Mediation: A Tool For Access To Justice

“FRATERNITY assuring the dignity of the individual and the unity of the Nation”. These values are enshrined in our Preamble of the Indian Constitution and Mediation is a process which establish fraternity among people by resolving the disputes in an amicable manner. It is a form of alternative dispute resolution (ADR). The reason it is termed ‘alternative’ is that it is a dispute resolution method that is perceived to be an alternative to the traditional system of court procedures. In a Layman’s language, Mediation is a negotiation process in which neutral third party assists the disputing parties in resolving their disputes. In Legal Terms, Mediation is a method of non-binding dispute resolution involving a neutral third party who helps the disputing parties to reach a mutually agreeable solution.

Mediation is one of the most effective forms of dispute resolution throughout the world. It was originally used in labour, and consumer disputes and in international negotiations, but it has now become a formal complement to the judicial process. It is widely used in divorce, civil and commercial proceedings and even in public law disputes. The areas for undertaking mediation are ever expanding.Mediation provides a more effective, satisfactory and harmonious, and less costly way to resolve disputes. It has a wide ambit in solving these disputes and discords. It also includes commercial and civil disputes and claims for breach of obligations. It can be factual, legal or technical disputes. It can range from simple disagreements to complex and substantial technical or commercial disputes. It may arise under contracts; commercial or corporate disputes; torts and breach of duty including negligence allegation and insurance claims; consumer disputes; disagreements in business or professional relationships such as partnership, principal and agent, franchiser/franchisee and many others.

The first elaborate training for mediators was conducted in Ahmedabad in the year 2000 by American trainers sent by Institute for the Study and Development of Legal Systems (ISDLS). It was followed by a few repeated advance training workshops conducted by Institute for Arbitration Mediation Legal Education and Development (AMLEAD); a Public Charitable Trust settled by two senior lawyers of Ahmedabad. On 27th July,2002, the Chief Justice of India, formally inaugurated the Ahmedabad Mediation Centre, reportedly the first lawyer-managed mediation centre in India.[footnoteRef:6] [6: delhicourts.nic.in (Last visited on January 29th, 2020)]

Mediation is a dynamic process to resolve the settlement of disputes. Not only it is more cost friendly as compared to the evidentiary process but also is normally completed in a matter of hours through a series of one to three conferences. It may take place earlier than a trial or arbitration and also, with much less preparation. It is much more efficient than most evidentiary processes. One of the principle attractions of mediation is the speed with which parties can resolve their disputes. This process also offers a range of settlement options limited only by the creativity of the parties and the mediator. Parties can create outcomes custom designed for their particular situation. The process of Mediation, however, does not preclude the use of further, more formal dispute resolution mechanisms such as arbitration or litigation. Parties are therefore free to strive for a settlement without jeopardizing their chances in a trail, because the parties do not hand over the power to decide the disputes to someone else.

Mediation has many advantages but it has certain downfalls as well. Mediation is not a formal evidence-based procedure requiring extensive use of expert witnesses or demonstrative proof. Indeed, the process is most effectively accomplished without any introduction of evidence or witnesses, relying instead on parties to negotiate in good faith. There is also absence of due process protection for the participants. The formalised procedural and evidentiary rules of due process designed to protect parties and associated with the trail or arbitration of a lawsuit are lacking in mediation. Another concern for some parties and attorneys is the absence of an appeal process in the event that the privately negotiated agreement is later determined by one of the parties to be flawed in some way.

In Mediation, the role of mediator is pivotal. The Mediator has to possess the necessary skills to communicate with the parties and resolve the dispute in an amicable manner. Mediator must also have thorough knowledge about the case he is going to mediate as well as a fair idea about possible solutions from the best to the worst-case scenario. Mediator must also have the ability to read the psychology of the parties and he also owes a duty to explain all facets of the case to the parties, and then give them an opinion to choose the mutually agreeable and best suited solution. A mediator assists the parties to develop a solution themselves. Although mediators sometimes provide ideas, suggestions, or even formal proposals for settlement, the mediator is primarily a “process person”, helping the parties define the agenda, identify and reframe the issues, communicate more effectively, find areas of common ground, negotiate fairly, and hopefully reaching an agreement. The role of a Mediator is like a facilitator. 

India falls within the category of nations where mediation has come to stay and it has become a mediation friendly country. Settlement of disputes through reference to a distinct third party for amicable resolution of any and all dispute has been the hallmark of civilization and part of the inherent Indian spirit of peaceful dispute settlement. This traces its lineage through the earliest known customary forms of settlement through reference to panchayats to the modern day. Alternative Dispute Resolution processes have undergone enormous metamorphosis pursuant to the UNCITRAL model law and Arbitration Rules, which have subsequently been incorporated in the Arbitration Act,1940 and therefore, into the Arbitration and Conciliation Act,1996. One of such modes of ADR is through mediation. Mediation, as an aspect, while not confined to its own statutory enactment in the Indian context, like the Arbitration and Conciliation Act, is nevertheless considered to be a part of a number of statutes as one of the tools/mechanisms that can be made use of for resolving inter-se disputes. As such, therefore mediation imbibes within itself an idea of immense value which can collectively be classified into a separate rubric. The features that make mediation usable as a tool for amicable resolution include severability, flexibility, party-participation, self-reflection, preservation of on-going relationship and/ or peaceful termination of pending disputes. Furthermore, it fosters peaceful and healthier inter-personal interactions, in the long term, thereby pre-empting the cause of conflict between parties

Apart from the statutory provisions, the Supreme Court in a number of matters has upheld the provisions of mediation and general ADR processes. In Afcons Infrastructure Ltd., the Indian Supreme Court had exhaustively analysed the purport of Section-89 of the Civil Procedure Code,1908 and after looking at the broad scope of the entire ADR process, had clarified the stage at which the parties and Courts could prefer a matter to ADR, including mediation. A host of imperfections and defects in Section-89 were set out in detail and the Supreme Court in summation had suggested that the parliament was required to revisit the section and a hard look needed to be taken at the contents of aforesaid section. The 238th Report of the Law Commission was in direct response to the Afcons Infrastructure Case wherein it was observed that the concept of “Speedy Justice” has become a casualty, even though each judicial officer/judge was maintaining a high rate of disposal.

In recasting Section-89, the Law Commission of India had suggested certain deviations from the suggestions made by the Supreme Court in Afcons Infrastructure Ltd. case. One important deviation is that mediation should be separate from proceedings in Lok Adalat and it would not be appropriate to refer the settlement agreement, to be forwarded to referring court, in passing a decree as suggested by the Indian Supreme Court in the Afcons Infrastructure Ltd. Case. In the case of Salem Advocate Bar Association vs. Union of India, a hope was expressed that Section-89 could be implemented in its letter and spirit by ironing out the creases.

Mediation gets judicial recognition as a tool of the larger ADR Jurisprudence in the case of K.Srinivas Rao vs. D.A. Deepa. In para 39 of K Srinivas Rao vs. D.A. Deepa, the court said that “the idea of pre-litigation mediation is catching up. Some mediation centres have, after giving wide publicity, set up “Help Desks” at prominent places including facilitation centres at court complexes to conduct prelitigation mediation. We are informed that in Delhi Government Mediation and Conciliation Centres, and in Delhi High Court Mediation Centre, several matrimonial disputes are settled. These centres have a good success rate in pre-litigation mediation. If all mediation centres set-up pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for pre-litigation settlement, many families will be saved of hardship if, at least, some of them settled.”

Mediation can be expressly beneficial in cases of divorce and torts, where the major contention is compensation and maintenance. It also helps to further justice by allowing a private negotiation between parties without much external interference. The parties to Mediation have greater involvement in the entire process while the negotiations take place while their role in court proceedings is considerably diminished. Also, Mediation as a concept of dispute resolution, even before the dispute becomes part of the adversarial adjudicatory process, could also be of great significance. This would help reduce the immense weight of undecided cases off the courts’ backs which, after a period of time lapses, would permit the judges to hear all types of cases, providing the common man with the option of selecting any method of Dispute Resolution he may deem fit. Mediation is used in many areas but Commercial Mediation is one area, where Mediation has more success rate. Commercial Mediation, one of the methods of ADR, was introduced in 1996 when the Parliament amended Section-89 of the Civil Procedure Code.

Mediation sets the premise for negotiations that leads to solutions that can be reasonably prognosticated in terms of the court decision might have been prescribed for resolution of the dispute. It opens of new avenues of Dispute redressal and helps in developing a wider scope of operation for the legal system by not confining the parties to the court suggested remedies. The basic area of operation of a mediator allows for a higher level of freedom as compared to an arbitrator or an adjudicator giving him a lot of independence and letting him informally conduct negotiations as the role of a mediator is not to adjudicate, but to facilitate. Further, the mediator may also help to develop strategies that may help courts in providing justice diligently and efficiently.

No court can hear all the disputes for which it has been approached due to which, the courts are not able to hear the pleas of the common man, let alone provide justice to him. The process of mediation, as an alternative to the courtroom setting, is an effective method of resolving disputes which the court is not able to devote its time to. The process of mediation contends the presence of a neutral third party, who helps to negotiate and reach a settlement which satisfies both the parties to the suit, who otherwise would have been caught in an endless cycle of court dates from which the only other escape would have been withdrawing the plea. Mediation is essentially a negotiation facilitated by a neutral third party. “The Right to a speedy trail is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Indian Constitution” .The woeful reality about the situation of our legal system is that there is a high possibility that a person may not be alive to see the judgement of a suit he has filed in the court. Such is the level of pendency in courts that the judges are not able to apportion much time to a larger number of cases that may have less significance that some of greater gravity and standing. That is why the arrival of ADR in India can be the beginning of a new epoch.