gaze.”

THE DIVERSITY OF MEDIATION

Mediation has come to be a dominant force in settling cases such as family matters, community conflicts, and industrial disputes; it is gradually becoming a major competitor and force in settling commercial disputes. In all of these various types of cases, commercial or otherwise, the principles are identical irrespective of the labels and so are the advantages:-avoiding risks, costs, delays, and the trauma of litigation. Differences are generally seen in the technique, approach, the preferences of parties, the mediator, and so on.

The proverbial light of mediation has many beams and prismatic colors - be its cost-effectiveness, efficacy, interest-based approach, or self- determination, all are exquisitely good for commercial parties’ needs be it a small-scale industry or a multimillion dollar empire, a distribution enterprise or a construction giant. 

Mediation in the Consumer Relationships

Whatever be the type of business, consumer relationships are of a paramount priority for good and successful businesses. Mediation answers some very relevant concerns any business has when it meets a dispute with its client or customer – addressing misunderstandings; preserving good relationship; providing a neutral go–between for buyers and sellers; mitigating damage to the company’s goodwill; reputation in the market; and saving time, resources and costs associated with the dispute etc.

Mediation in Contractual Disputes

Almost all commercial disputes are contract based, and mediation can be an essential add-on to the dispute resolution mechanism under the terms of contract. Thus, mediation being a less hostile and less confrontational method could prove to be an advantage considering its benefits, especially because it gives the parties the opportunity to have control over the outcome. Thus, mediation presents a brilliant avenue for resolution of contractual disputes and even claims based on equitable principles.

Mediation in Matrimonial Disputes and Family Matters

Mediation has emerged as the most widely accepted dispute resolution mechanism for settling matrimonial disputes. With changing scenario, large numbers of conflicts are approaching ahead. The statistics of petitions involving such conflicts leads to a judicial backlog. There is a very high probability of involvement of high egos and emotions which tend to derail the process of amicable settlement. It becomes a mediator’s responsibility to help a party identify their real interest and develop on that and move away from the position of wanting to be proven right at all costs.

In B.S Krishna Murthy v. B.S Nagaraj,[3] it was held, “Lawyers of the parties should advise their clients to try for mediation for resolving their disputes; especially where relationships, like family relationships, business relationships, are involved, otherwise, the litigation drags for years and decades often ruining both the parties.”

ISSUES, CHALLENGES AND OUTCOMES

Despite the formation of numerous Indian mediation organizations and associations over the last decade, the practice of mediation has not yet succeeded in relieving the stranglehold of litigation. Though we hear about the positives that mediation has over adversarial forms of dispute resolution and yet, there are still millions of cases pending in our courts, with close to around eighty thousand new cases listed every day. Somewhere, something is not working out. So, the problem lies in how the legal professionals has approached and introduced the process as a tool of dispute resolution in country. For most citizens, it is a free service provided by courts, to settle disputes that the courts reject as trivial or troublesome. The word is often used for ‘compromise’ or ‘non-binding contract’ where mediator is looked upon as social worker or counselor. Some other professionals even consider it to be an “illegal, under-the-table, deal-making process.” These are few examples of misconceptions surrounding mediation that has stopped its growth in India.

Mediations, whether private, institutional or court-annexed, are thriving in the growing awareness from regularly organized seminars, symposiums, competitions, training, and a number of other events that are putting together a community of mediation professionals and infrastructure. Despite the fairly widespread awareness and its potential advantages, fostering a mediation culture takes time. Equally, building trust in ADR users, practitioners, and organizations.

In the light of the recent developments in ADR, it has been a view in India that a number of principles pertaining to mediation should now be accepted as forming part of a separate mediation law.[4] An important reason for the minimum use of mediation can be narrowed to the fact that ADR users and advocates without any experience and or background in mediation are hesitant to use it, while parties and advocates with some exposure to mediation are more amenable in trying it. The challenge now is to break the cycle of no experience, no use.[5]

In July, 2019, a few weeks before the Indian Government decided to sign the Singapore Convention on Mediation, the Indian Parliament passed the Consumer Protection Bill, 2019, where the entire chapter (V) is dedicated to mediation. Even though the legislation promotes and encourages mediation, it still retains its identity as a court referred and court annexed service, where the settlement enjoys the privilege of a court decree.

In May, 2018, an amendment to the Indian Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, had made it mandatory for a party filing a suit under the act (a ‘commercial dispute’, as referred to under the Act) to first initiate mediation proceedings with the opposite party unless claiming urgent relief in the suit. A huge step forward for pre-litigation mediation. A closer reading of amended Section 12A (2) of the Statute state that “The central government may, by notification, authorize the authorities constituted under the Legal Services Authorities Act, 1987, for purposes of pre-institution mediation”. This basically translates to the fact that mediation as a service can be accessed from government authorized institutes.

India needs to amend the Arbitration and Conciliation Act, 1996 to grant mediation a same status as conciliation regarding enforcement of a final settlement agreement. It is believed that mediation is entrenched enough to gradually morph into an advanced mediation culture, deepening market penetration in a diversity of areas, and developing a specific species of legislation on mediation to further implant ADR practice.

CONCLUSION

It is the need of the day to spread awareness regarding mediation. It would not only lessen the burden of docketed fatigue Courts but also gives fruitful solution to cope up with the disputes between the parties in a cordial atmosphere. Mediation is an integral part of dispute resolution process. The twenty first century requires a dispute resolution system, which provides user friendly, speedy and cost effective solutions. Adopting mediation has become much more pressing in a country like India in its present state of affairs.

In Salem Advocates Bar Association v. Union of India,[6] it was lamented, “Keeping in mind the law, delays and the limited number of judges who are available, it has now become imperative that resort should be made to ADR[7] mechanism with a view to bring to an end litigation between the parties at an early date.”

Thus, the crux of mediation is that it focuses upon the disputant’s own needs and interests, gives a full revealment of opposing interests and positions, permits for procedural flexibility and retains privacy and confidentiality. The mediator is the keeper of the process and it is that party who has to ensure that disputants retain full confidence in the proceedings.

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[1] Indu Malhotra, O.P Malhotra on The Law & Practice of ARBITRATION AND CONCILIATION, (Third edn., 2014)

[2] (2011) 1 SCC 466: 2011 (1) KLJ 343.

[3] 2011 (1) Arb LR 186 (SC); AIR 2011 SC 794.

[4] In terms of the UNCITRAL Model Law on International Commercial Conciliation (2002).

[5] Harold I. Abramson, ‘Time to try Mediation of International Commercial Disputes’, ILSA Journal of International and Comparative law, 4 (323, 1997-8).

[6] (2005) 6 SCC 344.

[7] Alternative Dispute Resolution