Mediation By Law
By Dr.S.Saraswathi
(Former Director, ICSSR, New Delhi)
The Draft Bill on Mediation circulated by the Government for comments has come at a time when there is an urgent need to ease the tremendous pressure on courts and reduce the number of pending cases. It is one of the four Alternative Dispute Resolving (ADR) mechanisms – arbitration, conciliation, negotiation, and mediation. Unlike the other three, mediation is totally private, informal and fastestmethod of interactionamong disputants.
Democracy believes in laws and regulations and democratic governance tends to lessen the scope for arbitrary decisions. Disputes taken to courts are settled according tothe written law. However, courts are not the only places for settlement of disputes. Civil disputes are amenable to out-of-court solutions.
Mediation is universally understood as structured, interactive process where an impartial third party assists disputing parties in resolving conflicts through the use of specialisedcommunication and negotiation techniques. This third party must be acceptable to the disputants and must be impartial and neutral and not one who has decision-making power in the dispute. The disputing parties voluntarily reach a settlement with the assistance of the third party. Several countries have adopted mediation laws and have lawyers specialised in this line.
Mediationis an accepted form of ADR in the UK even before the UK Mediation Act was passed in 2017. Courts encourage and emphasise on mediation to settle disputes and may even impose fine for failure to try mediation without adequate reasons. It is largely used in commercial disputes. The litigants may resort to mediation at any stage; and if dissatisfied with its course, they can also return to court at any stage of mediation. The settlement reached and signed by the disputants, is legally binding, though it is a flexible tool and the procedure is largely unregulated.Many commercial disputes are settled by mediation in the UK.The Centre for Effective Dispute Resolution (CEDR), authorised by the Ministry of Justice, has well trained and experienced mediators to provide expert mediation services. Mediation is professionalised in the US also.
There has been so far no separate law governing mediation in India. Section 89 of the Criminal Procedure Code (1908) empowered the courts to refer any pending dispute to mediation. It has been used mostly in matrimonial disputes. Under the Industrial Disputes Act 1947, Conciliators could be appointed to mediate between contending parties. Special Marriage Act 1954, MSME Act 2006, Companies Act 2013, Commercial Courts Act 2015 and Consumer Protection Act 2019 have provisions for mediation to resolve disputes. Law Commission Report 2015 has recommended mandatory referenceof disputes for mediation by courts.
The Mediation and Conciliation Project Committee(MCPC) established by theSupreme Court in 2005 has been overseeing thefunctioning of mediation. The Draft Mediation Bill under consideration for facilitating quick disposal of disputes outside the established court systems, when passed, will fill this gap in dispute settlement by law.It is a step towards institutionalisingmediation as a method of resolving disputes conclusively.
The objective is to promote, encourage, and facilitate mediation, especially institutional mediation for resolution of disputes, toenforce domestic and international mediation agreements, provide for a body for regulation of mediation, encourage community mediation and online mediation. The bill isdesigned to make mediation agreements enforceable by law. However, the right to challenge the agreement on certain prescribed grounds by the concerned partieswill be retained as any agreement through mediation is only a consensual agreement.
Mediation settlement in a nation is valid throughout the world under Singapore Convention on Mediation which has 55 signatories, including India.
However, mediation agreement is between the concerned parties unlike Lok Adalat Awards, which are themselves decrees having enforceability like court decrees. It has to be sent to court, which can pass orders on the basis of the agreement reached. Mediation thus has twin qualities of flexibility and potentiality to become legal.
The Draft Bill seeks toprovide for mandatory pre-litigation mediation. How far it will contribute to speedy justice is only a guess work now. It contains the danger of prolonging the dispute in the process of mediation and worsening the relationship between the parties.The Bill also provides for establishment of a Mediation Council of India which will help promote expertise in this field in the legal fraternity and widen the scope for expanding the horizon of the justice system beyond law books. We have to endeavour to promote the positive aspects for which we require sincere agreement and cooperation among law makers.
Community Mediation mentioned in the Bill is said to be popular in Singapore. It offers constructive processes for resolving differences and conflicts between individuals, groups, and organisationswherein participants control the process and create their own alternatives to bitter confrontation, prolonged litigation or violence. It gives an opportunity to participants to discuss their concerns and needs.
This method is not unknown in India. It was formally launched by the CJI in January 2009 in New Delhi. The idea was to establish Community Mediation Councils (CMCs) at the grassroots level in many villages and enhance the accessibility of common people to justice as the present judicial system is beyond the reach of many litigants because of huge expense and physical inaccessibility. In many parts ofthe country, instances of people settling scores on their own by use of force because of delay and cumbersome court processes are not rare.
In this context, the Indian Institute of Arbitration and Mediation (IIAM) thought of providing an avenue to resolve disputes through IIAM Community Mediation Clinics as an inexpensive option with the motto of “resolving conflicts, promoting harmony”.
Communitymediation is no novel idea in India where panchayat courts were functioning from a very long time. Nyaya Panchayats were part of the Panchayati Raj of 1950s and 1960s, but have not survived.
In the absence of a judicial institution accessible and inexpensive, traditionalKatta Panchayats are still flourishing in many places. These have become notorious for lawless judgements and for upholding outmoded social conventions. In Tamil Nadu, the institution known as Nattamai continues in some remote villages which has earned mixed reputation as respectable local chief resolving local problems and disputes and also as an illegal power wielding force.A legally established organisation rendering speedy justice in accordance with law may help elimination of these illegal power holders associated in our mind as perpetrators of honour killingand casteism.
Kerala has Community Mediation Programme(CMP) which adopts what is labelled “nip in the bud” approach which aims to “stop the mess called litigation”. It was started by the Kerala State Legal Services and Kerala State Mediation and Conciliation Centre (KSMCC). Itis for mediation and settlement at grassroots level using volunteers sponsored by social groups and trained by KSMCC.
In international disputes mediation has been is use occasionally if parties agree. It can bring about at least temporary truce, which is also important in reducing tension between nations and lead to lasting settlements. It can replace what was known earlier as “good offices”.
The will to find a solution in the minds of disputants and mediators is necessary for the success of mediation. — INFA