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The Multiple Ways to Approach Mediation in India
Settlement of disputes through reference to a neutral third party for amicable resolution of any and all conflict has been the hallmark of civilization and part of the inherent Indian spirit of peaceful dispute settlement. Alternate methods of dispute resolution in India can be traced back to the earliest known customary forms of settlement which is the panchayat system that is Constitutionally recognized and still followed in various parts of the country. Modern day Alternative Dispute Resolution (ADR) has undergone enormous changes owing to the multiple Conventions and Treaties signed and ratified by many countries, including India, calling for the institutionalization of ADR mechanisms to reduce the burden on the court systems[1]. While the arbitration mechanisms and procedure have been institutionalized in India, mediation still has a long way to go before it can catch up. However, before analysing mediation and its implementation in India, one must understand how disputes are referred to mediation and the different types of mediation that exist - Statutory, Court Ordered or Private.
Statutory or Mandatory mediation is the reference of certain disputes to be resolved by mediation as mandated by certain statutes. 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 all mandate that mediation should be the first mode of attempted resolution and only on its failure will the courts consider hearing the dispute[2]. While this allows for the creation of awareness about mediation, parties view it as a mandatory process and not one that they voluntarily chose so they may not partake in the session meaningfully, especially when the mediatory is not authorized to make a decision which can be enforced by the parties.
Court ordered mediation is the next kind and it is one of the three ways by which parties can resolve a dispute through mediation. As the name suggests, a Court ordered mediation is a process by which a judge analyses the facts of the case and after deeming it suitable for mediations, asks the parties to engage in a mediation process first[3]. This type of mediation can be further categorized into two – court-annexed mediation and court-referred mediation. Court-annexed mediation is a process by which the court offers mediation services as an extension of its judicial authority. The court usually maintains a list of skilled and competent mediators, one of whom will be appointed, asked to set a date and then mediate between the parties. Although mediation is a confidential process, the advantage of a court-annexed mediation is that the process will be under the supervision of the court, so the same parties and their lawyers become participants in the mediation as part of the justice system[4]. Court-referred mediation on the other hand is a process whereby the court simply refers the matter to a mediator who will then carry out the process as per their own rules, with the consent of the parties of course.
Private mediation is the third and final method by which mediation can be used to settle a dispute. In this process, private mediators offer their expertise, time and skill to the court, the general public, commercial sector and the government sector to facilitate dispute resolution through mediation. Private mediation is usually contractual where the contract between parties contains a clause referring all disputes that may arise to mediation. Much like an arbitration clause or arbitration agreement, a mediation clause must specifically mention all the details of the parties, procedure to be followed, details of the chosen mediator and the fact that the result of the mediation, if successful, shall be enforceable by a court of law. The advantage that private mediation offers is its voluntary nature which allows the parties to take matters into their own hands and opt for mediation rather than being forced into it by a statutory provision or by a court.
[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] 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.
[3] 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/.
[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/.
- Alternate Dispute Resolution
- Statutory Provisions
- Mandatory Mediation
