Alternative Dispute Resolution (ADR) provides an alternate option to settle disputes, other than traditional mechanisms like courts. One of the forms of ADR mechanism is Mediation, where a neutral third party called mediator, endeavors two parties to settle a dispute.
Mediation is a non-binding process, where a neutral third party called Mediator assists disputed parties to try to reach a settlement agreement, which is acceptable to all the parties involved. The process is voluntary, consented, and informal and the resolution’s outcome would be reached by the parties together.
We can find mediation mentioned in Vedic times, used in Ramayana, Mahabharata, and Buddhism. It is relevant at present due to the unprecedented docket explosion, as about 100 million are waiting for Justice, while 30 million cases are pending in the courts.
MEDIATION was defined as-
Settlement by ‘Mediation’ means the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit by the application of the provisions of the Mediation Rules, 2003 in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing1 that it is the parties own responsibility for making decisions which affect them.2
The process of Mediation is a step-by-step process, which includes Introduction, Understanding the problem, deeply understands the interests and needs of the parties, defining the Problem, Creating and Evaluation options to try to settle the dispute.
EMERGENCE OF MEDIATION
Supreme Court in 1996 invited the USA to participate in a national Assessment of backlog in civil cases under the leadership of Justice A.H. Ahmadi, which realization of the formation of ADR in India.
Although the procedural reforms suggested were incorporated, they lacked implementation. So Justice M. Jagannadha Rao’s committee was constituted. Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005), 3 where the importance of reference of court matters for mediation, conciliation, and arbitration was held, was based on the report submitted by this committee. The committee formulated the Civil Procedure ADR Rules and Mediation Rules, 2003 for providing guidelines for conducting mediation proceedings.
Some of Mediation institutions in India are Mediation Legal Education and Development (AMLEAD), Ahmedabad Mediation Centre, The Chennai Mediation Centre, Delhi High Court Mediation and Conciliation Centre and Institute for the Study and Development of Legal Systems (ISDLS).
STATUTORY PROVISIONS RELATING TO MEDIATION
The Code of Civil Procedure, 1908
Code of Civil Procedure (Amendment) Act, 1999, amended section 89 of the CPC whereby mediation was envisaged as one of the modes of settlement of disputes on the recommendations of the Law Commission of India and also the Justice Malimath Committee.
Order X Rules 1A, 1B, and 1C were introduced in 1999 and provides that the court shall direct the parties to choose for either mode of settlement in Section 89.
Order XXIII deals with a compromise suit and declares that such settlement will be recorded and a decree will be passed.
Order XXXIIA states that the court will assist parties to arrive at a settlement in each suit regarding family matters.
Order XXVII and XXXIIA suggest that the court will assist parties to arrive at a settlement in every suit involving a dispute with the government or dispute regarding family matters respectively.
THE ARBITRATION AND CONCILIATION ACT, 1996
Part III of the Act deals with conciliation that uses aspects of mediation. Section 74 confers upon the settlement agreement the status and effect of an arbitral award which is enforceable as a decree.
The Hindu Marriage Act, 1955, and also The Special Marriage Act, 1954 provide that before the proceedings for any relief the court will endeavor to bring about reconciliation.
The Family Courts Act, 1984 in its preamble itself talks concerning the settlement.
In B.S. Krishnamurthy v. B.S. Nagaraj (2010),4 the Supreme Court speaking through Justice Markandey Katju emphasized the need for lawyers to advise their clients to try mediation, especially where family relationships are involved.
Commercial Courts Act 2015
Under this Act, the parties have to go for a mandatory pre-institution mediation before instituting the suit.
CASES SUITABLE FOR MEDIATION
The Supreme court in Afcons Infrastructure Ltd v. Cherian Varkey Construction
Co. (P) Ltd5 laid out a list of cases that can be mediated. They can be Cases relating to Trade, commerce, and contract; Specific performance, Tortious liability, Consumer disputes and disputes arising between Suppliers and customers, Bankers and customers, Developers/builders and customers, Landlords and tenants, Licensor and licensee, Insurer and insured.6
Cases arising from strained or soured relationships, which have to be continued despite differences between them like Disputes relating to matrimonial causes, partition/division among family members, a partnership among partners, and Disputes between neighbors, employers, and employees, among members of societies/associations, can also be mediated.
The Supreme Court has also provided an “excluded category” where there is no need to refer a matter to an ADR process like Representative suits, Disputes relation to election to public offices, Suits for grant of probate or letters of administration, cases involving fraud, fabrication of documents, forgery, impersonation, coercion, etc., claims against minors, mentally challenged and suits for declaration of title against the government, cases involving the prosecution of criminal offenses and constitutional matters.
ROLE OF A MEDIATOR
Mediator has to make the parties understand that they will be solely responsible for the settlement, and he just proposes options for settlement but not imposing, by assisting the parties of the dispute to communicate, identifying the deferential perspective, and finding common ground between the parties.7
The role of the mediator is just limited to the facilitation of the proceedings and he has to make the parties understand at the beginning itself, that there is no warranty that these proceedings will end with a settlement agreement.8
The Mediator can use some techniques for effective communication between the parties during the proceedings like establishing tone, Active listening and changing the Messenger, etc.
APPOINTMENT OF MEDIATOR
The procedure for the appointment of the meditator is that parties can mutually decide upon the sole mediator. Any person can be appointed as a mediator as long as he doesn’t suffer from disqualifications prescribed under Rule 5 of Civil Procedure Mediation rules, 2003. Each party can nominate a person if they cannot agree on a sole mediator. Then those nominees will elect a sole mediator and if that can’t be done, a sole mediator will be appointed by the court.9
CONFLICT OF INTEREST
The Mediator has to disclose any circumstances that can raise doubts upon neutrality or independence towards the dispute, if the parties approach him for his potential appointment and if any such circumstance arises, after the appointment, then he has to inform the parties without any delay.10
APPLICABILITY OF PROCEDURAL LAWS
Mediation has its flexibility because the mediator isn’t bound to procedural laws like the Indian Evidence Act, 1872 and Code of Civil Procedure, 1908. He has to conduct the proceedings by following the principles of natural justice.11
PROCEDURE OF MEDIATION
The parties have an option to decide upon the procedure for the conduct of the mediation proceedings but if they don’t decide upon any, the mediator will follow the procedure where he fixes the time and venue for the sessions in consonance with the parties.
The parties have to present each of their Memorandums setting forth the issues and all the other information like a copy of pleadings or documents that are required by the mediator to understand their dispute.12
STEPS IN MEDIATION PROCESS
The process is of two phases, First phase is referral by a court when the judge sees that there is a chance for reconciliation between the parties in any stage of the trial if it’s a court-referred mediation or parties choosing to go by mediation if its private mediation. The second phase is the initiation of the Mediation process, which is listed out below:
STEP 1: Introduction
The mediator introduces himself and asks the parties to introduce themselves; he makes them aware of his qualifications and neutrality to the dispute. He establishes his control over the process and sets the tone of mediation and encourages the parties to arrive at a settlement agreement cordially.
STEP 2: Opening Statements
A mediator will explain to the parties the concepts, processes, and stages of mediation, the role of the mediator, advocates, and parties, and the advantages and ground rules of mediation and clarifies if any parties have doubts regarding the process. The parties articulate their positions, enabling the other party to understand what they want13. And he also tries to present the parties with different perspectives after reassertion of their dispute.
STEP 3: Setting the Agenda
The mediator should set an agenda for parties to have clarity and no vagueness on their mediation proceedings. He may mention the issues to be negotiated and discussed between the parties in their sessions.
STEP 4: Joint Session
The joint sessions provide the parties an opportunity of understanding each other’s perspectives on the dispute and also to gather information, where the mediator asks questions and encourages communication. The mediator sees that he understand the case by ensuring that each party will get a chance to present their case by their counsel and statement of their legal issues.
STEP 5: Separate Sessions
Separate sessions help the mediator understand the dispute thoroughly. These sessions allow parties to share confidential information with a mediator that they don’t want to disclose to other parties. The mediator can understand the individual reasons, differential priorities, and common interests which help to find a mutually acceptable solution in the best interests of the parties after understanding the strengths and weaknesses of their cases.
STEP 6: Reaching a Settlement
The parties can negotiate until they reach a mutually accepted solution and the mediator presents the parties with his options for solutions after making parties understand the reality of their situation. If at the end of the proceedings, the parties fail to reach a settlement, and then the case is sent back to referral court if it’s a court-referred mediation.
STEP 7: Closing
If the parties reach a settlement, they write down their terms and sign their settlement agreement, after the mediator confirms the terms with the parties orally. The settlement agreement is binding and is enforceable as a decree of the court as the agreement is submitted to the referral court’s judge, and he passes that as a decree. And if no settlement has been reached between the parties, the mediator has to return the case to the referral court, in case of court-referred mediation and the parties cannot use any information revealed by the other party in the mediation proceedings as evidence in the trial afterward. The proceedings of the mediation are kept confidential and cannot be revealed even to the court.14
Although the mediation provides for flexibility, cost-effective, direct involvement of the parties in the proceedings, confidentiality and the relationships between the parties is likely to be continued which is beneficial in the cases of disputes between family, neighbors, etc. but mediation suffers from defects like the process is non-binding (except when the court passes the settlement agreement as a decree in court-refereed/annexed mediation), and if the parties refuse to negotiate or reach a mutually-acceptable solution.
One of the challenges in our Indian society is people are distrustful towards private proceedings but Court-annexed Mediation is making them see the advantages available, encouraging them to settle their disputes like Family Matters, Matrimonial Matters through Mediation.
The non-binding nature of mediation also makes people not choose mediation, mainly in the case of private mediation. The Supreme Court has formed a committee to draft a mediation law, let’s hope we see a Mediation law to make the process binding and the Supreme Court also advised to make the pre-trial mediation mandatory, to tackle the docket explosion when the matters can be easily resolved in mediation before the trial of a suit.
2. Rule 4 of the Civil Procedure - Alternate Dispute Resolution Rules, 2003 (ADR Rules)
3. (2005) 6 SCC 344
4. S.L.P. Civil) No(s).2896 OF 2010
5. (2010) 8 SCC 24
7. Rule 16 of Civil Procedure Mediation Rules, 2003
8. Rule 17 of Civil Procedure Mediation Rules, 2003
9. Rule 2 of civil procedure Mediation Rules, 2003
10. Rule 8 of civil procedure Mediation Rules, 2003
11. Rule 12 of civil procedure Mediation Rules, 2003
12. Rule 11 of civil procedure Mediation Rules, 2003
VL Meghana Gattupalli
Icfai Law School, IFHE, Hyderabad