MEDIATION IN INDIA - SOLVING DISPUTES OUT OF COURT
Author-1: Shashank Singh Rathor, pursuing B.A.,LL.B. from Ideal Institute of Management & Technology and School of Law, Affiliated to G.G.S.I.P.U., Delhi.
Author-2: Didar Kaur, CLS- Gitarattan international business school (IP University), Rohini, New Delhi.
"Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough." - Abraham Lincoln
What is mediation?
Mediation can be defined as a procedure that follows with the discussion of disputes between the parties with the assistance of a third party namely a mediator to reach a settlement or a decision. It is an informal meeting that generally includes cases that are pending in court or which are to be filed in court. Mediation is generally used where no such complex and rigid laws are needed. It is one of the best methods of Alternative Dispute Resolution (ADR).
Mediation is really important in today’s world and in the recent past, there has been increasing in the popularity of mediation like the UNCITRAL Working group discussion on coming up with an international treaty such as the New York Convention for the administration of the mediated settlement agreements, and the discussions on the use of mediation in resolving international investment disputes (one should also not forget the consistently increasing popularity of mediation competitions in India and globally). The mediation process is generally inexpensive, involves less time and statutes, and is preferably a ‘hand-on’ process.
Who is a mediator?
A mediator is a person, who, acting unbiasedly, resolves the arguments and generally holds for a settlement between the parties. He/She has an arsenal of negotiation techniques, common sense, and a conclusion-based nature which helps in convincing the parties lately. Unlike a litigation process, where the decision or final result is declared by a Judge, Mediation has complete control of the parties, to decide the kind of settlement they want and how it is to be worked. The role of the mediator is to relay information between the parties, frame issues, and define the problems. He initiates the parties to work on their common interests and reach a mutually agreed settlement.
➔ The Panel of mediators may include retired judges of the Supreme Court of India/ High Court, retired district and session judges, or retired Officers of Delhi Higher Judicial Service.
➔ Legal Practitioners with at least ten years standing at the bar at the level of Supreme Court or High Court or District Courts or experts or other professionals with at least fifteen years standing.
Usually, mediation is held at a common place decided by the parties or the office of the mediator or any other private place where parties feel comfortable. Initially, mediation can be started on phone calls, and then formal meetups can be done depending on the circumstances.
It involves both the parties, their attorneys, if represented, the mediators, and other persons agreed in advance. If it is being held publicly then all other persons concerned may be involved.
The process involves:
Initially, the mediation will begin with an opening statement represented by the mediator which will include general information about him including his qualification, experience, and names of the parties and their counsels. Both the parties share their part of statements without any interruption. This step encourages the parties to end up in good faith and a mutually agreed settlement. All material and information presented in this shall be confidential unless otherwise discoverable in a court.
Each party will elaborate their facts and circumstances which resulted in disputes and issues will be summarized from the said facts.
Finding options and alternatives
The mediators with the attorneys, if represented, and both the parties find different alternatives for identifying a settlement. On analyzing various needs and circumstances of the parties and marking their strengths and weaknesses, a suitable decision is taken. Negotiation and decision-making continue until the suitable decision is selected by the mediator ending the process or continuing to the subsequent session.
Terms of settlement
The terms of the agreed settlement shall be written by the parties and reviewed and signed by a legal counsel present there or by any other counsel which parties may select at a later date.
Mediation in India
As of now in India, mediation is a voluntary process through which disputing people can mutually resolve their legal problem by entering into a legal contract and appointing a mediator. The decision-making power during the mediation process remains in hands of disputing parties, with the mediator acting as a buffer to bring them to a mutual understanding. The conflicting parties can also appoint ADR lawyers to represent them before the mediator and brief their matter in a professional way.
Mediation in India is divided into two categories which are commonly followed:
1. Private mediation:
In private mediation, the well-qualified personnel works as mediators on a fixed-fee basis. Anyone from courts, to the general public, to corporates as well as the government sector, can hire mediators to settle their dispute through mediation.
2. Court referred mediation:
In India, the courts have the discretionary power to refer the pending cases for mediation under Section 89 of the Code of Civil Procedure, 1908. This sort of mediation is frequently used in cases of matrimonial disputes, particularly in divorce cases.
The mediation bill, 2021
The high demand for separate and exclusive mediation law has led to the origination of the Mediation Bill, 2021. The intention behind introducing this bill is to provide sanctity to the procedure as well as provide a common platform for its practice and remove inconsistencies between existing legislation. The mediation bill embraces the viewpoint of the Hon'ble Supreme Court’s 2010 Afcons judgment that “mediation” and “conciliation” are synonymous.
Salient features of the Bill
● In the bill, it is clearly stated that the mediation resolution agreement between the disputing parties will have equal status as of the judgment or decree of a court, which will be binding and enforceable by law.
● Section 6(1) of the bill makes it compulsory for the conflicting parties to approach for pre-litigation mediation before approaching any court or tribunal. This will be an obligatory requirement and is an astonishing step.
● As per Section 20 of the Bill, the conflicting parties will be obliged to attend the first two mediation sessions. Thereafter, it depends on the discretion of the parties whether they want to continue or terminate the mediation and follow the litigation path. Further, in case any urgent interim order is required, parties can bypass mediation.
● Online mediation has been defined in Section 32(1) of Chapter VII of the Bill. For utmost transparency, privacy, and security of the interest of the parties, the chapter also provides detailed provisions for the confidentiality of the matter during the online mediation.
● In Chapter X of the Bill, community mediation has been elucidated as an empowerment tool for individuals and communities to take back control over their affairs from the courts. This provision aims to create a parallel, citizen-run, and community-centered dispute resolution system.
● According to Section 44 of the Bill, any dispute most likely to affect peace, harmony, and tranquility among the residents or families of any area or locality may be settled through community mediation with prior mutual consent of the disputing parties.
The significance of mediation for law scholars
Reading, training, and getting engaged in mediation is beneficial for a law student to acquire different kinds of skills which could not be learned by participating in any other kind of extracurricular activities like moots, debates, research, and client counseling. Mediation also helps to evolve expertise like effective listening, bargaining, communication, finding commercially viable solutions, teamwork, etc. Engaging in this domain is also one of the best ways to become a more commercially sound student who understands the business aspects. Disputes in this field cannot be solved based on legal contentions but could be solved with better commercial understanding (or can be solved with other motivations depending on the kind of dispute) in which all the parties work with each other to resolve the dispute in a cooperative manner (and with the mediator) to get the commercially viable solution of there conflict. In doing so, there is no need for bare Acts and case laws, and the only focus of both parties is to get a mutually agreeable option that might be satisfying their underlying interests and needs.
In the respective method of mediation, there is no hierarchy of power or authority between the mediator and the parties. During the process of mediation, all the parties sit at the same table; and the sitting arrangement would be in such a way that it should not be deemed to show any superiority of one over the other. And through this principled process, all the participants with the support of each other achieve a common goal with a good understanding of interests and cultural differences involved (if any).
● By participating in mediation one can also improve his/her personality at an early stage of their career as an assertive, confident, and developed lawyer.
● It also inspires law students to tilt some of their focus on human psychology, commercial motivation, verbal and body language, and communication as well.
● These qualities aren’t just something that might only help in mediation events rather these skills also leave a good and long-lasting first impression on the people we meet in our day-to-day life.
● Thus, the skills acquired during these events are not only restricted to the realm of dispute resolution but can also be very helpful in anyone’s personal or day-to-day life while understanding and resolving the problems of communication failures and issues that arose with the family members or friends.
● Nowadays, it’s not hidden anymore that mediation or conciliation is one of the effective methods to resolve matrimonial disputes and if these mechanisms are proved to be effective in such serious disputes then there is no doubt that the same methods could be used to resolve issues or differences in professional and personal relationships as well.
Overall, mediation as an ADR has been emerging as a widely acceptable and used method of solving disputes. It is flexible and helps courts reduce the number of pending cases. Moreover, the solution is not imposed on any party but agreed by both parties with mutual consent. Thus, it gives a solution peacefully.
It is also prominent to understand the future need of this process and make it essential for law students to give this topic due concern because it will not only enhance their dispute solving skills but will also teach them negotiating, client dealing, balancing between two different ideas and more.
Consensual dispute resolution methods like mediation are gaining popularity day by day and are now widely used around the globe to resolve different types of disputes and thus it is of keen benefit for law students and those in the legal profession to know the advantages and importance of this method.