“An ounce of mediation is worth a pound of arbitration and a ton of litigation!”
– Joseph Grynbaum
From dramatic movies to overdramatic daily soaps, from a mediocre to a deep pocketed person, whenever justice has been demanded, the doors of the sacred Courts have always been knocked. The social media, which is known for acquainting people with something new and informative, still adheres to the old norm of justice which can be made available in Court rooms alone.
The legal professors, academicians, lawyers and all those related to the legal fraternity in one way or another, are very well aware of the continuously increasing backlog of pending cases, hardships faced to get justice and of course the infamous trials that could burn a hole in your pocket. Furthermore, the levels of dissatisfaction after years of trial, inordinate delay, and procedural wrangles have added insult to injury.
But some burning questions arise that whether, in this world of advancement, Courts are enough to ensure justice or a special approach is to be followed to settle disputes? Is it possible to have a win-win situation where both the disputant parties go back home happy?
A breakthrough had been achieved by courts more than a decade ago but even today, the so called common man to whom justice can cost his entire life is not much aware of the alternative to dispute resolution. Mediation has changed the course of law by solving the disputes in an amicable manner by keeping both the parties happy. The process of involving a third person to settle the disputes is not something new to India. It has its seeds in ancient India wherein Yajnavalkya and Narda had stated that Village Councils (Kulani), Corporation (Sreni) and Assemblies (Gorth/Puga) used to decide law suits. In modern sense, they’ve earned the status of Village Panchayats wherein disputes were being solved by village leaders.
MEDIATION- AN OVERVIEW
In simple words, the dispute between the parties is settled with the assistance of a mediator who helps them to understand the actual issues and talks them into a conclusion by which both parties remain satisfied. Mediation is no magic but an effort to solve the dispute with a positive outlook. It is a voluntary and a private process undertaken by parties. The most lucrative feature of mediation is that the decision making power remains with the parties. The decision will not be effected unless both the parties consent to it. But most of the advocates are not very supportive of this mode since the money spent on mediation is far less as spent on a trial. On one hand, this could close down the shops of the struggling advocates by obviating legal fees that would otherwise be earned but on the other bright side; it would protect many people from spending caskets of wealth on trials.
Mediation is not a cake walk for the mediator who has to realize long term interests of both the parties and work with and for them keeping in mind their welfare. They use their best judgment and recommend the most suitable solution to the disputant parties. Even after mediation, if no result is achieved, either of the parties may terminate mediation and the case can be brought before the Court.
WHAT HAPPENS WHEN A CASE COMES FOR MEDIATION?
After a case is referred for mediation, or parties chose to mediate, firstly, an introductory session takes place which is followed by a joint session in which the mediator hears the perspectives of both the parties. Here, the mediator will assess the matter and identify the issues of the case. After the joint session, another separate session is held wherein the mediator encourages the parties to explore options that will help them in settling the dispute. The problem is properly understood and options are created for the parties. After all the possibilities are evaluated, the parties may or may not choose to settle depending upon their level of satisfaction. If the parties choose to settle, the agreement shall be signed by the parties and approved by the judge.
MEDIATION- A NECESSITY
Mediation has become an integral part of justice system. Mediation has an edge over trials as the cases can be solved within a time span of 3 to 30 days depending upon the complexity of the matter. According to a report published in 2015, the average time per case for mediation is 173 minutes. Moreover, the approach that is followed for mediation is different from that of a trial. It is a testimony to the fact that cases can be settled with mutual consent and seeking so called justice for something that never existed can be an utter waste of time of both the Court and the parties. While solving a case through trial, the parties at dispute in a fit of rage, hatred, fear and guilt enter into a conflict of superiority and inferiority, something that needs to be cured. It is always better to sit together and reach a common end rather than fighting long battles without any hope to get the desired result. In mediation, unlike litigation, there is a possibility of preservation of relationships and the parties can go back together from where they started. The goal in mediation is to reach mutually acceptable solutions by understanding the matter in hand whereas in a trial, the only goal is to win by finding flaws and developing counter arguments.
Mediation proceedings are confidential in nature and the same was upheld by the Supreme Court in Moti Ram v. Ashok Kumar. The Court observed that in the event of a successful mediation, the mediator should only send the agreement entered into by the parties to the Court and not mention what actually transpired in the proceedings. Even if the mediation is unsuccessful, the mediator is expected to send only a statement conveying the failure of the mediation proceedings.
Mediation stands mid-way between Conciliation and Arbitration but codified recognition has been given to the two concepts of Arbitration and Conciliation with the enactment of the Arbitration and Conciliation Act, 1996. The Conciliator helps the disputant parties to reach their own negotiated settlement and may make suitable suggestions. On the other hand, a mediator starts through conciliation but in addition he is expected to make his own formal proposals which may be accepted. Prior to this, in the year 1999, the Indian Parliament passed the CPC Amendment Act of and inserted Sec.89 in the Code of Civil Procedure 1908, which provided for referring the pending cases for Alternate Dispute Resolution including mediation. The Amendment was brought into force with effect from July 1, 2002. It was in April 2005, that the Madras High Court introduced court appointed legal mediation. At present, mediation is of two types- first, Court-referred mediation and second, private mediation. On August 22, 2010, the Supreme Court passed an interim order in which a suit was filed by Assam against Nagaland in the year 1988 on a border dispute stating that they should attempt to resolve this dispute through mediation. Thus, for the very first time a case regarding border dispute was referred for mediation. This has validated mediation as a form of method to redress grievances. Ten years on, the common man is still not aware about Mediation as an alternative. A study undertaken by an independent Delhi based organization – Vidhi Centre for Legal Policy, states that as little as 2.66% of the total number of cases is referred for mediation.
WHAT CAN BE DONE?
It is the duty of lawyers to advise their clients and acquaint them with the benefits for mediation. Even the Courts in India should encourage dispute settlement by way of mediation. This will surely help in reducing backlog of pending cases in Courts and make justice system more efficient, effective and accessible. Legal Aid committees should make some endeavor in spreading awareness about ADR. Mediation can be preferred over litigation in matters involving families such as divorce, maintenance, alimony, elder care, parenting plans etc, workplace disputes such as harassment or wrongful termination, matters involving contract or an agreement.
The need of the hour is to evolve mediation and remove all the disabilities related to this field. There should be trained mediators working efficiently to solve the disputes. Also, systematized plans should be made to take mediation to another level by introducing it in the districts of each state; which would hopefully further reduce the backlog of so many years. The system of dispensing justice is very stressful and if nothing is done now, the country will never be able to restore their faith in the broken judicial system.
 (2011) 1 SCC 466