MEDIATION AS A NEED OF THE HOUR

Judiciary acts as a backbone of Indian democracy by ensuring social peace while furthering the end of justice. The presence of an independent and unbiased judiciary is a guard in preserving citizen`s right and maintaining the rule of law. Indian judiciary is often criticized for its inefficient functioning, pendency of cases resulting in undue delay and obsolete approach to resolve the disputes. Mediation is a process of dispute resolution in which one or more impartial third party is engaged to resolve the conflict with the consent of these parties Mediation has been considered as a suitable technique to resolve the variety of cases outside the court. Abraham Lincoln said “Discourage litigation. Persuade your neighbors to compromise whenever you can point out to them how the nominal winner is often loser, in fees, expenses and waste of time.”

However, Indian judiciary is infamous for its inability to dispose cases in a timely manner. As on June, 2019 1,58,669 cases were pending in Supreme court of India. More than 43 Lakhs cases are pending in 25 High court in our country and over 8 lakhs of these are decade old. On an occasion Supreme court has recognized the need of less formal alternative forum that may help in ensuring speedy justice as the court stated Judicial process in India are time-consuming, expensive and complex. The way forward to dismal the burden on courts, there is need to reckupon ADR mechanism which is commonly known as Alternate Dispute Resolution. The adoption of ADR mechanism would provide multiple ways to the party to enforce their rights and improve access of justice. As a result, it would reduce the burden upon the lower and high court.

Necessity of Mediation in country like India

A common man gets trapped by lengthy process of litigation, which ultimately erodes the basic purpose of judiciary. In a country like India where most of the people opt for litigation to resolve disputes this leads to excessive burden on the Indian court. Mediation need to be promoted as a mechanism that compliments the judiciary process. In order to popularize mediation, the foremost step we need to Alternate Dispute Resolution(ADR) mechanism typically includes arbitration, neutral evaluation, mediation and conciliation. The role of litigant or arbitrators are way more formal in nature. Additionally, there are numerous barriers such income, gender, caste, age and religion that are the hindrance to avail Indian courts. These barriers directly impact the marginalized section of Indian society and actively discouraged to enforcing their rights. These factors results that large population of India is dispatched with the functioning of Judiciary. In T. Vined v. Manju held that making an attempt for alternative redressal of disputes is not only a statutory obligation of courts under section 89 of Code of Civil Procedure but also forms part of a duty that courts owe to the public. It lowers the burden on lower courts and high courts. Mediation provides an alternative, that not only saves time and is cost effective, but it also enables parties to work together and solve disputes amicably.[1]In case of Hussainara Khatoon v. State of Bihar Supreme Court held that right to speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of Indian constitution.Thus, making mediation a necessary process as it has ability to deliver quick justice.

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Mediation under Statutory

Since Indian courts are already having backlogs of cases, there exists a several statutory provision that made mediation a compulsory step before approaching the court. The following are the provisions:

  1. In 2002, an amendment was brought in The Code of Civil Procedure Act 1908 89 reads with Order X Rule 1A provided for the reference of pending cases in courts to ADR. Besides that, Order XXXIII C.P.C. of recommends mediation for personal/ familial relationship, as ordinary judiciary procedure is not suitable for sensitive matter of personal relationship.
  2. 442 of Companies Act 2013 empowers the Central government to constitute a panel of experts to mediate and settle matters pending before National Company Law Tribunal (NCLT) or National Company Law Appellant Tribunal(NCLAT) or the Central government. Companies (Mediation and Conciliation) Rules,2016 which prescribes the procedural aspects of Mediation and Conciliation in respect of aforesaid matter.
  3. The Micro, small and Medium Enterprise (MSME) Development Act, 2006 mandates conciliation when disputes arises on payments to MSME.
  4. The Industrial Dispute Act(IDA), 1947 sets a conciliation framework for workmen and employers. §4 and 5 of IDA, 1947 says a Conciliation Officer and a Board of Conciliators are appointed by the government charged with duty of mediating in and promoting the settlement of industrial disputes.
  5. The Consumer Protection Act, 2019, under §37-38 and Chapter V, provide for disputes to be first referred to mediation before approaching to consumer redressal agency and the procedure to be followed as per Section 74(3) of the Act read with Section 101(2) (zf) and Section 102(2)(p) of the Act.
  6. An amendment in the Commercial Courts Act 2015 (Section 12A), provides for mandatory mediation for parties before filing a suit.
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Measures for Success of Mediation Mechanism

Despite of above mentioned statutory provision the Mediation has not gained great success in India. There is an urgent need to establish a uniform statute which solely deals with mediation process and its laws in India. The courts mostly adjudicate the matter, but there are situations where mediation technique would be more suitable for the case.A five judge “constitutional” bench of the Supreme Court of India ordered a court-monitored mediation in the Ayodhya dispute. The reference of  Ayodhya dispute to mediation has brought the mediation process to the attention of public and promotion of ADR methods.

Grassroots level awareness at public is required and easy access to mediation should be fostered. Most legal practitioners are born law school. So in order to develop a culture of mediation there is need to teach mediation techniques in law schools . Train to the legal person to be mediator. In case Salem Advocated Bar Association v. Union of India the Supreme court felt the need for regulating mediation proceeding on account of the absence of framework and rendering §89 of C.P.C ineffective. As such, the Law Commission framed the Draft Mediation Rules, 2003 which framed a comprehensive set of principles for undertaking mediation. The Mediation and Conciliation Rule, 2004 as framed was inadequate and loses the confidence of Mediation. There is a need of legislative framework on mediation and its practice must be formed and promoted respectively.

Conclusion

Mediation is an extremely flexible and adaptable form of dispute resolution. Confidentiality and informal process are the two cardinal precepts of mediation practice worldwide. Nevertheless, Indian still opt for courts for those small matters that can be resolved outside the court peacefully without harming the reputation of aggrieved party and also lighten the burden on courts. Most disputes need urgent orders and pre-litigation mediation could be effective in such case. The Arbitration and Conciliation Act, 1996, makes a settlement arrived at through conciliation enforceable like a court decree.  India currently faces a lack of not merely a dedicated mediation statute, but also mediation focused institution with trained professionals as well as public awareness on the meaning and significance of mediation process. There is need of comprehensive policy on mediation rather than an incomplete law. Mediation process would be more credible to disputants as has happened in case of arbitration.

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Author: Akriti Mishra,
Veer Narmad South Gujarat University, Surat, 2nd Year Law student

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