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The Origin and Growth of Mediation in India

In one's day to day life one often comes across various forms of conflict whether humungous or trivial. Such conflict may cause or lead to severe stress to the people concerned. Ranging from petty family clashes to serious legal issues causes severe stress to the people who face them or are directly associated to them. The best way to resolve such conflicts is to find something which is common to us as well as considering the values, beliefs, feelings etc. which can enable us to not only come together but also figure out a solution that can suit the best interest of the persons in conflict.[1]

Amidst, all forms of conflicts whether trivial or humungous one always strives to find a solution which can provide them with peace. To that effect, one can safely conclude that mediation is one such form of dispute resolution which brings a permanent sense of peace & can effectively bring the parties to amity. Mediation refers to a form of alternative dispute resolution whereby the parties in dispute try to find an amicable solution to their problem by taking the assistance of a neutral third person who is regarded as the mediator.

The role of a mediator is a challenging one indeed as the mediator acts only as a facilitator to the resolution while giving the highest level of autonomy to the parties for in a mediation it is believed that it is a process for the parties in dispute to find a solution that is acceptable to all while maintaining the highest level of confidentiality and enabling the parties in dispute to enjoy utmost flexibility and autonomy. Further, mediation can be regarded as an adventure of mankind in the quest for peace and justice even before law was established or courts were organized or the judges had formulated various principles of law[2].

The concept of mediation is not something novel in the Indian Context & it has been in place for long. It is a mode of dispute resolution that the Indians have been traditionally using during the ancient times where the elders used to resolve the disputes. Further, in the Indian Villages it was done with the help of Panchayats. But with the advent of British Rule in India, the Anglo-Saxon dispute resolution came up & the culture of mediation began to fade away.

After India became independent, even then problems continued to arise & now problems began to erupt at a rapid pace. As the society began to get more & more complex problems were now of such a nature that no longer such disputes could be settled earlier. Moreover, the colonial rule left behind lasting impacts on the people and the people now were attracted more towards the adversarial system of dispute resolution rather than the traditional form of resolution thereby leading to instituting of more and more cases.

Rapidly thereafter, due to the growing population and increasing needs of the people it became really difficult to cope up with the number of cases that were instituted & cases that were disposed of and at present India is plagued with the problem of immense backlog of cases and that of docket explosion.

On an average, a case filed in India continues for a minimum of 4-5 years and the losing party keeps challenging the decision until all forums are exhausted and the process continues to go on and on. However, on the contrary a mediation can resolve the dispute in about 2.5 hours and in very complex cases it can go on up to about 3 months. Further, the Delhi High Court aptly noted that India has a backlog of 2.8 crore cases& that in order to clear the backlog one would clearly require more than 464 years.

However, it is pertinent to note that in the recent times the Apex Court of India as well as the legislature has been inclined at introducing mediation as a preliminary mode of dispute resolution wherever possible. The amending of the Commercial Courts Act, 2015 by an Ordinance promulgated in May 2018 making pre-institutional mediation mandatory for commercial disputes apart from the conventional Section 89 mediation process has indeed been a great move forward towards promoting alternative dispute resolution mechanisms especially mediation.

Additionally, in the recent hearing of the Ayodhya Dispute, the five judges bench directed the parties to explore a court appointed & court monitored mediation so as to find out a permanent solution to the Ram Janmabhoomi-Babri Masjid dispute[3].

Furthermore, while deciding the case of M.R. Krishna Murthi, Justice AK Sikri & Justice S Abdul Nazeer reiterated the dire need to enact the Indian Mediation Act at the earliest while deciding a matter as to motor accident claim and deciding the quantum of compensation for 40% disablement[4].

To conclude, it can be said that, the present time is ripe and it is indeed the need of the hour to go back and encourage mediation as the mode of dispute resolution in the first place before approaching any other adjudicatory forum. It not only is an efficient method of dispute resolution but also it in turn helps establish a peaceful and collaborative society.

End-Notes:
  1. https://www.arbitrationindia.com/pdf/mediation_tostay.pdfLast Accessed on 12th March, 2019 12:34 PM
  2. https://www.arbitrationindia.com/pdf/mediation_tostay.pdfLast Accessed on 12th March, 2019 12:36 PM
  3. https://www.livelaw.in/top-stories/ayodhya-babri-land-dispute-mediation-supreme-court-143401Last Accessed on 12th March, 2019 16:43 PM IST.
  4. https://barandbench.com/indian-mediation-act-supreme-court-motor-vehicles-judgment/Last Accessed on 12th March, 2019 17:10 PM IST
Written By: Atish Chakraborty, 4thYear Law Student of AMITY Law School, Kollkata.
Email: [email protected]   

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