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Mediation, The Rule
Alternate Dispute Resolution is generally perceived as a term containing various modes of settling disputes outside traditional court systems in India. It refers to various methods such as conciliation, negotiation, mediation, arbitration, Lok Adalats and such.
Rule 4 of the Civil Procedure Alternate Dispute Resolution(ADR Rules), 2003 defines mediation as: Settlement by mediation means the process by which a mediator appointed by parties or by the court as the case may be mediates the dispute between the parties to the suit by the application of the provisions of the Mediation Rules, 2003 in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring the areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties own responsibility for making decisions which affect them.
History and Mediation Models
When the Civil Procedure Code was amended by the Indian Parliament in 1996, the introduction of section 89 give life to commercial mediation. This empowered courts to direct settlement of disputes by mediation and other means. Mediation in the court system in India is governed by this provision. The Arbitration and Conciliation Act was also introduced in the year 1996. These provisions govern private mediation in India.
The primary mediation style is evaluative. Disputants usually prefer having a figure of authority as the mediator and are more comfortable being let in the mediation rather than the mediator being more hands-off. The mediator is expected to to give parties his/her views of the weakness of their case and actively participate in finding solutions.
Domestic Mediation Law
There are two principal enactments that deal with mediation in India. The CPC and the ACA. S.89 of the CPC and the rules framed by various high courts under that section deal with court-annexed mediation while Part 3 of the ACA deals with private mediation. The rules relating to mediation are also provided by Part 2 of the Civil Procedure Alternative Dispute Resolution and Mediation Rules.
Commercial Courts Act, 2015 also covers mediation according to which it is mandatory for parties to exhaust the remedy of pre-institution mediation under the act before instituting a suit. The Commercial Court Rules, 2018 have been framed by the Government under the Act.
These laws are not based on the the UNCITRAL Model Law on International Commercial Conciliation.
Mediation is encouraged strongly by courts in India. Mediation centres have been set up by many courts within its premises. A large number of lawyers and other individuals have been trained to become mediators. The Courts also pay a honorarium to the mediators.. The process is usually free for the parties.
Commercial mediation is fairly new in India. Hence, litigation remains the most popular mode for settling disputes. The percentage of commercial cases settled by mediation is small in comparison. Although, in the future, mediation would have its equal and individual stand and would be practiced just like litigation.
- Domestic Arbitration
- CPC
- ACA
