Name – Warsha Kumari
College -Fairfield Institute of Management and Technology
· No. of mediation center in India: 839
· No of mediators trained by MCPC: 6480
· No. of cases referred to the Centre since inception(upto 2015): 9,37,995
· Settled: 3,36,455
· Connected Cases: 38,764
Mediation law in India is very flexible and the process itself is an easy one. It is also enforceable in the court of law in case any grievance arises.
SCOPE OF MEDIATION
Mediation as a method of dispute resolution has been in practice in India from the time immemorial. In India's mythological text of Mahabharata, Lord krishana in the court of Duryodhana has acted as a mediator between Kauravas and Pandawas to settle the tension. Since then, the scope and application of mediation has been ever increasing. From the small model of Nyaya-Panchayat to dispute among big Corporate Giants, the application of mediation as dispute resolution mechanism is highly seeked.
Mediation law in India has very high scope as there are vast numbers of cases pending in the court and often judges find it time consuming and try to settle that by other way around to save the time of court for another much important cases and of speedy resolution of the same. Although court take permission of the parties before referring a case for settlement by the mediation and parties find it’s procedure very adaptable and party-friendly. Thus, it has been proved very cost effective and time saving for the parties in litigation. Mediation in India makes the affairs of parties personal and private such that mediator does not get the right to disclose the matter in the world. thus, once mediation gets over, it is the duty of mediator to erase all the fact on the same desk of mediation hall.
In Global Context, In our neighbor country, Bangladesh, mediation has been extremely successful in delivering justice to the poor section of society. In America, litigation is the exceptional one and mediation is the norm of dispute resolution. In England, the courts do not award costs if litigant unreasonably rejects mediation as an alternative dispute resolution mechanism[4]
There are some legal frameworks of mediation in India which has set limitation on mediation in Indian legal system usually known as court referred Mediation;
Section 89 of Code of Civil Procedure 1908, empowers the court to refer certain cases of Matrimonial disputes, divorce cases for mediation. Part II of the Civil Procedure-Alternative Dispute Resolution and mediation rules, 2006 provides for various rules to be followed during Mediation.
There is another form of mediation in India with high success rate after the success of court referred mediation i.e. private mediation. Many scholars, jurists, lawyers have supported and appreciated mediation in India and speak very positively towards the participation of parties in disputes and about the evaluative method of mediators towards the positive settlement of the same. Many pioneers’ business organization and industrial leaders are getting involved for the same as it is a party centric and neutral process, keeps matters confidential on part of mediator and termed them as commercial mediation process. Hence, it may be concluded that in Indian legal system mediation as part of Alternative Dispute Redressal method play very crucial role in resolving lakhs of cases out of the court in very less time with fixed-fee in case of private mediation by mediator or with very minimal amount matters gets disposed with mature decision by the parties through mediator. Scope has been limited with legislative framework and judicial intervention and has been expanded in private mediation among the business pioneers’ and industrial leaders to many more disputes arising internationally.
CHALLENGES IN INDIA
Lack of formal education: With the deficiency of 22.3% literacy rate in 2022 as per report published by National Survey of India,[5] it is very difficult for the mediation process to be fulfilled as people facing grievances can-not reach to the effective major like mediation rule for the redressal of their dispute in very effective alternative way out of the court.
Lack of legal education; Out of 77% of literate people including 8.15% graduates[6], a very few of them have any kind of legal education. A majority of our society is unaware of their rights, duties and privileges. Mediation, despite being a well-recognized method of alternative dispute resolution in its primitive form, is still a lesser known process in its modern concrete form in Indian society.
Lack of mediation infrastructure: Many Indian courts are still lacking the basic infrastructure for the mediation process. For example; much rural and remote area’s district courts do not have any mediation facilities in their premises. Our legal system is also facing the deficiency of professional mediators thereby, putting the whole aspect of mediation into question. Utilizing the services of an unskilled and unprofessional mediator can lead to an unproductive resolution. There is also no statutory framework and regulating body to supervise and regulate the mediation process in India.
Lack of legislation in the field of mediation; In Indian legal system for the time being, the mediation process is governed by section 89 of CPC[7] and follows all the general rules of evidence and examination and cross-examination of witness but there is no statute dealing exclusively with the process of mediation in India. Unlike other ADR mechanisms such as Arbitration, conciliation for which there is a separate law of Arbitration Conciliation & Negotiation, mediation is governed by the provision of CPC and other rules.
Skeptic nature of mediation proceeding: It is inherent in the nature of proceeding of mediation that parties often feel skeptic about the role of mediator. In many cases even the impartial character of mediator is often put to scrutiny thereby parties not arriving at any settlement. The weak enforceability mechanism of mediation settlement in many cases, the whole proceeding is treated as mere wastage of time and effort. Despite mediation, many disputes end up in the court of law for formal adjudication by the court. This trend creates a disbelief in the outcome of mediation proceeding in the mind of parties.
Concern over leak of sensitive information; It may be difficult for an amicable resolution if either parties are withholding information. Also, the mediation process may not be appropriate if one of the parties requires public disclosure of any information, this could lead to leakage of sensitive information or intellectual property to the other party or general public causing adverse impact on such party. There is also the possibility that sensitive information may be given away to the other party during the mediation process that could give undue advantage to the other party.
CONCLUSION & SUGGESTIONS
Despite various challenges, mediation encourages the parties in dispute resolution actively and directly whereby they explain their issues with ease to resolve the disputes. Parties find it very suitable and amicable environment for the discussion of various aspects of their dispute and with the help of mediators. They are able to reach at an acceptable situation without following a long court procedure. “Mediation is a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in reaching a settlement.” Mediation as a method of dispute resolution has been in practice in India from the time immemorial. Parties in mediation play very key role as players in the dispute resolution mechanism as it is completely voluntarily process hence, scope for the mediation increases in India by actively and voluntarily participation of parties in disputes which is clear from the statistic of Indian mediation Centre, settled cases, no. of trained mediators by MCPC and no. of connected cases. The mediation in divorce cases is most common in India and such other cases like property cases, family matters are court referred mediation with reference to section 89 of code of civil procedure, 1908 are highly successful in India whereas, private mediation where the mediator with fixed-fee is in role among various business stakeholders, industrial leaders is also in great progress and even more successful in India.
To overcome the challenges of mediation proceeding and to make it more favorable means of ADR , the suggestion would be the enactment of exclusive statutes, a regulating body to supervise and regulate the procedure of mediation and also to give more priority in increasing the quality of training to the mediators and spreading the awareness of the same.
[1] Alternative Dispute Resolution: Mediation, LawShelf.com, (July 06, 2022, 12:40 PM), https://lawshelf.com/shortvideoscontentview/alternative-dispute-resolution-mediation.
[2] Mediation, Mediation and Conciliation Project Committee(MCPC), (July 06, 2022, 01:00 PM), https://main.sci.gov.in/pdf/mediation/Brochure%20-%20MCPC.pdf.
[3] ibid.
[4] Knowing & Encouraging Mediation, Mediation and Conciliation Committee, Punjab and Haryana High Court, (July 06, 2022,04:00 PM), https://highcourtchd.gov.in/1_mcchc/main-menu/notice-board/Mediation%20booklet%20knowing%20&%20encouraging%20mediation%20final.pdf.
[5] Literacy Rate in India 2022 | Kerala & Bihar Literacy Rate, Theglobalstatistics.com, (July 06, 2022, 04:10PM), https://www.theglobalstatistics.com/literacy-rate-in-india/#:~:text=According%20to%20the%20report%20published,2022%20is%2077.7%20per%20cent.
[6] Rukmini S, Only 8.15% of Indians are graduates, Census data show, The Hindu, (July 06, 2022, 04:20PM), https://www.thehindu.com/news/national/Only-8.15-of-Indians-are-graduates-Census-data-show/article60334841.ece.
[7] Code of Civil Procedure, 1908.