Mediation

Where there are people, there are disputes. And in order to live in a civilized society, finding an effective way of dispute resolution is the way to go. India, as we know it, is a diverse country. The 29 Indian States have different and varying social and culture traditions, customs and religions. This extreme diversity of cultures, customs and religions sees a lot of disputes and because of that people are quick to rush to courts due to their extreme confidence in the Judicial system. This increases the dependency on the Court system and is one of the reasons for the pendency of cases and delayed decrees on cases.

But there is another way of the resolution of disputes in India. It is by non-adversarial indigenous methods. In the previous ages, Parishads existed which were utilized as associations which helped in the process of resolving disputes. Even Panchayat (meaning five wise men), used to be accepted as a conciliatory or decision-making body. Like many of the ancient dispute resolution methods, the panchayat shared some of the characteristics of mediation and some of the characteristics of arbitration.

What is the need for alternatives to litigation? After the British Rule, An explosion in litigation resulted from multiparty complex civil litigation, expansion of business opportunities beyond local limits, increase in population, numerous new enactments creating new rights and new remedies and increasing popular reliance on the only judicial forum of the courts. The inadequate infrastructure facilities to meet with the challenge exposed the inability of the system to handle the sheer volume of caseloads efficiently and effectively. Instead of waiting in queues for years and passing on litigation by inheritance, people are often inclined either to avoid litigation or to start resorting to extrajudicial remedies. Many countries have adopted alternative dispute resolution as part of its legal system like The United States, Australia, United Kingdom. The European Union also endorses mediation for the resolution of commercial disputes between member states. Let’s discuss a concept by Prof. Sander which he described as “fitting the forum to the fuss.” The need for alternatives to litigation generated the concept of a "Multi-door Court-house," and reinforced the importance of "Neighbourhood Justice Centers".

The Multi-door Court-house concept, originated by Harvard professor Frank Sander, envisioned a scenario in which an aggrieved party could simply go to a kiosk at the entrance of a courthouse where a facilitative attendant would direct the disputant to one of the doors providing alternative or traditional dispute resolution processes. In this manner, the legal system could help the litigants achieve the most satisfactory result, in effect placing responsibility for providing alternative processes, including mediation, in the hands of the judicial system. The idea of a neutral party assisting the disputants in arriving at their own solution instead of imposing his solution when introduced was met with great enthusiasm. It was less costly and probing for deep-seated concerns, devising creative solutions and making trade-offs which was more satisfying to the disputants than the adjudicatory process.

What is Alternate Dispute Resolution?

ADR brought with it the transition of common dispute resolution methods used in society. It transformed from an Informal justice delivery system to Formal justice delivery system. In fact, societies could not grow larger in size and complexity without first evolving a system of resolving disputes that could keep the peace and harmony in the society and keep trade and commerce growing efficiently. ADR in concept was known to be community-based and independent of the legal system, opining that it could deliver a high rate of satisfying settlement results if it were separate from the legal bureaucracy. There are many types of ADRs which continue to co-exist, thrive, and to meet the needs of disputing parties.

The following are the different types of ADR:

1. Negotiation

2. Conciliation and Mediation

3. Med-Arbitration

4. Medola

5. Mini trial

6. Arbitration

7. Fast Track Arbitration

8. Lok Adalat

What is Mediation?

The Aryans helped make one of the first originating philosophies of mediation - Wisdom, Reason and Prudence, which is even now practiced in western countries. Buddhism propounded mediation as the wisest method of resolving problems. The Mahajans in India were respected, impartial and prudent businessmen who used to resolve the disputes between merchants through mediation. They were readily available at business centres to mediate the disputes between the members of a business association. Even in the present times, Mediation is seeing a huge spike in India and all around the world as an effective, cheap and personal way to solve disputes.The most common types of Alternative Disputes Resolution is Mediation. In fact, mediation had been described by some as the most Appropriate Dispute Resolution method. Mediation as a tool for dispute resolution is not a new concept. To put it in simple terms, mediation is an amicable settlement of disputes with the involvement of a neutral third party who acts as a facilitator and is called a ‘Mediator”. The concept of mediation received legislative recognition in India for the first time in the Industrial Disputes Act, 1947. In China, government- sponsored mediation has been used on a widespread basis to resolve disputes based on aged societal principles of peaceful coexistence.

The three forms of mediation are:

1. Community Mediation

2. Private Mediation

3. Court-annexed Mediation

In 1999, the Indian Parliament passed the CPC Amendment Act of 1999 inserting Sec.89 in the Code of Civil Procedure 1908, providing for reference of cases pending in the Courts to ADR which included mediation. The Amendment was brought into force with effect from 1st July, 2002. Since the inception of the economic liberalization policies in India and the acceptance of law reforms the world over, the legal opinion leaders have concluded that mediation should be a critical part of the solution to the profound problem of arrears of cases in the civil courts. Mandatory mediation through courts has now a legal sanction. Court-annexed mediation and Court-referred mediation. This type of mediation is an extension of the legal system, even seeing mediation as an effective means of narrowing issues for litigation in courts. Currently, court-annexed mediation is offered by most courts at the trial and appellate levels. Court-Annexed Mediation and Conciliation Centres are now established at several courts in India and the courts have started referring cases to such centres. In Court-Annexed Mediation the mediation services are provided by the court as a part and parcel of the same judicial system as against Court-Referred Mediation, wherein the court merely refers the matter to a mediator. One feature of court annexed mediation is that the judges, lawyers and litigants become participants therein, thereby giving them a feeling that negotiated settlement is achieved by all the three actors in the justice delivery system. When a judge refers a case to the court-annexed mediation service, keeping overall supervision on the process, no one feels that the system abandons the case. The Judge refers the case to a mediator within the system. The same lawyers who appear in a case retain their briefs and continue to represent their clients before the mediators within the same set-up. The litigants are given an opportunity to play their own participatory role in the resolution of disputes. This also creates public acceptance for the process as the same time-tested court system, which has acquired public confidence because of integrity and impartiality, retains its control and provides an additional service. In court-annexed mediation, the court is the central institution for resolution of disputes.

Where ADR procedures are overseen by the court, at least in those cases which are referred through courts, the effort of dispensing justice can become well-coordinated. ADR services, under the control, guidance and supervision of the court would have more authenticity and smooth acceptance. It would ensure the feeling that mediation is complementary and not competitive with the court system. The system will get a positive and willing support from the judges who will accept mediators as an integral part of the system. Court annexed mediation will give a feeling that the court's own interest in reducing its caseload to manageable level is furthered by mediation and therefore reference to mediation will be a willing reference.

Court annexed mediation will thus provide an additional tool by the same system providing continuity to the process, and above all, the court will remain a central institution for the system. This will also establish a public-private partnership between the court and the community. A popular feeling that the court works hand-in-hand with mediation facility will produce satisfactory and faster settlements.

Disadvantages of Unorganised Mediation

When mediation is not organised and the professionals are not trained specifically to mediate, then the Mediation process can be discriminatory. It can involve a lot of disadvantages like bribery because of corruption and bias that can be created through this. People will tend to go for Organised Mediation than Unorganised. The Mediation and Conciliation Project Committee (MCPC)- It was constituted by the then Chief Justice of India Hon'ble Mr. Justice R.C. Lahoti by order dt. 9th April, 2005. Hon'ble Mr. Justice N. Santosh Hegde was its first Chairman. It consisted of other judges of the Supreme Court and High Court, Senior Advocates and Member Secretary of NALSA. The Committee in its meeting held on 11th July, 2005 decided to initiate a pilot project of judicial mediation in Tis Hazari Courts. The success of it led to the setting up of a mediation centre at Karkardooma in 2006, and another in Rohini in 2009. Four regional Conferences were held by the MCPC in 2008 at Bangalore, Ranchi, Indore and Chandigarh. MCPC has been taking the lead in evolving policy matters relating to mediation. The committee has decided that 40 hours training and 10 actual mediation was essential for a mediator. The committee was sanctioned a grant-in-aid by the department of Legal Affairs for undertaking a mediation training programme, referral judges training programme, awareness programme and training of trainers programme. With the above grant-in-aid, the committee has conducted till March, 2010, 52 awareness programmes/ referral judges training programmes and 52 Mediation training programmes in various parts of country. About 869 persons have undergone 40 hours training. The committee is in the process of finalizing a National Mediation Programme. Efforts are also made to institutionalize its functions and to convert it as the apex body of all the training programmes in the country.