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Implementation of Mediation in India: A Road Yet to be Taken
As Alternate Dispute Resolution (ADR) gains speed and popularity, it has begun to replace the traditional method of litigation and trial which were sought after methods of dispute resolution. Arbitration, Mediation, Negotiation and Conciliation are the four most used and known methods of ADR. In India, Arbitration and Conciliation have a special and specific legislation that lays down the procedure and rules to be followed during the process, while negotiation is an informal process involving a simple discussion whereby parties arrive at an amicable agreement to resolve the dispute. Mediation is currently the only method of Alternate Dispute Resolution which does not have a uniform and standardized set of rules that outline its procedure.
Mediation is a meeting between parties in an attempt to reach a settlement or agreement at the end of the session or multiple sessions, if required. The mediator is a neutral third party and does not get involved in the decision-making process as that is left to the parties themselves. So, in a mediation, the mediator merely facilitates healthy discourse while trying to encourage one party to give more than they think they should give and the other party to take less than they think they are entitled to receive[1]. The mediator cannot force a party, or parties, to settle the dispute and the mediation process is not usually binding so the parties have an option of referring the matter to trial or to an arbitrator if an agreement is not reached[2]. The process seems easy and attractive but parties that have a dispute to resolve rarely opt for the process of mediation because of its lack of uniformity, enforceability and recognition. Even though this is improving with Statutes such as the Industrial Disputes Act, 1947; Code of Civil Procedure, 1908; Companies Act, 2013; Hindu Marriage Act, 1955; Special Marriage Act, 1954; Commercial Courts Act, 2015; and the Consumer Protection Act, 2019 mandating mediation before a suit is filed in the courts, there is still a lack of effective implementation.
The judiciary deals with matters that require adjudication, and can only be resolved with an enforceable decision by a third party, but there are situations where mediation would be more appropriate and beneficial to the parties. Therefore, identification of such matters and situations by parties, lawyers and judges becomes extremely crucial and important in the promotion of mechanism. The following steps can be taken to make people more aware about the mediation process and to implement it more effectively in society and reduce the burden on the judiciary:
- Awareness about mediation should be spread at the grassroot levels. Villages have a history of settling matters in front of the Panchayat and this can easily be translated to mediation which is a more accessible, cost-effective and time-effective method of dispute resolution[3].
- Since India is now a signatory to the United Nations Convention on International Settlement Agreements, a change should be made in the legislative framework to give recognition to mediation.
- Improving the infrastructure of mediation institutions and providing effective training to mediators to ensure that they are qualified and competent to help parties come to an agreement.
- Providing incentives to lawyers and advocates who educate and encourage parties and clients to resolve their disputes using mediation and doing the same for those who clients who do engage in mediation[4].
- Introducing theoretical as well as practical training in mediation in law colleges as well as ensuring that all practicing lawyers receive structured mediation training in a cost effective manner.
With the implementation of these few suggestions, mediation can become a more institutionalized process, like arbitration, which will be more appealing to parties. Adequately trained mediators, mediation institutions with good infrastructure, and a comprehensive legislative framework combined with awareness on the advantages of mediation would definitely help in its growth in India.
[1] Editor, What is the Difference Between Mediation and Arbitration, JaburgWilk, (Apr. 9, 2020, 12:13 PM), http://www.jaburgwilk.com/news-publications/what-is-the-difference-between-mediation-and-arbitration.
[2] Editor, What is the Difference Between Arbitration and Mediation?, Singapore International Arbitration Centre, (Apr. 9, 2020, 12:16 PM), https://www.siac.org.sg/71-resources/frequently-asked-questions/174-what-is-the-difference-between-arbitration-and-mediation.
[3] Manisha 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.
[4] Alok Prasanna Kumar, Strengthening Mediation in India, Vidhi, (Dec. 15, 2016, 8:53 PM), https://doj.gov.in/sites/default/files/Final%20Report%20of%20Vidhi%20Centre%20for%20%20Legal%20Policy.pdf.
- Mediation
- Alternate Dispute Resolution
- Implementation
