Changing Landscape of Mediation

Updated: Aug 15, 2020

Akansha Pandey

Author: Akansha Pandey

Jagran Lakecity University

Co-author: Arushi Goswami Jagran Lakecity University



INTRODUCTION

Abraham Lincoln- A good settlement is better than a good lawsuit”

Mediation has evolved in a dynamic rate and is emerging as a conflict resolution method in areas of social, economic, and political issues. It is not a mere bargaining but an arrangement to provide a win-win situation to the parties in the settlement. It is a confidential and voluntary process where the mediator facilitates the communication between the parties in order to make them understand their needs from the settlement and craft a mutually acceptable agreement, but has no power to impose those decisions onto the parties.


As Alternative Dispute Resolution (ADR) system is burgeoning in the world, it is a sign indicating the future trends where people are taking smart decisions of alternatively solving a conflict outside the court. ADR is not only fostering the rate of conflict resolutions but also instilling an idea to change the entrenched method of dispute resolutions all over the world by being an alternative.


Mediation as an alternative tool leads to saving in costs as well as in court time and it provide the parties with the remedies and solutions of conflict which cannot be offered by the courts. Nowadays, the procedure followed in courts is too complex and timeworn. The process of trial and judgment is too lengthy and submission of evidence takes lifetime which may exacerbate the case, which leads to belied impression of natural justice. This anomaly can be virulent disaster in a persons life. For lessening the burden from the shoulders of litigation and courts, alternatives are more important now, to act as catalyst and foster the growth of conflict resolutions.


Due to the disappointments created by litigation and arbitration, mediation has come more effectively into the picture. A successful outcome of a mediation can be more satisfactory than a court judgment or an arbitral award for the parties as it does not provide black and white solution and do not focus on who is right or wrong , instead focus on the objective of establishing a win-win situation. Moreover, the mediation services are not only promoting and supporting the use of mediation to resolve disputes but also dissolving the fiasco created by the decline in efficiency of arbitration and litigation. The barrier to this is the unenforceability of successful outcomes of mediation by many countries.


India being a developing country has evolved in the field of mediation in the latter half of 20th century. Although this system is still in existence in parts of rural India but the ones relying on it, is losing faith on it. The popularity of the mediation as an alternative tool to litigation was expected to increase. Following the same footsteps, various Supreme Court decision in the recent years has revitalize the attitude towards the conflict resolution methods.

Despite all these efforts and its success in various countries, mediation has not been much of a watershed step in India mainly due to lack of its acceptance and awareness in the country. In India, even though the judges are accepting the importance of mediation so as to remove the failure of justice and act as an impetus solution to the large number of cases, yet the lawyers are not able to respond fast to it. The adversarial system followed in court is so much deeply injected in the lawyers that they still prefer the orthodox methods of conflict resolution and are not ready to takes risks for a better change. Till now, companies and institutions in the field of insurance, banking and trading are more relied towards mediation and ADR as a good means of settlement of disputes, but not much accepted in other fields in the need of dispute resolution.

Considering such scenario, the article draws a question focusing on the fact that India being a developing country is able to accept mediation at large or not, and will it be a good decision as a country?

Origin of Mediation


In INDIA mediation was made familiar by giving official recognition in 1996 and by amendment of Civil Procedure Code (CPC) in 1999.Mediation has evolved in latter half of the 20th century.

Ahmadi formed a national study team in 1996 with United States to examine case management and dispute resolution. In the study legislative changes were suggested which authorized the use of mediation. In 2002 new provision was inacted providing for case management and the mandatory reference of cases to alternative dispute resolution, including mediation. Mediation is not new for INDIA its root can be traced way back from Ancient Indian legal system known as Gram Panchayat and Nyaya Panchayat.


Status of Mediation in India:


Indian lawyers are conservative, they are reluctant to expose their clients the uncertainty of risk from ADR process the lawyers in India are deprived by the knowledge of arbitration conciliation and mediation. They are depriving themselves by the income that can be generated through it.

In the case of Hussainara Khatoon v. Home Secretary, state of Bihar Supreme Court held that Right to a speedy trial is a Fundamental Right under Article 21 under Indian Constitution. This judgment by the bench of P.N. BHAGWATI promotes mediation.

Also in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India the Supreme Court held that reference of arbitration conciliation and mediation are mandatory for court matters.

There are two principal enactments that deal with mediation in India- the CPC and the ACA. Section 89 of the CPC and the rules framed by various high courts under that section deal with court-annexed mediation while Part III of the ACA deals with private mediation. Part II of the Civil Procedure Alternate Dispute Resolution and Mediation Rules (the Mediation Rules) also provides for various rules relating to mediation.Other legislation that covers mediation is the Commercial Courts Act 2015, whereby it is mandatory for parties to exhaust the remedy of pre-institution mediation under the Act before instituting a suit.

In the year 2011 supreme court of India declared that mediation proceedings are confidential in nature and only an executed settlement agreement or alternatively a statement that the mediation proceedings were unsuccessful, should be provided to the court by the mediator Held in the case of, Moti Ram (D) Tr. LRs and Anr. Vs Ashok Kumar and Anr (Civic Appeal No. 1095 of 2008) .

The mediation has its roots in the Arbitration and Conciliation Act, 1996, which was enacted to

Enforce the foreign arbitral awards and to encourage the domestic arbitration. The said Act also defines the law relating to conciliation and matters connected therewith. In fact the United Commission on International Trade (UNCITRAL) has adopted the UNITRAL Model Law on International Commercial Arbitration in 1985 and the General Assembly of United Nations has recommended that all countries give due consideration to the said model law and rules make significant contribution to the establishment of a unified legal framework for the fair and efficient settlement of disputed arising in International Commercial relation.


Procedure of Mediation or Conciliation


The civil and compoundable offences of criminal cases may refer to the mediation centers. The cases shall be assigned to the mediators as per their expertise where the step by step mediation between the parties shall be conducted. The failure to reach a settlement in the mediation reference shall not preclude the courts to again refer the case to the mediation centers. The mediator is not bound by the rules of Indian Evidence Act, 1872 or by the code of Civil Procedure, 1908 but has to maintain the principle of natural justice, fairness and Justice. The confidentiality is most important ingredient of the process of mediation. The principle of confidentiality was adopted in the mediation process so that in case if the process fails then the negotiations may not affect the suit in the litigation before the judge. Usually the mediator has to pass the information to the other party so that the other party may give proper explanation but if the party directs the mediator to keep it confidential then the mediator cannot convey it to the other side. The information gathered by the mediator during the course of mediation or after the perusal of any documents shall be kept secret by him. The other developments during mediation like proposals, admissions or reasons not to accept the proposals are also required keep confidential by the mediator. The rules also banned the audio or video recording of the mediation process only the summoned or essential persons like concerned parties, their attorneys can attend the sessions. These measures ensure the privacy rights of the parties.There shall be no communication between the mediator and the court to maintain the confidentiality but this rule is subject to just exceptions like about the non appearance of the party, about the consent of parties, about the assessment of the mediator regarding the unsuitability of the case referred to mediation for settlement and these communications are required to be in black and white and the copy of which is provided to the parties.


It can be studied from the literatures available that the Industrial Dispute Act, 1947 was the first Act having provisions related to ADR. The conciliator was under statutory obligation to solve the dispute amicably by mediating between the parties Section 4. Conciliation Officers:-


(1) The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks fit, to be Conciliation Officers, charged with the duty of mediating

in and promoting the settlement of industrial disputes.

(2) A Conciliation Officer may be appointed for a specified area or for specified industries in a Specified area or for one or more specified industries and either permanently or for a limited

Period.


Status of Mediation in USA and Israel:


USA


In USA ADR originated from English common Law, it is hypothesized that ADR first existed in New York City during Dutch and British colonial period whereupon pilgrim colonists preferred to use their own mediation process to deal with community conflicts instead of the courts.American lawyers in the first place during the growth of mediation in the US over the last twenty (20) years, by their early acceptance and use of mediation, lawyers became not only the best trained and most qualified mediators (incorporating their mediator work into their law practices), but the lawyers who did not become mediators became the gatekeepers for mediation, selecting over 80% of the cases that are mediated and choosing the mediators for such cases. Americans lawyers have adopted mediation as primary tool for settling disputes while Indian lawyers and judges are still examining mediation, discussing the efficacy of mediation in settling the disputes and still pondering on types of cases which should be dealt by the mediation They also helped in building Mediation Centers in Australia and various other continents. According to the statistics provided by the Department of Justice, in 2017, over $15 million was saved from litigation or discovery expenses, 14,000 days of attorney and staff time saved, and almost 2,000 months of litigation avoided.


Israel

In 1992 ADR was introduced in judiciary by Israel, following the amendment of the Courts Act of 1984.two commissions were appointed in the late 1990s: the Or Commission and the Gadot Commission. The Or Commission was appointed to analyze the court systems structure, and the Gadot Commission was appointed to delineate the qualification of court-appointed mediators and their training program.Current Israeli law enables anyone to be a mediator. The Rubinstein Commission (discussed below) set the qualifications for mediators participating in the mandatory mediation program.


Analysis:


Key factors that contributed to the growth and development of the mediation programs in India: Hiring professionals to staff programs. The expertises of the program director and her ability to network with a wide range of people (judges, attorneys, disputants) were critically important to securing the support needed for all aspects of the programs; Engaging the stakeholders including judges, local bar and community mediation center members, and other community partners in the development and implementation of the respective programs; Keeping consistent players, such as insurance corporations, banks, and government entities, apprised of the reforms, and attaining their feedback; It has been noticed that up till now mainly companies and institutions in the field of insurance, banking and trading have relied on mediation and ADR as means of settling disputes. Hence, encouragement for making mandatory provisions for making ADR especially mediation to be used as commonly sorted after means of dispute resolution is much needed. Awareness has to be aimed at the common people with wide publicity in various media. Thus, there is an urgent need to identify people or community based initiatives that already exist in the community for taking up the cause of spreading awareness about mediation across the country. It now seems that we need new ways of looking at conflict resolution and the legal profession and hope that we discover a new way that will help in bridging bonds between the ethics of practice, the values of the law and the demands of public policy. Helping the shift from adversarial litigation to methods of alternate dispute resolution such as mediation, creating awareness in society of the benefits of the mediation process, developing capacities are very critical elements indeed in the success of the process.. After a reform or improvement of the litigation and arbitration system and a solution of the problem concerning the enforcement of settlement agreement, the disappeared man would come back someday, during the next 10 years, also carrying two boards, back and front, but saying: Mediate, Arbitrate and Litigate!


Legislative defects also occurred from the end of Indian Government:


SECTION 89 OF THE CODE OF CIVIL PROCEDURE

As the Supreme Court in Afcons Infrastructure Ltd. vs. Cherian Varkey Construction Co. Pvt. Ltd. pointed out, in Para 9 at page 31 (Supreme Court Cases):In Afcons Infrastructure Ltd v M/s Cherian Varkey Construction, the Supreme Court clarified that the words mediation and conciliation are used synonymously. In this commentary, the words mediation and mediator are used; they should be taken also to mean conciliation and conciliator.


As we know in India most legal practitioners built their foundation in law schools which focus on preparing students for a litigation oriented practices. Students cannot determine which cases are appropriate for immediate settlement through mediation and ADR processes and litigation should be resorted to. Every case in this field is not suitable for settlement through litigation. Even Law practitioners in India in many cases cannot adequately differentiate between the two classes of cases, thereby sending patent settlement oriented cases for long and protracted litigation, thereby needlessly burdening the court. If Students, are taught this fine distinction between cases fit for ADR and cases where litigation is to be resorted to, therefore, develop an inherent bias and can adequately act as facilitator or enabler, which is a prime quality required to be a mediator. Furthermore, even after the ADR process is complete and the determination has been rendered, as pointed out hereinabove, if the proposed amicable settlement is not challenged before the civil courts in a fresh round of litigation, thereby completely validate the positive benefits of ADR.


CONCLUSION


The Indian legal system is criticized for its pace of delivering justice and it has been observed that the pendency rate of cases is generally higher than the disposal rate. Reasons to which can be seen as, lack of skills and technique adopted by the officers, lacking in case management, lack of effective Alternative Dispute Resolutions techniques and many more. The way other countries have adopted the concept of Alternative Dispute Resolutions and Mediation, India is still an automaton of the adversarial system of court. In the United States, the legal system and the people associated with the system were enthusiastic and involved in the promotion and utilization of mediation. The lawyers understood that their legal system was overloaded and was at the edge of debacle to deliver justice to people and it would be improvised only through adoption of alternatives like mediation. At first the lawyers were reluctant to it, but soon realized it to be a watershed in the methods of dispute resolutions in their country. On the other hand, Indian judges realized the importance of mediation to improvise the rate of unsolved cases in Indian Courts, but the lawyers were still stubborn and reluctant to expose their clients to the uncertainty of such alternatives. Indian lawyers are not considering the long run and they are of the view that it is depriving them from income which they can easily make in a large amount when the case is open for litigation. Although the same happened with the US lawyers during the growth period of mediation but they surely accepted it soon and trained themselves as best mediators with an average of 80% of due cases disposed off through mediation. Private litigants too, are anxious, about mediation with the fear of uncertain risks, about the comfort zone provided by the court system due to the familiarity to it, about their own interests and many more reasons associated with it. All the above things vary as per the perspective of different litigants. The litigants should understand that opting this will not exploit their right to trial and the mediator has no power or control over the dispute. And as the question was framed, focusing on the success of mediation in India, it can be clearly seen that it is lacking due to lack of awareness and if proper and suggestive measures are taken, it can truly change the scenario of dispute resolutions in the country. But as a relief it can be seen that the major corporate clients are discovering mediation and any lawyer resisting it, is surely losing his credibility with their potential MNC clientele. Once it is understood that Mediation is there to complement the system not to replace it and also with the growing expertise we have in the country, it is going to change the system in a better way. And as rightly said in the words of Abraham Lincoln, Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser, in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Being a part of the society, we should take measures for such useful changes in the society..

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