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Change in the landscape of Mediation- The Indian Perspective.

The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.- Sandra Day O'Connor.

Mediation is a structured process wherein the disputed parties hire a neutral or impartial third party for the resolution of their dispute. In the process of mediation, the parties together agree to hire the third party which is neutral towards both the disputed parties and would help them to resolve the dispute. The neutral third party assists the disputed parties with the help of its specialized negotiation skills and techniques. The neutral third party, who is commonly called a mediator tries to make a decision which is mutually acceptable and satisfactory for the disputing parties. It is a settlement procedure.

In this essay, we will discuss the roots, evolution and future of mediation process in India. Moreover we will come know about the advantages and the disadvantages of the mediation process.
As we are very well aware, that the Indian Judiciary is been mocked because of its delay in the decisions. Therefore, there is a huge necessity for the country to adopt mediation as a part of its Judiciary system.

History Of Mediation In India

The process of mediation in India is not something new to the country. Many years ago, before the arrival of the Britishers in the country, India used to have a system called the Panchayat system, wherein the elders of village used to help in the resolution of the disputes among the disputed parties. This type of mediation process is still continued in the villages of the country. Moreover in pre-British era, businessmen used to have mediation process for resolving their disputes. Impartial, neutral and respected businessmen popularly called Mahajans were appointed by the members of the business association to solve their disputes by informal procedures which used negotiation techniques to solve the disputes.

The other form for dispute resolution was used by a tribe which is the use of Panchas, or wise elder persons to resolve the disputes of the tribe. In this form of dispute resolution the members who have dispute meet with a Pancha, and consult with them about their grievances and try to reach at a point for their settlement regarding the dispute. If the above process is unsuccessful, then the matter is brought in a public forum which includes the members who are related to the disputed matter and again an attempt is made by the Panchas for the settlement. If somehow the settlement is not possible then the Panchas take a decision which is binding to bothe parties according to the laws of the tribe. Despite there was lack of legal authority and recognition, still the decision was accepted by the Indian disputants.

Another dispute resolution process which is the Lok Adalat, has received a quiet favourable attention since the time of its re-introduction in the 1980's. Actually, Lok Adalat was an ancient method to resolve the disputes of the tribal people. The Legal Services Authority Act (1987) promoted Lok Adalat as a dispute resolution system which provides the litigants with the means to resolve their disputes easily and affordably outside the courts.

Statutes In India For Mediation

In the year 2000, in Ahemdabad the first elaborate training for mediators were conducted. The training was conducted by American trainers who were sent by Institute for the study and development of legal systems (ISDLS). Few more training workshops were conducted by Arbitration Mediation Legal Education and Development which is a public trust settled by two senior lawyers in Ahemdabad.

In the year 2002, the first mediation centre, named Ahemdabad Mediation center was inaugurated by the chief justice of India. The Chief Justice of India called upon a meeting with all the chief justices of High courts and stressed on the importance of mediation and the need to implement sec 89 in the civil procedure code. The training workshops were organized by the U.S. educational foundation in India at Jodhpur, Hyderabad and Mumbai in the year 2003. The Chennai Mediation center was inaugurated in the year 2005 in the premises of the Madras High Court and became the first annexed Mediation center in the country. Moreover the Delhi Judicial Academy opened the mediation center and started different training workshops for mediation.

The Mediation and Conciliation Project Committee (MCPC) was constituted by the Honorable Chief Justice of India, Justice R.C. Lahoti by the order dated 9th of April 2005. Hon'ble Justice N. Santosh Hegde was its first chairman. The committee, in its meeting decided to start a pilot project of judicial mediation in the Tis Hazari Courts. The success of this project led the set up of mediation center in Karkardooma in 2006 and in Rohoni in 2009.

In the case of Salem Bar Association[1], the Supreme Court of India upheld the constitutional validity of the new law reforms and it appointed a committee which was chaired by Justice Mr. Jagannadha Rao, the chairman of the law commission of India, to suggest and set rules for the minor problems, if any, in the law for the implementation and success of mediation procedure in the civil courts of the country. The Law commission of India organized an international conference on mediation in Delhi, which was a great success. Thereafter, the Delhi high court and the Karnataka High court established an annexed mediation center. And now at the trial courts of Allahabad, Lucknow, Chandigarh, Ahmedabad, Rajkot, Jamnagar, Surat and many more districts in the country have mediation centers.

The courts in the country have now given legal sanction to mandatory mediation process. There are now many court annexed mediation centers in the country and the courts also started referring the cases to such mediation centers. Wherein the courts refer the cases for such a process, the lawyers of the parties present the case in front of the mediator and the process tries to reach to a settlement point which is accepted by both the parties. The procedure thus created public acceptance for itself in the country.

Statutes In India For Mediation

The enactment of the Arbitration and Conciliation Act,1996 gave the statutory recognition for mediation first time in India. The concept of arbitration and mediation became familiar when there was an amendment made in the Civil Procedure Code, in the year 1996 by inserting section 89 in the code.

Future Of Mediation In India

Nowadays, Mediation has an increased statutory recognition in the Country and the legislature has recently included Mediation in the Companies Act,2013, The Insolvency and Bankruptcy Code, 2016, as well as the Commercial Courts Act, 2015 among others. There are some indications which shows the expansion of Mediation in the country.

The very first indication is the proposal of an Indian Mediation Act:
On March 5,2019, a two-judge bench of the Supreme Court of India asked the government to examine the feasibility of setting up a Motor Accident Mediation Authority in every district so that road accident claims can be settled in a speedy and amicable manner.[2]The court stated that the country is in need of mediation act and suggested the government to consider the feasibility of enacting the Indian Mediation Act, which can take care of various aspects of mediation in general.

The proposal of framing the Indian Mediation Act is indeed a very benefitial and promising proposal for the country. Although various statutes provide the parties, the autonomy to get their disputes solved by the help of the mediation process and there are also cases where the courts refer for mediation process, furthermore, the private means of mediation can also be engaged by the parties, still the procedural guidance on this aspect is quiet vague and unclear.

The Mediation and Conciliation Rules, 2004 are not framed adequately and they do not cover the entire spectrum of the mediation process. Moreover, it can be easily observed by the draft of The Mediation and Conciliation rules, 2004,that they have been drafted very easily as they are more or less seem to be lifted from the Arbitration and Conciliation Act, 1996. This leads a great lack of uncertainity and confidence for the mediation process in the country. This issue can be certainly clear up with the help of the comprehensive statute in this regard.

The second update made Mediation a topic of household discussion in India:
The second update was from 8th of March, 2019. A five judge Constitutional bench of supreme court of India ordered a court-monitored mediation in the Ayodhya dispute.[3] The Ayodhya dispute is in its kind of a historical dispute in India as it is of an immense political and religious sensitivity in the country.

The Ayodhya dispute started centuries ago in the country, in the year 1528. A mosque was built in the regime of a mughal emperor named Babur, the mosque was built on the site, which was believed to be the spot where Lord Ram was born, according to the Hindu mythology. Therefore, the Hindus wanted to built a temple in that spot in the place of the mosque. The religious violence was first recorded in that place in the year 1853.

There was civil suit filed by both the members of the parties in the Indian Courts in the year 1949. The worst happened when the mosque was torn down by some Hindu groups prompting nationwide rioting between Hindus and Muslims, which led to around two thousand deaths in the country in the year, 1992. Moreover, all the nationwide courts, commissions of inquiry, renowned archaeologists and the politicians of the country were unsuccessful in resolving the Ayodhya dispute. After seeing all the efforts going vain, the court used its last resort, which wwas the mediation process.

The reference given to mediation process in such a historical dispute, made mediation a topic of a household discussion. The court ordered the mediation proceeding to be in a confedential manner and reports of the mediation process were to be duly submitted to the court.

These two recent updates clearly signifies that there is a very bright future of mediation in the country. And mediation process is also very necessary as a part of judiciary system of India seeing the current scenario of the country.

Advantages Of Conducting A Mediation Process

  1. The process of mediation is relatively inexpensive as compared to the trials in the courts.
  2. Since there is no dearth of mediators, therefore they are easily accessible for the disputed parties. Unlikely the courts, mediation can be scheduled according to the mutual consent and convenience of both the disputed parties. On a quick web search, many mediators can be found who are masters in the particular types of cases.
  3. The process of mediation is relatively way more simple as compared to the trials in the court. The procedure in the mediation process is not at all complex and no evidentiary rules are to be followed in the mediation process. The general rule of fairness is applied in the process of mediation. If any party is not satisfied with the procedure or the decision of the mediation process, then it has a fair chance to present his or her case in the court.
  4. The process of mediation allows both the parties to revise and adjust the scope of their conflict. This increases the flexibility in the process of mediation and allows the mediator to act as problem solvers instead of acting as the adversaries for the disputed parties.
  5. Mediation allows the party to get equitable relief instead of only pecuniary relief unlikely the courts. Mediation also tries to settle on a decision which is beneficial for both the disputed parties.
  6. The settlements in the mediation process are more acceptable to both the disputed parties as compared to the settlements of the courts. The obligations under the process of mediation are more likely to be fulfilled as compared to the obligation imposed by the courts because such an obligation is voluntarily accepted by the party in the proceedings of the mediation process.

Disadvantages Of Conducting A Meiation Process

With advantages of anything, there are always some drawbacks which accompany the thing.
  1. It is not always necessary that the process of mediation will result in a settlement agreement. There might be cases where the parties put their time and money in such process, but were unsuccessful in reaching any settlement. In such cases the money and the time of the disputed parties will go in vain.
  2. The process of mediation certainly lacks the procedural and constitutional protections guaranteed by the federal and state courts.
  3. The process of mediation does not allow to set the legal precedent while working on a particular case.
  4. The process of mediation does not consist of any formal discovery process.
This particular essay evidently reveals that there are more advantages in the mediation process. Therefore, implication of mediation in Indian Judiciary will be very fruitful in order to decide the cases in the country. This implication will be helpful in settling the cases and will also be very helpful in reducing the burden of the Indian Judiciary. For the resolution of civil matters, it will be way more fruitful.

How Can We Help Mediation To Grow In Our Country?

The first thing which can be done is to add the subject of mediation in the curriculum of the law students. There can be different courses offered to the students in the field of Mediation.
The Courts in the country should also try to refer the cases for mediation process. There can be certain civil cases which should have mandatory mediation process, before filing the civil suit. This will enhance the growth of Mediation process in the country.

Conclusion
While observing the current scenario of the country, we can very well see that Mediation will act as a fruitful part of the Indian Judiciary system. Moreover, the observations also show that the courts are trying to make mediation, a part of its regular procedure.

The essay, by providing the details like history, evolution, future growth. Advantages and disadvantages of Mediation, highly recommends that Mediation should be a part of the Judiciary system of the country. And it is high time to not only adopt mediation but to also successfully implement it in the cases. It is the time for the Indian Judiciary to apply the dynamic approach for its further growth.

End-Notes:
  1. Writ Petition (civil) 496 of 2002
  2. M.R. Krishna Murthi V. The New India Insurance Co. Ltd., Civil Appeal no. 2476-2477 of 2019, order dated 5 March 2019.
  3. M. Siddiq (D) V. Mahant Suresh Das, Civil Appeal No. 10866-10867 of 2010, order dated 8 March 2019.

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