THE CONTEMPORARY EVOLUTION OF MEDIATION

INTRODUCTION

There is no society that avoids conflicts among persons concerning violations of rights or interests protected by laws. However, for these disputes to be resolved easily and peacefully it is necessary to establish a healthy social and legal environment for quick and peaceful resolution of such conflicts. Mediation is one of the most impartial ways for resolution of conflicts, since the parties to the conflict, settles conflicts, seeking a mutually advantageous solution individually, depending on the mediator’s own expertise and understanding and skills. The settlement of the conflict depends solely on the will and the will of the disputing party.

Today, there are more conflicts than the judicial system can settle. Society often looks for cheaper and faster ways to resolve conflicts. Extrajudicial methods for resolving disputes popular in days of yore, today find places in our legal system and become more and more popular.

MEDIATION IN INDIA

In developing countries such as India, where most people prefer litigation to resolve disputes, there’s unnecessary over-burdening of courts and a large number of pending cases on the docket, which eventually resulted in dissatisfaction among people regarding the judicary and its ability to provide justice,  making the common real belief, “Justice delayed is justice denied”.

An amendment to the Code of Civil Procedure, 1908 (CPC) was brought in 2002, and a first major step in the field of mediation is said to be taken place. Section 89 1A provided access to ADR of cases pending before the courts. Although many courts in India now have mediation centers, there are no accurate data available to demonstrate that this provision has been successfully utilized.

Mediation has formally been introduced into our system only since 2005. Given the statutory recognition, mediation above, mediation in India has not been able to achieve great success in India. In April 2005 the Supreme Court set up the Mediation and Conciliation Project Committee (MCPC) to oversee the successful implementation of mediation. The MCPC’s goal was to encourage of the Court-Annex arbitration and help arbitration evolve as an ‘alternative resolution mechanism’, but as ‘a more effective method of dispute resolution’.

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There are been some landmark cases in recent years, such as the case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd and in the case of MR Krishna Murthi v. New India Assurance Co Ltd. The govt. was questioned by the Supreme Court to think about the feasibility of enacting an Indian Mediation Act to require care of varied aspects of mediation in general. The most prominent case of mediation has been the fight over Ayodhya. That case brought the ordinary Indian citizen to the attention of mediation process. There can be no denying that the result of this process would play an enormous role in shaping the opinion of Indian citizens on the mediation process.

Lack of public knowledge of the ADR methods is the key reason why Indian people are more conditioned to sign up for the adverse process. In the case of arbitration, this changed when the Arbitration and Conciliation Act, 1996 was enacted. Today, the country has a much stronger arbitration system in the country than 1996 due to the statute. Likewise, a mediation-specific statute can make the country more open to dispute arbitration.

Over recent years the settlement of disputes has become extremely difficult. Yet with the advent of new problems and a wealth of research on how tackle them, there has been no improvement how mediation is conducted. There is a difference between the protocols for mediation and the actual research performed in the field.

WHAT FOLLOWING STEPS CAN BE TAKEN TO IMPROVE THE PROCESS?

  • Quick access to general public knowledge and mediation of the public at large (especially parties, lawyers, judges and other stakeholders).
  • Structured mediation training with mediation specialization accreditation should be offered throughout India in a cost effective manner. Skill enhancing courses for lawyers and other practitioners who plan to take up mediation as a career should be conducted from time to time.
  • Multiple Mediation drives should be held at various levels by courts whether at district or national level. Such drives can prove extremely successful and can help to clear up a huge backlog of pending cases before various courts.
    During the recent Family Courts Mediation Drive undertaken by the Delhi High Court, out of the 2,884 cases referred to mediation by the Family Courts, 2,171 resulting in disposal rate of 75.27%. This clearly indicates that the judicial system requires strong promotion of the mediation process is necessary for the judicial system.
  • Several other countries have also adopted this statutory structure on mediation and its implementations, and India is also collaborating with the United Nations Convention on International Settlement Agreements.
  • Appropriate mediators selection process and training standards should be developed for mediators. There is a need to ensure standardized training programs for potential arbitrators as well as details about the arbitrators’ professional and educational backgrounds, including past arbitrations, areas covering issues involving former arbitrators, expertise in other disciplines, if any be, etc. need to be maintained.
  • Mediation Centers require good infrastructure and a standard pattern to make parties comfortable. Mediation needs to develop into a full-time profession. Promoting this mechanism will require the efforts of senior lawyers, judiciary members and all state bar councils as it provides lawyers with an excellent opportunity to demonstrate their legal, analytical and professional abilities.
  • Opportunities and recognitions to attorneys to educate parties on the internal nature of mediation process to make such informed choices.
  • Theoretical and practical mediation training to be included in syllabus of laws schools and the introduction to the mediation course for all practitioners.
  • Mediation would need to work with highly open and esteemed professional bodies under the active supervision of government and judiciary in order to establish mediation as an appropriate practice field.[1]
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CONCLUSION

There is a need to create regulatory framework to promote trust and ensure that the mediation process follows ethical practices as there are hardly any national and international mediation centers that provides affordable and quality training. Unfortunately, mediators may currently exaggerate their abilities and experiences in ways that cannot be refuted, since mediation is conducted in carried out in closed rooms and in secrecy. Therefore it is difficult to determine a mediator’s competency.

India is currently facing a lack not only of a dedicated mediation law, but also organizations focused on mediation with qualified practitioners as well as public understanding of the purpose and importance of the mediation process. The Supreme Court push in the first update and the increase in public consciousness of mediation due to the second update was hoped to help fix this situation.

[1] Mridul Godha A renewed interest in mediation in India

 

 

Author: Kunal Gupta,

Intern at Lawportal,

Email: kunalg2301@gmail.com

Author: Kunal Gupta,
Jagran lakecity University

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