The concept of mediation is firmly ingrained in Indian culture. Various forms of mediation were used as a technique of dispute resolution even before the British adversarial system arrived in India. Disputes were frequently settled by the community’s chieftains or elders. Similarly, business disagreements were addressed by merchants, either through direct conversations or through merchant organizations. The formation of the British courts system in 1775, on the other hand, signified the end of India’s community-based indigenous conflict resolution processes. The British judicial system has ultimately become the framework, with appropriate modifications, for the current judicial system in India.
Reasons that have led to the revival of ADR procedures in India:
We believe there are a few contributing reasons that have led to the revival of ADR procedures in India.
- The first is concerned with court delays, and the frequently touted estimate that “pendency” in Indian courts has reached 45 million cases, which is viewed as the Indian judiciary’s inability to handle the case load. There is little doubt that judicial delays are a complex issue that affects many countries, not just India. A number of variables contribute to this condition. One of these is a phenomenon known as ‘luxurious litigation’ in India. It is a sort of litigation in which wealthy parties attempt to stymie and delay the judicial process by filing several lawsuits throughout the legal system. Without a doubt, the current pandemic has contributed to our problems.
- The second reason that has led to the expansion of ADR is India’s improved access to justice. It is safe to say that India’s legal assistance programme is one of the largest and most effective in the world. The judiciary has been granted statutory backing and responsibility in enabling better access to justice under the Legal Services Authorities Act, 1987. Nearly 70% of the Indian population, especially the poor, women, children, minorities, senior people, and differently abled, are eligible for benefits under various Legal Service Authority initiatives. Besides raising legal awareness, the National Legal Services Authority advocates use alternative dispute resolution (ADR) to resolve disputes.
The Lok Adalat (literally, People’s Court) is one such system. Lok Adalats are tasked with resolving cases submitted to them by the courts or by the parties themselves prior to the initiation of litigation. The Lok Adalats resolved nearly 7.84 million cases in 2019 and 2020. Pre-litigation settlements accounted for over 3.94 million cases. Despite the pandemic, this was made feasible by India’s development of an effective Online Dispute Resolution system.
Alternative Dispute Resolution- The Indian Legislations
Following India’s economic liberalization, the Parliament passed the Arbitration and Conciliation Act of 1996, which brought the Indian arbitration framework in accordance with the UNCITRAL Model Law. This was undoubtedly the most significant legal reform, and the Indian legal and business communities paid close attention to it. The law aims to create a structure that allows for maximal party sovereignty while minimizing court intervention.
In many jurisdictions, the terms “mediation” and “conciliation” are synonymous.
In India, however, the Conciliator has more authority than a Mediator. The Conciliator can propose a settlement proposal and define the conditions of the agreement. The mediator, on the other hand, merely serves as a conduit for the parties to reach an agreement. Mediation is not governed by any specific statute in India, unlike conciliation, which is governed by the Arbitration and Conciliation Act, 1996.
The 1947 Industrial Disputes Act included a mediation provision.
The Commercial Courts Act of 2015 and the Real Estate (Regulation and Development) Act of 2016 both have mandatory pre-litigation mediation provisions. The Companies Act of 2013 and the Consumer Protection Act of 2019 have both been amended to allow for mediation. Most crucially, Section 89 of Civil Procedure Code (CPC) was resurrected by the Parliament in 1999, allowing courts to recommend parties to mediation. The Indian Supreme Court, on the other hand, was the one who gave life to this section of the Code.
The lack of any norms or rules for the operation of mediation was palpable, and it was one of the reasons why mediation was not used. The Supreme Court of India created a Committee to draft Mediation Rules in response to a constitutional challenge to Section 89 CPC, which were later accepted. The rules were to be framed by all of the High Courts. In India, this resulted in the formation of Court-Annexed Mediation. In the well-known Afcons International decision, the Supreme Court of India resolved some difficulties in the drafting of Section 89 CPC. In its original form, the section put the cart ahead of the horse. The Supreme Court ruled that it is the Court’s responsibility to determine whether ADR is appropriate for resolving a particular dispute and to recommend the parties to it. Furthermore, the Court made such agreements more enforceable by requiring them to be included in the final order.
In the current Indian situation, the “screening” required by Section 89 CPC takes place in the courtroom. Following that, the Court may submit the case to an appropriate ADR process, such as mediation. Even at the Supreme Court of India, such mediation referrals are common, and we have witnessed conflicts that have lasted decades be resolved quickly through the mediation process.
It’s worth noting that the majority of cases brought to court-annexed mediation are related to family or marriage problems. Private mediations, which take place before a lawsuit is filed, are becoming more common in the country. Most business contracts feature a multi-tiered approach to arbitration, with the initial effort to resolve a dispute between parties being through mediation or negotiation.
In addition to improving and clarifying the rules on mediation, the Supreme Court of India has made a concerted administrative effort to improve the mediation scene in India. In 2005, the then-Chief Justice of India established the Supreme Court Mediation and Conciliation Project Committee. Training of Mediators and Referral Judges across the country, as well as the publication of Training Manuals, are two of the Committee’s most essential operations.
A noteworthy development in 2019 is the Singapore Convention on Mediation.
This is a big step forward in terms of creating a framework for cross-border enforcement of international settlement accords. The Convention is critical for establishing trust and confidence in international commercial settlement agreements. In 2019, India was one of the first countries to sign the Singapore Convention.
India’s Current Mediation Situation- Statistics
In India, there are about 43,000 mediation centres. According to the data, almost 3.22 million cases have been submitted to mediation since 2005, with nearly 1 million cases settled via mediation by March 2021. Despite the optimistic statistics, many obstacles remain in the way of India’s acceptance of mediation. Prior to assuring the success of mediation in the country, questions of legitimacy, credibility, and acceptability of mediation must be addressed.
The requirement for mediators to have high ethical standards, unquestionable integrity, and neutrality:
As we have stated, a more active role for the mediator in the mediation process could open the door to parties attempting to sway them. This involves the construction of an atmosphere that deters unscrupulous parties from making such attempts. It necessitates that mediators have a solid reputation and moral standing. To achieve this, it is required to update and enforce rules and regulations controlling mediators in order to maintain openness and neutrality.
Given the expanding scope of mediation, it is past time for India to go on a mission. A movement must be undertaken to popularize mediation as a less expensive and speedier means of resolving disputes.
Mediation as a required first step in the resolution of all allowable disputes will go a long way toward promoting mediation. Perhaps an omnibus statute is required to fill the void in this area. We must keep in mind that the vast majority of litigants in India are from the middle and lower classes. If mediation is established as a reliable route of redress, they will be greatly relieved.
It goes without saying that this will result in a significant reduction in the number of cases reaching the normal courts. The court system will be more efficient in such a circumstance.
India, the world’s largest democracy, is home to a diverse range of identities, religions, and cultures, all of which contribute to the country’s overall cohesiveness. This is where the rule of law comes into play, together with a strong sense of justice and fairness. In the Indian context, mediation can be defined as an instrument of social justice because it is the cheapest and easiest option available to the general population. Such a party-friendly process ultimately maintains the rule of law by incentivizing parties to use their liberty to the utmost extent possible in order to reach a just and equitable conclusion.
Outlook of The Law Codes on Mediation:
We encourage, recommend, and profess Alternate Dispute Resolutions through mediation & conciliation services to settle disputes. Our professional in-chambers mediation fetches remarkable results frequently, and it yields exceptional results in matrimonial disputes/ divorce cases. Our endeavour at The Law Codes is to call upon the parties in our chambers and provide them with a platform where they can sit, discuss, negotiate, compromise and resolve their disputes amicably for all times to come. As mediation requires special skills and training, we have a dedicated team of lawyers who constantly guides and persuade the parties to the lis to arrive at a compromise/settlement through the premier in-chambers mediation. After arriving at a compromise/settlement, we draft a mutually agreeable contract/agreement that has a force of Law and parties sign the terms and conditions of the settlement to avoid any future dispute/ litigation.