Section 89 of the code of civil procedure, 1908 gave impetus to the Indian legal system to use different modes of dispute resolution. There are different modes like Arbitration, mediation, conciliation, negotiations. All modes are different and have different qualities. ADR is a means to settle disputes with a dispute resolution system and the help of a third party and this has gained momentum over the last few years among both legal luminaries and the general public. In today’s’ era, methods of settling disputes outside the court are often praised and even courts often require the parties to pursue these methods of solving disputes before filing cases in courts. These methods settle disputes without indulging in the court process and save time and money.
One aspect of ADR: Mediation
Mediation is the ‘something else’ which is different from litigation, arbitration, and conciliation as a structured dispute resolution process for resolving conflicts. Mediation may be also known as a negotiation carried out by the third party. It is a collaborative manner of resolving disputes where the parties make the ultimate decision on the terms at which they settle their disputes. It is a completely voluntary process, which means that the parties can opt out of the process anytime they feel it is not working for them. Mediation is confidential method of solving dispute anything that the parties may have discussedwith the mediator or the other side or any documents exchanged or any proposals made during mediation will remain confidential even after the process has concluded and neither party is permitted to use any information gathered in mediation in any judicial or quasi-judicial forum.
Role of Mediator
It is the mediator who facilitates the negotiations and communication between the parties while uncovering their underlying interests and identifies overlapping interests that can result in a zone of possible agreement. In mediation, the mediator can never make a decision on the substance of the dispute rather he merely acts a facilitator to the dispute. His role is to bridge the communication gap, or to provide a different perspective of the dispute, or to bring new ideas and put a new face on the dispute in an attempt to bring the parties closer to an amicable settlement. It is important for a mediator to remain, and be perceived as being, neutral in the process.
Benefits of Mediation
There are several benefits of mediation and one of these is that the dispute resolution process is still within the control of disputants and that the type of solution that can be achieved is entirely within the parties control to craft and execute. Mediation encourages and facilitates an exchange of information in a non-adversarial setting. It helps to provide new information to parties which could assist in the resolution of their differences. It helps parties to understand each other’s views and difficulties. It gives parties an opportunity to ensure that their concerns are understood by their counterparts in the dispute. It helps to promote a productive level of emotional expression. It deals with differences in perceptions and interests between disputants. It helps parties to realistically assess their alternatives to settlement. Mediation assists in the discovery of those interests that parties are reluctant to disclose to each other which may, in the grasp of a good ethical mediator, assist in the resolution of the dispute.
Mediation is one of those traditional means of settling disputes which was neglected by the adoption of common law system but now a days this process is being revived as legal representatives serve a mediatory function by using the law as a common and objective basis on which disputes are solved.
Despite the staggering pendency of cases in the country, use of mediation was give impetus only by amendment in CPC in 2002 which introduced section 89, which permits the court to refer a dispute to ADR forum when it deemed that elements of settlement existed. This was a landmark step in settling dispute out of the court by saving time and money.
In case of Salem Advocate Bar Assn. v. Union of India, the Supreme Court held that Section 89 was constitutionally valid and established a committee to, inter alia, draft rules on mediation and create a report on effective case management to reduce the burden on courts.
In 2005, the then CJI, Justice R.C. Lahoti, gave further impetus to mediation in India by ordering the establishment of the Mediation and Conciliation Project Committee. The purpose of the MCPC was to establish court-annexed pilot mediation centres in several states, and ensure that the mediation rules to be adopted in various court-annexed mediation centres were uniform, that training imparted to mediators was consistent, and that mediation was implemented at a national level.
Provision of Mediation in other acts
In recent years, mediation has been given further impetus by the inclusion of a provision in the Companies Act, 2013, which makes it mandatory for the central government to maintain mediation and conciliation panel, comprising experts for mediating commercial disputes between the parties. Similarly, the Consumer Protection Bill (Consumer Bill), 2015 provides for mediating disputes at the first instance of admission of a complaint before any consumer disputes redressal agency. Chapter V of the Consumer Bill envisages the establishment of consumer mediation cells at the national, state, and district levels, to which the consumer dispute redressal agencies shall refer their cases. The Real Estate (Regulation and Development) (RERA) Act, 2016 also encourages amicable conciliation of disputes between promoters and allottees through dispute settlement forums established by consumer or promoter forums.
The mediation also a dispute resolution system movement has gone full circle, from traditional methods of community dispute resolution to the present-day revival of more formalized mediation. Meditation also a dispute resolution system has become an integral and essential part of legal practice, particularly for lawyers involved in litigation. Even for lawyers involved in corporate work, or other specialities, it should be recognized that mediation is fast gaining preference as a quicker, cheaper, and more private means of settling disputes. To keep pace with these developments, the legal professional of today must be well versed in the techniques and processes of mediation, the better to serve his clients and the profession. It is hoped that this article has provided some basic information on mediation and the mediation process.
(2003) 1 SCC 49 : 2002 Supp (3) SCR 353
Section 442, Companies Act, 2013
Clause 34, Consumer Protection Bill, 2015
Clause 63, Consumer Protection Bill, 2015
Section 32(g), RERA, 2016