A Reality Check on Pre-Litigation Mediation
‘Pre-litigation’ mediation is an attempt to resolve the dispute among the parties amicably with the help of a neutral third party called a mediator before moving the court or even before filing litigation or sending a notice.
On 18th March 2021, Supreme Court asked the Centre to apprise it whether the government is contemplating any law for mandatory ‘pre-litigation mediation of disputes to reduce huge pendency cases in the judiciary.
A three-judge bench of the former CJI S.A. Bobde, Justices A.S. Bopanna and V. Ramasubramanian was hearing a petition in Youth Bar Association of India and Others v. Union of India and Others. WP(C) No. 000849 of 2020 told Solicitor General Tushar Mehta that they have heard the government is contemplating legislation on pre-litigation mediation.
Mehta said that he needs to seek instruction in this regard and sought some time to appraise the court on the government's move.
Youth Bar Association of India, the petitioner’ is an association of public-spirited, young and vigilant lawyers of India registered under the Society Registration Act.
The petition has been filed by the Youth Bar Association of India seeking directions to the Centre to consider the necessity of provision for ‘Pre-Litigation Mediation’ and take appropriate measures to provide for mandatory ‘Pre-litigation mediation’. On October 13 last year, the top court had sought responses from the Centre and all the high courts on the plea filed by the ‘Youth Bar Association of India’, directions for taking appropriate measures to provide for mandatory ‘Pre-litigation’ mediation.
It has also sought the issuance of guidelines or formulation of a Standard Operating Procedure (SoP) to immediately affect the functioning of mandatory ‘Pre-Litigation Mediation’ pan India.
According to the Association, efforts should be taken to resolve disagreements at the outset by allowing the affected parties to settle their differences amicably.
Association said, “Mediation in general and ‘pre-litigative’ mediation in particular is an alternative mode to settle the dispute amicably, and that too, at pre-litigative stage,”.
With the advent of the Commercial Courts, Commercial Division, and Commercial Appellate Division of High Courts (Amendment) Act, 2018, pre-institution mediation came into existence.
The petition further said that it gives both parties a chance to end the dispute in a win-win position. In the process, the issues can be sorted out sooner. This process is inexpensive compared to the expenditure incurred at every stage of the case/issues in litigation.
Association also added that “To reduce the number of pending cases, the Government should work on a mechanism to introduce a pre-litigation mediation process, so that avoidable cases can be prevented from reaching the courts and settle the issue effectively,”.
The plea sought direction to parties in certain non-urgent matters such as commercial cases, partition suits, probation petitions, and other categories to first exhaust mandatory pre-litigation mediation at a court-annexed mediation centre or such other centre this Court may deem fit.
According to NJDG data presently dated 6 June 2021, 10324690 civil disputes are pending in India out of 38647917 total no. of disputes.
According to Thurston County Dispute Resolution Centre, there are essential reasons for mediation: its affordability, fair and impartial character, time-saving, success rate, cost-effectiveness, improving communication, personalised solutions, confidentiality, fostering Corporation, and identifying underlying issues.
Taking into account the current scenario, “To reduce the number of pending cases, the Government should work on a mechanism to introduce a pre-litigation mediation process, so that avoidable cases can be prevented from reaching the courts and settle the issue effectively”, the plea said.
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