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Implementation of Mediation in India
IMPLEMENTATION OF MEDIATION IN INDIA:
Over the years, mediation has been recognised as the fastest growing method to resolve disputes worldwide. Mediation allows parties to relook at mutual interests and rights of each other, and to come up with amicable and innovative solutions. This helps in maintaining cordial relations between the parties. the nature of mediators or the process of mediation is very practical and flexible. Many a time, it can prove to be speedier, more effective and economical than the other adjudicative processes.
Current scenario of Mediation under statutory provisions:
- Conciliators appointed under Section 4 the Industrial Disputes Act, 1947are assigned with the duty to mediate and promote settlement of industrial disputes with detailed prescribed procedures for conciliation proceedings.
- Section 89 read with Order X Rule 1A provided for reference of cases pending in the courts to ADR. In addition, Order XXXIIA of the CPC recommends mediation for familial/personal relationships, as the ordinary judicial procedure is not ideally suited to the sensitive area of personal relationships.
- Section 442 of the Companies Act, 2013, read with the Companies (Mediation and Conciliation) Rules, 2016, provides for referral of disputes to mediation by the National Company Law Tribunal and Appellate Tribunal.
- The Micro, Small and Medium Enterprises (MSME) Development Act, 2006mandates conciliation when disputes arise on payments to MSMEs.
- More particularly, family and personal laws including the Hindu Marriage Act, 1955and the Special Marriages Act, 1954 require the court in the first instance to attempt mediation between parties.
- Section 32(g) of the Real Estate (Regulation and Development) Act, 2016 provides for amicable conciliation of disputes between the promoters and allottees through dispute settlement forum, set up by consumer or promoter associations.
Success of the mediation-conciliation mechanism prescribed under several laws:
Despite having the above stated statutory recognition, mediation has not been able to achieve great success in India. The Mediation and Conciliation Project Committee (MCPC) was established by the Supreme Court in April 2005 to oversee the effective implementation of mediation. The endeavour of the MCPC was to give a boost to court-annexed mediation and to help mediation in growing not as an ‘alternative resolution mechanism’, but as ‘another effective mode of dispute resolution’.
If the object of the MCPC was to reduce backlog, more attention is required towards framing of a national policy with an appropriate legal framework. The success and popularity of mediation is restricted and there is a need for urgent measures to promote and support its effective implementation.
Measures for effective implementation and growth of Mediation in India:
The judiciary mostly deals with matters that require adjudication, but there are situations where mediation techniques would be more appropriate and beneficial to the parties. Therefore, identification of such matters and situations by parties, lawyers and judges becomes extremely crucial and important in the promotion of mechanism.
The following steps may be taken:
- Grassroots level awareness of public at large (particularly parties, lawyers, judges and other stakeholders) and easy access to the Mediation.
- Legislative framework on Mediation and its practice (many other countries have already adopted this and India is now signatory to the United Nations Convention on International Settlement Agreements).
- Mediation Centres need good infrastructure and a standard pattern to make parties comfortable.
- Mediation must develop into a full-time profession (efforts by senior lawyers, members of the judiciary and all state bar councils will be required for promotion of this mechanism) as it gives lawyers an excellent opportunity to demonstrate their legal, analytical and professional skills.
- Incentives and recognitions to lawyers to educate parties about the inner workings of the mediation process in order to make such informed choices.
- High ethical standards (code of ethics and conduct) to be followed.
- Current scenario of Mediation under statutory provisions
- Success of the mediation-conciliation mechanism prescribed under several laws
- Measures for effective implementation and growth of Mediation in India
