Mediation Main.docx

Mediation: Reconciliatory Dispute Resolution Mechanism ABSTRACT The purpose of writing this paper is to study comprehensively the emerging need of mediation as an alternative method to solve dispute and point out its various potential in the times when plethora of cases are pending in the honorable courts in India, over-burdening the judicial system in our country and categorizing the need of mediation as a effective, fast, uncomplicated and less time consuming justice delivery system, which tends to focus on the amicable settlement between both the parties keeping in mind of their loss and requirements as to the dispute in question. Mediation, the role of a third party used for negotiation or direct discussion between the parties to resolve the disputes those who are exploring a satisfactory result for both the parties. Mediator is a person who is in the middle of two opposite parties determining what is wrong and what is right. Its fundamental point is on the interactional association of intervention, the idea of impartiality, middle people's methods is to develop a particular type of intuitiveness, disputants' commitment to molding intercession talk, the issue of contention and sensibility in intervention and the possibility of intercession talk as a social accomplishment. Mediation includes an unbiased individual working with the gatherings towards a shared objective, a satisfactory agreement that settles the conflict holistically. This paper analyzes elective ways to deal with compromise by building up a hypothetical structure that relates debate determination practice to philosophical presumptions about specialist and learning. Towards the finish of this proposal I would like to principally communicate my influence about the advantages of the mediation organization. In the meantime, it is important to guarantee better conditions for improvement of this strategy of dispute resolution.

Need of Alternative Dispute Resolution (ADR) in India As we can see in India the no. of cases filed in the courts has shown a tremendous increase in recent years and the result is delay and pendency underlining the need for alternative dispute resolution. Judicial officers have to realize that they are inheriting a legacy of huge indebtness or dues. The pendency of cases is increasing day by day because there are not effective disposal methods. According to survey, there are more than 3 crores cases pending in the courts in which

approximately 95 lakh are civil cases and the rest are criminal cases. And more than 45 lakh cases can be solved out through ADR process.1 Therefore, to solve the cases judicial officers have to look at the problem very carefully and according to that adopt different alternative methods of dispute resolution.2 Our justice delivery system is bursting at the seams and may collapse unless immediate remedial measures are adopted not only by the judiciary but also by the legislature and the executive. It has been said by the Lord Devlin: “if our business methods were as antiquated as our legal system, we would have become a bankrupt nation long back.” That means legal system in INDIA is very slow and out dated. It should keeps on changing according to the time and according to the society and needs of the people. Therefore we should adopt new methods and ideas like Alternative dispute resolution method to solve the pending cases in courts and give new direction to Legal system in India. ADR was at one point of time considered to be a voluntary act on the part of the parties which has obtained statutory recognition in terms of Code of Civil Procedure Amendment Act 1999, Arbitration and Conciliation Act, 1996 Legal Services Authority Act, 1987 and legal services authority amendment act, 2002.

What is mediation? The term ‘mediation’ is defined as a confidential facilitated negotiation, substantially controlled by parties, procedurally controlled by neutral third parties but with no authority to impose an outcome.3 Mediation has likewise been characterized as a private, intentional and casual process where a party’s chosen unbiased individual helps disputants to come to a commonly worthy understanding. During mediation there is a wide chance to introduce confirmation and arguments and to investigate the premiums of the parties. The middle person isn't enabled to render a choice. Mediation is a flexible ADR process that can be triggered by court, contract, or party choice or by private mediation.4

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Legal information management and briefing system http://mediationbhc.gov.in/pdf/adr.pdf 3 Redfern & Hunter, Law and Practice of International Commercial Arbitration, 2nd ed., London, 1991, at 30-31. 4 GARVEY & CRAVER, supra note 1, at 127 2

As opposed to having two gatherings on restricting sides, with a mediator in the center figuring out who is 'wrong' and who is 'right', mediation includes an unbiased individual working with the gatherings towards a shared objective, an acceptable assertion that settles the contention comprehensively. It is totally unconcerned with 'right' and 'off-base'. It takes after that the middle person, a long way from figuring out who is correct or wrong, tackles the energy of training to enable a gathering to comprehend itself, its needs, thought processes and circumstance, and in addition those of the other party. Mediation is utilized to: 

Express emotions.

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Reduce antagonistic vibe and build up successful correspondence

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Assist individuals to see each other's needs and concern

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Ask questions which uncover the genuine interests of each side

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Raise and clear up issues ignored or deficiently secured

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Assist individuals to create and convey new thoughts and new ideas.

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Help reframe proposition in more agreeable terms and foresee future needs

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Moderate unreasonable terms

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Test responsiveness to new proposition

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Help create understandings that take care of current issues, protect connections.

Classification of Mediation Court – Referred Mediation– It applies to cases pending in Courts and which the Court would refer for mediation under Section 89 of the Code of Civil Procedure, 1908. And the other type is Private Mediation – In private mediation, qualified mediators offer their services on a private, fee-for-service basis to the Court, to members of the public, to members of the commercial sector and also to the governmental sector to resolve disputes through mediation. Private mediation can be used in connection with disputes pending in Court and pre-litigation disputes.5

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https://blog.ipleaders.in/indian-should-know-about-mediation/

This has also been called “Mini-trial”6 , “Executive Tribunal”7 and “Formalized Settlement Conference”8.

There is difference between ARBITRATION, CONCILIATION and MEDIATION Under our law and the UNCITRAL model, the part of the mediator isn't master dynamic and is to some degree not as much as the part of a 'conciliator'. We have seen that under Part III of the Arbitration and Conciliation Act, the 'Conciliator's forces are bigger than those of a 'mediator' as he can recommend recommendations for settlement. Henceforth the above importance of the part of 'mediator' in India is very clear and can be acknowledged, in connection to sec. 89 of the Code of Civil Procedure too. The distinction lies in the way that the 'conciliator' can influence recommendations for settlement, 'to figure' or 'reformulate' the terms of a conceivable settlement while an 'mediator' would not do as such but rather would only encourage a settlement between the gatherings. It is there stated that conciliation “is a process in which the Conciliator plays a proactive role to bring about a settlement” and mediator is “a more passive process”.9 Salem Bar Association (II) case – mediation is court annexed mediation; while conciliation is as conducted under Part III of the Arbitration and Conciliation Act, 1996. Whereas arbitration is a quasi judicial adjudicatory process where arbitrators appointed by the court or by the parties decide the dispute between the parties whereas mediation is a negotiation process and not an adjudicatory process. Arbitration procedure and decision are governed, restricted and controlled by the provisions of the Arbitration & Conciliation Act 1996. In mediation procedure and settlement are not controlled, restricted or governed by statutory provisions thereby allowing freedom and flexibility.10

Legal acceptance of mediation in india 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” 6

USA Centre for Effective Dispute Resolution (CEDR), London 8 Philip Naughton, QC 9 Brown quotes (at p 127) the 1997 Handbook of the City Disputes Panel, UK 10 http://mediationbhc.gov.in/PDF/concept_and_process.pdf 7

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 influenced progress by authorizing 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 to empower the settlement of disputes by way of negotiations, arbitration and conciliation. In India, mediation has been prevalent in informal avatars, but its formal integration with the judicial system has been challenging. The Law Commission of India had recommended mediation as an alternative in 1988. 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. Since the inception of the economic liberalization policies in India and the acceptance of law reforms the world over, the legal opinion leaders have concluded that mediation should be a critical part of the solution to the profound problem of arrears of cases in the civil courts. Mandatory mediation through courts has now a legal sanction. Court-Annexed Mediation and Conciliation Centers are now established at several courts in India and the courts have started referring cases to such centers.

PRIVATE MEDIATION If the parties to a dispute opt for mediation de hors a court reference, it is called a private mediation. It follows as a logical corollary that pre-litigation mediation is also a variety of private litigation, because, pre-litigation mediation is when the parties opt for mediation before litigation is launched. In other words, a private mediation (including pre-litigation mediation) is one in which the mediator is not appointed by the court.11

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https://indianmediationlaw.wordpress.com/2017/05/13/are-private-mediations-and-mediations-arising-in-anarbitration-faced-with-a-legal-vacuum-part-4/

It is clear that any private mediation is outside the extent of Section 89 of The Code of Civil Procedure (CPC), for the straightforward reason that the mediator isn't selected by the court. It takes after as a legitimate end product that Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003 (ADR Rules), Civil Procedure Mediation Rules (Mediation Rules), and the manuals of system for ADR and The Legal Services Authorities Act, 1987 (LSA), don't make a difference to private mediation. There is no provision of arbitration and conciliation act in the province of private mediation providing the mediator opportunity to for things done or omitted to be done bona fide during the course of mediation. There are no provisions that can protect a mediator from being constrained to affirm with respect to the mediation procedures. The Model Civil Procedure Mediation Rules (which are the basis for the Rules adopted by the High Court’s) provide in Rule 22 that a mediator is protected from civil and criminal liability and from having to be summoned by the court to testify as regards the mediation proceedings. Similar protection is required under the ACA.”12 “Currently, the law does not protect the title ‘mediator’. Mediators operating under the court mediation scheme are regulated by rules framed under the CPC but there is no regulation of mediators outside of the court mediation scheme. There is no requirement for training or certification, code of conduct or regulation of behaviour. These aspects are essential for the success of mediation.” In Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344 (popularly referred to as Salem II) that mediation was brought into focus. With the Supreme Court’s judgment in Salem II, Model rules on mediation to be implemented by high courts across the country as well as case flow management guidelines were laid down. That judgment also led to the establishment of court-connected Mediation Centers. The Rules framed by the Supreme Court and the High Courts in pursuance of section 89 of the CPC deal with Court-annexed mediation, while Part III of the Arbitration and Conciliation Act 1996 deals with Private Mediation. In Shri Ravi Aggarwal v. Shri Anil Jagota, (EFA (OS) No. 19 of 2009), the parties had reached a settlement agreement in a private mediation. Differences arose on whether the settlement had been acted upon. One party approached Hon’ble High Court of Delhi seeking enforcement under 12

Sriram Panchu, Mediation Practice & Law The Path to Successful Dispute Resolution, Second Edition, 2015, Lexis Nexis at pages 321 & 322)

Sections 73 and 74 of 1996 Act. The court refused to do so, holding that the proceedings had not been duly commenced as conciliation under Section 62 of 1996 Act. The fact remains that Hon’ble High Court of Delhi refused to enforce a settlement agreement in a private mediation under Sections 73 and 74 of 1996 Act. The answer lies in Part III of 1996 Act, which is a complete code in respect of conciliation, which, in law, can be resorted to without a court reference i.e., it is private and it can also be resorted to at the pre-litigation stage. The parties to a dispute intend to opt for mediation in the following circumstances: De horsa court reference i.e., private mediation; Or before one sues the other i.e., pre-litigation mediation (which is a variety of private mediation); Or before they sue each other, i.e., pre-litigation mediation (which is a variety of private mediation); Afcons Infrastructure Ltd. vs. Cherian Varkey Construction Co. (P) Ltd. (2010) 8 SCC 24. In Afcons, the apex court exhaustively analysed the purport of section 89 of CPC and after discussing the broad scope of the entire ADR process clarified the stage at which the parties and courts could refer a matter to ADR, including Mediation. Section 89 of the CPC, as clarified in Afcons, requires the court to consider, for each case before it, whether it is fit for reference to ADR. Further, while the parties’ consent is required for a reference to Arbitration or Private Mediation; there is no requirement of consent of parties for the other ADR processes; the court will hear the parties and determine which is most appropriate. Notably, the Supreme Court also clarified that it is erroneous to use the terms ‘mediation’ and ‘conciliation’ synonymously, since they are two different ADR mechanisms. The court went on to give an indicative list of cases which are fit for Mediation: all cases relating to trade, commerce, contracts, corporations, property, construction, banking/financial, shipping and real estate; Matrimonial disputes, custody cases, maintenance, partition or division of family property; Disputes between neighbors, employers and employees; Cases relating to tortious liability; And consumer disputes.

In the event that private mediation is made effectively open, numerous debates won't achieve the courts. It is widely acknowledged that most civil disputes can be easily resolved by giving the disputing parties a suitable platform which allows them to settle the dispute through a trained mediator (with the assistance of their respective lawyers), rather than a long- drawn adversarial action. But what exactly will mediation through private mediation service providers (as opposed to court-annexed mediation) achieve for the business community? Most importantly speedy determination of business/business dispute including through pre litigation is critical. A collaborative approach reduces cost and more importantly improves the chances of resolution while maintaining relationship. Secondly, business community will readily opt for private mediation if the quality of mediation services rendered is superior. Pros and Cons Court based mediations are done under the auspices of the court which is totally different from private mediation. In small cases where there is no involvement of the attorneys, or in which the parties have not conducted discovery, in such cases court-related mediation is the lack of cost and also court mediation give first opportunities to the parties themselves to discuss the problem and settled it in their own way. In the event that the parties don't have lawyers, the cost of this procedure is just the restricted time it takes. To reach to the final settlement it is largely based on the action of the parties themselves, court mediation is no substitute for private mediation. The disadvantage of court mediation is that unless both parties are sufficiently motivated to settle, the mediator can do little or nothing to bring the parties together. Private mediation for the most part just happen where the parties are both persuaded to settle, however has been notable do as such through their own transactions. Because these parties are actively involved in choosing, and paying for, the mediator, any significant case that has not settled through negotiation has a much better chance of settling through private mediation than through court mediation. Mostly private mediators use evaluative approach for settlement in private mediations. These mediators push and pull the parties toward a settlement, and the good ones don’t take no for an answer – they keep looking for ways to meet the interests of the parties. There are no set rules or regulations or any binding laws except for those agreed on by the parties, always with a view to reach an acceptable solution. There is a long history of using

mediation to address labor and employment disputes.13 In both litigation and arbitration14 we have to deal with a legal system that is both slow and inefficient. In a mediation case in which A was a party’s counsel, it took precisely one hour and fifteen minutes to reach an agreement. If the parties to this conflict had sought to resolve it in an adversarial way (e.g. via the court system) the conflict would have likely taken years to resolve. There would have been pleadings to file, applications and discoveries to be made. Practices such as using underhand methods to surprise or set booby-traps, and the need to secure a technical advantage over the ‘opponent’ in order to ‘defeat’ him, no longer exist. This is because the parties approach the conflict as joint problem solvers, never as antagonists, as is the case with adjudication and other adversarial systems. There can be important barriers to effective conflict resolution: a) Tactical barriers—the things each party consciously does to ‘win’ in the conflict b) Psychological barriers or emotional blockages that must be reduced to enable parties to think out options and solutions for conflict resolution, and c) Structural or institutional barriers, those beyond the immediate control of the individual disputant, such as court rules of procedure. The essential drawback of private mediation is the cost. Since these mediations tend to take the greater part of a day to direct, the parties are paying their lawyer, and half of the go between, to participate in a procedure that won't not bring about any settlement. This is a procedure that bodes well especially for bigger cases, where the two gatherings are spoken to by guide. Both court and private mediations are useful in helping to settle civil disputes. Ultimately, which is best depends on the size of the case and the motivations of the parties.

Presently there is no legislative framework to ensure the success of private mediation. Thus, 1996 Act cannot be applied to private mediations. (i) Due to the following reasons, private mediation is presently faced with a legitimate vacuum: (a) Presently there is no regulation of mediators outside of the court mediation scheme i.e., private mediation. (b) Presently there is no necessity for preparing or affirmation in private mediation. 13

See generally M. BERNSTEIN, PRIVATE DISPUTE SETTLEMENT 315 (1968). Estimates of the average duration of litigation and arbitration vary. American Jurisprudence reports that the average arbitration takes four to five months, while litigation may take several years. 14

(c) Presently there is no set of principles in private mediation or regulation of behaviour in private mediation. (ii) For private mediation, 1996 Act as it stands now is so ill-equipped that a private mediator is not protected. (iii) For private mediation, 1996 Act as it stands now is so ill-equipped that it is user-unfriendly.

CONCLUSION Alternate Dispute Resolution means increasing access to justice without decreasing the quality of justice. In certain countries of the world where ADR has been successful to the extent that over 90 per cent of the cases are settled out of the court, there is a requirement that the parties to the suit must indicate the form of ADR which they would like to resort during the pendency of the trial of the suit. If the parties agree to arbitration, then the provisions of the Arbitration and Conciliation Act, 1996 will apply and that case will go outside the stream of the court but resorting to conciliation or judicial settlement or mediation with a view to settle the dispute would not ipso facto take the case outside the judicial system. This means that effort has to be made to bring about an amicable settlement between the parties but if conciliation or mediation or judicial settlement is not possible, despite efforts being made, the case will ultimately go to trial. It is important to promote private mediation for the benefits of the ADR process to be felt by disputants and the courts. It is therefore necessary that a comprehensive national law on mediation be legislated to cover all mediators, those in the court system and private mediators. Mediation is a valuable weapon against any delay, cost, and injustice. However, as has been highlighted in the entire paper, the society suffers from many anomalies, major reason for mediation or ADR failing to fulfill its purpose is the lack of legal knowledge amongst the people. Rather than going for Alternate means which are much cheaper and less time consuming, citizens continue to go for trial hoping to secure a larger award from the Court. I agree that there should be a harmonization of the provisions for court-annexed mediation and private mediation (in the strict sense of the term and not in the sense of conciliation). Law should provide qualification, training standards, accreditation of mediators, continued education requirements, mediation firms, and institutes for training mediators, basic and essential practice requirements

such as disclosure of conflict of interest, ethics and confidentiality, decertification, liability, and so on and so forth. India is said to be lacking a mediation culture- i.e. an attitude to settle peacefully. Potential litigants tend to be either unaware about benefits of opting for mediation or misunderstand the concept. For building a mediation culture/environment in the country, a lot will have to be done to spread awareness and increase access to private mediation services. Innovative initiatives like ODR ways (an online platform by law students of the National University of Juridical Sciences (NUJS) Kolkata for promoting mediation in the country by integrating it with technology) should help in changing the dispute resolution narrative from adversarial approach to a collaborative one. Former judge of the Supreme Court, Justice (Retd) R.V Raveendran had once eloquently said, “But, who will make mediation successful? The government is not going to do it. The lawyers will not encourage it. The litigant is not in a position to understand the benefits of mediation and conciliation. So, it is for the judges to take the lead in making litigants understand the value of mediation.” 15

Author – PRIYAL JAIN

Date- 29/05/2018

Co-Author – SHUBHAM JAIN

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See Justice R.V. Raveendran, “Mediation-Its Importance and Relevance” (2010) PL October 10).