Mediation in Judicial Process

• 11 Apr 2022

For Prelims: Mediation, Supreme Court, Arbitration, Negotiation, Conciliation, Various laws Related to Mediation.

For Mains: Dispute Redressal Mechanisms, Mediation Process, Laws related to it, Issues and Way Forward.

Why in News?

While addressing the National Judicial Conference on Mediation and Information Technology, the President advocated the concept of Mediation in the Judicial Process.

What is Mediation?

• Mediation is a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in reaching a settlement.
• A mediator does not impose a solution but creates a conducive environment in which disputing parties can resolve all their disputes.
• Mediation is a tried and tested alternative method of dispute resolution. It has proved to be a great success in the cities of Delhi, Ranchi, Jamshedpur, Nagpur, Chandigarh and Aurangabad.
• Mediation is a structured process where a neutral person uses specialised communication and negotiation techniques. Litigants participating in the mediation process have unequivocally endorsed it.
• It is a settlement process whereby disputing parties arrive at mutually acceptable agreements.
• Other than mediation there are some other dispute resolution methods such as Arbitration, Negotiation and Conciliation.

Who can be a Mediator?

• Any person who undergoes the required 40 hours training stipulated by the Mediation and Conciliation Project Committee of the Supreme Court (SC) can be a mediator.
• He also needs to have at least ten mediations resulting in a settlement and at least 20 mediations in all to be eligible to be accredited as a qualified mediator.

What is the Role of a Mediator?

• To be Impartial And Neutral.
• Manage interaction between the parties
• Facilitate communication between the parties.
• Identify barriers to an agreement.
• Identify interests of the parties.
• Develop terms of agreement.

What is the Significance of Mediation?

• Quick And Responsive.
• Economical.
• There is no extra cost.
• Harmonious settlement.
• Creating solutions and remedies.
• Confidential and informal.
• Parties controlling the proceedings.

What are some Challenges to the Process of Mediation?

• Lack of Codification: In January 2020, the SC in MR Krishna Murthi v. New India Assurance Co. Ltd pointed out the urgent need for enacting a uniform legislation for mediation in India.
• Apprehension towards mediation & Lack of Awareness – Mediation has never garnered sufficient reception among the legal fraternity.
  • In order to popularise mediation as a dispute resolution mechanism, training sessions and seminars should be conducted to familiarise judges with the benefits of mediation.
• Infrastructural Concerns and Quality Control– Improved emphasis on mediation will directly increase the workload on mediation centres which lack administrative strength.
  • This can lead to the languishing of cases that go against the basic tenet of mediation i.e. fast resolution of disputes.
  • To tackle this, the practice of mediation should be professionalised in India.
• Inconsistency between existing laws on Mediation– The Supreme Court in a case stated that the terms ‘mediation’ and ‘conciliation’ are synonymous with each other.
  • Contrastingly, the language of Section 89 of Code of Civil Procedure (CPC), 1908 shows that the legislative intent behind the section was to differentiate between mediation and conciliation.
  • Thus, the existing ambiguity has created a lot of vagueness in the process of mediation.

What are the Legal Provisions Related to Mediation?

• Mediation in India is primarily governed by two legislative acts viz. the CPC 1908 and the Arbitration and Conciliation Act, 1996 (ACA).
• There are many other statutory provisions that make mediation a compulsory prerequisite to filing a suit in court. Some of these statutes are:
  • Industrial Disputes Act, 1947
  • Companies Act, 2013
  • Micro, Small and Medium Enterprises Development Act, 2006
  • Hindu Marriage Act, 1955
  • Special Marriage Act, 1954
  • Real Estate (Regulation and Development) Act, 2016
  • Commercial Courts Act, 2015
  • Consumer Protection Act, 2019

Way Forward

• The Covid-19 pandemic has increased the prominence of mediation as a means for dispute resolution. The plethora of cases initiated by the pandemic warrants a swift and effective redressal and mediation can be the perfect solution.
• However, there are a lot of challenges that restrict the effectiveness of mediation. The existing framework of having different mediation rules for different High Courts has further contributed to the element of uncertainty in the mediation process.
• Thus, the most important step towards recognizing mediation as an effective tool for resolution would be to enact a statute solely for mediation.
  • Mediation Bill, 2021 should be passed with all necessary inputs from all the stakeholders as soon as possible.
• The statute should strive towards addressing the concerns of enforcement and quality control.
• However, care and precaution should be taken to ensure that the legislation does not intrude into the autonomy of the parties engaging in mediation.
• The enactment should supplement the flexible nature of mediation and should help in standardising the procedures involved in mediation.
• Further, attempts should be made to promote mediation by making it a mandatory step before litigation.

Source: TH