This article aims to create awareness about need and use of mediation in India It also aims to bring forward how mediation could play a pivotal role in resolution of cases through an amicable solution, and at the same time reduce the burden on courts. The article further deals with availability of judges or judge to population ratio in India and takes into account the various advantages of using mediation over litigation, which would not only benefit the parties but also have a relieving effect on the already overburdened courts.
Need and use of mediation in India
Mediation being a form of alternate dispute resolution, allows Parties to voluntarily opt for mediation in order to settle legal disputes entered into by parties through mutual agreement and a conclusion is reached by agreement of both the parties. In other words it is a “win-win” situation for both the parties.
It is a party centric process and an informal method where the mediator encourages the party to settle disputes by laying down various options. Since mediation is purely voluntary, any party can withdraw from it at any point of time. Mediation is a purely confidential process. Apart from mediation voluntarily entered into by the parties, India also has court annexed mediation where cases are referred to mediation by the courts under Section 89 of the Code of Civil Procedure, 1908. Lok Adalat is also an example of court annexed mediation in India.
Despite the popularity of mediation in India, there are no laws or regulations which lay down the mediation process and the rules to be followed. Though there are Mediation centers in India which have formulated their own rules, however they are not uniform and differ from center to center.
As the global population is rising, so are the number of cases in courts of law.Pendency of cases cannot be dealt with unless there are some radical changes inthe common law system.Resolving the disputes, through Courts, though somethings unavoidable, does notprovide the most satisfactory solution in all cases. Arbitration, Conciliation,Judicial Settlement, including settlement through Lok Adalat and Mediation, areaccepted modes of Alternative Dispute Resolution (ADR).
Availability of Judges
It is an uncontroversial fact that our country is suffering from acute problem of population explosion. This in turn has given rise to diverse problems including those of disputes, differences, conflicts. Even our judiciary is suffering from population problem i.e. docket explosion of pending cases. Reports also indicate that there are over 27 million cases that are still pending in Indian Courts and over 6 million have been pending for more than 5 years.
In managing these Courts there are only 16000 Courts and insufficient Judges for handling these disputes. The ministry of Law and Justice has released data of the latest pendency of cases in the Supreme Court and the High Courts. The data shows that nearly 48,418 civil and 11,050 criminal cases are pending in the Supreme Court and whereas in High Court’s 31,16,492 civil and 10,37,465 criminal cases are pending.
Dispute resolution is an indispensable process for making social life peaceful. It tries to resolve and check conflicts, which enable persons and group to maintain co-operation. Alternative Dispute Resolution is a term used to describe several different modes of resolving legal disputes.
The goal of ADR is enshrined in the Indian constitution’s preamble itself, which enjoin the state to secure to all the citizens of India, Justice- social, economic and political- liberty, equality and fraternity.
Future scope of commercial Mediation in India
The advent of new legislations and broadening the scope of mediation to include commercial matters has given rise to commercial mediation. Commercial mediation can be defined as a mediation which centres around commercial disputes, which includes but is not limited to, commercial disputes as defined in Section 2(c) of the The Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts Act, 2015 as well an any other disputes of a monetary nature.
Various laws are currently in existence in the Indian jurisprudence in which special emphasis is given to mediation. The first known legislative recognition given to mediation was in the Industrial Disputes Act, 1947. Thereafter, Section 89 of the Code of Civil Procedure, 1908 can be credited with giving legitimacy to ADR mechanisms in India. Recently, the Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts (Amendment) Act, 2018 have mandated pre-institution mediation for any commercial disputes, as has been given in the legislation, which is a huge step in terms of furthering the scope for commercial mediation in India.
However, there are numerous issues and challenges awaiting the implementation of this landmark step. No legislation has, as of yet, been drafted to regulate the mediation culture in India. Also, no agency has been charged with supervising that the mandatory pre-institution mediation is enforced correctly. Various steps are needed to efficiently implement mandatory pre-institution mediation as well as to strengthen the pre-existing mediation culture in India. It is in this light that the authors wish to argue that even though the importance of mandatory pre-institution mediation cannot be stressed enough yet it will only become a success with the enactment of proper legislation and having proper infrastructure in place for large scale mediation.
The need for commercial mediation arises not just from a huge pendency of cases but also from the economic effects which commercial disputes can have on the economy of India. Commercial disputes are almost always monetary in nature which can destabilise the market if they are stretched out for too long. Hence, it becomes even more imperative to fast track the commercial cases through mediation. Furthermore, if the commercial disputes are solved quickly and easily, then India’s Ease of Doing Business Rankings will also improve which can also have a huge impact on the investments which are pouring into India.
Presently, majority of the High Courts in India have established their Mediation and Conciliation Centres to promote mediation as an alternative to litigation. Bangalore Mediation Centre (BMC) is one of the successful mediation centres of India which has resolved 31,441 disputes from 2011 to 2015and on an average the mediators at BMC receive more than 1000 dispute annually, highest among all the mediation centres. Many mediation centres of different High Courts are way behind BMC in promoting mediation and haven’t taken any substantial steps to implement MCPC recommendations. The BMC receives highest number of cases per mediator as compared to Delhi Mediation Centre and Allahabad Mediation Centre, with an increase in each year. In 2015 the BMC had 134 cases per mediator.
Other than court referred mediation, there are other modes of mediation too such as private mediation, pre- litigation mediation. These types of mediation have also proved to be efficient in resolving disputes. Private Mediation is one of the fastest, cost effective and business friendly methods to solve commercial dispute.
Overall, mediation processes are fairly effective in providing both time saving and cost saving mode of dispute resolution. It has been observed that mediation works most of the times and results in greater satisfaction amongst both the parties, it’s also a very effective way of reducing pendency of cases in courts. It is considered as an effective means of dispute resolution for any dispute (may it be commercial or non commercial in nature) not requiring a judicial or third party determination. It provides a forum and an atmosphere in which parties gain understanding, become understood, and work together to explore options for resolution. By resolving disputes in mediation, parties determine for themselves what is important and, ultimately the outcome of the situation. While the benefits of mediation vary somewhat depending upon the nature of the dispute, and model of mediation applied, but most importantly parties are empowered to decide for themselves whether and how they would like to resolve a situation. This self-determination aspect of mediation often corresponds to higher aspirations of how individuals and businesses want to conduct their lives and do business generally.
Parul Sharma, Data-on-disposal-and-pendency-of-cases-in-supreme-Court-and-highCourts-with-reasons-for-mounting-pendency-of-cases, ITAONLINE