Mediation: Powerful tool for resolving disputes

“Mediation ensures a just solution acceptable to all the parties to dispute thereby achieving “win-win” situation. It is only mediation that puts the parties in control of both their disputes and its resolution. It is mediation through which the parties can communicate in a real sense with each other, which they have not been able to do since the dispute started. It is mediation which makes the process voluntary and does not bind the parties against their wish. It is mediation that saves precious time, energy as well as cost which can result in lesser burden on exchequer when poor litigants are to be provided legal aid. It is mediation which focuses on long-term interest and helps the parties in creating numerous options for settlement. It is mediation that restores broken relationship and focuses on improving the future not of dissecting the past. It is based on an alternative set of values in which formalism is replaced by informality of procedure, fair trial procedures by direct participation of parties, consistent norm enforcement by norm creation, judicial independence by the involvement of trusted peers, and so on. This presents an alternative conceptualisation of justice.” – Vikram Bakshi v. Sonia Khosla, (2014) 15 SCC 80.

Mediation, as the Hon’ble Supreme Court defines it, an improvised form of negotiation, is voluntary, party-centred and structured negotiation wherein a third party, which is neutral, by making use of the negotiation methodology, assists the disputing parties to reach a mutually acceptable solution. In mediation, the parties retain the right to decide for themselves, whether to settle a dispute or not. Even though the mediator facilitates their communications and negotiations, the parties always retain control over the outcome of the dispute. The main objective of mediation is to ensure betterment of the society by bringing an end to disputes in a manner which is effective, convenient, and less expensive.

The Parliament, recently, passed the Mediation Bill, 2023, for promoting resolution of disputes through Mediation in the country. The Bill was passed by the Rajya Sabha on 1^st August, 2023 and by the Lok Sabha on 7^th August, 2023. The main objectives of the Bill are to promote and facilitate mediation, especially institutional mediation for resolution of disputes; enforce mediated settlement agreements; provide for a body for registration of mediators; to encourage community mediation and to make online mediation as acceptable and cost-effective process. Section 6 of the Bill states that any party before filing any suit or proceedings of civil or commercial nature in any court, shall take steps to settle the disputes by pre-litigation mediation. The initial draft of the Bill includes the term ‘shall’, however, the Parliamentary Standing Committee has proposed to make pre-litigation mediation voluntary which has been cleared by the Union Cabinet. It will be apposite to mention that the Supreme Court in Patil Automation Private Limited and Others v. Rakheja Engineers Private Limited, held that pre-litigation mediation contemplated under Section 12A of the Commercial Courts Act, 2015 is mandatory. The judgment perceives mediation as an effective mechanism of access to justice. It cannot be denied that our courts are reeling under a huge docket explosion, hence, mediation, has to be considered a viable solution for matters which can be resolved amicably.

Mediation, as per the Bill, shall be confidential and completed within a period of one hundred and eighty days from the date fixed for the first appearance before the mediator, which may be extended for a further period of one hundred and eighty days. Section 7 of the Bill talks about the disputes for which mediation shall not be conducted such as disputes involving fraud, fabrication of documents, forgery, impersonation, coercion; disputes relating to claims against minors, deities, persons with intellectual disabilities, persons with mental illness, persons of unsound mind; suits for declaration of title against Government; disputes involving prosecution for criminal offences; settlement of matters which are prohibited being in conflict with public policy; complaints or proceedings, initiated before any statutory authority, etc. The Bill states that it will not prevent any court from referring any dispute to mediation relating to compoundable offences or matrimonial offences connected with civil proceedings between the parties.

The Bill also provides for the establishment of the Mediation Council of India which shall endevour to promote domestic and international mediation in India through appropriate guidelines; endevour to develop India to be a robust centre for domestic and international mediation; lay down the guidelines for the continuous education, certification and assessment of mediators by the recognised mediation institutes; provide for manner of registration of mediators; lay down standards for professional and ethical conduct of mediators; hold trainings, workshops and courses in the area of mediation in collaboration with mediation service providers, law firms and universities and other stakeholders; enter into memoranda of understanding or agreements with domestic and international bodies, etc.

The concept of Community Mediation has also been introduced by the Bill and any dispute likely to affect peace, harmony and tranquility amongst the residents or families of any area may be settled through community mediation with prior mutual consent of the parties to the dispute. Any of the parties will have to make an application before the concerned Authority constituted under the Legal Services Authorities Act, 1987 or District Magistrate or Sub-Divisional Magistrate in areas where no such Authority has been constituted, for referring the dispute to mediation. Thereafter, to facilitate settlement of a dispute for which an application has been received, the concerned Authority constituted under the Legal Services Authorities Act, 1987 or the District Magistrate or Sub-Divisional Magistrate, shall constitute a panel of three mediators for resolving the dispute between the parties.

Agreements resulting from mediation other than community mediation will be final, binding, and enforceable in the same manner as the judgments of the courts of law. They may be challenged on grounds of fraud, corruption, impersonation, or relating to disputes not fit for mediation. Mediators, under the Bill, may be appointed by the parties by agreement, or a mediation service provider, an institution administering mediation. They must disclose any conflict of interest that may raise doubts on their independence. Parties may then choose to replace the mediator. It is necessary that a mediator must always uphold the integrity and fairness of the mediation process and he must ensure that the parties involved in mediation have a good understanding of all the aspects of the process. He/she must maintain the reasonable expectations of the parties as to confidentiality and be faithful to the relationship of trust imposed in his/her office. Online mediation has also been talked about, in the Bill which may be conducted at any stage of mediation, with the written consent of the parties including by the use of electronic form or computer networks but not limited to an encrypted electronic mail service, secure chat rooms or conferencing by video or audio mode or both.

Therefore, the passing of the Mediation Bill, 2023 by the Parliament is a welcome step for the promotion and burgeoning of mediation in the country. However, mediation can only bloom in the country when we have the required infrastructural facilities and services of skilled mediators. An area of concern is the limited number of mediators in the country. Therefore, there is a pressing need to have a dedicated Bar for mediation which will surely help in increasing the presence of mediation in the country. Training programmes must be regularly organized for mediators for discussing the principles of mediation, prejudices, biases, perceptions, stereotypes, ethics, role of the mediators in resolving disputes, scope of mediation post COVID-19, and the concepts of conflict, negotiation, communication, etc., so that mediation flourishes in our country effectively, in the words of Former Chief Justice of the United States Supreme Court, Warren Burger, when he said, “the obligation of the legal profession is … to serve as healers of human conflict … we should provide mechanisms that can produce an acceptable result in shortest possible time, with the least possible expense and with a minimum of stress on the participants. That is what justice is all about.”

Muneeb Rashid Malik is an Advocate and tweets @muneebmalikrash.