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Legal aspect and approach to mediation in India

Mediation is an out of court settlement which is voluntary and two parties undergo this process to reach an amicable settlement. Mediation being one of the Alternative Dispute Resolution mechanisms is an upcoming field in the legal sphere. Mediation is a process where a third party who has no benefits from the outcome tries to solve is the dispute between the two conflicting parties. The mediation process begins with an interaction between the mediator and the two parties.

The parties then state their issues and what is the outcome they desire. The basic motive of mediation is to provide the parties with an opportunity to negotiate, converse, and explore options aided by a neutral third party, to exhaustively determine if a settlement is possible.[1]

There are certain preconceived notions about the working of mediation by Indians as they are unfamiliar about this concept.

Few misconceptions are that mediation yields a lesser form of justice[2], the mediator will make erroneous decisions, the process of mediation does not work, it is a waste of time[3] and other such apprehensions. Mediation or any ADR mechanism is not new to India. Alternative Dispute Resolution has been practiced from the Vedic period.

The Koran recommended mediation where there is a dispute between husband and wife. Then it is provided in paragraph 219 that if the reconciliation efforts fail then the marriage may be dissolved. It is clearly provided that the mediator can dissolve the marriage provided they are empowered by both the spouses. In my view, this section pertaining to mediation is only an enabling provision. It is nowhere stated in the section that in every case of divorce, mediation must precede pronouncement of talaq.[4]This process is a speedy and fast method of justice.

The Code of Civil Procedure, 1908[5] in Section 89 states about the settlement of disputes outside the court.

Settlement of disputes outside the Court.--(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, The court shall formulate the terms of the settlement and give them to the parties for their observations and after receiving the observations of the parties, The court may reformulate the terms of a possible settlement and refer the same for:
  1. arbitration;
  2. conciliation;
  3. judicial settlement including settlement through Lok Adalat: or
  4. mediation.
Rule 1A Order 10 requires the court to give the option to the parties, to choose any of the ADR processes. This does not mean an individual option, but a joint option or consensus about the choice of the ADR process.[6]

In the case, Perry Kansagra vs. Smriti Madan Kansagra[7] the Court held that the process of mediation was founded on an element of confidentiality. Mediation stands on a completely different footing as against regular adjudicatory processes. Instead of an adversarial stand in adjudicatory proceedings, the idea of mediation was to resolve a dispute at a level that was amicable rather than adversarial.

It is quite obvious that the reason why Section 89 has been inserted is to try and see that all the cases which are filed in court need not necessarily be decided by the court itself. The Alternative Dispute Resolution (A.D.R.) Mechanism as contemplated by Section 89 is arbitration or conciliation or judicial settlement including settlement through Lok-Adalat or mediation. Section 89(2)(d), therefore, contemplates appropriate rules being framed with regard to mediation. This was held in the case Salem Advocate Bar Association vs. Union of India (UOI)[8]

Judicial Pendency and Right to a speedy trial in Indian courts

The Indian courts suffer mainly from the pendency of cases. Over 3 crore cases are pending in the judicial system recorded until April 2018, which includes the Supreme Court, High Court, and other subordinate courts.[9] Of these, the subordinate courts represent over 86% pendency of cases, trailed by 13.8% pendency under the watchful eye of the 24 High Courts. The staying 0.2% of cases are pending with the Supreme Court. The main reason for the pendency is the logistics work and the formalities of the courts in India.

The average pendency of any case in the 21 high courts for which we have data is about three years and one month[10].Karnataka High court if taken as an example the pendency in days measures up to 1011 days on an average.[11] In these, over two years one could expect to go to court about 12-13 times, as the average time between hearings in the Karnataka High Court is 78 days.[12]

Mediation being an informal and fast process can surely reduce the pendency in the courts. The pendency of such cases creates a delay in restoring justice. The maxim Justice delayed is justice denied' quoted by William Goldstone depicts the current situation of the Indian Judiciary.

This delay may be of various reasons such as the insufficiency of judges in the courts, an increase in the number of appeals to the appellate courts, absenteeism of advocates, and other such delays. The Constitution of India in its Preamble provides social, economic, and political justice to all its citizens. Therefore it is the duty of the State to secure a social order for the promotion of the welfare of the people.[13]

The main facets that constitute the essence of access to justice are the State must provide an effective adjudicatory mechanism; the mechanism so provided must be reasonably accessible in terms of distance; the process of adjudication must be speedy, and the litigant's access to the adjudicatory process must be affordable.[14] The process of adjudication should be speedy in order to render justice to the people. It is a basic right enjoyed by the people involved in court proceedings.

In Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr[15] while holding that speedy trial at all stages is part of right Under Article 21, it was held that if there is a violation of the right of speedy trial, instead of quashing the proceedings, a higher court can direct conclusion of proceedings in a fixed time. To render speedy justice is the duty of the state and the administration of justice is a state subject. Therefore the States must look into the maintenance of Fast track courts with the help of the Union Government.[16]

Approach to Mediation in India

Mediation is an upcoming field in India. The first mediation training session was conducted in Ahmedabad in the year 2000 by the Institute for the Study and Development of Legal Systems (ISDLS), a non-governmental organization based in San Francisco, California, USA.[17] After this, the scope of mediation in India has escalated. Many lawyers as well as people from other professions are taking up this course. Several districts and cities have come up with mediation centers. Some of the examples of public mediation centers are Bangalore Mediation Centre, Delhi mediation center, etc and private are Centre for Advanced Mediation Practice (CAMP), Bangalore, India International ADR Association (IIADRA), Cochin, Mediators India, Chennai etc.

The Mediation and Conciliation Project Committee was constituted by the then Chief Justice of India Hon'ble Justice R C Lahoti in the year 2005. The project gave effect to Section 89 of the Civil Procedure Code 1908[18]. Many High Courts in India along with State legal services authority is taking the initiative to establish Alternative Dispute Resolution Centres. One such instance can be seen with the setting up of the Kerala State Mediation and Conciliation Centre (KSMCC) in the districts of Kerala.

Mediation has become the order of the day. Various cases in the Supreme Court and High Courts have been referred for mediation. This is clearly visible in the landmark case M Siddiq (D) Thr v. Mahant Suresh Das Ors[19] also known as the Ram Janmabhoomi case in which the Supreme Court referred the parties for mediation. The mediation report was submitted by the Court-appointed mediators namely retired Justice F M I Kaifulla, Sri Sri Ravi Shankar, and Sriram Panchu.

The parties weren't able to reach an amicable settlement. The Courts in India are taking steps to popularise the ADR process. The Supreme Court held that:
If the court refers the matter to an ADR process (other than Arbitration), it should keep track of the matter by fixing a hearing date for the ADR Report. The period allotted for the ADR process can normally vary from a week to two months (which may be extended in exceptional cases, depending upon the availability of the alternative forum, the nature of the case, etc.)[20]

Certain new enactments of the parliament such as The Consumer Protection Act 2019[21], Industrial Disputes Act 1947[22] and The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act 2018[23] has provisions for mediation. Chapter V of the Consumer Protection Act 2019 refers to mediation in consumer protection cases. The State Government shall establish consumer cells which will give its report to consumer commissions.

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act 2018 act provides for pre-institutional mediation. It is mandatory for the parties to complete the mediation process within three months from the date of application of the suit. [24]

Many family law cases such as divorce, child custody, etc are referred for mediation as the parties can settle with certain compromises. Although if the parties are not ready to compromise then the court proceedings are always available. Various cases such as Meenal Bhargava vs. Naveen Sharma[25] have shown that the clashes have been settled due to the process of mediation.

Conclusion
Mediation aims at reducing the burden of the Indian Courts as well as bringing the parties to a harmonious settlement. Mediation not always concludes with an amicable situation. There are many cases that do not result fruitfully but mediation aims at a win-win situation for all the parties. Mediation allows the parties to bury their acrimony and try to make amends in their future actions. As it is not legally enforceable, it helps the parties make reforms in their day to day life.

Therefore it is very important that mediation is encouraged by the Courts in India. This would strengthen the Judicial system in India and provide speedy justice. Mediation and other ADR mechanisms are the need of the hour.

End-Notes:
  1. Madabhushi Sridhar, Alternative Dispute Resolution: Negotiation and Mediation, 234 (1st Ed 2006)
  2. Infra note 3, at 321
  3. Shashank Garg, Alternative Dispute- The Indian Perspective, 322 (1st 2018)
  4. Banu and Ors. vs. Kutubuddin Sulemanji Vimanwala II (1995) DMC 390 (India)
  5. Infra note 21
  6. Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co. (P) Ltd. and Ors., (2010) 8 SCC 24 (India)
  7. Perry Kansagra vs. Smriti Madan Kansagra 2019 (3) SCALE 573 (India)
  8. Salem Advocate Bar Association vs. Union of India (UOI) AIR 2003 SC 189 (India)
  9. Pendency of cases in the Judiciary, PRS Legislative Research http://prsindia.org/policy/vital-stats/pendency-cases-judiciary
  10. Harish Narasappa, The long, expensive road to justice, India Today, (Apr. 27, 2016, 19:59 PM) https://www.indiatoday.in/magazine/cover-story/story/20160509-judicial-system-judiciary-cji-law-cases-the-long-expensive-road-to-justice-828810-2016-04-27
  11. Daksh, State of Indian Judiciary ( 1st ed 2016)
  12. Supra note 9
  13. India Const. art 38
  14. Anita Kushwaha and Ors. vs. Pushap Sudan and Ors AIR 2016 SC 3506 (India)
  15. Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr AIR 1992 SC 1701 (India)
  16. All India Judges' Association and Ors. v. Union of India and Ors AIR 2002 SC 1752 (India)
  17. Reshma Kulkarni, Is mediation gaining popularity in India? ipleaders.in ( 3 May 2020) https://blog.ipleaders.in/mediation-popularity-india/
  18. The Code of Civil Procedure,1908, No.5, Acts of Parliament, 1908 (India)
  19. Civil Appeal Nos 10866-10867 of 2010
  20. Supra note 6
  21. The Consumer Protection Act,2019,No.35 , Acts of Parliament, 2019 (India)
  22. Industrial Disputes Act,1947, No. 14, Acts of Parliament, 1947 (India)
  23. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018, No. 28, Acts of Parliament, 2018 (India)
  24. Section 12A (3) Supra note 23
  25. Meenal Bhargava vs. Naveen Sharma AIR 2018 SC 2839 (India)

    Written By:�Ms.Sahana R

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