Events & Issues
New Delhi, 16
December 2021
Mediation
By Law
WILL
NEEDED FOR SUCCESS
By
Dr.S.Saraswathi
(Former
Director, ICSSR, New Delhi)
The
Draft Bill on Mediation circulated by the Government for comments has come at a
time when there is an urgent need to ease the tremendous pressure on courts and
reduce the number of pending cases. It is one of the four Alternative Dispute
Resolving (ADR) mechanisms - arbitration, conciliation, negotiation, and mediation.
Unlike the other three, mediation is totally private, informal and fastestmethod
of interactionamong disputants.
Democracy
believes in laws and regulations and democratic governance tends to lessen the
scope for arbitrary decisions. Disputes taken to courts are settled according
tothe written law. However, courts are not the only places for settlement of
disputes. Civil disputes are amenable to out-of-court solutions.
Mediation
is universally understood as structured, interactive process where an impartial
third party assists disputing parties in resolving conflicts through the use of
specialisedcommunication and negotiation techniques. This third party must be
acceptable to the disputants and must be impartial and neutral and not one who
has decision-making power in the dispute. The disputing parties voluntarily
reach a settlement with the assistance of the third party. Several countries
have adopted mediation laws and have lawyers specialised in this line.
Mediationis
an accepted form of ADR in the UK even before the UK Mediation Act was passed
in 2017. Courts encourage and emphasise on mediation to settle disputes and may
even impose fine for failure to try mediation without adequate reasons. It is
largely used in commercial disputes. The litigants may resort to mediation at
any stage; and if dissatisfied with its course, they can also return to court
at any stage of mediation. The settlement
reached and signed by the disputants, is legally binding, though it is a
flexible tool and the procedure is largely unregulated.Many commercial disputes
are settled by mediation in the UK.The Centre for Effective Dispute Resolution
(CEDR), authorised by the Ministry of Justice, has well trained and experienced
mediators to provide expert mediation services. Mediation is professionalised
in the US also.
There
has been so far no separate law governing mediation in India. Section 89 of the
Criminal Procedure Code (1908) empowered the courts to refer any pending
dispute to mediation. It has been used mostly in matrimonial disputes. Under
the Industrial Disputes Act 1947, Conciliators could be appointed to mediate
between contending parties. Special Marriage Act 1954, MSME Act 2006, Companies
Act 2013, Commercial Courts Act 2015 and Consumer Protection Act 2019 have
provisions for mediation to resolve disputes. Law Commission Report 2015 has
recommended mandatory referenceof disputes for mediation by courts.
The
Mediation and Conciliation Project Committee(MCPC) established by theSupreme
Court in 2005 has been overseeing thefunctioning of mediation. The Draft
Mediation Bill under consideration for facilitating quick disposal of disputes
outside the established court systems, when passed, will fill this gap in
dispute settlement by law.It is a step towards institutionalisingmediation as a
method of resolving disputes conclusively.
The
objective is to promote, encourage, and facilitate mediation, especially
institutional mediation for resolution of disputes, toenforce domestic and
international mediation agreements, provide for a body for regulation of
mediation, encourage community mediation and online mediation. The bill isdesigned
to make mediation agreements enforceable by law. However, the right to
challenge the agreement on certain prescribed grounds by the concerned partieswill
be retained as any agreement through mediation is only a consensual agreement.
Mediation
settlement in a nation is valid throughout the world under Singapore Convention
on Mediation which has 55 signatories, including India.
However,
mediation agreement is between the concerned parties unlike Lok Adalat Awards,
which are themselves decrees having enforceability like court decrees. It has
to be sent to court, which can pass orders on the basis of the agreement
reached. Mediation thus has twin qualities of flexibility and potentiality to
become legal.
The Draft
Bill seeks toprovide for mandatory pre-litigation mediation. How far it will
contribute to speedy justice is only a guess work now. It contains the danger
of prolonging the dispute in the process of mediation and worsening the
relationship between the parties.The
Bill also provides for establishment
of a Mediation Council of India which will help promote expertise in this field
in the legal fraternity and widen the scope for expanding the horizon of the
justice system beyond law books. We have to endeavour to promote the positive
aspects for which we require sincere agreement
and cooperation among law makers.
Community
Mediation mentioned in the Bill is said to be popular in Singapore. It offers
constructive processes for resolving differences and conflicts between
individuals, groups, and organisationswherein participants control the process
and create their own alternatives to bitter confrontation, prolonged litigation
or violence. It gives an opportunity to participants to discuss their concerns
and needs.
This method
is not unknown in India. It was formally launched by the CJI in January 2009 in
New Delhi. The idea was to establish Community Mediation Councils (CMCs) at the
grassroots level in many villages and enhance the accessibility of common
people to justice as the present judicial system is beyond the reach of many
litigants because of huge expense and physical inaccessibility. In many parts
ofthe country, instances of people settling scores on their own by use of force
because of delay and cumbersome court processes are not rare.
In this
context, the Indian Institute of Arbitration and Mediation (IIAM) thought of
providing an avenue to resolve disputes through IIAM Community Mediation
Clinics as an inexpensive option with the motto of “resolving conflicts,
promoting harmony”.
Communitymediation
is no novel idea in India where panchayat courts were functioning from a very
long time. Nyaya Panchayats were part of the Panchayati Raj of 1950s and 1960s,
but have not survived.
In the
absence of a judicial institution accessible and inexpensive, traditionalKatta Panchayats
are still flourishing in many places. These have become notorious for lawless
judgements and for upholding outmoded social conventions. In Tamil Nadu, the
institution known as Nattamai
continues in some remote villages which has earned mixed reputation as respectable
local chief resolving local
problems and disputes and also as an illegal power wielding force.A legally
established organisation rendering speedy justice in accordance with law may
help elimination of these illegal power holders associated in our mind as
perpetrators of honour killingand casteism.
Kerala
has Community Mediation Programme(CMP) which adopts what is labelled “nip in
the bud” approach which aims to “stop the mess called litigation”. It was
started by the Kerala State Legal Services and Kerala State Mediation and Conciliation
Centre (KSMCC). Itis for mediation and settlement at grassroots level using
volunteers sponsored by social groups and trained by KSMCC.
In
international disputes mediation has been is use occasionally if parties agree.
It can bring about at least temporary truce, which is also important in reducing
tension between nations and lead to lasting settlements. It can replace what
was known earlier as “good offices”.
The will
to find a solution in the minds of disputants and mediators is necessary for
the success of mediation.---INFA
(Copyright,
India News & Feature Alliance)
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