What is Mediation?
In 2002, Section 89 of the Indian Code of Civil Procedures was amended and has given way to alternative dispute resolution methods such as arbitration, mediation, conciliation and pre-trial settlement methodologies.
Mediation is usually defined as “A voluntary process by which parties involved in a conflict, in the presence of a neutral third-party, negotiate to arrive at a settlement satisfactory to both parties.”
The above definition very clearly states that the process of mediation is voluntary. This means that no party can be threatened into participating in the process. Remembering this, if we inspect the idea of alluding cases for necessary intervention, it appears to be repetitive and damages the very premise of the intercession procedure.
Indian Courts on the Process of Mediation
In certain types of cases, the courts can make it mandatory for the parties to be given an option of mediation. The judge, thus, has a great responsibility of referring only the appropriate cases for the process of mediation. The case should be deemed as appropriate for the process of mediation if and when the judge can ascertain that elements of settlement exist in the case. A case can be referred to the process of mediation, whenever the judge believes that there is a possibility of the settlement if the case is referred to the process of mediation, or if the parties voluntarily choose the mediation. Both the parties should be aware of the rights available to them and should be informed and prepared for entering into negotiations to reach a settlement or agreement that will satisfy the needs of both the parties.
Mediation in India Currently
At present, in India, mediation applies to divorce cases and other matrimonial disputes.
On 22 February 2013, the Supreme Court of India passed a judgment that laid down the following guidelines for courts while dealing with matrimonial matters:
- “Regarding Section 9 of the Family Courts Act, the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre. In such a case, however, the Family Courts shall set a reasonable time limit for mediation centres to complete the process of mediation because otherwise the resolution of the disputes by the Family Court may get delayed. In a given case, if there is good chance of settlement, the Family Court in its discretion, can always extend the time limit.
- The criminal courts dealing with the complaint under Section 498-A of the IPC should, at any stage and particularly, before they take up the complaint about hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigor, purport and efficacy of Section 498-A of the IPC are not diluted. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case.
- All mediation centres shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage.”[1]
In India, mediation is slowly gaining recognition as a dispute settlement mechanism. Now before the court gives a divorce case a decree, the parties are given a chance for reconciliation. Studies show that 10-15% marital disputes get solved in mediation centres.[2] Divorce issues like settlement, maintenance and custody of the child are deemed perfect for the process of mediation.
Section 9 of the Family Court Act states that the court can take the assistance of counsellors to resolve marriage related disputes, as it is the duty of courts to make the best effort to resolve the disputes under this section. In case the counsellors are unable to help resolve the dispute then the courts should refer such cases to mediation centres, as a complete effort to resolve the dispute.
Many mediation centres are setting up ‘Help Desks’ at places within the court complex, this is helping bring forward the concept of pre-litigation mediation in India. The recent statistics gives an insight that the Delhi High Court Mediation Centre and Delhi Government Mediation and Conciliation Centres have been successful in resolving many marital disputes. Such centres are gaining success and popularity, very fast, in the sector of pre-litigation mediation. Pre-litigation mediation in India can be made as a standard way of resolution of marriage related disputes with sufficient publicity and effort; the parties will also be saved from the various problems that arise after a divorce.
In the case of Ramgopal & Anr. v. State of Madhya Pradesh & Anr.[3], the court asked the Law Commission and the Government of India to do research, to determine if the punishments for the offenses mentioned under Section 498-A of the Indian Penal Code that is currently none compoundable can be made compoundable. If these offenses are made compoundable, then the courts can order the parties involved in such disputes to consult the mediation centres.
Mediation is gaining popularity as a method of dispute resolution, very fast. This is also increasing the number of people who rely on the process of mediation for resolution of disputes. Based on this Indian courts may consider venturing out into other alternate dispute resolution mechanisms.
Mediation as a process can be used to resolve various areas of disputes, most of the civil cases can be referred to mediation for resolution. Matters related to rent, partition, recovery of money, labour, damages, specific performance, recovery of money, injunction, declaration, dispute between a landlord and a tenant, case of dishonoured cheques, claims related to motor accidents, etc., are some examples of types of cases that are suitable for the process of mediation. There are also criminal offenses like those mentioned under Section 320 of the Code of Criminal Procedure that can be resolved through the process of mediation.
Areas Where Mediation Can be Made Mandatory in India
Estate: This is a matter which is very closely connected to family matters. Mediation is a great option for such matters as this process can easily resolve family matters and will also help the people escape the lengthy process of litigation. Mediation might also help bridge pre-existing gaps and revive the familial ties. The process of mediation can address issues like distribution or poor communication or lack of communications among the heirs.
Landlord and Tenant: The relationship between a landlord and a tenant is a very complicated one. The relationship complicates itself, further than the usual delays in payment of rent. The relationship complicates itself when there are misunderstandings on the interpretation of the lease agreement between the two parties with regards to the meaning of various provisions and legal rights of both the parties. Disputes arise out of such misunderstanding and force the parties to take such disputes to court, and there is no guarantee that the judgment of the courts is the best solution to the problem. The judgment will fall for one of the two parties and will defiantly not guarantee a better rent amount to the landlord or a better tenant, or improvement in living conditions for the tenant. A court procedure also consumes a lot of time and money and in this time the tenant finds another residence and the landlord finds a new tenant. Mediation, on the other hand, can be used to obtain a mutual understanding of the clause and improving the relations between the parties.
Mediation can help them to look at issues differently, generate options that they might not have considered before. Since the settlement arrived at through the mediation process puts the agreement in writing, all parties know the nature of the agreement. Also, the entire process is confidential and unbiased.
Disputes arising between consumers and merchants: In the world, many businesses don’t know how to resolve disputes, in case things don’t go as expected. Many times the two parties get annoyed as both have their priorities set on various levels, and it feels like they cannot even communicate in the same language. These disputes lead to the parties going to court, which usually does not resolve the real dispute but increases it.
Tort issues between neighbours: Mediation helps to resolve disputes among neighbours voluntarily and economically. A trained and unbiased conflict Manager helps to resolve disputes safely and confidentially for a mutual benefiting result.
The traditional methods of dispute resolution through litigation and complaints in the police, usually ignore the underlying problem. Many complaints are of no avail, as neighbours get caught up in proving the other party wrong, causing their personalities to hinder in the process.
Mediation helps to get to the actual dispute in less time and with less money spent. It helps them realize and talk about what they feel about the situation. Sometimes disputes like noise, vandalism, parking space, pet control and other conflicts over money and property can be solved just by directly talking to the neighbour.
Conclusion
Mediation is a safe, informal and confidential method to resolve issues involving simple and complex contract disputes, payment disputes, cases based on miscommunication, matter pertaining to product satisfaction as well as safety issues, matters relating to service satisfaction issues, employment disputes, insurance disputes, debt disputes, disputes relating to Personal injury, civil rights and small claim matters.
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Bibliography
Articles
- High Court of Uttarakhand, Concept of Mediation, available at http://highcourtofuttarakhand.gov.in/pages/display/212-concept-of-mediation (last visited 5 August 2015)
- Bijoylashmi Das, Harsimran Singh, India: Commercial Arbitration In India – An Update, available at http://www.mondaq.com/india/x/284570/Arbitration+Dispute+Resolution/Commercial+Arbitration+In+India+An+Update (last visited 5 August 2015).
- Uma Ramanathan, Solutions and plans of Mediation as an ADR Method, available at http://www.mediate.com/articles/RamanathanU3.cfm (last visited 5 August 2015).
- Mediation and Conciliation Project Committee of Supreme Court of India, Mediation Training Manual of India, available at http://supremecourtofindia.nic.in/MEDIATION%20TRAINING%20MANUAL%20OF%20INDIA.pdf (last visited 5 August 2015).
- Anil Xavier,Mediation: Its Origin & Growth in India, Hamline Journal of Public Law & Policy, available at http://www.arbitrationindia.org/pdf/mediation_india.pdf (last visited 5 August 2015).
- Mediation Conciliation Rules, to be published in Part IV of Delhi Gazette Extraordinary, High Court of Delhi, available at http://delhimediationcentre.gov.in/MediationConciliation.htm (last visited 5 August 2015).
Cases
- Srinivas Rao v D.A. Deepa, Special Leave Petition (Civil) No. 4782 of 2007.
- Ramgopal & Anr. v. State of Madhya Pradesh & Anr., NO.14745/2010.
[1] K. Srinivas Rao v D.A. Deepa, Special Leave Petition (Civil) No. 4782 of 2007.
[2] See i.d.
[3] Ramgopal & Anr. v. State of Madhya Pradesh & Anr., CRLMP. NO.14745/2010.
