Position of Mediation in India

 

Author: Agresh Sharma, Symbiosis Law School , Nagpur 

Position of Mediation in India

 

Introduction –

Mediation , the another way to settle disputes outside the court(Mediation and Conciliation Project Committee Supreme Court of India , [16/06/2022 - 11:35AM ] , [https://main.sci.gov.in/pdf/mediation/Brochure%20-%20MCPC.pdf] ) . The best and the effective way to settle disputes which is less time consuming and less costly as well as comfortable for layman to understand the process . Mediation is also supported more and more at this time as compare to earlier( James Kerwin , How Mediation Works When Both Parties Agree They Need Help Resolving the Dispute How does mediation work in a lawsuit or other dispute? , Program on Negotiation , Harvard Law school ,[17/06/2022 - 11:00 AM ] , https://www.pon.harvard.edu/daily/mediation/navigating-the-mediation-process/) . Honourable Supreme Court of India is also supporting the mediation process to settle disputes . There are 2 parties and 1 mediator present for the Mediation . Negotiation a sub part of the Mediation process . Mediation is not a burdened process to any of he parties they can freely disclose the whole issue with facts in process of mediation before the mediator(Mediation Process , Finra , [17/06/2022 - 12:PM ] , https://www.finra.org/arbitration-mediation/mediation-process#:~:text=Mediation%20is%20an%20informal%20and,and%20move%20close%20to%20resolution. ) . As mediation is a process which is completely based on the parties . And all the information in the Mediation process is very much confidential and there is leak of information outside the mediation process . In India , Mediation is more promoted now  a days . but in India there is no Law for Mediation and India is in very much need of Law related to Mediation . If we talk about India there are many cases which were pending and mediation is the best alternative to settle them out .

 

( An ounce mediation is worth a pound  arbitration and a ton litigation.

-        Joseph Grynbaum )

 

Mediation –

Mediation is a process of settling the disputes in a very effective and efficient manner . This process is one of the type of ADR which is Alternative Dispute resolution . It is most comfortable process for the Parties . Mediation is the process which should be done before the litigation so that Dispute can be settled before moving to the court and with some negotiations(James Kerwin , How Mediation Works When Both Parties Agree They Need Help Resolving the Dispute How does mediation work in a lawsuit or other dispute? , Program on Negotiation , Harvard Law school ,[17/06/2022 - 11:00 AM ] , https://www.pon.harvard.edu/daily/mediation/navigating-the-mediation-process/) . Yes the negotiation is a part of Mediation process for an efficient settlement . Mediation is a voluntary process for both the parties and also they were not binding over the settlement which is done in mediation , Parties can also go for Litigation or any other method of Settling Disputes .

 

How Mediation Works –

So , The Process of Mediation is a Short process to deal with settling of Disputes . And for that there should be a dispute between the parties to settle it . First thing mediation is a Voluntary initiative by both the parties(Supreme Court of California , https://www.stanct.org/voluntary-mediation , (17/06/2022 - 12:20PM )) . In Mediation process there are requirement of 2 or more parties in which dispute is arises , and a Mediator , a Neutral person who much not to be biased to any of the parties and help them to settle their disputes is much better manner . And the most important things in mediation is that Mediator just try to settle the disputes and bind parties to do the act . Mediator can suggest more and more alternative Dispute resolution so that settlement can be complete outside the court(Shashank Singh , Mediation In India: Solving Disputes Out Of Court ,Legal Services India E Journal  , [17/06/2022 - 1:15 PM] , https://www.legalserviceindia.com/legal/article-8064-mediation-in-india-solving-disputes-out-of-court.html#:~:text=Mediation%20can%20be%20defined%20as,to%20be%20filed%20in%20court.) .The Mediation is the more informal process as of court . So Here parties can disclose all the things to mediator and can also have informal way with Mediator . Also the most important thing is that all the facts which is disclosed by both the parties during mediation is very much confidential with mediator and not to be disclosed in any circumstance unless mutual consent for request made by parties(WIPO - World Intellectual Property Organisation , https://www.wipo.int/amc/en/mediation/guide/ , (17/06/2022 - 1:40 PM)) . There should be a Agreement for the Mediation which should include about the Name of the mediator and Time and Venue and this is signed by both the parties , which shows that both the parties is voluntary and mutual agree for the Mediation  Process . In the Mediation Session , it is the duty of the Mediator to give the Instruction about the direction of Session before the opening statement . Also Mediator should ensure that there should be a joint session followed by Private Session .

 

Mediation in India –

In the Year 2015 , Mediation and Conciliation Project Committee Formed by Honourable Supreme Court of India(Mediation and Conciliation Project Committee Supreme Court of India , [17/06/2022 - 11:35AM ] , [https://main.sci.gov.in/pdf/mediation/Brochure%20-%20MCPC.pdf] .) . Which gives more information about Mediation and encourages to take mediation rather than directly go for Litigation . This also talks about how mediation works extremely better in many parts of the world . Like in Bangladesh , Mediation is very help full for the poor section . In United States , Mediation is like a New Normal , Citizens of United States first go for the Alternative Dispute resolution and more specifically for Mediation because it is More efficient and effective as compare to other methods . But in Indian Citizen where afraid of going to the courts and than also just fall in the trap of Litigation and curse the Law system of India . In the Matters where the Mediation can be possible , must to be tried outside the courts and settle them peacefully .

If we look at the Indian Legal system , There are Less judges and Large Backlogs of Cases , Thinking about the Litigation there is a clear picture come before eyes is Pile up of files in the court . In India , There is 21 Judges per 1 Million population , this is given by Honourable Shri Kiren Rijiju ji , Ministry of Justice(Economics Times , https://economictimes.indiatimes.com/news/india/india-has-about-21-judges-per-million-people/articleshow/89481479.cms , (17/06/2022 - 1:50PM)) . The judges were over burden about the pending cases to clear with full honest and proper trail , but this will take a long time to resolve all this Cases with this small amount of Judicial Officers .

Indian is in need of The Law which should regulate the Mediation . Which should make Mediation process more transparent to Indian Citizens . But India is also tries to make mediation compulsory before litigation as – India is Signatory to the Singapore convention of Mediation . In Afcons International Ltd. V Cherian Varkey Construction Pvt. Ltd. , Honourable Supreme Court observed the need of Mediation all cases relating to trade, commerce, contracts, consumer disputes and even tortious liability could normally be mediated(Alternative Dispute Resolution , http://lawfaculty.du.ac.in/files/LLB/LLBCM2022/VIth%20Term_ADR%20Course-LB%20602_2022.pdf , (17/06/2022 - 3:00PM )).

For the Development of Mediation India , Government and Citizen both have to work from the Scratch , It’s duty of the Government to make a clear rule about the Mediation and Citizens have to Understand the Scope of Mediation over Litigation . It also need good infrastructure to conduct mediation session and also which make parties fell comfortable(Mediation and Conciliation Project Committee Supreme Court of India , [17/06/2022 - 11:35AM ] , [https://main.sci.gov.in/pdf/mediation/Brochure%20-%20MCPC.pdf] ) . A high code of Conduct should be followed in the process of the Mediation . There were many Mediation drive followed by Mediation and Conciliation Project Committee Supreme Court of India  and District court of Delhi conducted Family Court Mediation Drive which shows the successful session in the settlement of the disputes , Around 75% of the total cases were settled through this Mediation .

 

Conclusion –

The Scope of Mediation in India is very wide . And there is the need for the spreading Knowledge about the Mediation to the Laymen to settle the disputes outside the court and before entering into the litigation , Government have to make some law which is related to the Mediation , so this will make people trust on the process on Mediation . This will make the Mediator also aware about the code of conduct in Mediation session . The other countries were getting benefit from Mediation session as it will not over burdened the Court with lot of Cases which can be settle through Mediation . There is a need of the Proper framework with regulatory bodies and ethical code for Mediation in India .