What can we expect in the new law for mediation in India?
Hon’ble the Chief Justice of India NV Ramana suggests that a law is required to make mediation mandatory. In light of this, the Law Minister Mr. Kiran Rijiju has announced that his government will be tabling a bill on mediation in the winter session. These contemporary developments are taking place in order to bring mediation to the mainstream. Moreover, due to the pending cases and other similar statistical parameters soaring exorbitantly high, it is in the fitness of things that some amendment regarding mediation may come forth.
Mediation is considered to be the most important among all the ADR tools in India, as it is cost-effective, and has a fundamental role in strengthening access to justice in India. In this article, the author provides the background of the mediation law in India and the consequences of the upcoming amendments in the mediation realm. Moreover, the author would enlist some suggestions and conclusions which may be considered important for the future realm of mediation in India.
Mediation is already Mandatory
In the case of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd.[1], the Supreme Court lucidly provided categories under which if a case falls, then it shall be referred for Mediation or judicial settlement by Lok Adalat under Section 89 of Civil Procedure Code. Further, it was held that[2]in these given categories, reference to ADR is mandatory. In other excluded cases, it is not mandatory.
In the case of Amalapooh Mary vs. V. Ravindra[3], Karnataka High Court held that if a party is without any sufficient cause and deliberately not showing up before the mediation forum, then as per the Mediation Rules of the State, it can be directed to do so, and if even then it does not appear, then costs can be imposed.
In Afcons Judgment sheds some light on Order 10 Rule 1A of the Civil Procedure Code where it is provided that the Court shall invariably direct the parties to the suit to opt either mode of the settlement outside the court as specified in Section 89(1) of CPC.
Thus, if the High Court follows the judgment of the Supreme Court in Afcons (Supra), the rules for the mediation center must incorporate the mandatory nature as is prevalent in the case of Karnataka. Otherwise, a contempt of the judgment will have had occurred.
Mediation – A mismanaged tool
Section 89 of the Civil Procedure Code 1908 provides a reference to four possibilities, arbitration, conciliation, mediation, and judicial settlement including settlement through Lok Adalat[4]. The primary purpose is to reach a settlement and to put an end to the dispute avoiding the bedlam in the trial. Hence, this section was added by means of the Amendment of 1999 and it came into force in 2002[5]. The objective was that trials and decrees entail long procedures and there may be the case that the parties may agree in most of the contractual and marital cases to a certain settlement proposed.
In the 222nd Report of the Law Commission titled “Need for Justice-dispensation through ADR etc”[6], the commission recorded the proposition, that the parties should be inspired to settle their disputes outside the court by more and more utilizing section 89 of CPC. This endeavor to inspire was visible in the amendment in the Court Fees Act 1870[7] which provided for the return of fees paid with regard to the plaint if the remedy of ADR is opted for.
It is superfluous to state that there has been no endeavor to inspire mediation in India. This can be understood when we see the statistics and the Rules. Rule 5(e)(ii) of West Bengal ADR Rules[8] provides that the option for mediation can be exercised if the parties chose to go for the same. Moreover, Rule 6 provides that if after the referral, it is felt that it would not be ‘proper to proceed further in the matter, the case shall be returned to the Court for appropriate proceedings to take place. These Rules are in utter ignorance of the law laid down by the Supreme Court.
Rule 5 of U.P. ADR Rules[9] provides a duty for the Court to enlist the benefits of pursuing mediation, or any other alternative mode of settlement. This holistic approach is missing in the rules of other centers.
The “When” is important in Mediation
Even with various thorough legal developments, the Indian Reports fail to acknowledge the empirical importance of data in mediation. Hon. Rebecca Westerfield (Ret.) writes[10] on the conundrum that is, when is the right timing for the mediation. She lays down various factors which shall be considered important in setting the right time for a successful mediation.
It goes without saying that mediation in India is not merely a simple adjudicatory process, but a complex process composed of legal arguments, emotional balance, the ego of the parties to the dispute, and many other factors. Hence, an Indian outlook is necessary. Keeping this in mind, Vidhi’s report on Strengthening Mediation in India[11] conducted an empirical study regarding if the process of mediation is more successful depending on the time at which it is introduced in litigation, i.e., beginning, middle, or the advanced stage. It was found that more mediation cases are successful at the advanced stage. The rules should be framed in such a manner so as to promote such activity. Again, it is pertinent to state that each case has its unique facts and circumstances and thus, following a rule blindly is nothing but injustice.
Training of Mediators in India
Another vivid conundrum is regarding the training of the mediators in India. The fact that mediators need not only be aware of legal arguments, legal procedure, and have practical experience, but must also have significant expertise regarding emotional handling, negotiation, counseling, and other similar processes is trite information. Mediator training is significantly absent in most of the districts. This lack of skill and expertise results in mistrust in the process of mediation which is significantly reflected by the data. As per the Accomplishment Report of Allahabad High Court in 2018[12], the total number of cases for mediation was 30578, whereas the cases returned as not fit for mediation was a whopping 13935. This displays the faults in the mediation system and bringing a provision for mandatory mediation won’t help this aspect of lacunae that are prevalent in the system.
The number of mediators has not been a problem and it is not the problem. Therefore, increasing the number of mediators will do no good to the system and the procedure. In the empirical analysis by Vidhi in the abovementioned report[13], it was found that the success rate of the Bangalore Mediation Centre was better with fewer mediators than Delhi Mediation Centre.
Conclusion
Any law that may be introduced in the Parliament must focus on reinforcing the Afcons Judgment[14] which holds importance when it comes to the mandatory referral and enforcement of Section 89 of the Civil Procedure Code. Moreover, it shall delineate the provisions for robust and effective training of the Mediators, which shall not be limited to certain workshops.
Moreover, the law must look as to the “when” in litigation and bring a sense of uniformity in the rules applicable for mediation in India with appropriate space for diversity due to differences in regional approaches.
[1] (2010) 8 SCC 24.
[2] Para 26, Afcons (Supra)
[3] https://www.livelaw.in/pdf_upload/amalapooh-mary-and-ors-v-v-ravindra-and-anr-399882.pdf, Pg. 21 para 21.
[4] Section 89(1), Civil Procedure Code 1908.
[5] Ins by Act no. 46 of 1999, Sec 7 (w.e.f. 1-7-2002)
[6] https://lawcommissionofindia.nic.in/reports/report222.pdf, para 1.49.
[7] Inserted by CPC (Amendment) Act 1999.
[8] Civil Procedure Alternate Dispute Resolution Rules 2006, published in the Kolkata Gazette, Extra, Pt. I, dt. 7.12.2006 (w.e.f. 07.12.2006)
[9] Uttar Pradesh Civil procedure Alternate Dispute Resolution Rules 2009
[10] https://www.jamsadr.com/files/Uploads/Documents/Articles/Westerfield-Timing-Mediation-ABTL-2013.pdf
[11] https://vidhilegalpolicy.in/wp-content/uploads/2020/07/InterimReport_StrengtheningMediationinIndia.pdf
[12] http://www.allahabadhighcourt.in/mediation/mediation_old_till_03052019.html
[13] Supra Note 11.
[14] Supra Note 1.
Author: Vagish Yadav,
5th Year, Amity Law School Lucknow
