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An Insight into the Process of Mediation in India
India is facing a wave of cases that have crashed on the shores of the courts but riding this wave is Alternate Dispute Resolution (ADR) which is becoming increasingly popular because parties can settle their disputes without waiting for the traditional judicial process to play out. Arbitration is by the far the most popular method of in India, and the world, because of its standardization and its uses to the corporate world[1]. Commercial arbitration is the method of dispute resolution used by most corporate firms due to the evolution of arbitration rules and procedure globally and in India[2]. Mediation, however, is yet to take the forefront as an effective method of dispute resolution in India and this can be attributed to two main reasons:
- Lack of standardized and uniform rules across legislations
- No guaranteed resolution as the mediator, unlike an arbitrator, does not pronounce a decision
In order to combat the backlog of cases in the courts and to reduce burden on judges, the judiciary and the legislature are trying to institutionalize mediation and they’ve started with making the process quite hassle free. Before parties decide on mediation as the dispute resolution mechanism for their case, they have to check if their case is suitable for ADR and the guidelines for this were laid down in the case of Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd. and Ors.[3]. According to the judgement in the case, the disputes suitable for ADR are those involving trade, commerce and contracts; arising from strained relationships; where there is a need to preserve the pre-existing relationship between parties; relating to tortious liability; and consumer disputes.
If parties to a dispute find that their conflict can be resolved by ADR and want to opt for mediation, they have to just follow these simple steps:
- Convening the Mediation Process – if the mediation is court ordered, a judge must consider the facts of the case and after deeming it suitable for mediation he must refer the case for mediation under Section 89 of the Code of Civil Procedure. The judge also filed a referral order which contains details of the parties, details of the case, details of the mediator, fee to be paid and institution to be used[4].
- Initiation of the Mediation Process – parties and their counsels (advocates) must be present at the mediation as the mediator explains the concept of mediation, role of the mediator and the basic rules to be followed through the process.
- Setting the Agenda – this is a process by which the mediator sets the schedule for the process allowing each party to evaluate the progress of the proceedings accordingly as and when they want.
- Facilitation of Conversation – the mediator conducts joint sessions which allows both parties to communicate with each other and also allows the parties to understand each other’s points of view. Separate sessions are also conducted so that parties, if they are hesitant in the joint session, can be completely honest and free thus allowing the mediator to delve deeper into the issues with each party.
- Generating Options – once the mediator has understood the issue as a whole and the problems of both parties, he will come up with options and suggestions for the parties to consider in reaching an agreement.
- Reaching a settlement – the mediator guides the parties and provides them all the possible options for reconciliation and the parties negotiate until a mutually acceptable solution is found[5].
- Closing – once terms of the settlement are agreed upon the mediator confirms the terms orally with the parties after which the parties write down and terms and sign the agreement, thereby giving it a binding and enforceable nature[6].
With such an easy and attractive procedure, there is no reason why mediation cannot be a more popular option for parties in a dispute.
[1] Anubhav Pandey, All you need to know about Alternative Dispute Resolution (ADR), iPleaders, (May 9, 2017, 11:37 AM), https://blog.ipleaders.in/adr-alternative-dispute-resolution/.
[2] Pardeep Nayak, Arbitration Procedures and practice in India: overview, Thomson Reuters, (Oct. 1, 2019, 4:17 PM), https://uk.practicallaw.thomsonreuters.com/9-502-0625?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1
[3] Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd. and Ors, (2010) 8 SCC 24.
[4] Akansha Mathur, How Does the Mediation Process Work – Steps and Procedure, iPleaders, (Dec. 28, 2017, 12:04 PM), https://blog.ipleaders.in/mediation-in-india-process/.
[5] Prachi Darji, The Process of Mediation in India, MyAdvo, (Apr. 16, 2018, 7:16 PM), https://www.myadvo.in/blog/the-process-of-mediation-in-india/.
[6] Supra note 4.
- Alternate Dispute Resolution
- Mediation
- Process in India
