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Mediation: Absence of Suitable Legislation
Mediation is one of the most preferred form of Alternative Dispute resolution. It provides the option to the parties to solve their dispute outside the court in a flexible manner with advanced negotiable technique and reciprocal communication. It is dynamic in nature and is sandwiched between Arbitration and Conciliation in relation to degree of stringency of its procedure. In India, the process of mediation is governed through the Section 89 of the Civil Procedural Code which was inserted by an amendment in 2002.
Even though the process of mediation in India has seen growth and development in recent years as it slowly became apparent to the ruling authorities that ADR can be a possible solution to the heavy backload of cases in the courts of India. The Indian legislature has done a tremendous job in this area by implementing statues like the Arbitration and Conciliation Act, 1996. Yet, it is disheartening to know that no codified statutes are made in respect of mediation as a specific branch of alternative dispute resolution.
As mentioned above, the process of mediation is only guided by section 89 of Civil procedural code which too talks only about mediation through court referrals i.e., where the court itself orders the parties to solve the dispute through the method of Mediation. This is a practise is rarely adopted by judges of court and not many referrals to mediation are seen.
Private or commercial form of mediation i.e., where the parties themselves voluntary choose mediation as a process to resolve their dispute, is nowhere governed by any statute in India. The only body having a remote sense of control over this practise in India is the Mediation and Conciliation Project Committee formed by the supreme court of India. This committee is formed on the basis of internal wisdom and judgement of the honourable apex court and thus has no legal sanction or authority from the Government of India.
As already noted the process of mediation is a flexible process and thus relies heavily on the wisdom, judgment, communicative skills and conciliatory power of the mediator. Thus for the process to be successful, the mediator must be skilled and trained to carry out mediation. But in India there is no particular government authorized organisation or institute that trains the mediators and also there is an absence of any norm on the training standard that should be necessary for an individual to become a mediator.
Thus it is safe to say that there is an urgent need of time for the government to enact a separate legislation governing the process of mediation, the training practise, etc. It is also to be noted that the said law should be flexible in nature and should not compromise the basic essence of the process of mediation but should be of nature that establishes a set of uniform rules in relation to all forms of mediation carried out in the territory of India. Thus the real challenge before the legislative bodies of India is to enact a law which addresses all the concerns of mediation as an ADR method in India without the chocking its basic tenets a features.
- No particular codified law
- the training of mediators not adequately conducted
- a real necessity for center to take action
