WHAT IS MEDIATION?

THIS ARTICLE WAS WRITTEN BY SHUBHANGI GANDHI, A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

We as human beings have come a long way in the evolution process and as time is lapsing our natures, needs and ways of life are becoming more complex. Such complexities lead to more disputes with one another due to overlapping needs as well as strong desires. We have not merely evolved but grown deeply as now we are more aware of our rights and are also ready to fight for them. While for such fights of the Indian citizens, several courts exist. However, for every petty clash of interest between people we can’t keep running down to the courts. The courts are already burdened with various major issues such as rape cases, murders etc.

In such situations to reduce the burdens of the Indian courts there exist alternate modes of dispute resolutions such as Mediation.

‘Mediation is a method of alternative dispute resolution (ADR) available to parties. Mediation is essentially a negotiation facilitated by a neutral third party.’[1]

This process basically means that when a dispute arises between two or more parties, a third neutral person is appointed by the parties themselves or by the court whatever the case might be. This third person communicates every party’s interest and motivations, defines the issues of every party and explores various creative solutions for the same.

The aim here is to reduce misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasising that it is the party’s own responsibility for making decisions which affect them.[2]

For doing so mediators must adhere to the provisions of Mediation Rules 2003.

ABOUT MEDIATION

WHO ATTENDS?

All the concerning parties attend the mediation process. They are mandatory to be there. However, they have a choice to bring along their lawyers or no. It is advisable for the parties to have a lawyer by their side so as to have necessary education, assistance in developing negotiation strategies and range of solutions. Having a lawyer by your side would provide the necessary confidence to speak persuasively about your demands and desires. Apart from the parties; a mediator also attends the process obviously!

HOW LONG?

The time one mediation takes is generally 4-8 hours but it depends on the nature of the issue at hand. Factors like the number of parties involved, number of issues to be discussed, complexity of the issue/s as well as nature of parties play a major role in deciding how long a mediation would take. On an average a minimum of 3 hours should definitely be however set out.

WHO DECIDES?

Mediation is a process where a common ground is sought to be reached by both parties in order to resolve the issue. Therefore, the decision to mediate as well the final resolution of the process both is parties’ decision alone. Court does not intervene in either.
In cases when parties decide to choose mediation to resolve their differences, they may choose a mediator. They or their lawyers contact the mediator to schedule a session. A mediator can be anyone, of any designation, can be appointed formally or casually depends on the wish of the parties.[3]

CONFIDENTIALITY?

Unlike court room trials, a mediation process is a much private affair. It is not done in public but in a closed room as per the parties’ whims and fancies. The parties are to decide whether they want the information to be kept confidential or not. Hence, anything said in a mediation is kept confidential unless the law of the land requires the information to be made public or the parties want so.

IN CASE OF AN AGREEMENT?

It is to be noted that any agreement entered into as an aftermath of the mediation process is done freely by both parties.
Once a common ground is reached upon by the parties after a mediation, all points of the agreement are written down. Legal actions can be brought against the person failing to uphold the points written in the agreement. However, any legal action is over once the terms of the agreement have been fulfilled. The agreement can include terms in which the court can not impose.

IN CASE OF NO AGREEMENT?

It is not always possible to reach a common ground. However affective the mediation process be, it might not be able to solve everyone’s or every issue at hand. In case a settlement cannot be reached after the mediation session, the parties may continue to mediate or they can go back to the traditional trial method. The mediation process would also make the litigation process smoother and take up less time of the court.

TYPES OF MEDIATION

Broadly we can divide mediation in 2 categories. One being “Civil mediation” and the other being “Private mediation”.

Mediation being a simple process does not complicate itself into a lot of branches. It clearly branches out into 2 main categories to not complicate matters. While civil mediation can also be called commercial mediation depending on the nature of the case.

CIVIL MEDIATION

In its most basic sense civil mediation is where the court refers it spending cases of civil nature to mediation. Civil cases are those where parties are generally suing for compensation due to injuries. In India the CPC (Civil Procedure Code) and ACA (Arbitration and Conciliation Act 1996) are the two major enactments dealing with mediation.

The courts therefore refer the cases to mediation under Sec 89 of the Code of Civil Procedure, 1908 which states,

“(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for (a) arbitration; (b) conciliation (c) judicial settlement including settlement through Lok Adalat; or (d) mediation.

(2) Where a dispute had been referred- (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act. (b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.”[4]

This is usually used in matrimonial cases involving divorce issues or disputes brought to family courts where reconciliation seems possible through intensive talking.

While traditional methods of litigation remain the most popular one among citizens throughout the country, mediation is not too behind in the race. To increase popularity and knowledge about alternate methods of dispute resolution and to reduce the burdens of courts the Commercial Courts Act 2015 was enacted, whereby it became mandatory for parties to exhaust the remedy of pre-institution mediation under the Act before instituting a suit. The Commercial Courts (Pre-Institution Mediation and Settlement) Rules 2018 (the PIMS Rules) have been framed by the government under the Act.[5]

PRIVATE MEDIATION

Part III of the ACA, 1996 deals with private mediation which states,

“77. Resort to arbitral or judicial proceedings. —

The parties shall not initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject-matter of the conciliation proceedings except that a party may initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights.”[6]

This involves parties who voluntarily to solve their private matters appoint a mediator themselves to resolve matters outside courts. Here a qualified person works as a mediator on a fixed fee basis and any person from government sectors to corporates or individuals can appoint them as mediators to resolve their disputes through mediation.

If we look at many Indian villages, such a mediation system has prevailed since time immemorial in an informal way. Traditionally in these villages the elder men or heads of the village play the role of a mediator and help reach a resolution in cases of disputes. Therefore, India has always been the land of alternate dispute resolution. Even as mediation continues to grow and become popular in its metros, most grounded villages of the country rely on mediation since inception.

CASE LAWS AND HISTORY

In India, the concept of mediation was being used much before the British formally introduced it. A system called “Panchayati system” is still used in many interior parts and villages of India. Here an elder or a nominated leader from the village acts as a mediator and resolves the issues of the people pertaining to that particular village.

In 2005, however, the first ever court-annexed mediation centre wad opened by the Madras High court. The other courts soon followed in its footsteps and followed up.

It was in 2002 when an amendment was brought in the Code of Civil Procedure, 1908 (CPC). Section 89 of the code read with Order X Rule 1A transferred cases in pending in courts to ADR. Additionally, Order XXXIIA recommended mediation for familial/personal disputes like divorce cases or ancestral property disputes.

More particularly, family and personal laws including the Hindu Marriage Act, 1955 and the Special Marriages Act, 1954 require the court in the first instance to attempt mediation between parties.[7]

For example, in the case of Gurudath K. v. State of Karnataka, the wife had gone ahead and filed an FIR against the husband. However, the matter was peacefully resolved in mediation. This resolution led the wife to go and quash the FIR. The court allowed such actions stating that “if in matrimonial disputes the court is satisfied that the parties have amicably settled the issue, Section 320 CrPC would not be a bar to the exercise of power of quashing of FIR or criminal complaint”.

The case of Mohd. Mushtaq Ahmad v. State also followed a similar fact line with the court giving an identical order. Even in cases of domestic violence, it is advised to try and mediate before filing complaints or FIRs.

Not just such cases pertaining to personal issues, but also the court in the landmark case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd said that all cases having trade, commerce, contracts or consumer disputes in question can be mediated easily. Even cases pertaining to tortious liabilities.

However, in the case of Dayawati v. Yogesh Kumar, a question as to criminal cases being referred to mediation was raised. It was observed that criminal courts may refer the case to mediation however, they cannot rely on such settlements made by mediating. This is so because a criminal case requires a punishment to be served, such cannot be done by any mediator or ADR cell.

But if we look at the case of K. Srinivas Rao v. D.A. Deepa, the offence here in non-compoundable under IPC Sec 498-A. Even then the court has allowed the parties to explore the option of ADR/ Mediation. It specified in its ruling “in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation”. Here the highlight is appropriate cases. All cases might not be open to the option of mediation depending upon its gravity and the understanding of the Hon’ble court!

[1] What is mediation?, FIND LAW (June 20, 2016), https://www.findlaw.com/adr/mediation/what-is-mediation-.html.

[2] Sriram Panchu and Vikas Murlidharan, Mediation in India, LEXOLOGY, https://www.lexology.com/library/detail.aspx?g=d45eed57-db32-40b6-a5e6-edad2363de76.

[3] Mehka Sharma, Mediation in India, MEDIATE EVERYTHING (Dec. 2018), https://www.mediate.com/articles/mediation-in-indiaarticile.cfm#:~:text=A%20mediator%20can%20be%20anyone,1.

[4] Indian const. CPC, Sec 89.

[5] Supra 2.

[6] Indian Const. ACA Sec 77.

[7] Manisha T. Karia, Effective implementation of Mediation in India: The way forward, BAR & BENCH (Dec. 23, 2019, 1:59 pm), https://www.barandbench.com/columns/effective-implementation-of-mediation-in-india-the-way-forward.