Effective Implementation of Mediation in India
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This Blog is written by Bhumi Sharma from Amity Law School, Madhya Pradesh. Edited by Saumya Tripathi.
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INTRODUCTION
Mediation in India is a voluntary dispute resolution process where the neutral third party i.e. a mediator helps the disputing people mutually resolve their conflict and find a solution to their legal problem by entering into a written contract. It allows parties to participate in dispute resolution actively and relook at mutual interests and rights of each other, and make a final decision by coming to a settlement [1]. The decision-making powers remain with the disputing parties, with the mediator acting as a buffer to bring them to an understanding by using specialized communication and negotiation technique. This helps in maintaining relations between the parties. And these techniques are in turn designed in a manner that it facilitates the process of mediation and dispute resolution in India.
The mediator acts unbiasedly in directing the parties to amicably and innovatively resolve their legal issues to help them to reach a conclusion by the terms of negotiation. As it is a voluntary process, so the parties retain all the rights and powers, and any party can withdraw from the process of mediation at any phase without stating a reason.
Mediation in India is a completely private method of dispute resolution and only the disputing parties and the mediator are involved, making the affairs of the parties confidential. Mediation law needs to be promoted as it is an easier and quicker process to get a resolution. To achieve acceptance and popularity of Mediation as the first step before approaching the Court is to develop confidence in the process of Mediation [2].
Over the years, mediation law in India has been recognized as user friendly and quite flexible as it works two-ways by helping disputing parties to mutually resolve their dispute and reducing the burden of pending cases on the courts. It has become the fastest growing method to resolve disputes worldwide.
SIGNIFICANCE OF THIS DEVELOPMENT
The concept of mediation was first evolved in the latter half of the 20th century, however, the roots of mediation can be traced way back to the ancient Indian legal systems, for example, In India, the systems of “Gram Panchayats” and “Nyaya Panchayats” were popular and widely prevalent in ancient rural society [3]. However, even though these systems are still existing in many parts of rural India, the people of the country, especially the ones that were still relying on these legal systems for justice, have lost their faith in them because these Panchayats are prone to influence from the influential and powerful people residing in these areas. In the process of addressing these concerns, the Indian government is making incessant efforts to revive these indigenous justice delivery methods by allocating funds and trying to make better rules for their reinvigorated and unbiased functioning.
The Ease of Doing Business Task Force at the Central Government has directed the Ministry of Law and Justice to take necessary steps to introduce a law to regulate pre-litigation voluntary mediation. In February 2016, the law ministry had mooted a note on similar lines, backing a new law for mediation process.
Effective reformation lies in measures which promote both efficiency and ethics. Confidence in the mediation process will be fostered only if the mediator discharges in positive terms and the ethical concerns of a process to which the role of the mediator is neutral. Perhaps the time has come to look forward at conflict resolution and the legal profession – one that will harmonize the ethics of practice, the values of the law and the demands of public policy. Meeting the resistance to changing from adversarial litigation to methods of alternate dispute resolution such as mediation, creating awareness in society of the benefits of the mediation process, and developing capacities and involving the Bench and the Bar in a co-operative effort are critical elements in the success of the process [4].
IMPACT
Over the years, mediation has been recognized as the fastest way to resolve the dispute. The role of courts is adjudicative and more formal in nature. In contrast, the process of mediation is very practical and flexible. Many a time, it can prove to be speedier, more effective and economical than the other adjudicative processes but in India the success rate of mediation is not so effective due to mainly the low levels of awareness regarding mediation. There appears to be a lack of initiative on the part of the government and even the legal fraternity to spread awareness about mediation.
In India, while judges have been quick to recognize increased use of mediation to resolve dispute acts as a helpful mechanism for reducing case backlogs and delays, Indian lawyers not responded to mediation quickly [5]. These impacts can be seen on the Indian lawyers. It created a fear among them that the mediation would potentially deprive them of income by settling cases prematurely and thereby doing away with the legal fees that would otherwise be earned during the prolonged judicial proceedings. This affects the adversarial system. But it cannot be said that this system must be totally done away with. The adversarial system is the appropriate method in a number of situations especially where there is a need of authoritative interpretation or establishment of rights or which manifest severe negotiating imbalance. It is also required as a last resort of resolution. However, its unbiased and unvarying application across a broad band of conflict is a major cause of the several ills plaguing the legal system.
STATUTORY PROVISIONS
Since courts in India are already burdened by a huge pending number of cases, there are many statutory provisions that make mediation a compulsory pre -requisite to filing of a suit in court. Some of these statutes are:
1) In India, Mediation was first introduced by the Arbitration and Conciliation Act, 1996 wherein sub-section(1) of Section 30 of the Act encourages parties to seek mediation and conciliation even when arbitral proceedings have been initiated and empowers the tribunal to carry mediation as a method of settling disputes.
2) Conciliators appointed under Section 4 the Industrial Disputes Act, 1947are assigned with the duty to mediate and settle industrial disputes with detailed prescribed procedures to be followed in the proceedings. If used properly, it is a cheap and quick process. But the reality is only few cases have been resolved under this provision and a large portion of cases are still pending in the court
3) In 2002, the Code of Civil Procedure, 1908 (CPC) was amended which provided for the reference of all pending court cases to mediation under Section 89 read with Order X Rule 1A. The amendment also recommends mediation for all family and personal matters due to their sensitive nature as the ordinary judicial procedure is not ideally suited for such cases.
4) Section 442 of the Companies Act 2013, which provides for referral of company disputes to mediation by the National Company Law Tribunal and Appellate Tribunal read with the Companies (Mediation and Conciliation) Rules, 2016.
5) The Micro, Small and Medium Enterprises (MSME) Development Act, 2006 mandates mediation and conciliation when disputes arise on payments to MSMEs.
6) Hindu Marriage Act, 1955 and Special Marriage Act, 1954 ,wherein the courts have states before, the first instance in the disputes relating to marriage and divorce are more likely to be referred to and settled by the process of mediation between parties.
7) Section 32(g) of the Real Estate (Regulation and Development) Act, 2016 provides for amicable settlement of disputes through an established dispute settlement forum, set up by consumer or promoter associations.
8) Section 12A of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, which provides for mandatory mediation between parties in those cases where no urgent interim relief is being sought by the parties to the dispute.
9) The Consumer Protection Bill, 2018 provides for reference of a dispute to Mediation as an ADR Mechanism and settling up of a consumer redressal agency. The concerned commission may direct the parties to give a written consent for settlement of their dispute by mediation, if there is any element of a settlement between the parties.
Even with these provisions for mediation, it is still an option not often preferred by parties due to the lack of recognition and the absence of a uniform structure to execute the resolution agreement and make it enforceable by the organs of Government [6].
CASE LAWS
1) In the Landmark case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd [7], The Supreme Court observed that that all cases relating to trade, commerce, contracts, consumer disputes and even tortious liability could normally be mediated.
2) In the case of MR Krishna Murthi v. New India Assurance Co. Ltd. [8], The Supreme Court directed the government to consider the feasibility of enacting an Indian Mediation Actto take care of various aspects of mediation in general. The Court further directed the government to examine the feasibility of setting up a Motor Accidents Mediation Authority (MAMA) by making necessary amendments in the Motor Vehicles Act. In the interregnum, NALSA was directed to set up Motor Accident Mediation Cells, which can function independently under the aegis of NALSA or can be handed over to MCPC.
3) In the matter of Moti Ram (D) Tr. LRs and Anr. Vs Ashok Kumar and Anr, [9] The Supreme Court of India on 7 January 2011, held that the mediation proceedings were confidential in nature, and that only an executed settlement agreement or alternatively a statement that the mediation proceedings were unsuccessful, then it should be provided to the court by the mediator.
4) Another landmark decision was arrived at on 22nd February, 2013, in the matter of S. Krishnamurthy v. B.S. Nagaraj, [10] where the Supreme Court directed the Family Courts to strive to resolve and settle matrimonial disputes by mediation and to also introduce parties to mediation centres with the consent of the parties, especially in matters concerning divorce, maintenance, child custody etc.
5) On 22nd February, 2013, The Supreme Court in Srinivas Rao v. D.A. Deepa [11] held that the criminal courts dealing with the complaint under Section 498-A IPC should refer the parties to mediation centre before they take up the complaint for hearing, if they feel that there exist elements of settlement and both the parties are willing to resolve the dispute in-between.
6) In the matter of State of Madhya Pradesh v Madan Lal [12] decided on 01.07.2015, The Supreme Court held that there could be no mediation between the accused and the victim in cases of rape.
7) One of the most famous recent cases where mediation was resorted to was the one (even though conciliation was rejected despite mediation) between Reliance bigwigs Mukesh and Anil Dhirubhai Ambani over the takeover of South African Telecom Major MTN.
ANALYSIS
The Critical analysis shows that despite being successful in various countries, Mediation has not been popular in India because of lack of awareness about it and its benefit. And on the Government part, no such initiative has been taken and also lack of the legal fraternity to spread awareness about mediation all over the country.
In India, there is a need for a uniform statue exclusively governing the mediation laws and special conferences to be held in this area for effective implementation of mediation. The effective system will help in addressing the problems related to court deliver system and act as a helpful means for reducing pending number of cases. Implementation of mediation in India will also help the common man in a substantial way.
However, in the present scenario, Lawyers are still continue to be as traditional and conservative and hardly tend to support any new changes. They are not well aware with the process of mediation and have apprehension in their mind that delving into mediation would probably affect their income by encouraging the settlement of cases prematurely and thereby significantly resulting in the reduction of the legal fees that could otherwise be earned during judicial proceedings.
It has been noticed that up till now mainly companies and institutions in the field of insurance, banking and trading have relied on mediation in case of settling disputes. Hence, encouragement and awareness in the society is very much needed for making mediation provisions mandatory, especially when mediation to be used as the most commonly sort after means of dispute resolution is much needed. Awareness has to be aimed at the common people with publicity in various media all over the country. Thus, there is an urgent need to identify people or community based initiatives for taking up the cause of spreading awareness about mediation across the country. It now seems that we need new ways of looking at conflict resolution and the legal profession and hope that we discover a new way that will help in bridging bonds between the ethics of practice, the values of the law and the demands of public policy. The process has started, but slowly. Creating awareness among the people regarding mediation process and its benefits, and developing capacities for the same will help expedite the shift from adversarial litigation to methods of alternate dispute resolution in a substantial way. This will also result in the reduction of long pending cases in Indian courts.
CONCLUSION
In the Current scenario, the reference of the highly sensitive Ayodhya dispute to mediation has brought the mediation process to the attention of the general Indian citizen. It cannot be denied that any outcome of this process will play a heavy role in influencing the opinion of Indian citizens about the mediation process and its implementation. Lack of public awareness about alternate dispute resolution methods is the key reason why the Indian citizen is more conditioned to signing up for the adversarial process by default. A mediation-specific statute may similarly make the country more open to mediating disputes.
India currently faces a lack of not merely a dedicated mediation statute, but also mediation focused institutions with trained professionals as well as public awareness on the meaning and significance of the mediation process. It is hoped that the push from the Supreme Court in the first update and the rise in public awareness about mediation due to the second update will help remedy this situation.
The judiciary mostly deals with matters that require adjudication, but there are situations where mediation techniques would be more appropriate and beneficial to the parties. Therefore, identification of such matters by parties, lawyers and judges becomes extremely crucial and important in the promotion of mechanism.
One of the reasons for the sluggish growth of Mediation is that there are hardly any national and international mediation centres that are providing affordable and quality training programs. Unfortunately, mediators can currently exaggerate their skills and experiences in ways that cannot be contradicted, as mediations are conducted in closed rooms and in confidentiality. Thus evaluating the competency of a mediator is challenging. Therefore, there is an urgent need to create a regulatory framework for fostering confidence and ensuring that ethical practices are followed for the effective implementation of mediation.
REFERENCES
[1] FindLaw, What is Mediation?, FindLaw, (Jun. 20, 2016, 7:35 PM), https://adr.findlaw.com/mediation/what-is-mediation-.html.
[2] https://www.lexology.com/library/detail.aspx?g=d45eed57-db32-40b6-a5e6-edad2363de76
[3] Anil Xavier, Mediation: It’s Growth and Origin in India, available at http://www.arbitrationindia.org/pdf/mediation_india.pdf
[4] https://www.barandbench.com/columns/effective-implementation-of-mediation-in-india-the-way-forward
[5] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3494060
[6] https://viamediationcentre.org/readnews/NTY=/Statutory-Provisions-relating-to-Mediation-in-India
[7] https://indiankanoon.org/doc/1875345/
[8] https://indiankanoon.org/doc/179274439/
[9]http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Meditation_proceedings_are_confidential_says_Supreme_Court.pdf
[10] https://www.mediate.com/articles/palarimpactofmediation.cfm
[11] https://indiankanoon.org/doc/14713882/
[12] http://lawtimesjournal.in/state-of-m-p-vs-madanlal-2015-7-scc-681/
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