This article is written by Gul Zehra.
Table of Contents
Introduction
With India’s population being equivalent to 17.7% of the total world’s population and with more than 3 crores cases pending for more than 10 years, there is a need for a legal system that provides timely and cost-effective access to justice for all the people, irrespective of their financial conditions. The alternate dispute resolution methods like mediation, arbitration, negotiation, conciliation, and Lok Adalat are the key to this timely and cost-effective access to justice as they involve settling of disputes without litigation and “come up with creative solutions that a court may not be legally allowed to impose”. One of the most important objectives of Alternative Dispute Resolution methods is to reduce the burden of courts as the current available infrastructure of courts is not adequate enough to settle the growing number of cases for litigation within a reasonable time limit.
Mediation
Mediation refers to a form of an alternative dispute resolution in which the parties having a dispute in between them meet with a third party, i.e, a mediator, who is merely a facilitator. The Mediator listens to the problems of both the parties, helps the parties to come to an understanding by making the parties understand each other’s viewpoints, and comes to a conclusion which will benefit both the parties and settle the dispute eventually. Mediation process involves 4 steps or phases; Opening phase, exploration phase, bargaining phase, and settlement phase.
Opening phase
Opening phase is the first step of the mediation process where the mediator introduces himself to the parties and inform them about the mediation process and how they will proceed with it, followed by an opening statement by the mediator where the mediator, after he is done explaining the process to the parties, asserts his neutrality and confidentiality of this process. After the mediator’s opening statement, the opening statement of the parties begins where the parties explain to the mediator their issues and why they are there for the mediation process.
Exploration phase
After the opening phase (introduction and opening statement of mediators and parties), the exploration phase begins. It consists of open joint meetings and private/closed meetings with the parties. In open joint meetings, the parties and the mediator sit together and explore the issues of the parties and exchange information. The mediator then calls for a private meeting with each party one by one and explores each party’s case and strategy for settlement, in case the parties are not comfortable in the presence of the other party. The mediator cannot reveal the confidential information from the private meetings to the parties, unless the parties permitted it.
Bargaining phase
In this phase, there are open joint meetings, where parties’ lawyers present their offer and explore their settlement offers face to face, however, there can also be a closed meeting where the mediator acts as shuttle diplomat and the parties make and consider offers of settlement and bargain.
Settlement phase
This is the last phase of the mediation process where the parties agree to the settlement offer finalized. This is the phase where the counsel plays the most important part where they work together with the counsel of the opposite party to draft a settlement agreement.
When mediation is successful, it can save a huge amount of time and money for the parties and provide them with justice without having to go through the hassle of litigation and innumerable court proceedings. One of the advantages of mediation is that the mediator has to maintain the confidentiality at any cost. Not even the judge who refers the case for mediation has to know the personal information shared by the parties in the mediation process. Supreme Court in the case of Moti Ram and Anr vs Ashok Kumar and Anr held that, “mediation proceedings are strictly confidential and observed that the mediator should send the settlement agreement signed by the parties to the Court without mentioning what transpired during the mediation proceedings, when successful and in other cases i.e., when unsuccessful the mediator should simply state that mediation has been unsuccessful”.
Alternative Dispute Resolution is not a new technique that has emerged out of nowhere. The method of resolving disputes through mediation is being used since time immemorial in different cultures with different names. Its use can also be traced back to Ancient period where village elders used to mediate local disputes between villagers in order to maintain peace among the villagers. Mahatma Gandhi also has rightly said, “I had learnt the true picture of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties driven as under. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromise of hundreds of cases. I lost nothing thereby, not even money, certainly not my soul.”
Currently, with the need of alternative methods for resolving disputes without having to go to the court, about 80 countries and international organizations have made mediation laws and established mediation service institutions and centers to promote the use of mediation in resolving disputes. Mediation in India was legally recognized as an alternative method of resolving disputes first in the Industrial Disputes Act, 1947 and then later, in the Code of Civil Procedure (Amendment) Act, 1999, Section 89 which allowed the courts to refer to alternative dispute resolution methods to settle pending disputes.
“Unlike arbitration and conciliation, there is no specific statute that deals with mediation in India. Therefore, unlike other statutorily-recognized forms of non-binding alternative dispute resolution (being conciliation), confidentiality in mediation proceedings is not specifically provided for in any statute in India.” “Under Section 89 of the Code of Civil Procedure, 1908, consent of the parties was made mandatory and the court could refer cases for arbitration, conciliation, judicial settlement through Lok Adalat or mediation.”
In India, mediation is also promoted by the judges of lower courts, High Courts, and even the Supreme Court of India in cases involving matrimonial disputes, financial disputes, etc. When a case has an element of settlement but the parties are not giving their consent for mediation, the court can still refer the matter for conciliation or mediation under Rule 5(f) (ii) of the Code of Civil Procedure, 1908. Section 89(2)(d) – Alternate Dispute Resolution and Mediation Rules, 2003, says, “In case all the parties do not agree and where it appears to the court that there exist elements of a settlement which may be acceptable to the parties and that there is a relationship between the parties which has to be preserved, the Court shall refer the matter to conciliation or mediation, as the case may be”. Though, there are some cases in which mediation cannot be done; such cases are of grave nature like murder, rape, etc. The Supreme Court held that there cannot be mediation between the victim and accused in rape cases in State of Madhya Pradesh vs Madan Lal.
Article 39-A of the Constitution of India ensures equal access to justice which involves protecting the innocent, punishing the guilty, and satisfactory resolution of disputes. Access to Justice is a movement which says that the civil procedure system and the legal rules should be accessible to all sections of the society as the justice system is often weak for some parts of the society. Through mediation, every section of the society will get access to justice as it is cheaper and less time-taking in nature. It also aims at not just resolving the disputes but also to harmonize the relation of the parties at dispute.
In this context, there is a need for an alternate dispute resolution methodology, not just to improve the efficiency of the working judiciary but also to resolve disputes that are pending for litigation.
Alternate dispute resolution methods have seen a considerable amount of success in other countries like the US, but there are a few problems with the legal system here in India. One of those problems is awareness. Mediation, as a tool for access to justice is still an underdeveloped methodology because even now, not many people are aware of this method and when told about it, it is difficult for them to believe that a method like this even exists and is an alternative process to resolve their disputes in fewer amounts of time and money. The lack of awareness of legal rights and remedies among common people is another reason why they do not access the formal legal system.
Apart from the laws, courts, and judges that promote mediation as an alternate dispute resolution methodology, there are many institutions that are now creating awareness about this process as a tool for access to justice. One such example is of National University of Juridical Sciences (NUJS), Kolkata where a few students introduced Alternate Dispute Resolution methodology in their college with the help of a Senior Judge of High Court, and later, started organizing Indian Mediation Week every year in three cities, namely, Kolkata, Delhi, and Mumbai, which lead to the formation of SAMA, which has a tagline, “Suljhao Magar Pyar Se.” Indian Mediation Week, with SAMA, organized the last round of its third edition in 2019 in Bombay Stock Exchange, Mumbai, in which, eminent speakers from International Arbitration, MNLU Mumbai, and Corporate Law firms spoke about the importance of mediation in today’s time and the future and the need for not just the people associated with law, but also people from fields other than law to know about mediation and how it is done.
Other than that, SAMA has started the initiative of Online Lok Adalats in different states of India and for this, an online platform has been developed to bring the parties and judges online to solve disputes. Many students and advocates are a part of this initiative as case managers. It has completed its first Online Lok Adalat in Delhi successfully and another one is going on in Rajasthan, which is to be held on 22nd August. Other than SAMA, there are many institutions as well where Alternate Dispute Resolution (ADR) has been introduced as a separate subject in integrated course of law and they often hold competitions related to the same. One such institution is SVKM’s NMIMS, where students of 5 years integrated law have Alternate Dispute Resolution (ADR) as a clinical subject in their 3rd year.
In light of the current situation, it can be observed that mediation, as an alternative dispute resolution method, is gaining acceptance in not just courts or in famous institutions, but also in rural India and in people’s daily lives. The success rate of mediation in India is more than the failure rate, but it is still not enough as there are still a large number of people that are unaware of a method like mediation and resort to courts for their disputes. Mediation may have gained acceptance by many people, but it still has a long way to go. It will be having a great use in coming times as with increase in population, more cases will be coming to the courts, increasing its burden, and thus, bringing medication into the picture. Therefore, it is important for everyone, even if they are not going to make a career in the field of alternative dispute resolution, to know how to mediate.
References
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- “What is Alternative Dispute Resolution?” hirealawyer.findlaw.com/choosing-the-right-lawyer/alternative-dispute-resolution.html
- Moti Ram Thakur and Anr. vs. Ashok Kumar and Anr. (2011) 1 SCC 466.
- Reshma Kulkarni, “Is Mediation Gaining Popularity in India?”,https://blog.ipleaders.in/mediation-popularity-india/.
- Gandhiji’s thoughts on the law and the lawyers, https://www.mkgandhi.org/law_lawyers/appendix2.htm.
- Akanksha Mathur, “How does the mediation process work – steps and procedure”, https://www.google.com/amp/s/blog.ipleaders.in/mediation-in-india-process/amp/
- State of Madhya Pradesh vs MadanLal (2015), SCC Online, SC 579.
- Rule 5(f)(ii) of the Code of Civil Procedure, 1908. Section 89 (2) (d) – Alternate Dispute Resolution and Mediation Rules, 2003.
- Section 89(2)(d) – Alternate Dispute Resolution and Mediation Rules, 2003.
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