Consentia on Multidisciplinary Research

MEDIATION IN 21st CENTURY

“The need of the hour is to reduce adversarial adjudicatory litigation and at the same time, give speedy, satisfactory and cost effective justice. That is where alternative dispute resolution processes with the active participation of the Bar, become relevant and urgent.[1] -Justice R.V. Raveendran

The concept of mediation received legislative recognition in India for the first time in the Industrial Disputes Act, 1947. The conciliators appointed under Section 4 of the Act are “charged with the duty of mediating in and promoting the settlement of Industrial disputes.” Detailed procedures were prescribed for conciliation proceedings under the Act.

Arbitration, as a dispute resolution process was recognized as early as 1879 and also found a place in the Civil Procedure Code of 1908. When the Arbitration Act was enacted in 1940 the provision for arbitration originally contained in Section 89 of the Civil Procedure Code was repealed. The Indian Legislature made headway by enacting The Legal Services Authorities Act, 1987 by constituting the National Legal Services Authority as a Central Authority with the Chief Justice of India as its Patron-in-Chief.

The Indian parliament enacted the Arbitration and Conciliation Act in 1996, making elaborate provisions for conciliation of disputes arising out of legal relationship, whether contractual or not, and to all proceedings relating thereto. The Act provided for the commencement of conciliation proceedings, appointment of conciliators and assistance of suitable institution for the purpose of recommending the names of the conciliators or even appointment of the conciliators by such institution, submission of statements to the conciliator and the role of conciliator in assisting the parties in negotiating settlement of disputes between the parties.

In 1999, the Indian Parliament passed the CPC Amendment Act of 1999 inserting Sec.89 in the Code of Civil Procedure 1908, providing for reference of cases pending in the Courts to ADR which included mediation. The Amendment was brought into force with effect from 1st July, 2002.

Mandatory mediation through courts has now a legal sanction.[2] Court-Annexed Mediation and

Conciliation Centres are now established at several courts in India and the courts have started referring cases to such centres. In Court-Annexed Mediation the mediation services are provided by the court as a part and parcel of the same judicial system as against Court-Referred Mediation, wherein the court merely refers the matter to a mediator. One feature of court-annexed mediation is that the judges, lawyers and litigants become participants therein, thereby giving them a feeling that negotiated settlement is achieved by all the three actors in the justice delivery system. When a judge refers a case to the court-annexed mediation service, keeping overall supervision on the process, no one feels that the system abandons the case. The Judge refers the case to a mediator within the system. The same lawyers who appear in a case retain their briefs and continue to represent their clients before the mediators within the same set-up. The litigants are given an opportunity to play their own participatory role in the resolution of disputes. This also creates public acceptance for the process as the same time-tested court system, which has acquired public confidence because of integrity and impartiality, retains its control and provides an additional service. In court-annexed mediation, the court is the central institution for resolution of disputes. Where ADR procedures are overseen by the court, at least in those cases which are referred through courts, the effort of dispensing justice can become well-coordinated.[3]

In his famous book[4] Christopher W. Moore describes mediation in the following words:

 

“Mediation is essentially a negotiation that includes a third party who is knowledgeable in effective negotiation procedures and can help people in conflict to co-ordinate their activities and to be more effective in their bargaining. Mediation is an extension of the negotiation process in that it involves extending the bargaining into a new format and using a mediator who contributes new variables and dynamics to the interaction of the disputants.”

Thus, mediation is necessarily a process of negotiation by which the participant together with the assistance of a neutral person attempts to resolve the dispute. The third party mediator makes effort by negotiations with the participants to systematically identify and isolate disputed issues in order to develop options consider alternatives and to reach a congenital agreement that will accommodate their needs and rights. The third party mediator lacks authority to decide but only facilitate to create congenial environment to enable the party to resolve their dispute amicably themselves.[5]

In order to accord statutory recognition to ADR including mediation, the Law Commission in its 129th Report made recommendation for making it obligatory for the Court to refer the dispute to ADR including mediation for settlement. The stage chosen for making reference is when the pleadings have been filed and after the issues are framed. The reference of dispute can be in any of the five alternative methods, which have now been incorporated in Section 89 CPC. Taking notice of various lacunas in the drafting of Section 89, Hon’ble Mr. Justice R.V. Raveendran has observed[6]

Section 89 apparently was drafted in a hurry. It is not very happily worded. It is not very practical. But the object behind Section 89 is sound………”

 

The mix-up of meaning of the terms “judicial settlement” and “mediation” in Section 89 is apparently due to a clerical or typographical error in drafting, resulting in the two words being interchanged in clauses (c) and (d) of Section 89(2). If the word “mediation” in clause (d) and the words “judicial settlement” in clause (c) are interchanged, the said clauses click and make perfect sense.[7]

 

It is felt that there is tremendous need to developindigenous model for India in the current scenario that is suitable for our social and economic conditions. Our culture differs from western culture, where ‘Mediation’ has been developed as a modern concept, both in structuring mutual relationships, commercial relationships and in resolution of disputes. In oriental cultures, personal, social and commercial relationships are structured by a philosophical approach where good faith and face saving play a major role with an emphasis on social consensus, moral persuasion and harmonious relations. This is as opposed to western cultures which emphasize precision in documentation and application of principled legality in structuring relationships. Western cultures also usually adopt a more adversarial approach when it comes to resolving disputes. Naturally an indigenous recipe has to be prepared. Such an indigenous recipe has to be made a part of training so as to evolve a mediation process which is befitting to our requirements.[8]

The present judicial cadre is unable to deal with huge number of cases subject to mediation and if the mediation is to be conducted by the trained mediator-cum-judicial officers and Advocates then there has to be a separate cadre of Mediation Judges and Advocates who shall conduct mediation five days a week and they should not be given any judicial work. This will surely help the judicial system to reduce the backlog of cases pending accept those criminal in nature.

 In the light of the above observation it is pertinent to cite that mediation is extremely relevant to the justice delivery in India since it not only brings an end to the litigation pending before the Courts but it also has cascading effects of bringing an end to animosity between the parties and making cordial relationships among the members of the Society.

Author
Sanskriti Singh
BBA-LLB (H)
UPES, Dehradun

[1] (2007) 4 SCC J-23

[2] Section 89 in the Code of Civil Procedure, 1908

[3] Mediation Training Manual of India, Mediation and Conciliation Project Committee, Supreme Court of India

[4] Christopher W. Moore, ‘The Mediation Process: Practical Strategies for Resolving Conflict’

[5] A Lawyer’s Introduction to Mediation by Lim Lei Theng & Joel Lee, (1997) 9 SAcLJ 100

[6] Section 89 CPC: Need For An Urgent Relook, by Justice R.V. Raveendran, (2007) 4 SCC J-23

[7] Ibid

[8] Mediation in the Singapore Family Court by Adrian Loke, (1999) 11 SAcLJ 189

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