Challenges to Mediation in India
Sep. 11, 2020 • Madri Chandak
Profile of the Author: Jahanvi Bhandari is a 3rd year Law Student pursuing B.B.A LLB from MMU, Mullana. The fields of social issues, environmental issues and constitutional topics hold her keen interest.
Introduction
India is a diverse country with an estimated population of 138.04 crores. With such a huge population, the amount of pending cases is over 43.55 lakh across the High Court and 58,699 across the Supreme Court. [1] Due to the inflow of a large number of cases on a daily basis the courts are overweighed by it and there are a large number of cases needed to be taken care of which is resulting in falling belief of people on the ability of our judicial system to provide justice. Thus to fasten the process of settling the matters and providing justice, the introduction of mediation was important in our country.
As quoted by Abraham Lincoln,” Discourage litigation. Persuade your neighbours to compromise whenever you can. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.” [2]
Mediation is a process of dispute resolution in which one or more impartial third parties is engaged to resolve a conflict or dispute with the consent of the parties and this person assists them in negotiating a consensual and informal agreement. [3] Mediation allows parities to get speedy justice and solve the dispute mutually.
Basic Stages in a Mediation Process
- Introduction and Opening Statement;
- Joint Session;
- Caucus or Separate Session and
- Closing [4]
Some statutes that provide for Mediation as a mode for settlement
- Section 89 read with Order X Rule 1A of the Code of Civil Procedure, 1908
- Order XXXIIA of CPC
- Legal Services Authority Ac, 1987 read with Section 89 of CPC
- Section 442 of the Companies Act, 2013
- Section 14(2) of the Hindu Marriage Act, 1955 and Section 29(2) of the Special Marriage Act, 1954
- Section 32(g) of the Real Estate (Regulation and Development) Act,2016
- Mediation and Conciliation Rules, 2004
- The Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018.
- Section 4 of the Industrial Disputes Act, 1947
The Mediation and Conciliation Project Committee (MCPC) was established by the Supreme Court in April 2005 to oversee the effective implementation of mediation. [5] Despite having the above stated statutory recognition, mediation has not been able to achieve great success in India. There is no data to show the status of mediation cases referred, settlements and effective implementation. The basic idea behind introducing the MCPC was to give speedy justice and avoid the delayed justice due to the large amount of cases pending. But to implement it we need a proper legal framework that will create more awareness in people and execute it effectively.
Important developments in the field of Mediation
- The 129th Law Commission of India Report recommends courts to refer disputes for mediation compulsory. [6]
- In the landmark case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd [7], the Supreme Court observed that all cases relating to trade, commerce, contracts, consumer disputes and even tortuous liability could normally be mediated.
- The 2018 amendment to the Commercial Courts Act 2015 (Section 12A), made it mandatory for parties to exhaust the remedy of pre-institution mediation under the Act before instituting a suit. [8]
- In the matter of MR Krishna Murthi v. New India Assurance Co. Ltd. [9], the Supreme Court asked the government to consider the feasibility of enacting an Indian Mediation Act to take care of various aspects of mediation in general.
- As regards international disputes, India is a signatory to the United Nations Convention on Mediation (the Singapore Convention), which gives mediation settlements the force of law. [10]
What more can be done?
- The most important thing to promote Mediation among the masses is to create awareness among the masses at the Grass-root level.
- More number of mediators needs to be recruited.
- The Government should invest in good Infrastructure for the Mediation Centers.
- A better legal Framework to execute it should be introduced.
- A proper record of all the cases referred, settled and successfully implemented should be maintained.
- Procedural training should be provided in the Law Schools for taking up Mediation as a profession.
Conclusion
There is a very popular saying which reads as “Justice delayed is justice denied.” The courts are burdened by the number of cases that are pending at the moment, and the people are getting delayed justice-making them lose their hope in the judiciary. So to keep up the integrity and faith of the people on the judicial system, the concept of Mediation was introduced. Though it has been implemented there is still a need for a better structure and framework for its better functioning. Mediation could get great success in the near future as it is a potential way for people to get justice timely and mutually.
Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.
References
[1] The Economic Times.
[2] https://www.brainyquote.com/quotes/abraham_lincoln_132544
[7] https://www.indiankanoon.org/doc/1875345/