DEVELOPMENT OF MEDIATION IN INDIA : A BRIEF HISTORY
Abraham Lincoln had once said :
"discourage litigation, persuade your neighbours to compromise whenever you can. Pointout to them how the normal winner is often a loser in fees, expenses,cost amd time"
The use of mediation, as an Alternative Dispute Redrassal (ADR) mechanism dates back to centuries before thr British came to India. Back then informal panchayats were used to resolve disputes between the parties where the respected elderlies of the villages or the Mahajans were appointed as mediators. Till date, Panchas or Pancha Parmeshwars, as neutral third parties, are used to settle disputes informally between the erring individuals or groups, by some tribes in India. However, with the onset of the British colonialism, mediation began to be recognized as a formal and legalized ADR mechanism.
Mediation gained popularity as an ADR mechanism with the re-introduction of Lok Adalats in the Indian Judicial system. Enacted in1987, the Legal Services Authority Act gave a statutory status to the Lok Adalts in India for the first time. Under this act, the decision of the Lok Adalats have been awarded the same status as that of a civil court.
The terms 'mediation' and 'conciliation', whose usages were considered to be synonymous previously, received significant distinctions in their usages when the Arbitration and Conciliation Act was enacted in 1996. Not only did the act lay down a clear definition for conciliation but also consolidated the laws relating to domestic arbitration in India. The mediator, unlike the conciliator, doesnot take an active part in the mediation process and thus, the terms cannot be used as a substitute for each other.
The developement of mediation as an ADR mechanism can also be attributed to section 89 of the Civil Procedure Code(CPC), 1908 which was inserted by the CPC (Amendment) Act, 1999 with prospective effect from 1/7/2002. This particular development was due to the efforts of Hon'ble Mr. Justice A M Ahmadi. Ahmadi, the then Chief Justice of India, had invited the Institute for the Study and Development of Legal System (ISDLS) to India for a national legal exchange programme between India and the USA. The ISDLS examined the problems of institutional backlogs in the Indian judicial system and suggested the ADR mechanisms and legislalive and structural reforms of the laws relating to these mechanisms following which, new reforms were introduced in 2002 in the form of amendment of section 89 of the CPC. However, the amendment was challenged by a group of lawyers following which the Malimath Committee and the 129th Law Commission were constituted. In the light of the reports submitted by the committees, the Hon'ble Supreme Court in the case of Salem Advocates Bar Association vs. Union of India. made it mandatory for the courts to refer cases to the alternative forums, if they were so pleased. This case is a landmark one in the development of mediation in India.
Since then, the judges of the Supreme Court have contributed significantly towards the development of mediation as an ADR mechanism. Under Hon'ble Mr. Justice R C Lahoti, a Mediation and Conciliation Committee was established and in a Project on Mediation was also initiated in Delhi in the year 2005. In the same year, A Permanent Mediation Centre was inaugurated at the Tis Hazari court complex and judicial mediation was started at the Karkardooma court complex. Two mediation centres were also inaugurated, one at the Karkardooma court complex in Delhi and another at the Patiala court in 2015.cant
Thus, mediation as an Alterantive Dispute Redrassal mechanism, has received significant impetus over the years through the enactment of various legislations and by the efforts of various judges of the Supreme Court.
- status of mediation in India in the pre-Independence era
- development of mediation in India under various statutes
- recent developments in the field of mediation in India