Abstract
In the context of the Mediation Act 2023, this research paper examines the major rise and growth of mediation as an alternative method for arbitration in India. The research stares at the way mediation practices have evolved throughout the years in India, highlighting major legislative and policy changes that have led to mediation becoming more commonplace. It also discusses challenges noticed in effectively putting mediation into effect and demonstrates solutions. This research paper attempts to provide an understanding of the current state of mediation in India and its potential for further advancement through an analysis of case studies and statistical data. This study contributes to the ongoing discussion on alternative dispute resolution procedures and their role in stimulating equity, tranquillity, and harmony by revealing the pros and cons of mediation.
Keywords: Mediation, Alternative Dispute Redressal (ADR), Impact, Mediation Act, 2023, Supreme Court
Introduction
Mediation is a vigorously voluntary dispute resolution method where a neutral third party (called mediator) helps the disputing parties on resolving a conflict between them by using specialized communication and negotiation techniques.[1] These techniques are in turn designed in a manner that facilitates the process of medication and disputes resolution.
The role of a mediator is incredibly challenging. It has been widely accepted that mediation is an approach where parties in dispute find a solution that is acceptable to all parties while keeping a high standard of privacy and permitting the parties to enjoy the utmost flexibility and freedom. The mediator’s only role is to assist with resolution while giving the parties the highest level of independence.
The concept of medication evolved in the latter half of the 20th century; however, the grassroots of mediation can be traced way back to the ancient Indian legal system for example the system known as the “Gram Panchayats” and “Nyaya Panchayat” were popular and widely prevalent in ancient rural India. However, even though these systems are still existing in many parts of the rural India, the people of the country, especially the ones that were still relying on this legal system for justice, have lost their faith in them.[2]
Recognizing the need to promote mediation as an effective method of dispute resolution, the Indian government introduced the Mediation Act 2023. This landmark legislation aims to streamline and enhance the mediation process in India. This paper aims to assess the evolvement of mediation, key provisions and implications of the Mediation Act 2023, and shelter light on its potential impact on the resolution of disputes in various legal contexts.
Kinds of Mediation
- Mediation Referred by the Court: A case that is pending may be sent for mediation in India by the court according to Section 89 of the Code of Civil Procedure, 1908. Marital issues, primarily divorce cases, often require this sort of mediation.
- Private mediation is an instance of resolution of conflicts where capable people act as mediators for an established fee. Everyone, including courts, consumers, corporations, and the government sector, may choose mediators to settle the conflict through mediation.
Research Methodology
This research paper is of descriptive nature and the research is based on the aspects of development of Mediation in consideration of Mediation Act 2023 in India. Alternate sources of information like newspapers, journals, and websites are used for the research.
Review of Literature
In India, mediation is not a novel practice. India had implemented a system known as the Panchayat system, wherein renowned community members participated in resolving issues in the community, for many centuries before the British arrived. In neighbourhoods, such customary mediation continues to be utilized today. Furthermore, companies in pre-British India were enthusiastic supporters of mediation. The members of the commercial group asked impartial and highly regarded entrepreneurs known as Mahajan to settle disputes using an unconventional process that combined arbitration and mediation.
Customs that have been followed for Mediation
Sarpanch, or prudent individuals, are another ancient method of resolving disputes among tribes which is still employed by one tribe. Here, a Pancha meets with dissatisfied tribal members to hear their complaints and try to reach a settlement. In case it doesn’t work, the issue is brought before the general public and is accessible to all tribe members who are associated. Subsequently, after an extensive assessment of the tribe’s claims, safeguards, and interests, the Pancha initiated an additional attempt to resolve the dispute. In the event the fact that a settlement cannot be reached, the Pancha issues a declaration that is legally binding on all parties. The Pancha makes judgments that reflect the long-term interests of the tribe in preserving harmony and prosperity as well as tribal law. All discussions take place verbally, and neither the process nor the resolution is recorded on paper. Indian disputants often used and accepted such mediation methods, despite their absence of legal authority or implications.
Mediation during British rule and post India obtained independence
The arbitration process was accepted as the legalized alternative dispute resolution (also known as ADR) method and is still the most frequently utilized ADR method after the British adversarial system of litigation was implemented in India.[3] Contrary to the outdated procedures, mediation is now believed to be non-binding and to encourage the parties to voluntarily come to an agreement that meets all of their needs. However, attorneys and judges are just beginning to learn about mediation, with the exception of traditional community settings and circumstances in which mediation has been commanded by legislation or court rulings, such as disputes related to government agencies and undertakings, labour disputes, and disputes that include public utility services.
In regard to this, over the intervening twenty (20) years, the US and Indian legal systems have evolved greatly in that, whereas American lawyers and judges enthusiastically endorse mediation as an essential instrument for resolving conflicts both in and out of court, Indian lawyers and judges keep approaching mediation cautiously, questioning whether and in what sort of cases it should be used. This is identical to what was going on in the US throughout the 1980s.
Even after India acquired its independence, issues remained and they now continue to appear rapidly. As society developed more complicated, concerns evolved into an order that made earlier closure of disputes inconceivable. In addition, the people were impacted by colonial rule for several decades and were now attracted to the adversarial dispute resolution system instead of the traditional method, resulting in the instituting of a growing number of cases.
The volume of cases that were established and disposed of rapidly rose as a consequence of the growing population and rising needs of the people. Therefore, India is now plagued by a massive backlog of cases and an explosion in the number of files.
A case filed in India usually brings on for a minimum of four to five years, throughout the course of time the losing party constantly challenges the ruling until all potential forums have been depleted and the process drags on forever. On the contrary, mediation can resolve a dispute in approximately 2.5 hours, and in highly complicated situations, it might take up to three months. The Delhi High Court also correctly pointed out that there are 2.8 crore cases pending in India and that it would evidently take more than 464 years to clear the backlog.
ADR as an Advantageous source
The notion of an ADR (Alternative Dispute Resolution) mechanism may provide an alternative to conventional dispute resolution methods.[4]4 ADR can be utilized to settle any kind of dispute, no matter if it is civil, commercial, industrial, family, etc., when both parties have no ability to negotiate or carry out significant discussions and arrive at a mutually satisfactory resolution. ADR usually involves the use of a neutral third party to help the parties interact, outline their disagreements, and resolve their disagreements. It’s a plan of action that aids individuals and organizations in safeguarding harmony, and social order, and the possibility of reducing discord.
The provisions of Articles 14 and 21, relating to equality before the law and the right to life and personal liberty, accordingly, are also the basis of alternative dispute resolution (ADR). The preamble’s pointed-out principles of social, economic, and political justice along with promoting social integrity are the inspiration behind ADR. In the spirit of the Directive Principle of State
Some provisions related to ADR:
- The Civil Procedure Code, 1908, Section 89, provides the public with this opportunity. Should the court determine that there are elements of a settlement outside of the court, it will formulate the terms of the potential settlement and refer the matter to Arbitration, Conciliation, Mediation, or Lok Adalat.
- The Arbitration and Conciliation Act of 1996 is the legislation pertaining to alternative dispute resolution. It was the first law related to mediation enacted in Indian judicial system.
- The Legal Services Authority Act, 1987.
Recent developments on mediation
The Honourable Supreme Court instructed the formation of a committee to draft model rules emphasizing the procedure for mediation in Salem Bar Association v. Union of India. As a result, among many other things, the Mediation and Conciliation Project Committee [3] will provide training courses, mediator accreditation, grants-in-aid, and awareness campaigns as well.
In compliance with the aforementioned ruling, the Law Commission of India constructed a consultation paper on alternative dispute resolution and mediation rules in 2003. A number of High Courts subsequently utilized this paper to create their own unique mediation rules.
To promote the adoption of this substitute, courts in Ahmedabad, Chennai, Delhi, Kerala, and Bangalore, among others, have added mediation centres to their existing structure.
Another factor that is contributing to the development of mediation as an ADR mechanism is section 89 of the Civil Procedure Code (CPC), 1908, which was enacted by the CPC (Amendment) Act, 1999 and came into effect on the 7th of January 2002.[5]5 The efforts of Honourable Mr Justice A M Ahmadi were accountable for that specific development. The Institute for the Study and Development of Legal System (ISDLS) was invited to India to be a part of a national legal exchange program between the United States and Ahmadi from India, the then Chief Justice of India.
After the Indian judicial system’s institutional backlogs were examined by the ISDLS, which also advised ADR mechanisms, legislative provisions, and amendments to the laws associated with these regulations, new reforms were put into effect in 2002 in the form of an amendment to section 89 of the CPC. A group of solicitors, however, contrary to the amendment, and as a consequence, the 129th Law Commission and the Malimath Committee formed. In the Salem Advocates Bar Association v. Union of India case,[6]6 the Hon’ble Apex Court ordered that courts refer cases to the alternative forums if they decided to do so based on the committees’ reports. This case reflects an important turning point in the evolution of mediation in India.
The development of mediation as an ADR mechanism has profited immensely from the judges of the Supreme Court’s participation since then. A project on mediation began as well in Delhi in 2005,[7]7 and a Mediation and Conciliation Committee was formed under the guidance of Hon’ble Mr Justice R C Lahoti. Judicial mediation began at the Karkardooma court complex within the same year as a Permanent Mediation Center established its doors at the Tis Hazari court complex. In 2015, there were also two additional mediation centres became operational: one at the Patiala court and the other at the Delhi Karkardooma complex.
As an outcome, the enactment of multiple legislation and the efforts of many Supreme Court justices have provided mediation tremendous momentum as an alternative dispute resolution mechanism in recent years.
The country has tremendous potential for the expansion of mediation in India. Having the capacity of facilitated negotiation to apply robust bargaining strategies and neutralizing communication skills can specifically enhance the way the system works to maintain social justice. Despite those techniques certainly working, there are still a few major obstacles that obstruct India’s path to mediation. Being subjected to these enabled smoothers negotiating Not withstanding their rapid spread, processes continue to be restricted.
The practice of mediation in resolving disagreements has been increasing in recognition, especially when it comes to corporate disputes. It is well-known as having been swift, economical, and profitable. The dearth of a regulatory framework for this practice remains an enormous barrier, despite the fact that Indian courts have recognized it through decisions and laws.
The Mediation Bill (also known as the “Bill”) was first introduced in the Rajya Sabha on 20 December 2021 in response to this circumstance. The Parliamentary Standing Committee on Personnel, Public Grievances, Law, and Justice, chaired by Sushil Kumar Modi, eventually submitted a report on the Bill for further examination.
On July 13, 2022, the committee disclosed its conclusions to the Rajya Sabha Chairperson. On August 1, 2023, and August 7, 2023, accordingly, the Rajya Sabha and Lok Sabha approved the Mediation Bill and it was introduced in both houses. The President of India has signed the Mediation Act of 2023, which was officially released in the Indian Gazette on September 15, 2023.
The main objective of the Act is to encourage and enable the use of mediation, especially institutional mediation, as a method of resolving disagreements, whether related to business or not. Further, it aims to maintain mediated settlement agreements, establish a body for the registration of mediators, support online mediation, and promote community mediation. In accordance with the Act, mediation is a procedure wherein parties look to a mediator—a third party who is impartial—for support in settling their disagreements in a way that is suitable to both of them.
Contrarily earlier mediation agreements, the Bill originally suggested making pre-litigation mediation mandatory for parties planning to file a lawsuit. But it was made voluntary by the Standing Committee’s recommendations.
In accordance with the Act, there are several topics that are inappropriate for mediation, such as accusations of major fraud, document forgery, claims involving minors or people with disabilities, criminal offence cases, and specific tax-related disputes. The language regarding issues that go against morality or public policy is vague and open to interpretation. The First Schedule of this Act lists the disputes for which mediation will not be pursued. The mediator will forward a non-settlement report for further decision-making to the Claims Tribunal, which starts the mediation if a settlement agreement cannot be reached.
The mediation period, which was initially set at 180 days with a 180-day extension, has been shortened to 120 days, with an additional 60 days. After the first two sessions, parties may withdraw from mediation; however, unexcused absences may result in additional expenses in any follow-up legal actions.
The Act mandates that the settlement terms, once agreed upon by the parties, be recorded, signed by each party, and verified by the mediator. Authenticated MSAs have the same legal standing as court orders.
The Act enables challenges to master services agreements (MSAs) on the basis of impersonation, fraud, corruption, or inappropriate mediation. After receiving an authentic MSA, challenges have 90 days to be authenticated, with the option to extend them a further 90 days under specific circumstances.
The Act permits virtual mediation as a way to reduce costs and bridge geographical gaps. To preserve the security and efficacy of online mediation, however, specific rules for procedure and actions are needed.
The Act emphasizes an immense value on confidentiality, safeguarding all information associated with mediation from exposure to the public.
Method
This section summarizes the research methodology, comprising the data collection and analysis techniques used to examine how mediation evolved in light of the Mediation Act of 2023.
Suggestions
- The mediator is obligated to prepare a non-settlement report in the case that mediation fails to become successful. In such scenarios, the length of time from the beginning of mediation to its closure will not be taken into account when evaluating the statute of limitations for any further legal proceedings.
- A settlement agreement that has been reached through successful mediation must be documented in writing. It may be for the objective of settling all or some of the parties’ disputes with each other. It needed to be evaluated by the mediator and signed by each of the parties.
- This settlement agreement, contrary to arbitration, might include matters that aren’t explicitly addressed in the mediator’s report.
Conclusion
Indian judges have been quick to acknowledge that mediation is an effective instrument for decreasing case backlogs and delays, while Indian lawyers have been reluctant to adopt the practice. Indian lawyers hold the same conservative views as American lawyers did in the early 1980s.
Indian judges have been quick to acknowledge that mediation is an effective instrument for decreasing case backlogs and delays, while Indian lawyers have been reluctant to adopt the practice. Indian lawyers hold the same conservative views as American lawyers did, It could happen for litigants personally to be uncertain about mediation as an alternative to going to court. Concerned that of being taken benefit of, unsure of private proceedings, confirmed by the court system’s familiarity, uncertain about making decisions with regard to their own interests, or driven by vexatious litigation or the desire to postpone the case for financial gain.
For any reason, some litigants may prefer the public, formal, lawyer-dominated, and assessment-based legal procedures.
The concerns could diminish swiftly once it becomes obvious that mediation is intended to add to the system of justice, not to replace it, that it is highly versatile in different circumstances, and that expertise in India is already expanding at an alarming pace.
Mohd Atif
Faculty of Law, University of Delhi
[1]Anil Xavier, Mediation: It’s Origin & Growth in India, 27 Hamline J. Pub. L. & Pol’y, (2005).
[2] Anil Xavier, Indian Yearbook of International Law and Policy 364-377 (2009).
[3] The Mediation Act, 2023, No. 32, Acts of Parliament, 2023 (India).
[4]4 Mikheil Bichia, Advantages Of Mediation In Civil Disputes, 9 Law and World.J 27, (2023).
[5]5 Danny McFadden, Developments In International Commercial Mediation: US, UK, Asia, India and EU, Asia Arb.J, 299 (2015).
[6]6 Salem Bar Association v Union of India (2003) 1 SCC 49; [2005] 6 SCC 344 (India).
[7]7 Code of Civil Procedure (Amendment) Act, 1999, No 46, Acts of Parliament, (India)