MEDIATION AS AN ADR MECHANISM PAVING THE WAY TO SOCIAL JUSTICE
ELAVARASI.P
The Tamil Nadu Dr Ambedkar Law University.
Introduction:
“Justice delayed is Justice denied”.
In India, the Judiciary plays a vital role in protecting the peace and harmony of the society by providing justice to the people but it is often rigid and expensive. Courts are not proportionate to the population in India and their procedures are cumbersome. Thus, a new method of Alternative Dispute Resolution was introduced to have a speedy and effective solution with less cost. It comprises Arbitration, Conciliation, Mediation, Lok Adalat, and Negotiation. One such ADR mechanism is Mediation. It is an informal and voluntary process with a neutral person to facilitate the dispute between the parties. He does not impose any solutions on the parties but helps to understand their positions.
International Views on Mediation :
United Nations Commission on International Trade Law (hereinafter UNCITRAL) established in 1966 by the UN General Assembly thrived to harmonize international trade laws and give guidelines, conventions, and model laws for countries to adopt. This UNCITRAL introduced a model law on International commercial conciliation in 2002 which recognised the value of Mediation. In 2018 it was renamed as International Commercial Mediation and International Settlement Agreement resulting from Mediation. These model laws state the Mediator, Mediation process, Mediation settlement agreement, termination of mediation, and other frameworks. It aims to promote mediation as an effective international dispute resolution mechanism globally.
To complement the model laws, the Singapore Convention on Mediation was enforced in 2020. This convention focused on the 16th Sustainable Development Goals (SDGs), which emphasizes peace, justice, and strengthening institutions. It has a preamble and 16 Articles that basically describe how mediation is used in international commercial disputes and international settlement agreements resulting from mediation.
Definition of Mediation:
Mediation is defined under section 3(h) of the Mediation Act, 2023, in addition to Article 2 of the Singapore Convention of 2020. Both state that Mediation is a process where parties to the dispute attempt to settle amicably with the assistance of a third person called a Mediator who can only facilitate and can’t impose a settlement upon the parties.
Mediation Act, 2023:
The judiciary strives to promote ADR mechanisms through Section 89 of the Code of Civil Procedure (hereinafter CPC). Until 2023, mediation provisions were present in the Arbitration and Conciliation Act 1996, whereas the Meditation Act 2023 was enforced to provide a comprehensive framework for mediation and promote it.
Necessities to conduct a mediation:
Before entering into litigation the parties shall conduct a pre-litigation mediation process for civil and commercial disputes as per section 5 of the Act. Here the mediators are selected from those registered with the council or from the panel of court-annexed mediators or empanelled by the District Legal Service Authority or from a private mediation service.
Under section 12A of the Commercial Courts Act, pre-litigation mediation is mandatory for commercial disputes except for urgent interim relief. The mediator is appointed with the help of a District Legal Service Authority established under the Legal Service Authority Act of 1987. The settlement agreement reached has an equal value of an arbitral award under section 30(4) of the Arbitration and Conciliation Act, 1996.
Compoundable offenses and matrimonial disputes can also be mediated under section 6 of the Act. The agreement arising from the settlement shall be kept before the court for consideration.
Even if pre-litigation mediation fails the court shall refer the parties again to Mediation proceedings.
Mediator: A person duly qualified and experienced with any nationality can be a mediator. The parties can choose the mediator themselves, if they fail to decide then they can reach mediation service providers who will allocate the respective mediator within 7 days as per section 8 of the Act. The mediator must be independent, impartial, and neutral. He must follow the principles of objectivity and fairness, and shall not guarantee the outcome of the process. Moreover, he is not bound by the CPC and Indian Evidence Act (BSA). Under section 17 of the Act, a Mediator must not Act as an Arbitrator, a counsel, or a witness for the same dispute.
After the mediator is appointed, he shall choose a place for mediation with the agreement of all parties and he shall also notify the parties about the time, and date of the mediation.
The mediation proceedings must be completed within 120 days. If there is an agreement between the parties then an extension period of 60 days shall be given. (a total of 180 days of mediation have to be completed)
If parties agree to a settlement, the Mediator shall form a settlement agreement called a mediated settlement agreement (MSA)(section 19). It must be in writing and signed by both parties and the mediator.
The mediator shall prepare a non-settlement report when parties do not arrive at a settlement within the desired period.
The mediator shall submit them to the Mediation service provider and the parties.
Online mediation and online MSA have the same value as physical mode.
MSP is the body that provides mediators for the mediation process and is recognized by the Mediation Council of India.
The Mediation Council of India is a council established by the central government to oversee and regulate the uniform mediation process in India. They give guidelines for mediators to follow and collaborate with various stakeholders to provide training for the MSP.
Important Judgements:
Gian Singh v. State of Punjab (2012)
In this case, the Supreme Court stated that nonserious criminal offenses (non-compoundable offenses) can be settled through a negotiable agreement. Non-serious criminal offenses can also be settled through ADR and Mediation whereas arbitrators shall be appointed by the Legal Service Authority (LSA).
Afcons Infrastructure Ltd. V. Cherian Varkey Construction Co. Ltd (2010)
This case is based on section 89 of CPC which paves the way for ADR proceedings. By Order X Rule 1A of CPC after pleadings, if the case can be directed to the ADR proceedings (not under any exclusion), the court shall by the plain meaning of the section, and the Order refer the dispute to any ADR mechanism including Mediation.
Dayawati v. Yogesh Kumar Gosain (2017)
In this case, the court observed that, unlike CPC, the Code of Criminal Procedure (hereinafter CrPC) doesn’t give any procedures for ADR proceedings. In certain circumstances, ADR can be used in criminal cases but the procedure to conduct it wasn’t in CrPC. Here in cases of Negotiable Instruments, the ADR procedures present in the CPC were used to deliver justice. Unless separate procedures are to be followed for ADR in criminal cases, CPC procedures shall be followed.
Conclusion:
Mediation is the process where the parties themselves choose the mediator and settle their dispute. This will improve harmony between the parties. Rather than aggravating or escalating the problem, the mediator will do all the means required to de-escalate the dispute. Alternative Dispute Resolution procedures are generally cost-effective and speedy with flexible procedures. Throughout the process, confidentiality is strictly maintained. It is one of the globally emerging sectors where the enforcement of the Mediation Act, 2023 further helps the Indian judiciary to promote mediation more swiftly.
Reference:
1. Arbitration and Mediation Act, 1996 (no.26)
2. Mediation Act, 2023 ( no. 32 of 2023 )
3. Decoding the Mediation Act,2023, https://www.nishithdesai.com/NewsDetails/10748, (last visited on 15/12/2024).
4. https://legalaffairs.gov.in/sites/default/files/MediationAct2023.pdf (last visited on 15/12/2024)
5. Gian Singh v. State of Punjab, (2012) 10 SCC 303.
6. Afcons Infrastructure Ltd. V. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.
7. Dayawati v. Yogesh Kumar Gosain, 2017 SCC Online Del 11032: (2017) 243 DLT 117