Mediation, the process of negotiation which is informal in its approach to create the right kind of environment to make the parties come to the negotiation table, has hold the market of Alternative Dispute Mechanisms in India. Though, it is true to admit that mediation in India is not a new thing to start off with. Ancient India is laden with instances of applying mediation as one of the most important pre-litigation ways. In the vedic times, and more of in the periods after that, the gram panchayats were given due importance and it was mandatory to go through that process which in turn was a form of community mediation, before the matter went before any form of king ruled court or such personnel. In the Mughal Period as well, the form of family courts and village courts were very much prevalent in practice which helped resolve numerous [petty cases to count and thus there was never a concept of backlog of cases. India being a civilisation with a rich culture of judicial processes, mediation is sure to become one of the trends to persist in the legal process.

In the present trends of pre-litigation procedures, mediation has emerged as one of the favoured trends which can be easily realised with the increase in the number of cases being referred to mediation by the lower courts, with the booming number of cases in the Supreme Court Mediation Centre, with the increasing number of centres of mediation to help assist even international mediations being carried out in India. It is undeniably true that with the start of codification of a free process like mediation, it is bound to lead to certain problems especially that of privacy, agreement between the parties, confidentiality, trustworthiness upon the process and especially upon the mediator. The informal proceedings of mediation does not call for the necessary reliance of the parties, as they feel that litigation is more fair and reasonable in mannerism. This in turn calls for a lack of popularity in the practice of private mediation, which has dropped in numbers, an empty place which is being taken over by court-referred and court-annexed mediation, where at times the conducive environment to reach the amicable solution desired is lacking.

In terms of the problems which lies in the path of popularising the process of mediation, the Vidhi Centre for Legal Policy has come out with a conclusive report on a purely academic basis citing all the dues and lacks.[1] Some of the problems which have been highlighted in the report include lack of cooperation between the parties, need for training and accreditation of mediators, lacking role play of referral judges, lacking in the sensitisation of the judicial courts to refer the cases to mediation, increase in the infrastructural facilities of the mediation institutes.

However, in terms of private mediation, the growth in trends is rather slow. It is only lately in 2018 that the Commercial Courts Amendment Ordinance came out with a welcoming step of mandating mediation as proposed by the opt-out model of Italy. Such models not only reduces the pressure on the courts in terms of backlog of cases but it also largely favours private mediation, which gives not only an economic boost up to the institutions but also achieve all the due aims of mediation, like preserving the emotions and relation between the parties, cost effectiveness, comfortable in mannerism and hassle free methods of negotiation. With the huge number of cases waiting before the Legal Service Authorities and the Arbitration Centres, even Lok Adalats and Arbitration as well as Conciliation is calling for a helping hands sorts of which is rather informal in approach.

Moreover, it is welcoming in cases like K.Srinivasa Rao v. D.A. Deepa, where the Supreme Court has favoured the process of mediation in cases of matrimonial disputes as follows:

“Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres. Our experience shows that about 10 to 15% of matrimonial disputes get settled in this Court through various mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres.”[2]

This to a large extent reflects on the growing inclination towards mediation proceedings at least in the case of family disputes because a litigation most of the times is unable to preserve the much needed emotions which in turn is the essence of such disputes. However, the Supreme Court opinion also pinpoints to the reluctance of lower court judges to refer cases to mediation possibly due to ignorance of the proceedings and in the absence of any mandatory provision.

This in turn calls of a revaluation of the conduct of the lawyers, the class of people to whom the general public refer the cases in the first instance. It is imperative as their duty to first study the case and if it seems to be resolvable by mediation proceedings then refer the same to the many institutions already present. It is a call on their moral duty to keep aside their vested interests while taking such generous steps.

In India the process is mostly voluntary and free-flowing in nature and thus it is only through private mediation that the same can be upheld. Court referred mediation is always there as an alternative to be presented.

The multi-faceted nature of mediation has been acknowledged by the Bombay High Court as:

“Advantage of mediation settlement is that by one settlement, parties may be able to put an end to several proceedings. In the instant case also, there are several other proceedings between the same parties including criminal proceedings, which have been stayed by the other learned judges of this Court and other Courts in the State.”[3]

It was not of very late that the Delhi High Court settled the problem with respect to definition of mediation under CPC as: “The mix-up of definitions of the terms “judicial settlement” and “mediation” in Section 89 is apparently due to a clerical or typographical error in drafting, resulting in the two words being interchanged in Clauses (c) and (d) of Section 89(2). If the word “mediation” in Clause (d) and the words “judicial settlement” in Clause (c) are interchanged, we find that the said clauses make perfect sense.”[4]

Finally, in fields of application the central Government has taken due steps to further the process in other fileds like tax related disputes as well, a lacking which was reported in one of the reports of the Tax Administration Reform Commission:

“An understanding of general law in India suggests that mediation and negotiation are not preferred processes of the ADR in tax matters as they are voluntary and result in non-binding outcomes. Further, there is practically no difference between conciliation and mediation, and they are often used interchangeably. And, in negotiation, parties resolve disputes based on an a priori course of action to serve mutual interests.” (TAX ADMINISTRATION REFORM IN INDIA SPIRIT, PURPOSE AND EMPOWERMENT at p. 263). The report further recognised the growth of this process of mediation in countries like UK, USA, France, Australia, etc.

In conclusion, it is imperative to note that the growth trend of mediation in India is undeniably applaud able, however, it needs some reforms in terms of infrastructure and training and most importantly popularising the method so that the general public can be drawn towards the process, and this should be done by the respective judicial authorities by favouring the process of mediation as one of the best ADR mechanisms.

 

 

 

[1] https://vidhilegalpolicy.in/reports/2017/7/17/strengthening-mediation-in-india-a-report-on-court-connected-mediations

[2] K. Srinivas Rao vs. D.A. Deepa (22.02.2013 – SC) : MANU/SC/0180/2013 at p.32

[3] Chandrakant Phoolchand Sanghvi and Ors. vs. Anilkumar Phoolchand Sanghvi and Ors. (20.06.2013 – BOMHC) : MANU/MH/0813/2013 at p.15.

[4] Afcons Infrastructure Ltd. and Ors. vs. Cherian Varkey Construction Co. (P) Ltd. and Ors. (26.07.2010 – SC) : MANU/SC/0525/2010 at p.8.