By AdminDecember 8, 2020

Mediation- The way forward

Tags: Advocate,Lawyer

Authror - Devajyoti Barman, Advocate, High Court, Calcutta ; Supreme Court of India; arbitrator and law columnist . Introduction- The importance of mediation in the wake of growing pendency of litigation India and abroad and increase of dispute in individual and commercial front when the whole world is progressively becoming a global village can best be summed in the words of a jurist ‘ an pence of mediation is worth a pound of arbitration and a ton of litigation. Mediation is also described as an attempt to rescue the lawyers and judges immersed in only thing they know .i.e. litigation . The very foundation of mediation is based upon four pillars which are neutrality, party autonomy, confidentiality and finality. The root of mediation can be traced in our country to mythical time of Ramayana when Lord Rama sent Angada to mediate with Ravana. In Mughal era also emperor Akbar was known to believe in mediation before indulging in conflict with princely states. Therefore, Mediation, a form of Alternative Dispute Resolution (ADR), can be an inexpensive, effective, and peaceful method for resolving conflict between two parties without going to trial. Mediation is a non-confrontational process that involves a neutral individual (usually an attorney or retired judge) helping the two parties come to a mutually agreed upon solution. Statutory Evolution in India - The concept of mediation and conciliation was first recognised by the Law Commission and Malimath Committee when the Civil Procedure Code was comprehensively mended first in 1999 and soon thereafter in 2002 whereby section 89 was introduced in the Code. Section 89 of CPC which is to be red with Order X Rule 1A refers to five types of ADR one is adjudicatory i.e. arbitration and remaining four are negotiatory. Those are mediation, conciliation, Judical settlement and LokAdalatSettlement . This amendment seems to be the path breaker for mediation movement in India which paved way to incorporate mediation in several statutoryadjudictry process with mandatorynature . Those are as follows- Section 12 A makes the pre litigation mediation a mandatory process in commercial disputes to be adjudicated under Commercial Courts Act. Order 32 Rule 3 OF cpc makes it obligatory for the court adjudicating matrimonial disputes to rfer the parties to mediation before the settlement of issues or at any stage thereafter. Similar provision is available in section 23 of the Hindu Marriage Act and section 9 of the Family Courts Act. As per Section 442 of the Com panies Act, 2013, read with the Companies (Mediation and Conciliation) Rules, 2016, it is obligatory to refer disputes to mediation by the National Company Law Tribunal and National Company Law Appellate Tribunal. Section 32(g) of the Real Estate (Regulation and Development) Act, 2016 envisages similar provision for amicable settlement through mediation and conciliation for an ut of court settlement of dispitesbeyween the consumer s and the developers.. The Micro, Small and Medium Enter prises (MSME) Development Act, 2006 is another example which also prescribes for conciliation process when there arises finical disputes in MSME sectors. Section 4 of Industrial Deputes Act , 1947 also provides conciliation before the dispute is referred for adjudication before the Labour Court/ Central Government Industrial Tribunal. The newly promulgated Consumer Protection Act, 2019 which is put in force , by Section 37-38 and Chapter V, provide for disputes to be first referred to mediation and the procedure to be followed as per Section 74(3) of the Act read with Section 101(2)(zf) and Section 102(2)(p) of the Act for out of court settlement. Under the previous Consumer Protection Act also there was a Conciliation Cell which the partied could have availed before approaching the Consumer Forum. The Way Forward – After considering that the time is ripe for not turning away from mediation anymore , almost every state through the High Court and District Court has set up Mediation Centre in the state capital and district town to obviate the long haul of litigation. In West Bengal The State Judicial Academy under the aegis of Mediation and Conciliation Committee, High Court at Calcutta conducts Judicial Officers’ Awareness and Sensitization , Referral Judges’ Training Programme under the guidance of MCPC, Supreme Court of India. In West Bengal in the year 2100 during the five months of training programme total 800 referral judges took part in the programme. Moreover the observance of Mediation Week/Mediation Fortnight Programme under the aegis of Mediation and Conciliation Committee in every week/month in every District of West Bengal. Private mediation is also taking a root in India and many private and public funded charitable organisation is spreading the need of mediation and trains numbers of market players so when the situation become ready there would not be dearth of mediators to cater to the need of litigants. Mediation in Criminal Justice System – Restorative justice is made applicable in criminal justice system as well through mediation whereby the victim is restored in the community than punishing him. The UN Working Party on restorative Justice : Alliance of NGOs on crime prevention and criminal justice conceived the Tony Marshall definition for Restorative Justice as a process where all the stake holders in an offence collectively resolve the aftermath of the offence and its future implications. Victim Offenders Mediation is conducted through meeting done between the victim and the offender to settle the dispute amicably. It is facilitated by the trained mediators through which both the parties can express their feelings behind the commission of crime. The technique in such mediation is used as peace-making or conflict resolution process. Circle is similar to the above victim offenders mediation process but here apart from the offender and the victim, the family and community members, the government representative also remain present. Why Mediation – Mediation being a “facilitative” process – the mediator is there to help the parties find their own solution to their dispute; the mediator cannot impose a solution and is not there to judge the case or decide the merits of the parties’ arguments. However, if the individual parties have been open with the mediator about their position and what they want (or don’t want) from the case, then the mediator may be able to identify some common ground between the parties upon which an agreement can be built.Therefore, Mediation is becoming an increasingly popular route to take when solving disputes. In many cases, it is even considered as the first step of the court process as it is becoming more and more integrated into proceedings. The reason for its popularity stems from the fact it is designed to settle disagreements amicably without the need of going to court. This saves all parties both time and money.In short it is preferred because – Mediation is an extremely quick process Even though there are normally no lawyers present at mediation, the agreement between the parties involved is legally binding in most judicial systems With mediation, anything can be mediated. Advantages- Expedtitous: As the amount of time necessary for the parties and therefore the Mediator to organize for the mediation is significantly way less as that needed for trial or arbitration, a mediation of dispute can occur relatively early. Moreover, once mediation begins, the Mediator can consider those issues he or she perceives as important to bring the parties to agreement; time consuming evidence are often avoided, thereby making finest use of the parties' time and resources. Even if the whole evidence gathering has already occurred, it almost invariably takes less time to mediate a dispute than to undertake it during a court. Not rigid: There exists no set formula for mediation. Different Mediators employ different styles. Procedures are often modified to satisfy the requirements of a specific case. Mediation can occur even during trial or before any formal legal proceedings begin. Cost effective: Because mediation generally requires less preparation, is very less formal than trial or arbitration, and may occur at an early stage of the dispute, it's always less costly than other sorts of dispute resolution. Conciliatory: Parties can save and sometimes rebuild their relationship like during a family dispute or commercial dispute. Convenient: The parties can control the time, location, and duration of the proceedings to large extent. Scheduling isn't subject to the convenience of courts. Creative: Resolutions that aren't possible through arbitration or judicial determination could also be achieved. A fine Mediator makes the parties recognize solutions that might not be apparent – and not available - during the normal dispute resolution process. The limit on creative solutions is about only by the variability of disputes a Mediator may encounter. Private and Confidential: what's said during mediation are often kept confidential. Parties wishing to avoid the glare of publicity can use mediation to stay their disputes low-key and personal. Statements are often made to the Mediator that can't be used for any purpose aside from helping the Mediator in understanding a resolution to the dispute. Confidentiality encourages candour, and candour is more likely to end in resolution. Control: The parties control the result of the mediation and either party has the advantage of terminating the mediation, if it's felt that it's not within the interest of the said party. Personal Touch: During mediation, there's party to party direct communication.At least the parties have the realisation of being heard by the Mediators if the parties or either of them is being represented by an advocate. Disadvantages of mediation: Since the decision is at the discretion of the parties, there is the possibility that a settlement between the parties may not arise. It lacks the support of any judicial authority in its conduct. The absence of formality- Mediation proceedings are lacking in any procedural formality since they are not based on any legal principle. The truth of an issue may not be revealed. Conclusion – Irrespective of may drawbacks which one may be able to point out it is the process selection is by the parties; the parties control the scheduling, and the mediation can be scheduled before a case is filed or at any time after filing. The participants are the parties, the mediator, and depending on the mediation, the parties’ attorneys. It occurs in a private setting and it’s informal with each party having an opportunity to discuss his or her perception of the dispute, his or her feelings, interests, and proposed solutions. It’s confidential and preserves the privacy of the parties’ records and documents. The outcome allows the parties to control the dispute outcome and encourages creative solutions. The outcome can also result in the immediate resolution of the dispute if the parties agree based on the parties’ interests and needs. It eliminates all uncertainties as to outcome. The agreement may be based on inadequate information; agreement is enforceable as a contract, and its promises will most likely be performed because they meet some of the parties’ needs and interests. If the parties are unable to agree, there will be no agreement and the dispute will continue.