MEDIATION: AN IDEAL LEGISLATIVE FRAMEWORK IN INDIA
Author: Deepti Ahlawat
Co-Author: Simran Baradia
Llyod Law College
A good settlement is better than a good lawsuit.
The judiciary system in India has been criticised frequently for high rate of pending cases, slow proceedings, inefficient functioning and insufficient approaches to resolve disputes amicably. The Law Commission of India as well as some remarked authorities felt the urgency and need to establish alternate passages for dispute resolution on occasions where trials and suits can be ignored. Legislative bodies have identified mediation as an appropriate technique for resolving a variety of disputes. Although mediation is still not considered as an option to many in India, this type of dispute resolution is yet not popular and the lack of legal infrastructure serves as a basic reason for its underdevelopment. This paper portrays mediation as an amicable mechanism of alternate dispute resolution and talks about the role, impact and scope in shaping the legal framework of India. It also highlights the suitability for litigants and parties to resolve disputes in an inexpensive manner by taking care of the needs and interest of both the sides. Additionally, this paper discusses different cases and amendments where mediation across jurisdictions has solved remarkable disputes and how mediation will serve as an ideal national legislative framework in India.
The Concept of Mediation is ancient and deep-rooted in India. From Lord Krishna mediating between Kauravas and Pandavas in the Mahabharata, to family elders resolving domestic issues, to the resolution of disputes at the community level through Panchayats, there exists a strong culture of mediation in India. In older days disputes used to be resolved in “Gram Panchayats” or “Nyaya Panchayats” and panchs used to perform the role of mediator and were known as “Panch Parmeshwar”. Now we have grown into a country of 125 Crore people and with LPG, there is a tremendous economic growth which has led to more conflicts and all this has resulted in an explosion of litigation in our country. But in the era of rat race, everyone wants a fast forward life and leading to a lot of criticism on account of long delays in the resolution of disputes as cases are pending for even more than 10 years in the court of law and because of this the idea to turn back to the ancient Indian legal systems of resolving disputes evolved. The utilization of mediation in India is promulgated under the Arbitration and Conciliation Act, 1996 and the Code of Civil Procedure, 1908 (CPC). First mediation training session was held in Ahmedabad in the year of 2000 by Institute for the study and development of legal system (ISDLS). Mediation had attained the statutory place under various Indian laws and recognised by Indian courts in its various judicial pronouncements. Black’s Law Dictionary has defined Mediation as “A method of non- binding dispute resolution involving a neutral third party who tries to help the disputing parties to reach a mutually agreeable solution.”
Mediation is a negotiation process in which a neutral third party assists the disputing parties in resolving their disputes by using specialized communication and negotiation techniques. The process of mediation is very practical and flexible and the parties can be completely open to each other. Even the Mediator does not have a right to decide what is fair or not, does not render any opinion on the merits or chances of success if the case is litigated. Rather, a mediator acts as a catalyst to bring both the disputing parties together by defining issues and limiting obstacles to communication and settlement. Now, the time has come when People will prefer mediation instead of involving themselves in litigation because it allows parties to relook at mutual interests and rights of each other, and to return with amicable and innovative solutions.
Mediation in India is mainly of two categories: Court referred mediation (judicial mediation) and private mediation. In the former, the court may refer a pending case for mediation in India under Section 89 of the Code of Civil Procedure, 1908. This form of alternative dispute resolution is frequently used in Matrimonial disputes, particularly divorce cases. In the latter, qualified personnel can be assigned as mediators on a fixed-fee basis. Anyone from courts, to the general public, to companies as well as the public sector, can appoint mediators to resolve their dispute through the process of mediation.
ROLE AND IMPACTS OF MEDIATION IN INDIAN LEGAL SYSTEM
Mediation plays a vital role in the history of Indian legal system. It is an old age process of dispute resolution practiced since Vedic period. It is beneficial for both the sides therefore the courts are being a bit less burdened with cases, and the parties are getting their issue resolved quickly without any dispute on the basis of mutual understanding. Thus, there should be a separate platform for mediation in Indian Law. The alternate dispute resolution India consists of following types of ADR in India – arbitration, conciliation, negotiation and mediation. Mediation in India is the most favoured method among all the three processes.
The difference between interest to litigation and taking it for mediation process, is that in litigation, there’s a blame game and counting on that the Court shall provide a solution; and in Indian mediation, the matter gets resolved through negotiation, where the answer is predicated on mutual consent of the parties after considering the requirements and interests of both the edges. Even mediation has many advantages over litigation such as it is not costly, less time consumption and most importantly, the process emphasises the participatory role of parties. There are instances where even the court referred mediation, as it is an easier and faster process to get a resolution. The divorce mediation in India is the common method of mediation. The mediation in divorce cases, property cases, family matters help to keep the matter limited to the parties only, and does not bring it before everyone, and reach to a solution maintaining the peace. The importance of mediation lies in the fact that it has the potential to provide an expeditious, economical. The various aspects of ADR are:
- Safety and hope: Because it is very hopeful to find a solution. It gives hope to every litigant that the dispute which is not likely to be decreed up to 25 years could be solved in 25 minutes.
- Safety of parties: If the matter is not solved with ADR it can come back to court, its return to court is very easy because of the aspect of its confidentiality saves the party and gives the party the assurance of safety.
- National Interest is protected: If by the option of ADR we can resolve the dispute, then the day is not far when we can proudly state that in my country all the civil disputes are solved within the year. The prestige of India will go up and even internationally people will not hesitate to form contract. It will also increase our economic condition.
- Resistance is slow: The reasons for slow resistance of ADR are because of Illiteracy, lack of awareness, lack of education or because of proper understanding about the benefit of ADR.
Now Mediation in Indian legal system has become the need of an hour. Even the “UGC issued certain guidelines and concluded that Mediation with Conciliation shall be a course component/ compulsory paper/subject for the pursuit of a LLB degree course”, states the BCI’s letter to all law Universities. As practise of mediation in India is increasing rapidly but there are certain key areas such as Grassroots level awareness of the public at large and easy access to the Mediation. Mediation Centres need an excellent infrastructure and a standard pattern to make parties comfortable. Mediation must develop into a full-time profession and most important of all, High ethical standards to be followed.
- Ayodhya Land Dispute case: The mediation process failed in this sensitive Hindu-Muslim dispute concerning a mosque, Babri Masjid built in 1526. The dispute was raised in 1992 by Hindu activists and the demolition of the mosque sparked nationwide riots that took the lives of around 2,000 people. Muslims demanded a reconstruction of the mosque at the site whereas Hindus claimed that the site was the birthplace of the Hindu deity Lord Rama, demanding a temple at the site.
- Afcons Infra Ltd. v. M/S Cherian Varkey Constructions (2010): In this case, first respondent (plaintiff) was agreeable for arbitration and appellants (defendants 1 and 2) were not agreeable for arbitration. They challenged this and later, the Supreme Court of India held that all cases relating to trade, commerce and contracts, consumer disputes and even tortious liability could normally be mediated.
- B.S. Krishnamurthy v. B.S. Nagaraj: In this case,the Supreme Court observed that it is the duty of the Family court under section 9 of the Family court act 1984 to settle the matrimonial disputes via mediation in matters concerning: maintenance, child custody, divorce and etc.
- Hoffman La Roche and Cipla: In this case, Roche sued Cipla for patent infringement in January 2008 soon after Cipla announced its intent to launch a generic version of Erlotinib. Roche had been granted a patent in India on Erlotinib in 2007. Cipla countered this and argued that Roche’s patent was invalid and its own generic version didn’t infringe the innovator’s patent. Hoffman-La Roche and Cipla opted mediation to settle the matter on mutually agreeable terms. But the process of mediation failed and the case went to the high court where it was heard all over again.
- Merck and Glenmark: Glenmark launched a generic version of Merck’s blockbuster anti-diabetes drug. Shortly thereafter, Merck filed a patent infringement lawsuit against Glenmark in the Delhi high court. The Delhi High Court refused to grant interim relief to Merck (plaintiff) seeking to restrain Glenmark (defendant) from launching its products. Merck applied in court to refer the Sitagliptin patent case to the mediation centre. Since the defendant Glenmark had no objection and was agreeable to engage in mediation, Justice AK Pathak allowed Merck’s application. The process of mediation was successful and they both sought a settlement.
1. Under Section 4 of the Industrial Disputes Act, 1947 conciliators are appointed and assigned with the duty to mediate and promote settlement of industrial disputes with detailed prescribed procedures for conciliation proceedings. If used appropriately, it’s a cheap and quick process. However, only a few cases have been successfully mediated and the very intent of having such provision has been underrated. Unfortunately, a myriad number of matters which were supposed to be resolved by this provision are still getting piled up in courts and the number of new matters is increasing every day.
2. Code of Civil Procedure, 1908 (Amendment, 2002): Section 89 read with Order X Rule 1A provides the reference of pending cases in the courts to Alternative Dispute Resolution. Also, Order XXXIIA of the CPC suggests mediation for familial and personal relationships, as the ordinary judicial procedure is not ideally suited to the sensitive parts of personal relationships. Although now there have been a number of mediation centers active at courts in India, the accurate data is unavailable to analyze if this provision is getting utilized successfully or vice versa.
3. Section 442 of the Companies Act, 2013, read with the Companies (Mediation and Conciliation) Rules, 2016, is assigned for the referral of disputes to mediation by the National Company Law Tribunal and Appellate Tribunal.
4. The Micro, Small and Medium Enterprises (MSME) Development Act, 2006 has made conciliation compulsory when disputes arise on payments to MSMEs.
5. Precisely, family and personal laws including the Hindu Marriage Act, 1955 and the Special Marriages Act, 1954 require the court in the first instance to approach mediation between the parties in dispute.
6. Section 32(g) of the Real Estate (Regulation and Development) Act, 2016is assigned for amicable conciliation of disputes between the promoters and allottees or the parties in dispute through dispute resolution forum, set up by consumer or promoter associations.
The Hon’ble Supreme Court of India has, through a unique step, set up a panel to have draft legislation to give legal sanctity to disputes settled through mediation, which would then be sent to the government as a suggestion from the apex court. An ‘Indian Mediation Act’ as suggested by the Hon’ble Supreme Court is indeed a promising proposal in India.
MEDIATION DURING COVID-19
Coronavirus has been officially declared as a pandemic by World Health Organization on March 11, 2020. The ongoing pandemic has forced everyone in a situation where we are bound to adapt to survive. Slowly and gradually, we are inclining towards the traditional ways even when it comes to resolving disputes. Mediation is providing an amicable and flexible alternative to resolve disputes even when put under such a catastrophic situation. Under the present circumstances, it would be beneficial as well as suitable for the parties to cooperate with each other instead of being an antagonist, as an opposing approach may not always yield a beneficial outcome and put one in a win-win situation. It has been rightly said by Albert Einstein, “In the middle of every difficulty lies opportunity.“
In reference to the virus outbreak and post effects of the complete lockdown, scholars have argued that a number of disputes will arise on the interpretation of force majeure clauses, material adverse effect clauses and termination clauses. While doing so, it is not always necessary to knock on the doors of the courts to seek justice, especially when such key provisions are missing or are inadequately drafted. Therefore, while the courts are getting exhausted while dealing with the existing backlog of cases, the restrictions simultaneously come in the way of its functioning due to the lockdown and the fresh set of disputes arising due to the current scenario, we feel this will definitely produce a drastic change in the manner in which corporate disputes are or will be resolved, with increased reliability on mediation.
Several Indian High Courts, including the High Court of Judicature at Bombay, Delhi High Court, Kerala High Court, etc., and various international organizations like the Singapore International Arbitration Centre, London Court of International Arbitration, International Chamber of Commerce have already formulated mediation rules. These rules are comprehensive, extensive and can be adopted by parties to deal with the procedural aspects of mediation. Parties also have the option of opting for ad hoc arbitration, allowing them to decide on the procedure to be followed during mediation.
Keeping in mind the above benefits and the role mediation can play in the times to come, Singapore International Mediation Centre has launched the SIMC COVID-19 Protocol, providing businesses with an effective solution by way of expedited mediation for dispute resolution. A similar project has been launched by Georgian International Arbitration Centre in collaboration with Resolve and with the assistance of the European Union and United Nations Development Programme, allowing the parties to either refer their dispute to facilitation or mediation. These moves are the probable result of the preparedness of various institutions in accepting that mediation will bring the new dawn in dispute resolution, during and even after the pandemic.
Mediation is crucial to develop confidence within the process of dispute resolution. The recommendation of the highly sensitive case of the Ayodhya dispute to mediation by the Hon’ble Supreme Court of India has brought the mediation process to the consciousness of the people. Court-annexed mediation, to a particular edge, has been adopted as a measure of docket management and must go hand in hand with the promotion of mediation as a successful, revolutionary, economical and time-saving method for all the stakeholders. It has been noticed that up till now mediation in India has been proved as a flexible method to resolve disputes. It is inexpensive, less burdensome and takes less time. Also, sensitive personal matters such as divorce, child custody, maintenance and others can be dealt with utter care and the reputation of both the parties at hand in a dispute is saved from getting tarnished. Companies and institutions, mainly in the field of insurance, banking and trading have relied on mediation and ADR as means of settling disputes. Therefore, encouragement and awareness are equally important for making provisions mandatory for ADR, specifically mediation as this is the need of the hour to prioritize people or community-based initiatives for bringing up the cause of spreading awareness about mediation across the country. But even after the process has been introduced, it lacks a fostering framework and ethical structure for practicing, being one of the reasons for sluggish development in the field of mediation. Lack of national and international mediation centers with quality training programs is definitely serving as a huge backlog and developing capacities for the same will expedite the workload from judicial litigation to methods of alternative dispute resolution in a big way.
 By Abraham Lincoln
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