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Difficulties Faced by Mediation in India
Difficulties Faced by Mediation in India
Implementation of the mediation process faces sure challenges like:
- Lack of training – Coaching has been globally recognized as a necessity for economical mediation. Training helps in imbibing necessary qualities like impartially, smart communication skills and facilitates mediators to grasp the interest of each the parties. despite the fact that the Supreme Court has issued a coaching manual and conducts a coaching program, still, it's been toughened that there's an absence of correct coaching of mediators which could cause lower settlement rates.
- Lack of referrals – Mediation as a kind of ADR has been mentioned in some Acts like Section eighty-nine of CPC[1] that makes it mandate for the judges to refer the case wherever it finds it applicable to varied modes of ADR. Still, the judges are reluctant to refer cases to ADR ways. The courts are reluctant to refer the case to mediation and even the litigants don't seem to be assured within the method of mediation. This can be chiefly because of a lack of awareness regarding mediation in India. Litigants don't seem to be aware of the advantages of mediation and so are reluctant to select mediation. A different reason for the lack of referrals is that the self-interest of judicial officers once it involves disposing of cases. Judges, in the urge to get a promotion, are additionally inclined towards disposing of the cases themselves instead of referring it to mediation. Hence, there’s no active involvement of Judges to popularize Mediation.
- Lack of mediation management- In most High Courts, district judges and different judicial officers act as mediators. However, considering their judicial duty, they aren’t ready to devote comfortable time. Mediation needs special coaching and it cannot be assumed that each legal professional possesses the desired skills to become a mediator and so, not all legal professionals have the expertise to perform the role of mediator.
- Lack of adequate funds- Creation of adequate infrastructure (Mediation centers), proper monitoring and administration, and coaching mediators need adequate funds that are typically not assigned for mediation. it's necessary to notice that problems associated with the infrastructure and correct administration pertain not solely to adequate funds however the conjointly optimum activity of the same.
- The Mediation method itself- There's no uniformity in referring cases of various nature of the case. despite the fact that the court set within the case of Afcons that solely compoundable offenses are often referred to as mediation, there are cases wherever non-compoundable offenses like rape are sent for mediation. The judgment conjointly expressed that the cases involving public interest mustn't be sent for mediation. However, the “Ayodhya Case” which involves the general public interest of 2 totally different religions, was sent for mediation.
Conclusion
In India, a variety of civil cases that are the foremost appropriate cases for mediation remains abysmally low once referred for mediation. Considering all the restrictions that are hampering the implementation of the Mediation process in India, there's a necessity for legislation for mediation in India. Separate legislation can bring uniformity within the mediation method and it'll facilitate in making a symphony between the judiciary and mediation.
[1] https://www.indiacode.nic.in/handle/123456789/2191?locale=en
(This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, or Religion, Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre Foundation shall not be responsible for any errors caused due to human error or otherwise.)
- Lack of training, Lack of referrals
- Lack of mediation management, The Mediation method itself
- Lack of adequate funds
