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Indian Mediation Act: A Likely Possibility?
With an increasing number of contractual relationships coming into existence, the number of disputes is on the rise and courts are now overburdened with cases and understaffed with judges. So, people, lawyers and even judges, have begun turning toward Alternate Dispute Resolution (ADR) to offer some solace and speedy justice to parties to a dispute who, usually, want to preserve the nature of their relationship. Alternate Dispute Resolution is a blanket term covering methods of dispute resolution where a neutral third person listens to both parties in a dispute and either adjudicates the matter, in the case of arbitration, or facilitates a conversation which leads to an amicable agreement, as in the case of mediation, conciliation, negotiation and Lok Adalat. Arbitration has been in practice since the years of colonial rule and Conciliation was introduced into legislation through the Arbitration and Conciliation Act, 1996. Since these two ADR mechanisms have found their way into specific legislations drafted to lay down their procedural rules, they are institutionalized and are preferred to other methods of ADR like mediation. However, the nature of many relationships that often end up in dispute are fragile and parties would like to maintain the relationship and mediation has offered solace here. Mediation is a process by which a mediator facilitates a conversation between the parties, thus allowing them to work together and communicate openly and honestly rather than them fighting a legal battle against each other in court.
Due to the nature of mediation whereby it allows for cooperation rather than antagonism, it has found increased statutory recognition in India with the legislature recently introducing it in the Companies Act 2013, the Insolvency and Bankruptcy Code 2016, as well as the Commercial Courts Act 2015, among others. The presence of a provision referring disputes that arise under these legislations to mediation is a step in the right direction but mandatory mediation is often viewed unfavourably as coercion and mediation is not institutionalized and standardised enough to encourage parties to voluntarily engage in private mediation. The Supreme Court recognized this flaw in the legal system and in a judgement meant to examine the feasibility of setting up a Mediation Authority for motor vehicle accidents, the court took a more wide angled approach in saying that mediation could be used not just for motor vehicle claims but to settle other disputes as well and to this end a comprehensive legislation governing mediation should be enacted in India[1].
The large number of deaths attributed to road accidents every year in India – about 147,000 people died in 2017 alone, and the rise in accident claims, which adds to the existing backlog of pending litigation cases, as a direct result of this led to the Supreme Court, on March 5, 2019, to consider setting up a Motor Accident Mediation Authority in every district so that road accident claims can be settled in a speedy and amicable manner[2]. Considering the situation in India, mediation seems like an excellent idea to deal with the rising number of motor claims but there is a lack of legal infrastructure when it comes to mediation procedure[3]. As the law stands now, mediation referred by a court under Section 89 of the Code of Civil Procedure follows rules laid down by the court and even though the Mediation and Conciliation Rules, 2004 exist, they are inadequately drafted and seem to be lifted from the Arbitration and Conciliation Act, 1996. The Supreme Court considered this concern and noted that “the way the mediation movement is catching up in this country, there is a dire need to enact an Indian Mediation Act as well,” and adding to this it opined that “we impress upon the government to also consider the feasibility of enacting an Indian Mediation Act to take care of various aspects of mediation in general[4].”
An ‘Indian Mediation Act’ as suggested by the Supreme Court is indeed a promising proposal for India which is a country in dire need of properly drafted and standardized rules and procedure for mediation which will be uniformly recognized and followed. The scarcity of clear procedural guidance for mediation has led to a general lack of confidence and uncertainty in the mediation process in India and a comprehensive statute will certainly clear up the muddle[5]. In addition to a comprehensive legislation, however, the country must also strive to build a community of dedicated and competent mediators who are trained by recognized mediation institutions in the country. As of now there is a much better arbitration culture in the country thanks to the 1996 statute on arbitration and conciliation so one can only hope that the recent push from the Supreme Court will create a rise in public awareness and nudge the Legislature to enact a mediation-specific statute that will make the country more open to mediating disputes and help remedy this situation.
[1] Ajmer Singh, Supreme Court forms committee to draft mediation law, will send to government, EconomicTimes, (Jan. 19, 2020, 11:40 PM), https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-forms-committee-to-draft-mediation-law-will-send-to-government/articleshow/73394043.cms.
[2] M.R. Krishna Murthi v. The New India Assurance Co. Ltd., (2019) Civil Appeal No. 2476-2477.
[3] Shruti Mahajan, Breaking: Dire Need to Enact Indian Mediation Act, Supreme Court, Bar&Bench, (Mar. 5, 2019, 7:48 PM), https://www.barandbench.com/news/indian-mediation-act-supreme-court-motor-vehicles-judgment.
[4] M.R. Krishna Murthi v. The New India Assurance Co. Ltd., (2019) Civil Appeal No. 2476-2477.
[5] Mridul Godha, A Renewed Interest in Mediation in India, MediationBlog, (Mar. 30, 2019, 5:57 PM), http://mediationblog.kluwerarbitration.com/2019/03/30/a-renewed-interest-in-mediation-in-india/.
- Mediation
- Legislation
- Indian Mediation Act
