IMPACT OF MEDIATION IN INDIA:
Mediation is a dynamically structured voluntary dispute resolution process where a neutral third party helps the disputing parties in resolving a conflict between them by using specialized communication and negotiation techniques. These techniques are in turn designed in a manner that facilitates the process of mediation and dispute resolution.
Mediation through the Years
The Arbitration and Conciliation Act, 1996 was the first statute to introduce the Indian legal system to mediation. Introducing Sub-section (1) of Section 30 of the Arbitration and Conciliation Act, 1996, it encourages the parties involved to explore the option of mediation and conciliation despite arbitral proceedings having started and thereby empowers the arbitral tribunal to use mediation as a means of dispute resolution. Nevertheless, due to a lack of proper enforcement (or even formation) of any specific rules of mediation, this provision promoting mediation has almost been rendered defunct. This, however, was rectified to a certain extent by the introduction of Section 89 of the Code of Civil Procedure, 1908 (introduced first in Section 30 of the Arbitration and Conciliation Act, 1996), which was concerned with exploration of the different methods of dispute resolution. Also, the notion of “judicial mediation” was first introduced by this section”.
Relying on this, the Court, where satisfied that the circumstances are such that the parties can try and settle their disputes amicably in ways if tried, the Court may encourage the parties to seek out the methods of mediation, arbitration and other forms of alternate dispute resolution. Despite this, unlike other statutorily-recognized forms of non-binding alternative dispute resolution there is still no concrete statute that addresses the concern of and ensures “confidentiality” in mediations in India.
It was only recently in the year 2011 that the Supreme Court of India declared that mediation proceedings were confidential in nature, and only an executed settlement agreement or alternatively a statement that the mediation proceedings were unsuccessful, should be provided to the court by the mediator. It is expected that in view of this judgment, the popularity of mediation as a method of resolving disputes in India will increase. In fact, it has been noted that during the proceedings of important cases such as the one regarding the demolition of the Babri Masjid, the Chief Justice of India himself has stepped in to facilitate mediation between the warring parties.
Following in the same footsteps, the Law Commission of India in its 129th Report recommended that it should be made obligatory for the Court to refer disputes to mediation for settlement.This was referred to in the landmark case of Afcons Infra Ltd v. M/S Cherian Varkey Constructions (2010).In this case, the Supreme Court of India further held that all cases relating to trade, commerce and contracts, consumer disputes and even tortious liability could normally be mediated.
Another landmark decision by the Supreme Court was arrived at on 22nd Feb, 2013 in the case of B.S. Krishnamurthy v. B.S. Nagaraj, wherein it directed the Family Courts to strive to settle matrimonial disputes via mediation and to also introduce parties to mediation centres with consent of the parties, especially in matters concerning maintenance, child custody, and the lot. In the few years since mediation centres in the cities of Delhi (in the year2005) and Bangalore (in the year 2007) were set up, around 30,969 cases have been through mediation process, and around 60% of these cases have been settled ever since. One of the most famous recent cases where mediation was resorted to was the one (even though conciliation was rejected despite mediation) between Reliance bigwigs Mukesh and Anil Dhirubhai Ambani over the takeover of South African Telecom Major MTN.
Following this, various Supreme Court decisions in the recent past appear to point out that the Courts are gradually developing a favourable attitude towards mediation. Also, mediation seems to have become the most sought after means of dispute resolution with regards to the settlement of patent disputes.
- Anil Xavier, Mediation: It’s Growth and Origin in India, available at http://www.arbitrationindia.org/pdf/mediation_india.pdf
- Madhu S, Mediation in India, available at http://cppradr.blogspot.in/2008/07/mediation-in-india.html