PROBLEMS AND CHALLENGES WITH THE CURRENT MEDIATION LEGISLATIVE FRAMEWORK OF INDIA
During their lives, people encounter many different conflicts. There is no one point of genesis for conflict in the life of each individual; instead, disagreements may arise for a variety of reasons, including personal and professional factors. But there are certain cases in which we go to court to have a disagreement resolved by a judge. If the disagreement is not of the kind for which we should take the matter to court, then we may resolve it by talking it out and coming to an agreement.
We may claim that we mediate and find a resolution to the disagreement using terminology that is common in the legal field. While ADR, which stands for Alternative Dispute Resolution, is a relatively recent development in India, the mediation process has been there for centuries in the country. According to Black’s Law Dictionary, mediation is “A method of nonbinding dispute resolution involving a third party who tries to help the disputing parties to reach a mutually agreeable solution.”
This definition describes mediation as “A method of helping disputing parties reach a solution that is acceptable to both sides.” It is possible to have a better understanding of the significance of mediation by reading the remark that Chief Justice of India NV Ramana gave at the opening ceremony of the two-day national conference in Gujrat that was devoted to the topic of “Mediation and Information Technology.”
The use of mediation might be considered a potential future alternative for the speedier and more cost-effective resolution of conflicts. Because several cases are now pending before the Indian court. As of April 11, 2022, the National Judicial Data Grid reports that there are a total of 3,597,781 cases—both civil and criminal—that are pending in courts around the country. This information comes from all of the nation’s courts.
According to a statement made by the CJI, “Embedding effective ADR mechanism into the judicial process can reduce pendency, save judicial resources, and time, and allow litigants a degree of control over the dispute resolution process and its outcome.” Since the courts are unable to handle all of these cases, alternative dispute resolution is looking like a potential future option.[i]
WHAT PROBLEMS ARE WITH EXISTING MEDIATION LAWS IN INDIA?
The introduction of alternative dispute resolution into the civil process was a significant step toward the institutionalization of ADR which was highlighted by the passage of section 89 of the CPC, 1908.
Yet, since there is not a single legislation that covers all aspects of mediation, there is a lot of room for interpretation and variation in how mediation rules are carried out. In addition, the Supreme Court, in its seminal decision on the Afcons Infrastructure Ltd. case, brought to light several egregious drafting flaws in Section 89.
These include the fact that the definitions of the terms “judicial settlement” and “mediation” in Section 89 are confused, as well as the fact that there is a lack of clarity regarding the procedure that the court is supposed to follow when referring matters to mediation following Section 89. In its 238th Report, the Law Commission of India looked at Section 89 and made a recommendation to alter it.
The recommendation was to replace Section 89 with an improved provision that would bring it in line with the decision that was made in Afcons Infrastructure Ltd. Among the suggestions, it was suggested that the definitions of mediation and judicial settlement be switched around. Also, it was suggested that the court should identify the point at which it should send the issue to the different ADR procedures that are stated in Section 89. On the other hand, this Report has not been put into action as of yet.[ii]
AN ENDORSEMENT OF THE MEDIATION PROCEDURE FROM THE JUDICIAL SYSTEM
The Honorable Supreme Court of India issued an order in the case of Salem Bar Association v. Union of India[iii] which mandated the establishment of a committee to draught model regulations outlining the process that should be followed during mediation.
These regulations were to outline the steps that should be taken during the mediation process. As a direct consequence of this, the Mediation and Conciliation Project Committee[iv] will be offering, among other things, training programs, grants-in-aid, awareness programs, and certification for mediators.
In 2003, the Law Commission of India produced a consultation paper on Alternative Dispute Redressal and Mediation Rules to establish conformity with the judgment that was cited above. This study was eventually used by several High Courts as a foundation for the construction of their very own distinct Mediation Guidelines. This was accomplished by using the information presented in the article.
In an attempt to encourage the use of mediation as a method for conflict resolution, several cities in India, including Ahmedabad, Chennai, Delhi, Kerala, and Bangalore, have recently established mediation centers inside their respective courthouses.[v]
Even at the level of the appeal, the courts have recognized the use of mediation as a viable tool for the settlement of disputes. Mediation is an effective way to resolve conflicts.
PROVISIONS IN THE LAW THAT ARE RELEVANT TO THE PROCESS OF MEDIATION
Legislation is also following right on their heels at this point. The Companies Act[vi] makes a mention of mediation and mandates the establishment of a mediation panel. It also mandates that the parties or the court may at any moment throughout the proceedings refer the case to the mediation panel to come to a resolution to the conflict that is mutually acceptable to both parties.
The Commercial Courts Act, which had been enacted in 2015, did not get its current version until 2018 when it was modified to add Section 12A. According to the provisions of this section, a legal proceeding may not be brought forward if it is not anticipated that any urgent interim relief would be sought unless the parties have first attempted and failed to resolve their differences via pre-institution mediation. Before this point, this prerequisite had not been satisfied.[vii]
India has shown its support for mediation on the international scale by being a signatory to the United Nations Convention on the International Settlement Accord (UNCITRA). This illustrates India’s dedication to the use of mediation as a dispute resolution strategy.[viii]
In addition, clear processes have been introduced to encourage parties engaged in legal disputes to voluntarily pick this course of action as their course of action. For instance, following Section 16 of the Court Fees Act of 1870, [ix] if the matter was finally settled via the use of an alternative dispute redressal mechanism, the whole amount of court fees may be repaid to the party that first incurred those expenses.[x]
DUE TO THE ABSENCE OF A CLEAR LEGAL FRAMEWORK FOR MEDIATION
Despite these recent advances, India does not yet have legislation that handles mediation in a precise way. In the year 2020, when the outbreak began, the authorities forced the courts to shut down and relocate their functions online.
Although the mechanism of dispute resolution may have varied, the weight has stayed the same. The Family Court at Tis Hazari Courts in Delhi sent a total of 109,869 cases to the mediation process during the years 2015 and 2021.
There was a total of 95,102 cases that were resolved, resulting in a disposal rate of 86.56 percent for that court. Of those cases, 95,102 were successfully resolved.[xi] This demonstrates beyond a reasonable doubt that mediation is an effective strategy for resolving conflicts.
The ruling instructing the government to explore whether or not it is conceivable to enact an Indian Mediation Act was recently issued by the Supreme Court of the United States[xii], which is the highest court in the nation. Standardizing the method via the use of formalization, such as legislation, would make it much simpler to carry out the procedure. At the moment, it may be found in a wide range of different supplies scattered all around the board. The parties will be motivated to mediate and will benefit from enhanced clarity if comprehensive law is passed that sets a framework for institutionalized mediation.
This may be accomplished by introducing legislation (either private or court-sanctioned mediation). It is now more important than it has ever been that a uniform legal framework is adopted regarding Mediation. This is important not only to protect the rights of the parties involved but also to ensure a course of action that is both quick and cost-effective when it comes to the enforcement of such a settlement agreement. Even though this has been the case for a considerable amount of time, it continues to be the case.
THE CHALLENGES THAT LIE AHEAD OF US, IN ADDITION TO SOME RECOMMENDATIONS5
Lack Of Codification That Includes: The Supreme Court of India, in the case of MR Krishna Murthi v. New India Assurance Co. Ltd., emphasized the vital need for universal mediation legislation in India in January 2020. This year, this case was heard. A committee has been established by the court with the responsibility of writing legislation that would aid in imparting loyal sanctity on issues that have been addressed through mediation to demonstrate the court’s support for this initiative. A law was written with this idea in mind, and it was given the working title of The Mediation Bill, 2021.
In December 2021, during the winter session of the parliament, this bill was brought to the Rajya Sabha for discussion. It was then referred for consideration to the standing committee on Law and Justice, which was led by Mr. Sushil Kumar Modi.
Lack Of Information About The Advantages Of Mediation Combined With A Fear Of The Process: – The practice of mediation has never been met with particularly strong support from members of the legal profession. During the years 2011 and 2015, the Bangalore Mediation Centre stated that a total of 31441 cases were referred to them for resolution via the mediation process. Over that period, this accounted for 4.29 percent of the total number of new cases that were filed with the Bangalore High Court (Vidhi Mediation Report 2016, 11).
Over the same period, a total of 13646 cases were reported to have been filed to the Mediation and Conciliation Centre of the Delhi High Court for consideration as candidates for mediation. This is equivalent to 2.66 percent of the total number of cases that were brought before the Delhi High Court. A total of 11618 cases were referred to mediation between the years 2011 and 2015, according to data gathered from the Allahabad High Court Mediation and Conciliation Centre. This brings us to our last and most important point. During this period, these cases accounted for 0.85% of all new matters that were brought before the Allahabad High Court. According to these numbers, it is extremely clear that judges are not taking full use of what Section 89 has to offer.
There are a few different hypotheses that might explain this. Because data on Section 89 referrals are not monitored for the National Judicial Data Grid and are not included in their assessment reports, a judge does not have the incentive to refer cases to alternative dispute resolution (ADR) proceedings. In other words, a judge does not have the incentive to refer cases to ADR. This indicates that judges do not have any motivation to submit cases to alternative dispute resolution (ADR) processes. In addition, referral judges are tasked with maintaining their neutrality when evaluating the likelihood that the parties would be able to settle; nevertheless, this objectivity may be compromised because judges are more familiar with the adjudicatory processes (Vidhi Mediation Report 2016, 20).
The fact that judges do not take part in regular training sessions that are intended to educate them on the benefits of mediation and make them more aware of its potential applications makes this issue much more difficult to solve. 6 Training sessions and seminars should be held to educate judges on the benefits of mediation as a way of conflict settlement to promote it as a viable alternative. This will educate judges on the advantages of mediation as a form of dispute resolution. This will assist in ensuring that mediation is used whenever it is practically viable to do so. The growth of India’s mediation sector might be facilitated by the creation of conditions that are amenable to the process of mediating disputes.[xiii]
Conflicts are the driving force behind every judicial system. According to National Judicial Data Grid, roughly 4.04 Crores cases are pending before the different Courts in India1. That is the plague that the courts have been attempting to address for decades, but with little success due to the processes and intricacies involved in the matter. The court backlog is not a problem restricted to India, but an international concern. Although there are various causes for such a significant backlog, the truth is that the number of conflicts between the parties is growing as is the greater accessibility of the court system to the public at large.
It is to enhance court systems around the globe, the notion of Alternative Dispute Resolution (“ADR”) was established. The introduction of ADR was done to ease the load that has become almost insurmountable for the judicial system. Mediation is another yet very significant component of ADR.
This article has been written by Jay Kumar Gupta, a second year BBA LL.B.(Hons.) student from School of Law, Narsee Monjee Institute of Management Studies, Bengaluru
[i] Srishti Ojha, Courts Must Make Mediation & Negotiation Mandatory As Part Of Case Management: CJI NV Ramana ,LiveLaw (9 Apr 2022 3:29 PM) Accessed at: https://www.livelaw.in/top-stories/cji-nv-ramanacourts-must-make-mediation-negotiation-mandatory-as-part-of-case-management-196241https://www.livelaw.in/top-stories/cji-nv-ramanacourts-must-make-mediation-negotiation-mandatory-as-part-of-case-management-196241
[ii] Deepika Kinhal, Apoorva; Mandatory Mediation in India-Resolving to Resolve; Indian Public Policy Review 2020,2(2): 49-69. Accessed at https://vidhilegalpolicy.in/wp-content/uploads/2021/03/Mandatory-Mediation-in-India-Resolving-to-Resolve.pdf, last seen 13/04/2022
[iii] Salem Bar Association v Union of India (2003) 1 SCC 49;  6 SCC 344 (India).
[iv] The Committee was constituted by the Chief Justice of India, Honourable Mr Justice R C Lahoti by order dt. 9 April 2005.
[v] Mediation Training Manual of India, Mediation and Conciliation Project Committee, Supreme Court of India, p8.
[vi] Section 442, The Companies Act, 2013, No.18, Acts of Parliament, (India).
[vii] Inserted via The Commercial Court, Commercial Division and Appellant Division Of High Courts (Amendment) Act, 2018, No 28, Acts of Parliament, (India).
[viii] The Convention was adopted on 20 December 2018 and India became a signatory on 7 August 2018.
[ix] Inserted via Code of Civil Procedure (Amendment) Act, 1999, No 46, Acts of Parliament, (India).
[x] M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, Civil Appeal No. 10866-10867/2010, (India).
[xi] Delhi Courts, https://delhicourts.nic.in/dmc/statistical.htm.
[xii] M R Krishna Murthi v New India Assurance Co Ltd, (2020) 15 SCC 493, (India).
[xiii] Krishnanunni U and Kessia E. Kuriakose, Mediation in India- Challenges, Recommendations and Relevance in Post COVID Scenario,THE CBCL BLOG( October 6, 2020) https://cbcl.nliu.ac.in/contemporary-issues/mediation-in-india-challenges-recommendations-and-relevance-in-post-covid-scenario/