Mediation in Unconventional Fields: The India Chapter

By | November 9, 2020
Mediation in unconventional fields The India Chapter

In common parlance, Mediation is an amicable dispute resolution process, where a neutral third party facilitates discussions between the disputing parties and thus, helps them reach an appropriate solution to their dispute. In this article, Sneha Mohanty explains the nitty-gritty of Mediation as a means of dispute resolution in the context of India.

I. Introduction

Mediation is a process of cooperation and collaboration, where the parties are led to make their own decisions in the light of consequences and circumstances. It is a process that is purely voluntary (other than court-annexed). It is voluntary in the sense that the parties themselves decide to walk into mediation as a solution to their dispute. Not only it is devoid of any strict application of Procedure and Evidence rules, but it is also a process handcrafted purely for the two parties in dispute. This process and method changes with each new disputing party.

Other than the aforementioned, mediation is purely confidential. The discussions that happen with the mediator and the private caucuses are purely confidential. Unlike in litigation, the details of the mediation process are not accessible to the public. However, one might be partly wrong in stating that since, amidst the absence of proper laws and legislations for mediation alone, except Section 89 of the Civil Procedure Code, the part where mediation is said to be confidential is highly debatable.

Mediation, as a process, is confidential, however, its result might not be. Since proper guidelines are missing in today’s laws, there are no provisions protecting the mediation solution. The settlements are either converted to a conciliator’s award and decreed by the court on those lines, or signed as a contract, and any violation of which will attract proceedings for breach of contract.

Apart from lack of legislations, mediation, as a dispute resolution process in India, lives a very staggering life and most of the population stands unaware of mediation, thus putting all their trust and faith on litigation. This not only invalidates mediation in the eyes of the public but gives the Parliament a setback since it has not gained popularity in this due time and thus no laws can be foreseen in the near future.

The “Mediation Gap”[1] has to be duly tackled by first spreading awareness of the process among the general public. Once the general public is well aware of the process, this can be further helped by allowing more cases to reach mediation and not just property and matrimonial matters.

As one would see, mediation has a gold mine of potential in resolving disputes of any nature, and not merely divorces and commercial disputes. It is in its qualities of amicability and flexibility, that mediation has gained momentum in foreign countries and not so much in India.

This can either be done by referring more cases to mediation and helping people gain trust on the process in gradual time, or by fast-forwarding this entire process and introducing laws on mediation, and specific matters which should be mediated directly. It would be correct to point out that it will also reduce the burden on courts and courts can focus better on disposing of pending matters.

II. Important Milestones in Mediation, India

In Salem Advocate Bar Assn. v. Union of India[2], the Supreme Court held Section 89 of Civil Procedure Code to be Constitutionally valid and further established a committee under Justice Jagannath Rao to further the process of drafting rules for referring matters to mediation.

The Jagannath Rao Committee, also known as the Salem I Committee, came up with detailed reports on what method and manner to follow when referring the cases to Mediation. They also stated that High Courts had the responsibility to train Mediators accordingly. These rules were known as the Civil Procedure Alternative Dispute Resolution (CPADR) Rules, 2003.

Further in the 129th Law Commission Report on Urban Litigation and Mediation as Alternative to Adjudication (129th Report), it was observed that there were backlogs and a massive pendency in the cases in Courts and a speedy and effective method was needed to be put in place in order to dispose of the pending cases as fast as possible. As a matter of fact, after its establishment, the Bombay Small Causes Court took seven years in total to dispose of the pending case and to work on freshly filed suits after its establishment.[3]

In 2010, yet another development was brought into the light, Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd.[4]

It was held that Section 89 was unclear and ambiguous in its form and did not lay down the mediation process and court referral order process. The case attempted to provide the procedure to be followed by the court while referring cases to an ADR forum. In particular, the judgment elucidated the following:

  1. The appropriate stage for referring a matter to mediation.
  2. The court must explain the different ADR modes available to enable the parties to make a choice.
  3. If a mediation facility or service is not available, the parties can opt for the guidance of a judge to arrive at a settlement. In such cases, the court can refer the matter to another judge for this purpose.[5]

III. The Possibility of Mediation in Untouched Waters

Mediation in foreign countries stands at an advantageous position due to public awareness along with the cooperation of their laws and rules. In the Los Angeles County in the USA, pursuant to section 1775.3 (juncto s 1141.11), all “non-exempt unlimited civil cases” are to be submitted to mediation if the amount in controversy, in the opinion of the court, will not exceed US$50,000 for each plaintiff.[6]

In most other counties and states in the United States, laws on mediation are made on similar lines and thus, Mediation is a “pre-litigation step”. All civil matters, before being addressed to courts go to Mediation in order to unveil chances of them being solved easily and avoiding all the costs relating to courts and litigation.

Mediation is undoubtedly a form of dispute resolution being in use since time immemorial. It is a method being used on a daily basis. Mediation, because of its brilliant qualities such as its amicability, confidentiality and flexibility can be applied to any sort of dispute at hand.

One would like to emphasise that, Mediation has the abilities to solve disputes of even technological and religious nature. In the absence or lack of court-annexed mediations, there are many Private Mediation centres mushrooming all over the country with limited or no support. There is an ardent need for mediation legislation in India. This can be approached in several manners such as establishing Mediation centres all over the country like in Delhi and Bangalore.

Mediation has to be brought in the course curriculum in law schools so that students are familiarised and well aware of mediation’s advantages and disadvantages. Students should be trained right away in law school level, about different forms of ADR and specifically Mediation because Arbitration and Conciliation have found their place in the Indian Legal System, very much unlike Mediation.

Support should be extended to the individual effort of setting up private mediation centres and judges should be trained to enhance mediation in any form of rules necessary.

Mediation in tech disputes:

Moving back to mediation as a dispute resolution method in tech disputes, in technological matters, there is rarely any solution that is straight from a legal opinion. In these types of matters, one has to look into where the common ground is between the two parties. One also has to look at how to settle this dispute permanently in an amicable matter.

When these matters go to court, it usually takes a very long time to come to a conclusion that puts the dispute to rest. In the recent era of startups, more disputes arise regarding shares and principal disputes. Since they are startups, to begin with, it is almost usually difficult to ascertain whether they will be able to invest in a long and difficult procedure such as litigation, which takes a very long time to reach a conclusion and that too only in favour of one party, resulting in the loss of another.

Tech disputes should be sent to mediation taking into consideration the amount that the parties are willing to invest and commit to the long procedure of litigation. Sometimes parties will be dissatisfied with the results courts may pass. Parties do not have control and say over how the litigation should go and what the judges will decide but in mediation, they control the entire timeline of it and thus, have a decision as to how to settle.

When it comes to India, where new startups are mushrooming at a lightning speed, the Parliament should consider the fact that matters with negligible significance or any kind of matter for that manner should be first referred to mediation for a quick resolution.

Sometimes the laws might lack the manner as to how to resolve tech disputes. Especially with new concepts arising every day, such as NestAway, MagicBrick, etc, the laws may fall short or leave such novel concepts unmentioned, hence to deal with matters involving such disputes, one has to handcraft a method of dispute resolution and thus, Mediation is the best possible way since there is no strict application of laws, orders and rules.

Mediation in religious disputes:

Moving on to religious disputes, this topic has been the most debated topic of the decade. When it comes to religious matters, any kind of dispute resolution becomes a bit of a turmoil since humans hold religion very close to their hearts. Specifically in India, religion becomes a manner of identity and a method of survival and upbringing.

People surround themselves with the idea of religion from a very young age and grow up letting an intangible aspect control their lives all throughout. So it is correct to say that religion becomes a very controversial matter when it is taken to the court.

In religion, strict application of laws and rules are often avoided and a middle ground is looked upon. For instance in the Ayodhya matter, initially, the High Court ruled that both the parties will get an equal share of the scheduled land. This is a very ideal method of resolving this dispute and allowing for peace to settle the matter.

Due to this very sensitive nature of religious disputes, it would be next to impossible to find a long term settlement for these disputes. This might go on and on in a series of appeals like a vicious circle with no proper and final settlement. Hence in this scenario, mediation comes to the rescue. Not only the parties are allowed to have a say on how this matter is resolved, but they also have a decision making power since they themselves are the disputing parties.

Sometimes when mediation fails as a manner of dispute resolution in religious cases, only then should a court come to rescue and serve the purpose. But again, mediation should be a pre-litigation condition in order to reduce the burden on the courts and allow it to clear backlogs from the past and look into matters that hold greater importance in law.

Mediation in e-commerce:

In today’s world, e-commerce is a part and parcel of man’s life. Everything has its origin from an app (even buying a house). It is correct to say again, that the laws might be a bit technologically lagging in order to resolve the issues arising of this nature.

When it comes to easy matters, such as general contract questions, the courts are way ahead of any other form of dispute resolution to solve those matters because those are from experience. But when it comes to matters of technology, laws fall short to inculcate all kinds of disputes that may arise out of technical disparities.

Technology has the fastest growth in the entire universe. And the changes happening in technology are unfathomably fast. It is thus very difficult to make laws and legislation with regard to such growth each time there is a development. Thus for matters like this, it is very logical to apply dispute resolution processes like mediation which do not require any strict application of law, rules of evidence and other kinds of rules, etc.

In the end, one would like to conclude that someday, mediation would even be a chosen procedure for criminal matters. However, some matters do require the strict application of laws and rules but when it comes to civil matters, mediation will be the best shot because it is fathomable that two disputing parties have the ability to negotiate and settle a matter.

IV. Elephant in the room: Mediation in Religious disputes

To begin with, in India, mediation and religious disputes have certainly not gotten off at the right foot. The masses of India hold religion close to their heart. As already mentioned above, religion decides one’s way of living and survival within the nation. It is an established fact that the people in India function in accordance with the religion that they belong to. However, factually established as a man-made aspect, religion till date continues to rule man’s life and social living among others.

The Ayodhya dispute, for instance, is a dispute of greater societal interest in India, with a legal timeline extending to almost 164 years, to say the least. The question at the forefront still remains the same, what would be the feasibility and viability of mediation as a means of dispute resolution when it comes to religious conundrums.

In the aforementioned case, the Allahabad High Court looked into the most troubling and herculean work of any litigation which holds religious importance. It allowed for the examination of evidence and identification of the underlying issues between the parties. It will be certainly very safe to exclaim that the High Court had cleared off any confusions of legal importance and taken our legal barricades by solving the confusions regarding facts and law.

This leaves us with the conclusion that the Supreme Court did not have to go through the same and identical process of trial and deal with the exact same issues to turn over the High Court’s judgment. The case had already been made a tad easier by the High Court. The Supreme Court merely had to pick up from where it was left rather than to turn back the wheel and begin again.

Mediation is all about going deeper than just litigation aspects and exploring inner sentiments and underlying motives and intentions. This is probably the only figurative reason why it manages to stand out from other means and methods of dispute resolution.

In specifically religious disputes and matters, where the heart of the dispute is religion, which is a very sensitive and controversial issue, a method like litigation should only be considered as a last resort. The reason that was said is that litigation is not about fact-finding and emotions and settling voluntarily. Litigation is more strict and enforced than mediation. And in mediation, the parties steer towards their liked destined results and steer the entire process, at some point, revealing their underlying intentions and motives towards the piece of land, or whatsoever might be the subject matter of the dispute.

Coming to the technicalities of the procedure, it is very evident that Mediation is a legally recognised means and method of dispute resolution process under Section 89 of the Civil Procedure Act. In the Cherian Varkey case, the Supreme Court laid down the fundamental rules regarding mediations in India, and which specifically made a mention that, matters of public interests cannot be mediated.

However it is evident now that the Supreme Court made an exemption here in the case of Ayodhya, but the method still had no luck in working in the aforementioned case due to a variety of reasons. Just to point out some of them-the severe lack of good quality mediators and quality training in mediation.

One would like to point out that mediation as a field is not as established in India as Arbitration and Conciliation or any other means of dispute resolution. In order to give mediation an upper hand, one must note that it should be made as popular as any other means of dispute resolution. This is however solely to leverage on the Courts and not the private players on the face of it.

The constant failure and decline of mediation as a method of dispute resolution is being fuelled by the courts partially because of the level, difficulty and complexity of the matters being referred for mediation. This is because of a combination of bad timing and an average focus on the method.

Mediation, in accordance to its timeline, should have had a gradual growth just like any other method of dispute resolution. It should have been familiarised by the courts and the legal fraternity just as any other form of dispute resolution. As already mentioned above, the benefits and ease of mediation as a method of dispute resolution is clearly being weighed out, and thus, it doesn’t do much justice to this novel, yet innovative and convenient approach to resolving disputes.

There are certain facts and studies in place that the Referral Order in case of Ayodhya was staggering to meet with legitimacy. To point out, this was evidently one of the four efforts made in order to settle this issue. This, however, was a new approach since the entire idea was to combine litigation and mediation in order to reach an actual and permanent settlement. To also point out, the criteria laid down by the Afcons case were also clearly skipped in this situation.

V. Conclusion

The actual gradual growth and popularity of mediation along with its learning infrastructure can be best understood when the state of Mediation in India is compared to that of some countries which already have a well-established infrastructure for mediation, for instance, the US.

To begin with, in the US, there is no particular organisation or regulatory body for mediation. Very highly respected and authorised bodies, such as the American Bar Association and the American Arbitration Association draft and publish reasonable mediation standards and guidelines. Apart from that, each and every state has its own laws and rules regarding Mediation.

It was in the year 1998, the Alternative Dispute Resolution Act[7] was adopted by the United States Congress, later on, the Uniform Mediation Act was adopted by some of the states to regularise the take and stand on mediation and thus, some states made their own individual laws and rules which suited their conditions.

The USA evidently has an upper hand over India in this situation because the laws are not haphazard and the courts are definitely way more familiar with the process of mediation. Apart from that, there is a large amount of trust placed in the system because of the quality of training and infrastructure. India, on the other hand, as already stated above, has laws that are mostly unfinished and undone in the fullest sense. India does have basic laws and procedure in place, but there is a severe setback when it comes to the implementation of the aforementioned laws and procedure.


References

[1] The Mediation Gap: Where India Stands and How Far It Must Go, Available Here

[2] (2003) 1 SCC 49 : 2002 Supp (3) SCR 353.

[3] Kumar et al., Strengthening Mediation, p. 31.

[4] Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24 (Afcons)

[5] Afcons, para 43(g)

[6] Ginkel, Van Eric, Mediation Under National Law, Available Here

[7] Mediation in USA, Available Here


  1. Alternative Dispute Resolution; Notes, Case Laws and Study Material
  2. Meaning and Scope of Mediation

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