Beyond The Courtroom - Mediation A Smarter Choice For Building Bridges, Not Walls
Author: LawSphereX
Category: Arbitration & ADR
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BEYOND THE COURTROOM: MEDIATION A SMARTER
CHOICE FOR BUILDING BRIDGES, NOT WALLS
Priyesh Kumar, Symbiosis Law School, Hyderabad
ABSTRACT
Contemporary dispute resolution by traditional courtroom litigation often results in adversarial relationships, thereby burdening the parties with high emotional, financial, and social costs. Mediation, on the contrary, delivers a better constructive substitute by fostering collaboration and understanding between the disputants. It is a process which rests on dialogue and mutual respect and encourages disputing parties to adopt cooperation in finding mutually beneficial outcomes for all, instead of deepening the rift between them. This paper is an attempt to address the potential benefits of mediation in building bridges between individuals and communities, avoiding any kind of possibility of hostility and mistrust, thereby also complying with the particular demands and values of the parties.
Further, the study also delves deeply into the contemporary legal developments happening from time to time and advantages and drawbacks of mediation in various types of cases, in order to develop a complete understanding of the practical implications of mediation in real life. Ultimately, it has been argued that mediation as a preferred method of conflict resolution should be embraced for offering a way forward to reconciliation, understanding, and sustainable peace. Keywords: Collaboration, Dialogue, Mutual, Cooperation and Reconciliation.
Introduction
In the rapidly growing world, disagreements and conflicts arise between the parties ranging from households to giant businesses and can even escalate into legal disputes. These are surprisingly common, affecting businesses and individuals alike. As per the official figures published in the “Rule of Law Index of the World Justice Project,” India has been ranked 79th out of 142 countries in 20231. This demonstrates the alarming state of justice in the country pertaining to a large number of matters such as housing, employment, and family issues, to consumer issues and debts. Societal factors, including economic inequality, limited access to legal resources, and prevailing societal norms, significantly contribute to the occurrence of these types of disputes. Litigation being a traditional recourse has remained as a go-to approach for the resolution of these disputes since a long time back.
However, the courtroom method comes with a lot of difficulties and restraints. One major drawback is the hefty price tag that comes along with the litigation. A lot of valuable resources and time are being drained in this process, primarily contributed by a huge amount of difference in the legal fees at distinct stages of the proceedings, and also the fact that cases can drag on for months or even years, leaving the parties to the dispute with no alternative option. Further, the adversarial nature of litigation exacerbates the situation by leaving one party the victor and the other as loser; fostering resentment and hindering any chance of future collaboration. Considering these drawbacks, it is worthwhile to explore more effective and relationship-preserving alternatives for settling legal disputes.
One such alternative is mediation, a voluntary process in which a third party assists the disputants in reaching a settlement. The mediator helps the parties communicate, identify their substantive interests, generate settlement options, and focus on finding a practical and workable solution to peacefully resolve the dispute. It is a cost-effective and useful alternative to litigation, sustaining relationships and letting parties to resolve their disputes in a timely manner. Furthermore, it is also flexible and adaptable, tailored to match the specific needs and preferences of the involved parties. Overall, a positive and constructive approach for the resolution of disputes is offered by the mediation, highlighting the benefits of building bridges and advancing positive relationships.
An Overview of Mediation and Contemporary Legal Developments The attainment of a mutual outcome of legal claims of the disputants is assisted by the process
1 World Justice Project, https://worldjusticeproject.org/rule-of-law-index/global/2023/India.
of mediation. The said process involves a mediator who acts as an impartial third party for making attempts regarding the negotiation of an agreement between the disputants. The mediator has the option to either offer suggestions or not, comment on the reasonableness or fairness of either party’s proposals or seek to balance the negotiation strengths and weaknesses of the parties2. Additionally, in many jurisdictions, no recommendations are provided to the court when parties fail to reach an agreement during mediation. The notion of present-day mediation has been borne out of the contemporary legal developments. Court driven, Statutory, Contractual, and the Institutionalised are basically the four types of mediation prevalent today.
The Law Commission in its 129th report observed that explosion of cases in urban litigation is the primary cause behind the immense amount of overcrowding in courts and pointless delays. An instance of Bombay Small Causes Court can be referred in the particular context wherein the severe backlog took the court an average duration of 7 years to dispose of a case from its institution date3. The report emphasized the necessity of considering alternatives to the current system. It suggested resolving disputes without litigation by establishing a conciliation court, where a judge would attempt to mediate a peaceful resolution. If unsuccessful, the dispute would then return to the courts4. An another Committee known as the Malimath Committee also make the same recommendation in its 1990 report, which was formed to inspect the grave concern of arrears in the courts5.
Almost a decade later, mediation in India was significantly advanced through the 2002 amendment to the Code of Civil Procedure, 1908, which introduced Section 89. The amendment played a crucial role in advancing alternative dispute resolution (ADR) methods in India, including mediation. The newly inserted provision enables the referral of a dispute by a court to an ADR forum on the existence of the elements of settlement. Three years after the incorporation of the provision, it became evident that its poor and hasty drafting was causing more issues than it solved, leading to questions about the constitutional validity of the 2002 amendment. The apex court in the case of “Salem Advocate Bar Association v. Union of India (Salem I)6” upheld the constitutionality of the amendment of
2002 and thereby constituted a committee to formulate rules on mediation and prepare a report
on the efficient managing of cases to lessen the workload of courts. The committee provided a
2 Arnold H. Rutkin, Mediation and negotiation
Alternatives to Litigation, 12 ABA 52, 52 (1990).
3 Tara Ollapally, Annapurna Sreehari and Shruthi Ramakrishnan, The Mediation Gap
Where India Stands and How Far It Must Go, 44 (2017).
4 Id.
5 Id.
6 Salem Advocate Bar Association v. Union of India, (2003) 1 SCC 49.
guideline in its published report stating the procedure of appointing cases to mediation titled the “Civil Procedure Alternative Dispute Resolution (CPADR) Rules, 2003” and also drafted the “Mediation Rules, 2003” which was later adopted by different High Courts. The establishment of the “Mediation and Conciliation Project Committee (MCPC)” in the year
2005 further solidified the recognition of mediation within the country along with the mandate
to create court-annexed pilot mediation centres, ensure the consistent application of mediation rules in these centres, and facilitate the implementation of mediation practices on a national scale7. Another significant development occurred in the ruling of “Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. 8,” wherein the court highlighted the ambiguous drafting and several uncertainties of Section 89 and thereby elucidated a procedure to be followed by the court at the time of referring disputes to an ADR forum and the same consists of the following: • Consideration of the right stage to refer a matter to mediation • Explanation of the different available modes of ADR by the court in order to enable the disputants to make a choice • If there is no mediation service available, the parties can request a judge's assistance to reach a settlement.
In addition, the Companies Act, 2013 requires the union government to establish a mediation and conciliation panel made up of professionals skilled in mediating commercial disputes. The Act also allows tribunals and the central government to refer disputes to mediation when appropriate. The Consumer Protection Bill, 2015, stipulates that consumer disputes should be mediated by the consumer disputes redressal agency at the initial stage of complaint admission. Likewise, the conflicts between the promoters and allottees are resolved amicably through dispute settlement forums, as specified under the Real Estate (Regulation and Development) Act, 2016. A Brief of Step-by-Step Procedure of Mediation
The overall process initiates with the direction of the court regarding the selection of a
7 Id. at 45.
8 Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., 2010 (8) SCC 24.
method for dispute resolution, on the consideration of suitability of different cases, as enumerated under Section 89 and Order X Rule 1A of the Code of Civil Procedure, 1908. • After the said procedure, parties are then prepared for mediation (often by applying pressure in order to encourage participation) by the referral judge, on the issuance of a detailed referral order of the same. • The process is then forwarded with the introduction of the mediator, explanation of mediation concepts, and the settlement of agenda. In case of joint sessions, understanding and communication between parties is facilitated by the mediator, followed by separate sessions to delve deeper into the dispute and explore confidential information9. • Until the achievement of a mutually acceptable solution, the generation of settlement options and negotiation is executed with the assistance of the mediator.
In the event of a successful mediation, the terms are confirmed and documented, thereby become enforceable before the court of law. Contrary to the above i. e. , in case of failure, the case is returned back to the referral court, in order to maintain the confidentiality of proceedings. Types of Cases suitable for Mediation and its Advantages and Limitations Most suits of civil nature are considered to be perfect for mediation along with some nonviolent criminal cases, such as those which involve verbal harassment. Further, other good options for mediation include claims which are devoid of clear legal issues. To understand this better, an illustration of an issue with a neighbour over an encroaching bush or the brightness of their outdoor lights, can be referred wherein there is no requirement of a lawsuit as the solution can be achieved through the mediation.
Some common cases where the mediation is widely practised include issues of divorce and child custody, disputes arising out of family members, neighbours or business partners, landowners and tenants and labour unions and management relations10. Moving ahead, the preference of mediation over filing a lawsuit can provide the following
9 Akanksha Mathur, How does the Mediation Process Work – Steps and Procedure,
https://blog. ipleaders. in/mediation-in-india-process. 10 FindLaw, https://www. findlaw. com/adr/mediation/mediation-cases-what-cases-are-eligible-formediation. html. benefits: • Confidentiality: As opposed to a lawsuit, submissions and assertions of the parties in mediation are confidential and barred from future use in a lawsuit; whereas court cases are matters of public record. • Faster resolution and lower costs: In general, a substantially less cost is incurred in mediation as compared to the counsel fees and court costs from a contested trial and also it takes years for the final disposition of a lawsuit, but the mediation can be concluded in a few hours or a few sessions. • Party centric procedure: Mediation offers the parties in dispute to be decision-makers and allows the settling of a case on reaching an acceptable agreement.
Furthermore, It is not mandatory for the parties to communicate through their lawyers as they can speak directly to each other due to being a part of the conflict-resolving process. Apart from the above-mentioned advantages, there are also certain flaws which mandate the adoption of special precautions in order to prevent the possible sufferings of the vulnerable party like the situations where there is a power imbalance between the parties which are mostly cases like spousal-abuse, or wherein one spouse is totally unaware about financial and property matters, or where side deals are offered by one party.
Additionally, factors such as limited legal guidance from the mediators due to their position of not being legal advisors, potential for unequal bargaining power such as a situation where one party has stronger negotiation skills or is more assertive, lack of precedents as established in court decisions, lack of enforceability which means that challenges are always upon the other party for enforcing the outcome of a mediation process and finally at last, lack of formal discovery implying that there is no exchange of documents or disposition of witnesses which results in the limitation of ability of the parties to gather and present evidence, thereby potentially leading to an incomplete understanding of the factual matrix.
Success Stories and Testimonials The report “Strengthening Mediation in India,” published by the “Vidhi Centre for Legal Policy” in December 2016, examined the progress of mediation referred by the courts. This study was conducted in collaboration with the Department of Justice of Union Ministry of Law and Justice, incorporating data gathered from the Bangalore Mediation Centre and the Delhi High Court Mediation and Conciliation Centre. It found that in Karnataka, the percentage of cases referred to mediation increased from 2. 79% in 2011 to 4. 83% in 2015, with a success rate of 66%. In Delhi, the percentage of mediation cases was 2. 86% in 2011 and 2. 31% in 2015, with a success rate of 56%11. Furthermore, available figures from the Kerala State Mediation and Conciliation Centre show that an abysmal success rate of 35.
42% was observed in the matters referred to mediation in the year 201612. Numerous factors can be held responsible behind the said figures which include lack of willingness on the part of litigants to mediate, lack of awareness and inadequate setup. Conclusion and the Way Forward Mediation, over the years, has evolved as a significant tool for the resolution of a dispute by direct negotiation with the opposite party. Compared to a lawsuit, it is quick, fair and inexpensive. It has altogether established itself as a different paradigm and path from traditionally rooted litigation which focuses on the past, establishing blame and liability and mainly resulting in a win-lose situation. Despite notable success, certain unique challenges have come into path of success of mediation. Till now, there is an extremely limited exposure to different stakeholders in justice delivery system.
Further, serious apprehensions regarding the future relationship between the mediation and adjudication are also being raised by advocates, judicial officers and litigants from time to time. A scepticism over the application of mediation to different nature of legal disputes apart from commercial disputes has also become a common concern nowadays. In addition to the above, issues like unavailability of adequate trained mediators and lack of proper infrastructure add to the woes of the system.
Some solutions can be implemented in order to effectively deal with the shortcomings and the same include the participation of both judicial officers and advocates as proposed mediators, stricter and systematic guidelines for the selection of mediators, high quality and international standard training of mediators along with suitability to local requirements and periodical assessment of functioning and performance of mediation centres and mediators, respectively. Furthermore, organisation of awareness camps, code of conduct for mediators, development and encouragement of online mediation and insertion of mediation as a compulsory subject in 11 Ankoosh Mehta, Durga Agarwal and Maitrayi Jain, Mediation: The Future of Dispute Resolution, SCC Online Times, https://www. scconline. com/blog/post/2020/06/25/mediation-the -future-of-dispute-resolution.
12 Id.
the curriculum of law schools will lead to the overall development and solid foundation of mediation as an alternative system of dispute resolution.