MEDIATION: A TOOL FOR ACCESS TO JUSTICE
Authors: Rohan Bangia and Sanjhi Agarwal, IV year of B.Com.LL.B (Hons.) from Institute of Law, Nirma University, Ahmedabad
Introduction
The Court shall not be the place where resolution of dispute begins, rather, it should be the place where the disputes end after alternative methods of resolving them have been already exhausted. In the dynamic and lightning fast-moving economy, every individual and business wants to save costs, increase revenue and pull out from litigation as soon as possible. Moreover, multiple concerns were faced about the capacity of Judicial Systems and their ability to cope up with the needs of society.[1]A viable solution to the long list of problems of a majority of Judicial Systems around the world is Mediation i.e. a quick, efficacious and client-friendly method as an alternative to current Dispute Resolution Systems. Mediation is the key that shall act as a catalyst and guide the way ahead for most of the Dispute Resolution Mechanisms. This essay shall deal with primarily four topics – Mediation: An Inevitable Part of Law talks about how mediation was practised in the past, long before the establishment of courts came into the picture; Unparalleled nature of Mediation talks about what are the factors that set Mediation apart from other Dispute Resolution Systems; Establishing Credibility of Mediation in a Justice System talks about how Mediation is a reliable process of Dispute Resolution and Further Steps to be taken for Mediation talks about what needs to be done for a bright future of Mediation.
Mediation: An inevitable part of law
Mediation is one of the primitive methods used for Dispute Resolution by mankind. The roots of mediation in India can be traced back to the Mahabharata when the Kauravas and the Pandavas were fighting and Lord Krishna became the mediator. Before the colonial rule in India, businessmen engaged ‘Mahajan’ to resolve their disputes.[2] Mediation was then observed in panchayats which used to address the issues of the villagers. Mediation was officially added to the legislation of the country through the amendment of the Civil Procedure (Amendment) Act, 1999. The Act made mediation an alternative process of dispute settlement.[3] Later in 2005, Justice R. C. Lahoti, the then Chief Justice of the Supreme Court, set up a Mediation and Conciliation Project Committee for training District Court Judges to make them competent for judicial mediation.[4]Whenever a judge faces an issue upon determining a case, he looks back towards history, i.e. the precedents set by the earlier courts for the answer.[5] Moreover, most of the statutory laws made around the world are in consideration of the problems faced in the past by societies and communities. Mediation is one of the best precedents that has ever been set for a solution to the crucial problems the Judicial System faces in India and worldwide.
Unparalleled nature of mediation
Mediation is a voluntary, non-binding and private dispute resolution process in which a neutral person helps the parties try to reach a negotiated settlement.[6]It is a practice that tries to find a common ground for both parties. It looks for reconciliation and restoring of relationships, which litigation fails to do as it pins down blame on the opposite party. It helps in keeping cordial relations with the opposite parties and thus, they can continue their dealings as business partners, neighbours, friends, etc. It is a win-win practice that allows all the conflicting parties to reach a positive agreement on time.[7]
Mediation is a very collaborative process. The parties are encouraged to work together to solve their problems and to reach what you perceive to be your just and most fair solution. The confidential nature of mediation[8] is absolutely in contrast to the courtroom proceedings which are done in public. The extensive convening and follow-up practised by mediators in mediations enable a very high percentage of the settlement.[9] In the process of mediation, the parties get a chance to talk to the mediator in private and share all the confidential information which cannot be shared with the other party during the private caucus. Mediation provides for an environment of disclosure of all the aspects of the disputes, thus, making it a more feasible method of dispute resolution.
Another uniqueness of mediation is that it is a process that can take place even without the parties sitting in the same room. This kind of mediation is known as shuttle mediation. Here, the parties sit in separate rooms and the mediator shuttles from the proposer to the opponent and make all arguments as to why the opponent should accept the proposals. The opponent counter-proposes and the mediator shuttles to the other room and makes the opponent’s arguments. The parties eventually agree. Mediation is the only kind of dispute resolution method which facilitates parties with a safe space.[10]
The terms of settlement drawn up at the end of the Mediation Proceedings, are not a standard form of contract. The drafting of the same is left at the wish and will of the parties so long as they are satisfied with the resolution. Unlike a judgement passed by a court, which follows a proper format codified under the statutory municipal law, there is no strict rule as to the format of the terms.[11] This does not restrict the parties to draw the settlement agreement in any predetermined format.
Establishing credibility of mediation in a justice system
The establishment of courts a long time ago and the effective decisions and providing justice has developed credibility among the people over some time. A Justice Mechanism without credibility is futile. As a conventional method of dispute resolution, it becomes all the more important for Mediation, to establish the strong credibility of its process, the Mediator themselves and the parties in dispute. In India and abroad, there has been no formal statutory process established to be followed. It is left at the discretion of the Mediator to choose a structure as per the requirement of the circumstances and thus, the credibility of the whole process comes into question.
During a mediation session, building trust in the process among the parties is one of the biggest challenges a mediator faces. Generally, the parties are unaware of the qualifications of the Mediator, and thus become apprehensive about the whole process.[12] When a dispute arises between two individuals, the first issue that arises is the paucity of trust. The lack of trust may lead to individuals concealing relevant confidential information from the Mediator, which becomes an important factor for the settlement of disputes. Therefore, it becomes an utmost necessity that the Mediator establishes his credentials, and helps them to clarify any queries that may arise about the process, or the outcome of the Mediation and build trust amongst the parties for a successful mediation.
The parties in dispute also have to show their credibility, by the way of authorization and a willingness to settle by the way of mutual understanding and respect. In cases like commercial or corporate disputes, where an individual represents a firm or a company, they must have the power to decide on behalf of the firm. The mediation would collapse if the parties do not have authority and may lose credibility in the process and the other party may not want to negotiate at all in the future and thereby, approach the courts for a resolution.[13]
Moreover, the term of settlement after Mediation is a valid document in the eyes of law. In the court-annexed mediation, the agreement is validated in the form of a Decree passed by the Judge and stands as a non-appealable order.[14] The contents of the decree may remain confidential for the parties or may contain all the terms of the settlement.[15] In private mediations, the settlement agreement is drafted as a contract between the two parties which includes a waiver of the right to sue upon terms of the settlement.[16]
Further steps to be taken for mediation
Mediation needs to be promoted as a mechanism that is an accessory to the judicial process. To achieve acceptance and popularity of Mediation, it is crucial to develop confidence in its process. There are situations where mediation techniques would be more appropriate and beneficial to the parties. Therefore, identification of such matters and situations by parties, lawyers and judges become extremely crucial and important in the promotion of mechanisms. Grassroots level awareness of the public at large through seminars and workshops should be done to make them aware of the advantages of mediation as a process of problem-solving. Additionally, the established Mediation Centres need good infrastructure and a standard pattern to make parties comfortable. More and more ADR centres should be created for settling disputes out-of-court.[17]Appointment of senior lawyers and retired judges should be done as mediators for encouraging the process of mediation as they are well versed with the knowledge of the law and have a vast experience of dealing with disputes. Moreover, the solutions provided by them will also align with the laws. Furthermore, Theoretical as well as practical training in mediation should be included in the syllabus of law colleges and an introduction to mediation course to be conducted for all practising lawyers. The selection process of mediators and adequate training standards for the mediators should be developed.[18] Judges should take active participation in the promotion of mediation. They should suggest the parties choose mediation over litigation, in cases where it is more feasible.[19]Also, a vital action is to pass standalone legislation for Mediation, consisting of qualification of members, setting up Mediation centres in multiple cities, principles of Mediation and eligibility for Mediation.
Conclusion
One of the greatest challenges that mediation faces in the 21st Century are to bring a change in an age-old and well established Judicial System. It must have the ability to convince the participants i.e. the Judges, Advocates and the Parties, to try and attract them towards Mediation. However, there are a few psychological barriers, which make it difficult for a change to occur. Illustratively, in the mindset of the Judges, there is a fear that if the cases are referred to mediation, there will be lesser cases for them to trial and pronounce judgement.[20]Amongst the Advocates, common slang for ADR i.e. Always Diminishing Revenue is often used as the mediation is settled in two-four sessions, whereas, a court proceeding occupies plenty more time than that.
Thus, a mediation generates much less revenue than a litigation case. For the Parties, the primary issue is the lack of knowledge about the existence of the Mediation process. Even though Mediation is a conventional system, the failure of the Modern legal system to incorporate it under the current statutory laws has led to a large number of people who do not have any idea about mediation and quite often confused with Meditation. These myths and lack of knowledge and recognition have led Mediation to become quite out of favour. Hence, there lies an urgent need for a shift from Litigation to Mediation, to improve the backlog situation of the Judicial Systems and improve Revenue income from Judiciary Bodies. For the growth of Mediation, lessons may be taken from the United Kingdom and the United States of America, where the implementation of Mediation has improved the situation of the Judiciary and have a success rate of more than 85%.[21] Moreover, the United States has a record of only 5% cases going to trial.[22]These statistics show the success of Mediation and the impact it has on disputes. Mediation not only settles the dispute, but also solves the conflict amongst parties, and often at the end of mediation, parties go out walking hand in hand. Furthermore, Mediation seeks a solution and attempts to deliver justice to the parties, even though either party was at fault. It fulfils the purpose of justice, i.e. providing a treatment that is fair and reasonable to the parties, without any exception to the municipal laws of the state. Thus, in conclusion, Mediation is a better opportunity in an overaged resolution system for a propitious future.
[1]Ministry of Law and Justice note (Jus. M. Jagannadha Rao 2008) (Task Force on Judicial Impact assessment).https://doj.gov.in/sites/default/files/judicialimpactassessmentreportvol2_0.pdf
[2]Anil Xavier, “MEDIATION: ITS ORIGIN & GROWTH IN INDIA,” Hamline Journal of public law & policy, Vol. 27, 2005, 273 at 1. https://www.arbitrationindia.com/pdf/mediation_india.pdf
[3]The Code of Civil Procedure (Amendment) Act, 2002, No. 22, Acts of Parliament, 2002, § 89.https://districts.ecourts.gov.in/sites/default/files/THE%20CODE%20OF%20CIVIL%20PROCEDURE%20%28AMENDMENT%29%20ACT%2C%202002.pdf
[4]Delhi Mediation Centre, https://delhicourts.nic.in/dmc/history.htmLast visited on Jan. 30, 2020).
[5]Remarks of Lewis F. Powell, Jr., “Stare Decisis And Judicial Restraint,” Washington and Lee Law Review, Vol. 47, 1990, 281. https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1934&context=wlulr
[6]Shirley Shipman, et. al., Brown & Marriott's ADR Principles and Practice (Sweet & Maxwell 3rd ed. 2012).https://www.sweetandmaxwell.co.uk/Product/Arbitration/Brown-and-Marriotts-ADR-Principles-and-Practice/Hardback/30802357
[7]S. I. Keethaponcalan, Conflict Resolution: An Introduction to Third Party Intervention (Lexington Books 2017).https://books.google.co.in/books/about/Conflict_Resolution.html?id=PqEuDwAAQBAJ&redir_esc=y
[8]Forrest S. Mosten, “Confidentiality in Mediation,”California Lawyer, 2011.
[9]Tara Ollapally, Annapurna Sreehari and Shruthi Ramakrishnan, “The Mediation Gap: Where India Stands and How Far It Must Go,” Approaches to Justice in India, SCC Online (2017).
[10]Meike Brandon, “Use and abuse of private session and shuttle in mediation and conciliation,” ADR Bulletin, Vol. 8, 2005, 3.
[11]Harvey I. Harver, “Making Mediation Work,” 19 Fam. Advoc. 26 (1997).
[12]Zee Maoz& Lesley G. Terris (2006) Credibility and Strategy in International Mediation, International Interactions.https://www.tandfonline.com/doi/abs/10.1080/03050620601011073
[13]Pon Staff, Negotiation Ethics: How to Navigate Ethical Dilemmas at the Bargaining Table, Harvard Law School (Oct. 21, 2019), https://www.pon.harvard.edu/daily/dispute-resolution/staying-on-the-straight-and-narrow/.
[14]supra note 20.
[15]Id.
[16]Id.
[17]Law Commission of India, Need for Justice-dispensation through ADR etc., ¶ 1.69, Report No. 222 (Apr. 30, 2009).https://lawcommissionofindia.nic.in/reports/report222.pdf
[18]Effective implementation of Mediation in India: The way forward, Bar and Bench, https://www.barandbench.com/columns/effective-implementation-of-mediation-in-india-the-way-forward (last visited on Jan. 30, 2020).
[19]Abhishek Tripathi, “How to promote Arbitration and Mediation in India?,” Indian National Bar Association. https://www.indianbarassociation.org/how-to-promote-arbitration-and-mediation-in-india/
[20]Steven Bennett, Mediation Myths: Barriers to the Use of Mediation, Mediate.com (Nov., 2018) https://www.mediate.com/articles/bennet-mediation-myths.cfm.
[21]Warren King, “UK: Mediation: Success or Failure?,” BLM, 2017.https://www.mondaq.com/uk/arbitration-dispute-resolution/641140/mediation-success-or-failure.
[22]US vs UK - a comparison of mediation processes, Skuld, https://www.skuld.com/topics/legal/pi-and-defence/us-vs-uk---a-comparison-of-mediation-processes/ (Last visited on Jan. 30, 2020).