Conflicts date back from the beginning of human history and will probably never end. Our survival on this planet hinges on how we manage the various features of conflict.[1] The ubiquitous nature of conflicts makes robust conflict resolution mechanisms a necessity in the modern society. At a closer introspection of the Indian Judicial system, it wouldn’t be amiss to declare that the pendency of cases is the biggest impediment facing our system. Wrested with the responsibility of delivering justice to the world’s largest democracy, the judiciary is facing a herculean task. The conventional adversarial system of litigation has failed to evolve with the sands of time, resulting in long drawn delays in the delivery of judgements. The 129th Law Commission Report pointed out to the grim fact that in each layer of our pyramidical judicial system a rot has taken place.[2] Reports issued by various bodies have indicated that close to 4.5 crore cases are still pending before the courts at different levels.[3]
The pendency of cases has zoomed by 2.8% annually for the decade 2010-2020 and the numbers were to stay the same it would take another 3 years to resolve and adjudicate upon the existing cases without adding any other case to the docket. Law makers and judicial officers are aware of the importance of devising mechanisms to overcome this gargantuan deficit. Alternative Dispute Resolution Mechanisms were touted out as a prospective solution.
THE HISTORY OF MEDIATION
A shift is afoot in the contemporary world; a shift from conventional to alternative dispute resolution mechanisms. Mediation, in its contemporary form, can be traced back to the social and labour unrest that was prevalent in the United States back in the 1970s. The prevailing turmoil left the government with no respite, forcing them to come up with a novel method to settle conflicts. The adoption of mediation as a method of dispute resolution bore dividends. The success it bore in the USA gave a fillip to this emerging domain and piqued the interests of legal luminaries and scholars around the world. India was no different.
In India, the Law Commission was one of the first proponents of resorting to mediation, advocating that mediation should be used as a means of amicable settlement of disputes between third parties in its 129th Report.[4] The Arrears Committee (commonly referred to as the Malimath Committee) followed suit, proposing that courts should refer disputes for resolution through alternate means rather than litigation/trials.[5] The policy makers paid heed to the recommendations and the Code of Civil Procedure was amended to that effect. The Code of Civil Procedure (Amendment) Act, 1997 saw the introduction of Section 89, which provided an impetus to the practice. The provision empowers the court to refer any dispute before it for arbitration, conciliation, judicial settlement including through Lok Adalat and mediation if it is satisfied that elements exist which indicate that there is a possibility of settlement in the case at hand.[6] Out of the above specified classes of ADR mechanisms, mediation stands the most in contradiction to traditional litigation.
Judicially trained minds have realised the potential of this ADR mechanism over the years, with its application getting a strong impetus over the years. The Chief Justice of India, Dr. Justice DY Chandrachud has showered praise on the blooming domain, commenting,
“In a jurisdiction like India, where we hold values such as trust, community, social harmony and good relations on a high pedestal, mediation’s ability to envisage an alternative conception of justice which is more personalised, inclusive and democratic cannot be understated.”
Senior Advocate Mohit Mathur has praised the process because it is in sync with our societies aim of coexistence. Even Justice S.K. Kaul praised it for being a party driven process. No wonder mediation is being hailed as the “next big thing” and the future of dispute resolution. Yet these remain unwarranted claims. Questions over the efficacy and the applicability of this mechanism still loom large. In this regard, it becomes imperative to explore its development, its efficacy and what lies ahead for this booming domain.
BASIC TENETS OF MEDIATION
In India, Mediation found legal recognition for the first time in Section 89(2) of the Code of Civil Procedure, 1908, which sought to outline the duties of the court when a matter was referred for mediation. According to the provision, “When a dispute has been referred to a Court for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.”[7] Yet this cannot be considered a comprehensive and all-encompassing definition of mediation. An apt explanation of the mechanism can be found in Black’s Law Dictionary, which defines 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.”[8] Mediation can also be considered an assistance to two or more interacting parties by third parties who usually have no authority to impose a decision. A closer scrutiny of these definitions would suggest that the sine qua non of mediation is the satisfaction of about the parties. In stark contrast to adversarial system of litigation, parties to a mediation are the ones who determine the terms of a final settlement, while the mediator acts merely as a facilitator of the proceedings. ADR was formulated with a purpose of reducing the burden of the burdened system and render expeditious justice.[9]
Mediation is one of various Alternative Dispute Resolution mechanisms, but there is a cardinal difference in its principles and end goal. Its objective is not limited to resolving a dispute. Though that is in fact the primary concern, an additional facet of mediation is to give participants tools to use in future disagreements while instilling confidence in their abilities to handle their own problems.[10] It can be considered a transitional process of handling a conflict. Parties to a conflict reach a settlement after a psychological shift; they open themselves to the possibility of relaxing their demands for the sake of reaching an agreement. Parties must be considerate of the other parties’ circumstances while voicing their own demands. It is the mediator’s role to oversee this transition, a task that involves immaculate ability. The onus is on the mediator to enable the people to overcome their differences by appreciating each other’s differences. It provides a platform to help parties reverse the negative spiral of conflict.[11] They must have the calibre to transform a situation which is negative, destructive, alienating, and demonizing into one that is positive, constructing, connecting and humanizing.[12] Neutrality is an inseparable facet of a mediator’s profession.[13]
THE EXTANT LEGAL PROVISIONS AND LEGAL DEVELOPMENTS
Mediation, unlike Arbitration, Conciliation and Lok Adalats is not regulated by any existing statute in India. To rectify this oversight, the Parliament is on the cusp of passing a long overdue legislation for regulating the practice. The Mediation Bill, 2021 will regulate mediation, institutionalise it, and provide a mechanism for enforcing mediated settlement agreements. The Bill, which had been referred to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, chaired by Mr. Sushil Kumar Modi, will certainly be introduced this year. The move is being celebrated by a multitude of legal practitioners. Yet this upcoming legislation will be filling in the gaps, not occupying a vacuum.
The legislature’s slumber did not deter the judiciary from taking charge of the situation and formulate guidelines to regulate mediation proceedings. In the absence of any enforceable legal precedents, the Supreme Court had its task cut out. Another cause of concern was the poorly drafted Section 89 of the Code of Civil Procedure, 1908, which was so poorly and hurriedly drafted that it caused more problems that it solved. This provision was also referred to as a ‘trial court’s nightmare’. The question of whether or not Section 89 is constitutional or not was first raised before the Court in the landmark judgement of Salem Advocate Bar Association v. Union of India.[14] The Apex Court in its verdict upheld the constitutionality of the Section. Furthermore, the Court also appointed a Committee under the Chairmanship of Justice Jagannadha Rao that would be responsible for preparing draft rules on mediation and create a report on effective case management to reduce the burden on Courts. The Committee prepared a set of guidelines titled the Civil Procedure Alternative Dispute Resolution Rules (CPADR), 2003 and the Mediation Rules, 2003 which would be adopted by various High Courts.
In another judicial development, two years the first Salem verdict, the Supreme Court in Salem Advocate Bar Association v. Union of India[15] reviewed the Mediation Rules, 2003. After analysing the rules in depth, the Court directed the High Courts, the Central Government and the State Government to adopt these guidelines and to file progress reports with respect to adoption of these rules within four months of the data of the judgement. This verdict paved the way for the large-scale recognition of mediation, with various High Courts adopting the Mediation Rules, 2023 and setting up mediation centres as pilot programmes. Yet there were uncertainties regarding Section 89 and the procedure to be adopted by courts when referring a matter for mediation. The Supreme Court clarified these issues in Afcon Infrastructure Ltd. V. Cherian Varkey Construction (P) Ltd.[16] The Court observed that despite the praiseworthy intention of the legislature behind including the Section, it was unclear and had several ambiguities. It also set forth guidelines to be followed by the Courts for referring cases to an ADR forum, including stipulating the stage at which the matter shall be deemed fit for being mediated. These developments, apart from doing away with any irregularities, gave an impetus to ADR.
AVENUES CONDUCIVE TO MEDIATION
The Court’s timely interventions have ensured that mediation has not run into any significant procedural hiccups sans a special legislation and is on the rise. In light of the aforementioned judicial pronouncements, mediation has flourished in Mediation Centres established in various High Courts. The proliferation of court-annexed mediation provided a major fillip. The approach adopted by Lok Adalats to utilise mediation as a mode of dispute resolution for both family and commercial disputes has provided much needed momentum to the adoption of ADR.
Mediation has been utilised for the purpose of resolving civil disputes, primarily matrimonial and commercial disputes though the court-referred or private mediation. Body corporates are resorting to mediation, inculcating clauses to settle any disputes by a third-party mediator. This seismic shift is not only attributable to mediation being a party centric process. The rationale behind its adoption is that it is conducive to preserving the relations of the disputing parties. It is also suitable for resolution of commercial disputes involving high-profile corporations, for whom it is imperative to seek a timely resolution of disputes without putting the integrity and confidentiality of their enterprise at risk.
COMPARATIVE EMPIRICAL ANALYSIS OF MEDIATION IN INDIA AND THE USA
The absence of any special law regulating mediation doesn’t mean that the process is side-lined. Yet it becomes imperative to analyse how is the sector faring in the contemporary market. A verdict about mediation’s effectiveness can only be given after a closer scrutiny of the available information. Empirical data is scarce to come across, as mediation was formalised in 2005. Yet there exist reports which offer us an insight into its effectiveness.
According to a study conducted by Vidhi Centre of Policy Research,[17] out of all possible cases coming before the High Courts of Karnataka and Delhi, only 4.83% and 2.31% were referred for mediation by both Courts respectively. This paltry turnover of cases before mediators is a consequence of the ambiguous language of Section 89 of the Code of Civil Procedure, which the courts are treating as a discretionary provision instead of as an obligatory provision. To compound the problems, out of all the matters that are referred by Courts for mediation, the settlement rates of disputes for High Courts were highly variable. For instance, only 16.5% of disputes referred by the Tamil Nadu High Court were settled. The same number stood at 17.1% for the State of West Bengal, while it was 65% for matters referred by the Delhi High Court. These numbers leave a lot to be desired.
These statistics pale in comparison to the numbers posted in the United States of America. An independent study conducted in the USA has reported that out of all the matters which were referred for mediation, a staggering 78% were resolved.[18] This comparative deficit leaves a room for introspection for not only the policy makers, but for industry professionals as well.
THE PATH AHEAD
In order to plug the gaps in the system, it is imperative to analyse the hindrances in the existing system. The success of any mediation is contingent upon innumerable factors – the mediator’s dexterity, the disputants’ nature, cultural conditions and the extant regulatory regime being the most prominent amongst them. The presence of lacunas in all of the above-mentioned facets are to be held responsible for the predicament that mediation in India finds itself in.
One of the foremost issues that need to be addressed in India is the standard of training for mediators. The void that has been felt by the Indian Mediation ecosystem in the absence of a statutory body regulating mediators is indeed palpable. The Mediation Bill, 2021 aims to rectify that. Clause 40(c) of the upcoming Bill mandates the (yet-to-be constituted) Mediation Council of India to lay down guidelines for the ceaseless upskilling of mediators and timely assessing their skill set. The Council shall act as the nodal agency for the accreditation of mediators.
The dynamics between the disputants is another factor that needs to be regarded. The concepts of flexibility and psychological transitioning are still nascent in the Indian society. Disputants begin to consider themselves each other’s nemesis, forgetting the party facing them is also an aggrieved. They need to recalibrate their notion and appreciate their differences. A readiness on the part of the clients to engage is of immense importance to the mediation process.[19]
The Mediation Bill, 2021, is also expected to add teeth to the process by creating a pan-India set of guidelines. The legislation shall not only regulate the practice but also impart much needed legitimacy to the process. This in turn shall evoke the masses to approve the process and increasingly approach mediators for the resolution of their disputes.
CONCLUSION
The Mediation Bill, 2021 has set India on course for a speedy proliferation of this novel mechanism, yet there exists certain lacuna in the legislation that might pin the efforts back. The principle of confidentiality is a basic tenet of mediation proceedings and maintenance of the same is essential to the protection of the interests of parties. In an oversight, any provision which penalises the breach of confidentiality by any party has been omitted. The Bill also mandates parties to resort to pre-litigation mediation without exception. The provision is not in tune with essence of mediation. Voluntariness is a hallmark of the process. In this regard imposing a stringent condition to opt for pre-litigation mediation is in direct contrast to one of its core tenets. Making it binding on the parties to attend two sessions at least is not the legitimate way to promote this ADR mechanism. The way forward is to create a conducive ecosystem where parties are considerate about their counterparts’ grievances and are looking to work in tandem for resolving disputes, not going for each other’s throats.
[1] HO-WON JEONG, Understanding Conflict and Conflict Analysis 68(Sage Publications 2008).
[2] 129th Law Commission of India Report, Urban Legislation – Mediation as Alternative to Legislation, 1 (1988).
[3] Ndtv, https://www.google.com/amp/s/www.ndtv.com/india-news/nearly-5-crore-pending-cases-in-courts-over-69-000-in-supreme-court-3768720/amp/1 (last visited May 6, 2023).
[4] Information Technology Act, 2000, § 2(0), No. 21, Acts of Parliament, 2000 (India).
[5] Arrears Committee, Report of the Arrears Committee 1989-1990.
[6] Code of Civil Procedure, 1908, § 89, No. 5, Acts of Parliament, 1908 (India).
[7] Code of Civil Procedure, 1908, § 89(2)(d), No. 5, Acts of Parliament, 1908 (India).
[8] HENRY CAMPBELL BLACK, Black’s Law Dictionary 1356 (West Publishing Co. 1968).
[9] K.S. Gopala Krishnan, The Code of Civil Procedure 912 (Alt Publications 2011).
[10] JULIE R. KNEIP, Mediation as an Effective Method to Transform Relationships and Resolve Conflict7 (University of Northern Iowa 2010).
[11] Id. At 10.
[12] REBECCA BUSH & JOSEPH FOLGER, The Promise of Mediation32 (Jossey Bass 2005).
[13] JOSEPH STULBERG & LELA LOVE, The Middle Voice 42 (Carolina Academic Press 2009).
[14] (2003) 1 SCC 49.
[15] (2005) 6 SCC 544.
[16] (2010) 8 SCC 24.
[17] Alok Prasanna Kumar, Ameen Jauhar, Kritika Vohra, & Ishana Tripathi, Strengthening Mediation in India: Interim Report on Court Annexed Mediations, Vidhi Centre for Legal Policy (May 25, 2023, 9:29 PM), https://vidhilegalpolicy.in/wp-content/uploads/2019/05/26122016_StrengtheningMediationinIndia_FinalReport.pdf.
[18] JM Brett, Effectiveness of Mediation: An Independent Analysis of Cases Handled by Four Major Service Providers, 12 Neg. Jour. 259, 267 (1996).
[19] JENNIFER BEER & EILEEN STIEF, The Mediator’s Handbook 134 (New Society Publishers 1997).
Author: Abhas Raj
Juris Centre 