The COVID-19 pandemic has led to a dramatic rise in the number of economic and commercial tensions worldwide. Many companies have been flooded by unprecedented difficulties as a consequence of overdue contracts and other legal issues. Small Businesses were at standstill for almost six months. Salaries were not paid, domestic violence has increased, and this will in turn increase the cases filed in the court. At this juncture, the amicable adjustment of courts and cases to satisfy new requirements is becoming much more necessary. In such a situation, Mediation is thus, an easier and more efficient option than conventional ways of dispute mediation and will automatically become a preferred alternative for businesses to address the problems of COVID-19. Besides, mediation will help to foster relations by amicably settling disputes.
COVID-19 widespread through India and the government’s strategy to stem economic losses has contributed to the creation of a stage to encourage mediation. E.g., the insolvency phase has been deferred for one year and the timeline for completion of the project has been expanded for RERA, the moratorium has also been extended to fight with COVID-19 and its economic repercussion. In COVID-19 cases, require more time, expenses will be sky high to litigate. Thus, in such tough times, affordable, simple, and confidential mediation would be the most practical way of coping with the conundrum. Blind acceptance of mediation as a solution can, however, have a major effect as it does. It is imperative to study the 2nd side of all the tales following are a few of the challenges which India will and is facing concerning mediation and its development
Lack of proper rules and regulations
The main drawback of mediation is that the process does not have well-defined standards, and the laws are minimal. existing laws are ambiguous and are not uniform. sec 12(A) of the commercial courts’ Act is one such example where on one hand it levies compulsory mediation with an open-ended exception of urgent interim relief, and this vagueness is used by lawyers to omit the mediation step. The difference between mediation and conciliation has also been not defined which again creates ambiguity. Mediation is more of an unorganized fraternity as of now. Without a doubt, mediators must establish mediation models to meet the cultural, personal, and mutual needs of their clients, rather than push their clients to adopt a common mediator-defined model. Here, flexibility is required. as mediation happens on a psychological level which tends to differ from person to person. This versatile approach is more relationship and process-oriented and more closely linked to the idea that mediation can be a transformative peace-making activity. However, the fact that India lacks legal sanctity and that there is no distinctive place for mediation in our legal framework and mainly its lack of codification possesses grace challenge to the legitimacy of the outcome.
While India is making strides towards modernization, it is still a developing country. It means that most people do not know about the ADR mechanism and instead trust the dispute resolution courts no matter how time-consuming the entire process is. Mediation or even ADR as a dispute resolution procedure has never been properly acknowledged by the legal community. Public understanding and knowledge of mediation as an alternative conflict settlement mechanism should be promoted to popularise the concept. Collaborative efforts between the judiciary executive and legislation are important for the propagation of information indicating the advantage of mediation over other dispute resolution process to the public. Advising counsel on the mediation of their clients should also be encouraged. Even courts should promote mediation as an alternative. The case of Salem Advocate Bar Association, Tamil Nadu v. Union of India is a very prominent example ADR is hardly a part of the curriculum in the law schools, this should be changed, more seminars and workshops for existing lawyers as well as law students should be arranged to spread the benefits of Mediation and other ADR process
It should not be forgotten that the adaptation to mediation will directly improve the workload of mediation centres. If without proper channelling of the cases and proper quality control measures cases are registered then It may result in situations that contravene the basic mechanism of mediation, i.e., the quick settlement of disputes. Mediation centres, like our courts, will be overburdened. As a result, a bulletproof framework is needed to meet the1 pressure and correctly redirect cases that India currently lacks. . In Salem Advocate Bar Association, Tamil Nadu v. Union of India” it was held that reference to mediation, conciliation, and arbitration is mandatory for court matters. For sure It would help to recognize compulsory mediation as a solution to our present justice system issues. However, owing to the absence of a professional infrastructure, we are ready to deal with the delay in justice in the ADR as we have in the litigation process.
Compared to arbitration agreements and conciliation deals, mediated settlements do not have the finality of judicial sanction until they have been appealed by the court. Private arbitration contracts are enforceable only by a court of law as a contract and do not possess any other status. Now due to the lack of enforceability of the mediation settlement, there is again conflict between the parties which will finally be settled in the court. Suppose a situation occurs where one party fails to comply with the arrangement agreed upon after the settlement has been reached. So, is a dispute ever going to be resolved by a settlement? Although one side wants to prolong the dispute until it seeks relief, the other party will have to go to trial to settle the arrangement, and hence, the litigation will bring with it a range of problems that the parties have sought to avert by settling for mediation on traditional means of confrontation.
It is clear that mediation is not a one-size-fits-all approach; ingenuity is essential to the process. Thus, these mediation provisions cannot be a rule-based or administrative statute but must be based on a framework based on theory. Legislation should not regulate or control the operation of proceedings but must recognize and codify principles such as confidentiality and compliance that are essential for a successful mediation. Codification will bring public confidence and understanding and, in turn, will allow India to overcome much of its challenges.
AUTHOR – BHUMISHA LODAYA