Legal Perspectives On Mediation In India - Historical Relations And Evolution
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Category: Arbitration & ADR
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LEGAL PERSPECTIVES ON MEDIATION IN INDIA:
HISTORICAL RELATIONS AND EVOLUTION
Vedansh Singhal, Vivekananda Institute of Professional Studies, GGSIP University, New Delhi
ABSTRACT
In essence, there is no human being in the world who has led a life without any form of conflict. 1 When this conflict transcends, our minds usually look towards the perspective of attorneys and courts for dispute resolution, which is true. However, there are many other ways to seek dispute resolution in a lesser time and effort frame that falls under the resonant mechanisms of ADR, particularly in civil cases. 2 One such mechanism under ADR is mediation. The pervasive support for dispute resolution out of court has ensured mechanisms such as mediation are in practice. Mahatma Gandhi, Abraham Lincoln, and Nani Palkhiwala have derived satisfaction and glory in always settling disputes out of court, reconciling the parties alienated through disputes, and averting litigations.
3 Article explains the concepts like mediation, the role of a mediator, the historical significance of mediation, legal framework, and judgments, etc. Geetanjali Sethi, Mediation: Current Jurisprudence And Path Ahead, Mondaq (24 JUNE, 2020),
RESOLUTION/957898/MEDIATION--CURRENT-JURISPRUDENCE-AND-THE-PATH-AHEAD>.
Adv. Priscilla Rodrigues, Models of Alternative Dispute Resolution, Blog.IPLeaders (25 Oct, 2021), . Mediation and. Conciliation Project Committee, Supreme Court of India, Mediation Training Manual of India,
Supreme Court of India (Last Visited: Sept. 5, 2024, 10:20
PM),
.
Introduction Mediation has always formed the core of ADR and has traditionally applied to put an end to an infinite number of disputes. The amendment had thus further empowered Section 89 of the Code of Civil Procedure, 2002, to enable stronger legal support for the same, in response to an overwhelmingly incoming caseload. The mediation of the Indian legal system had been changed by the Supreme Court's opinion in Salem Advocates Bar Association v. Union of India. Mediation is an ancient practice. It was venerated in Jewish and Islamic religious traditions and its roots are in Mesopotamia in India. It was such events that unfolded when the role of Lord Krishna to help reconcile Pandavas and Kauravas in the Indian Mahabharata epic is a clear example of mediation.
Historical Relevance of Mediation Mediation always has been part of the process of dispute resolution and is deeply ingrained in the wide spectrum of cultures and civilizations. In primitive civilization, ancient Mesopotamians used mashkim-or mediators-to resolve disputes before they got to official courts or justice. This sort of crude mediation averted unnecessary conflict and caused social order to be upheld. Religious traditions worldwide have also valued the role of mediation. 4 An example would be that of Judaism, where the Talmudic traditions normally engage the religious leaders in the act of meditation intending to dig the peaceful existence within themselves and the community. Similarly, Islam is no exception. It imposes meditation on a high level through the method called "Sulh," wherein the very art of making peace forms a part and parcel of social order.
One of the first and best examples was Lord Krishna in the epic Mahabharat, who mediated between the Pandavas and the Kauravas in search of a resolution plan. It was refused by Duryodhana and the Mahabharat war continued. It is such a case that presents the kind of challenges a mediator goes through when parties do not just give in, but at the same time, such importance brings them to the limelight whereby mediation is seen as the most significant step in dispute resolution.
4 Jakob Vinther & Thomas Todd Reynlods, The History of Mediation and Why It Is Still in Use Today,
Mediate.com (Apr. 16, 2021), .
With the arrival of the modern era, the practice of mediation was more in action as international bodies, such as the United Nations, found it important to have nice ways of dispute resolution. This was most applicable during the years immediately following World War II. Hence, mediation harks back to the salience always attached to it as the sine qua non of organized society and as the key to harmonious relations. Explanation of Mediation and the Mediator Mediation means bringing people into dispute to terms with one another for an amicable solution. Parties can acquire the service of mediation at will or because of procedures put in place by the law. The mediator will be a third party-neutral, who will bring both conflicting parties to one single platform and by reaching an amicable and mutually acceptable conclusion, broker the resolution.
A mediator can be selected upon the consensus of both parties and appointed by an attorney or court of law. Well, the primary essence of a mediator is being impartial, and they should not be seen to favor either side; there should be fairness levels. 5 Sometimes people tend to confuse mediation with conciliation, yet they are entirely different facets. In mediation, one does something in an informal and non-binding way, while in conciliation, things are done through a formal structure, and it is binding to some extent. 6 Conciliation and arbitration, as well as mediation, are some of the ADR ways.
The legislative framework on mediation This project officially began in the year 2002 when amendments were made to Section 89 of the Civil Procedure Code, 1908, which allowed for strong recommendations of transfer to alternative dispute resolution forums, to reduce the arrears of cases in the Indian court system. Therefore, this amendment marks a significant stride in change and realization in the legal landscape, coming into force, and making mediation more effective and less time-consuming as an alternative dispute resolution. JAMS Mediation Services, Mediation Defined: What is Mediation, JAMS Mediation Services (Last Visited: Sept. 6, 2024, 11:19 PM), . ICSID Rules and Regulations: Mediation, Key Differences Between Mediation and Conciliation, ICSID (Last Visited: Sept. 6, 2024, 11:23 PM), .
Further reinforced by the landmark judgment of the Supreme Court in the case of Salem Advocates Bar Association v. Union of India AIR 2005 SC 3353, where such processes as mediation went on to be highlighted as paramount, realizing that through such a process as mediation, a quicker more amicable settlement could be reached and it would also greatly reduce the load on the courts, the court stipulated that before laying a complaint, the process of mediation must be practiced as one's first option of possible dispute resolution. To a large extent, it is this judgment—under which mediation was not adopted in India as a legal procedure before approaching the regular courts and tribunals—that mediation has now come up as an actionable part of the legal process of India. Mediation: Statutory framework, and Case Laws:
1. For industrial disputes, Section 4 of the Industrial Disputes Act, 19477 requires that an
appropriate government appoint a conciliation officer.
2. Section 89 of the Civil Procedure Code, 19088 refers to ADR by the courts.9
3. Part III of Arbitration and Conciliation Act, 199610 forms the basis for conducting
conciliation proceedings in this Act. Thus, mediation is an inquisitorial process geared towards a friendly settlement between two parties who are willing to do so with mediation's facilitator role as opposed to the adjudicator's.
4. Concerning Section 442 of the Companies Act, 201311 read along with Companies
(Mediation and Conciliation) Rules 201612: This establishes a Mediation and Conciliation Panel that resolves disputes before National Company Law Tribunal and Appellate Tribunal.
5. Rule 3 of the Companies (Mediation and Conciliation rules), 201613 provides for a Panel of
Mediators or Conciliators. The Industrial Disputes Act, 1947, § 4, No.14, Acts of Parliament, 1947 (India). Civil Procedure Code, 1908, § 89, No. 5, Acts of Parliament, 1908 (India). Mediation and. Conciliation Project Committee, Supreme Court of India, Mediation Training Manual of India, Supreme Court of India (Last Visited: Sept. 5, 2024, 10:20 PM), . Arbitration and Conciliation Act, 1996, Part 3, No.26, Acts of Parliament, 1996 (India). Companies Act, 2013, § 442, No.18, Acts of Parliament, 2013 (India). Companies Act, 2013, Companies (Mediation and Conciliation) Rules 2016, No.18, Acts of Parliament,
2013 (India).
Companies Act, 2013, Companies (Mediation and Conciliation) Rules 2016, Rule 3, No.18, Acts of Parliament, 2013 (India).
6. Section 12A Commercial Courts Act14 says parties must exhaust pre-litigation mediation
before filing their claim under this Act. Mediation has to be completed within three months from the applying date and may be extended after mutual agreement by both parties another two months’ time; all settlements negotiated during mediations should be approved by them.15
7. Afcons Infrastructure v. Cherian Varkey Construction Co. Ltd. (2010)16
Brief Facts: The Cochin Port Trust engaged Afcons Infrastructure Ltd. , the appellants herein, for the construction of bridges and roadways. A sub-contract for carrying out part of the said work was given by the appellants to the first respondent, that is Cherian Varkey Construction Co. Ltd. On account of a difference that arose between the parties regarding the payment of Rs. 90,83,798. 70, the appellants were sued by the first respondent. Thereafter, additional amounts for the same claim were attempted to be recovered by another suit, in all totaling more than Rs. 2,14,59,636. 92 with interest.
The first respondent had applied to Section 89 of CPC before the trial court seeking a reference of the case to arbitration, to which the appellant had raised an objection as to the concept of ADR mechanisms and submitted that despite his objections, the trial court considered and allowed the application for arbitration. They finally approached the Supreme Court by way of appeal, because the HC confirmed them. Law in Question – Whether the court can, under the CPC Section 89, invoke the power vested and refer parties for arbitration unless it has been consented to by the parties expressly. Judgment – The challenge was rejected as SC ruled in favor of the appellants. The Supreme Court has held that it may exercise such discretion only if the party contends.
The court held that since there was no prior signed arbitration agreement between the parties, the signed arbitration order was illegal. From the judgment, it was very apparent that even if the courts may at some stage advise the use of ADR mechanisms, that does not make it necessarily a must, especially when the one party is not ready to cooperate. The Supreme Court quashed the order passed by the trial and high court, which stayed the proceedings and ordered it to refer the case to arbitration after holding that it is illegal to refer the case to arbitration Commercial Courts Act, 2015, §12A, No. 4, Acts of Parliament, 2015 (India). Justice Dr. M. K. Sharma et al, Delhi Mediation Centre: Articles, Delhi District Courts (Last Visited: Sept. 6, 2024, 11:39
PM),
.
16 Afcons Infrastructure v. Cherian Varkey Construction Co. Ltd. (2010)8 SCC 24 (India).
even against the consent of the parties. Further, the court instructed the trial court to consider methods of non-adjudicatory ADR. By this judgment, the confusion regarding the procedural part of Section 89 CPC is over.
8. Salem Advocate Bar Association v Union of India17
Summary of Facts: The constitutional validity of the amended Acts of 1999 and 2002 to the CPC fell for consideration before the Supreme Court. The Amendments that were made to various provisions of the said CPC regarding Evidence by way of affidavit, Limitation for filing written statements, Execution of Decrees, Sale of attached property, Notice issues, and Alternative Dispute Resolution mechanisms. Legal Issues Presented: The main issues concerned were:
1. Constitutional validity of amendments undertaken to the code by amendment acts of 1999
and 2002.
2. The need for developing the procedures for application of the provisions of the new Section
89 of the CPC and other amendments impacted by these provisions.
Decision: A three-judge bench of the Supreme Court judges Y.K. Sabharwal, D.M. Dharmadhikari and Tarun Chatterjee upheld the constitutional validity of the amendments in the CPC on 2 August 2005. The Court has observed further that modalities for working Section
89 CPC and other provisions, as introduced by the amendments, have to be framed.
The inclusions involved explanation of the affidavits as evidence, restriction of filing of written statements, and implementation of the decrees. Amendments also handled protection in the sale of the attached property under certain circumstances, protection on issuing notices, and mechanisms of alternative dispute resolutions. Later on, a committee was set up under the chairmanship of Justice M. Jagannadha Rao to recommend the modalities of the operation of the amendments. While doing so, the Court pointed out how such rules of procedure become imperative for the cause of justice to be served and also to reduce any miscarriage of justice.
17 Salem Advocate Bar Association v Union of India AIR 2005 SC 3353 (India).
The Supreme Court dismissed the contention on grounds of constitutionality attacking such amendments as no infirmity was found on their part. The Court provided some clarifications regarding the application in practice of such amended provisions.18 19 Why Mediation? But in recent years, the mediatory processes have been registered reforms from within the Indian judiciary. The population is increasing and so are the disputes; of the 50 million cases that are pending before the Indian courts, over 85% are civil disputes.20 The government being the biggest litigant, is a party to approximately half of those disputes. Due to this fact, India has become the country with the most backlogged courts in the world. The increase in civil wars has led to proportionate demand for mediation practices. In one of the drives, namely, the Delhi High Court Family Courts Mediation Drive, out of 2884 cases,
2171 have been amicably settled. This has resulted in an approx 75% settlement.21
Now, a couple of reasons for the success of mediation can be:
1. Affordability: It is one of the most affordable modes of the alternatives which allows the
party to pull out from the high litigation cost.
2. Time Efficient: The time used by the concerned parties to an agreement to get into an
agreement during the mediation is relatively less when compared to the time used in traditional litigation processing.
3. Individual Solutions: Mediation's confidential and non-formal nature helps create individual
solutions that are acceptable and agreed upon. Manisha T karia, Effective Implementation of Mediation in India: The way forward, Bar & Bench (23 Dec 2019, 1:59 pm), . Geetanjali Sethi, Mediation: Current Jurisprudence And Path Ahead, Mondaq (24 JUNE, 2020),
RESOLUTION/957898/MEDIATION--CURRENT-JURISPRUDENCE-AND-THE-PATH-AHEAD>.
National Judicial Data Grid (Last Visited: Sept. 6, 2024, 11:46 PM), . Aditi, Delhi HC celebrates the Sucess of Family Courts Mediation Drive, Reports Disposal rate of 75.27%, Bar&Bench (11 Dec 2019, 12:50 pm), .
4. Setting the Rules: The parties involved in mediation set when they should meet next and
how often they should meet. Conclusion The government needs to invest in ADR infrastructure and initiate programs to conduct public awareness in that direction. As rightly said by Gautam Buddha, "One word that gives peace is better than a thousand hollow words." A similarly connoted statement is in the Sanskrit expression "santosham paramam sukham." It is true that through mediation, harmony, and peace can result.22 Mediation and. Conciliation Project Committee, Supreme Court of India, Mediation Training Manual of India,
Supreme Court of India (Last Visited: Sept. 5, 2024, 10:20
PM),
.