Mediation The Existing State of Law & Future Prospects

I. The proem

The adversarial system of dispute resolution is one in which parties' opposing claims are represented before an impartial third party with the authority to impose powers by legal counsel who have an interest in the result of the issue. In comparison to adversarial dispute resolution, non-adversarial ADR mechanisms such as mediation are informal, approachable, and less complicated. They enable parties to communicate about the root cause of their conflict, identify their underlying interests, and focus on resolving the conflict on their own. It contributes to the

strengthening and re-building of connections. These non-adversarial means of dispute settlement enable the parties to save time and money. It is true that not all disputes can be resolved through mediation. However, the types of issues that can be mediated include, but are not limited to commercial and contractual disputes, consumer disputes, and those involving tortious responsibility. We are currently experiencing a global catastrophe as a result of Covid-19.

The World Health Organization formally proclaimed the Covid-19/corona virus pandemic on March 11, 2020. Not only has this epidemic claimed lives, but it has also had a detrimental effect on business, trade, contractual performance, and the worldwide economy as a result of lockdowns and limited travel. Rather than litigating or arbitrating all such contractual problems, parties should make every effort to resolve them through mediation in the first instance.

When a commercial issue is resolved, it builds corporate relationships and may result in a win-win scenario for both sides. Promoting mediation as a means of resolving disagreements between parties would also save valuable court time. In view of the foregoing dire scenario, the courts have risen to the occasion, increasingly establishing virtual sessions via video conferencing and online files. Thus, it is past time for us to appreciate the benefits of mediation and to use it as a competent and sophisticated means of resolving disagreements between parties.

There is a need to alter people's perceptions of mediation. It should be mandatory to use it as a means of resolving disagreements between parties. If mediation fails, the parties should then and only then seek the courts via litigation or arbitration, as the case may be. Given the aforementioned, it is critical to grasp the fundamental principles of mediation, the distinction between mediation and conciliation, the current jurisprudence on mediation, court precedents, and the future of mediation.

Important Vignettes

• Mediation has been defined in the Cambridge Dictionary as "the process of talking to two separate people or groups involved in a disagreement to try to help them to agree or find a solution to their problems."³
• Black's Law Dictionary has defined Mediation as "A method of non- binding dispute resolution involving a neutral third party who tries to help the disputing parties to reach a mutually agreeable solution."⁴
• It has been rightly said by Joseph Grynbaum "An ounce of mediation is worth a pound of arbitration and a ton of litigation."⁵
• It has been rightly quoted by Abraham Lincoln, "Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough."⁶

II. Mediation & conciliation: the variance

Both the terms 'Mediation' and 'Conciliation' are used interchangeably. Both mediation and conciliation entail the involvement of a neutral third party who assists the parties in communicating, evaluating and comprehending one another's points of view, and agreeing to a settlement. However, there are distinctions between the two. Mediation is a method of organised negotiation. The mediator directs the process through distinct and distinct stages, including introduction, joint session, caucus, and agreement, while the parties control the conclusion. On the other side, the conciliator may not follow a defined approach.

The conciliator may conduct the conciliation process in the manner of conventional bargaining, which might take several forms. The distinctions between mediation and conciliation are mostly qualitative rather than quantitative. Conciliation morphs into mediation in practice.

III. Mediation: the contemporan-eous jurisprudence

Mediation is an old and deeply ingrained idea in India. From Lord Krishna mediating between the Kauravas and Pandavas in the Mahabharata, to family elders resolving personal conflicts, to community-level conflict resolution through Panchayats, India has a strong mediation tradition. With the passage of time, several legislation have been enacted that provide for mediation as a means of resolving disagreements between parties.

Such statutes comprise of, but not limited to the following:

• Section 4 of the Industrial Disputes Act, 1947- Conciliators are appointed with the responsibility of mediating and promoting the resolution of workplace disputes via the use of specific regulated processes for conciliation proceedings.
• Section 89 read with Order X Rule 1A of the Code of Civil Procedure, 1908- The addition of Section 89 to the CPC is a positive step toward increasing the use of mediation and other forms of alternative dispute resolution. According to Section 89 read with Order X Rule 1A of the CPC, after recording the admission and denial of documents, the Court shall direct the parties to the suit to choose one of the modes of out-of-court settlement specified in Section 89 (1) of the CPC, namely arbitration, conciliation, judicial settlement, including settlement through Lok Adalat, or mediation. As a result, it provides for the referral of pending court matters to the aforementioned forms of conflict settlement.
• Order XXXIIA of CPC- The CPC's Order XXXIIA supports mediation. This is obvious from Order XXXIIA's Rules 3 and 4. The legislators added this clause with great care since non-adversarial resolutions are more appropriate for personal, family, marital, guardianship, custody, and maintenance situations. While the parties may take conflicting perspectives, the effort must be made to safeguard the underlying interest, which can be accomplished through mediation.
• Legal Services Authority Act, 1987 read with Section 89 of CPC- Legal Services Authorities at the centre, state and taluka level are statutory authorities established by the Legal Services Authorities Act, 1987 with the object to provide free and competent legal service to the weaker services of the society and to ensure that justice is not denied to any citizen on account of economic or any other disability. As per Section 89 (2) of CPC, where a dispute has been referred to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of Section 20 (1) of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat. Further, it has been provided under Section 21 of the Legal Services Authority Act, 1987 that a settlement before a Lok Adalat is enforceable as a court decree.
• Section 442 of the Companies Act, 2013 read with the Companies (Mediation and Conciliation) Rules, 2016- Section 442 of the Companies Act, 2013 provides that the Central Government shall maintain a panel of experts known as the Mediation and Conciliation Panel comprised of such number of experts with such qualifications as may be prescribed for the purpose of mediating between the parties during the pendency of any proceedings before the Central Government, the Tribunal, or Appellate Tribunal under this Act. A Panel of Mediators or Conciliators is provided for under Rule 3 of the Companies (Mediation and Conciliation) Rules, 2016. The aforementioned regulations provide for the mediation of conflicts before the National Company Law Tribunal and Appellate Tribunal.
• Section 18 of the Micro, Small and Medium Enterprises (MSME) Development Act, 2006- Section 18 of the aforementioned Act makes it abundantly plain that any party to a disagreement over any amount owed under Section 17 (disputes involving the payment of amounts to MSMEs) should refer the matter to the Micro & Small Enterprises Facilitation Council. On receipt of a reference, the Council may conduct conciliation in the matter itself or may seek the assistance of any institution or centre providing alternative dispute resolution services by making a referral to such an institution or centre for conducting conciliation, in which case the provisions of Sections 65-81 of the Arbitration and Conciliation Act, 1996 shall apply.
• Section 12A of the Commercial Courts Act, 2015- Chapter IIIA of the aforementioned Act contains Section 12A, which deals with Pre-Institution Mediation and Settlement. Chapter IIIA was added to the aforementioned Act in 2018 by an amendment. Section 12A provides unequivocally that an action that does not seek urgent interim relief must not be brought unless and until the plaintiff exhausts the remedy of pre-institution mediation in line with the method and procedure provided by Central Government rules. Therefore, it is obligatory for parties to exhaust the Act's pre-institution mediation provision prior to instituting an action.
• The Commercial Courts (Pre- Institution Mediation and Settlement) Rules, 2018- The Central Government devised and subsequently issued these Rules on July 3, 2018 in exercise of the authority given by Section 21A(2) read with Section 12A(1) of the Commercial Courts Act, 2015.
• Mediation and Conciliation Rules, 2004- The Hon'ble High Court of Delhi has framed these regulations in exercise of its authority under Part X and Section 89 (2) (d) of the CPC. Additionally, India is a signatory to the United Nations Convention on International Settlement Agreements Achieved Through Mediation (Singapore Mediation Convention), which confers legal effect on mediation agreements. On the basis of the aforementioned legislative provisions, one cannot assert that India lacks legislation relating to mediation or the use of conciliation. However, the distinctions between mediation and conciliation jeopardise the efficacy of these procedures. A unified mediation statute would provide legal sanctity and eliminate contradictions between several current pieces of law. Even while many legislation empower parties to resolve their conflicts through mediation and there are both court-ordered and private mechanisms for engaging in mediation, there is a dearth of procedural advice in this area. The Supreme Court of India has taken a novel step in establishing a group to write legislation to confer legal sanctity on conflicts resolved through mediation, which will then be forwarded to the government as a recommendation from the highest court. The Hon'ble Supreme Court's suggestion of an 'Indian Mediation Act' is a very promising proposition for India.

IV. Conclusion: the future prospects

A uniform legislation governing the resolution of conflicts through mediation is urgently needed. Such a legislation should require parties to attempt mediation first before litigating or arbitrating their issues before a court or an arbitral tribunal. In all commercial, contractual, consumer, and tortious responsibility conflicts, it should be necessary to attempt resolution through mediation prior to reaching the courts or an arbitral tribunal. There is a need for institutions dedicated to mediation with qualified personnel. Additionally, there is a need for a governing agency that establishes the minimum requirements for mediators and conducts periodic assessments of current mediators' performance. Public knowledge about mediation is required. This understanding can be fostered by professional and competent mediators' training sessions, seminars, webinars, and legal discourses. The public's lack of understanding of non-adversarial ways of conflict settlement is the primary reason individuals revert to the adversarial method. This changed in the context of arbitration with the enactment of the Arbitration and Conciliation Act, 1996. Today, India has a considerably stronger arbitration culture than it had in 1996, owing to a particular legislation governing the subject. A legislation devoted to mediation might similarly increase India's willingness to mediate disputes. While numerous legislation empower parties to resolve their conflicts through mediation and there are both court-ordered and private mechanisms for engaging in mediation, there is a dearth of clear procedural advice on this subject. In view of current jurisprudence, mediation is regarded one of the forms of Alternative Dispute Resolution. The time has come to use mediation as a primary or first form of resolving disputes, not as an alternative mode of resolving disputes. Encouraging mediation may be the best course of action for guaranteeing the prompt delivery of justice. The 'Indian Mediation Act,' as proposed by the Supreme Court of India, is an extremely positive proposition for India.

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V. References

• Wall, James A., et al. “Mediation: A Current Review and Theory Development.” The Journal of Conflict Resolution, vol. 45, no. 3, 2001, pp. 370–91, http://www.jstor.org/stable/3176150. Accessed 23 Apr. 2022.
• Basu, Srimati. “Judges of Normality: Mediating Marriage in the Family Courts of Kolkata, India.” Signs, vol. 37, no. 2, 2012, pp. 469–92, https://doi.org/10.1086/661712. Accessed 23 Apr. 2022.
• York, Stephen. “India as an Arbitration Destination: The Road Ahead.” National Law School of India Review, vol. 21, no. 2, 2009, pp. 77–103, http://www.jstor.org/stable/44283805. Accessed 23 Apr. 2022.
• Haloush, Haitham A. “Jurisdictional Dilemma in Online Disputes: Rethinking Traditional Approaches.” The International Lawyer, vol. 42, no. 3, 2008, pp. 1129–46, http://www.jstor.org/stable/23824404. Accessed 23 Apr. 2022.
• William L. F. Felstiner, and Lynne A. Williams. “Mediation as an Alternative to Criminal Prosecution: Ideology and Limitations.” Law and Human Behavior, vol. 2, no. 3, 1978, pp. 223–44, http://www.jstor.org/stable/1393625. Accessed 23 Apr. 2022.
• Srikumar, Madhulika, et al. “The Privacy Negotiators: The Need for U.S. Tech Companies to Mediate Agreements on Government Access to Data in India.” The Promise of Public Interest Technology: In India and the United States, New America, 2019, pp. 38–52, http://www.jstor.org/stable/resrep19980.6. Accessed 23 Apr. 2022
• Aresty, Jeffrey M. “The Internet and ADR: Educating Lawyers about Online Dispute Resolution.” GPSolo, vol. 23, no. 1, 2006, pp. 30–35, http://www.jstor.org/stable/23673082. Accessed 23 Apr. 2022.
• Jones, Richard J. “The Cost of Mediation: Who Pays?” Fine Differences: The Al-Alwani Muslim-Christian Lectures 2010-2017, edited by Richard J. Jones, International Institute of Islamic Thought, 2020, pp. 31–41, https://doi.org/10.2307/j.ctv19prr4t.8. Accessed 23 Apr. 2022.

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