About the Author: Kirti Mahal is a Student of the Vivekananda Institute of Professional Studies, New Delhi..
INTRODUCTION
In a small village, a potter struggled with his neighbour’s sheep, which often jumped over his fence and ruined his delicate pieces. Frustrated, he asked his neighbour to control his sheep, but the neighbour ignored his requests. Exhausted, the potter went to the Village headmen who offered him advice that he could punish his neighbour, but he would end up losing a neighbour. Taking the advice, the potter returned home and gifted three of his delicate pieces to his neighbour. His wife, delighted by the potter’s gesture, convinced her husband to build a higher fence, and the potter was never again disturbed by the goats. This story captures the essence of mediation, where both parties reach a win-win solution that resolves their disagreement but also preserves their relationship.
Mediation is not a new concept in India. It can be seen in the Vedic Period, in Mahabharata, where Lord Krishna acts as a peacemaker in the family fight between the Pandavas and Kauravas. In the rural areas, the Panchayat system helped resolve disputes related to property, family, and community. In today’s times, Mediation is seen as a good way of resolving disputes as it reflects a move towards working together and fixing problems. India has taken significant steps to fit this old practice into the modern legal system through the Mediation Act of 2023
THE MEDIATION ACT 2023 – LEGAL FRAMEWORK OF MEDIATION
The Mediation Act of 2023 is a big step towards promoting Alternative Dispute Resolution in India. The act put importance on institutional, online, and community mediation as an effective method to dissolve disputes. Section 5(1) of the act allows the parties to go for mediation even if they don’t agree to mediation first. Also, the court can ask the parties to go into mediation at any point of the legal proceedings, even without any mediation agreement. The court can also issue interim orders to safeguard the interests of any parties. The time limit prescribed in the act is 120 days, and it can be extended to a further 60 days if the parties mutually agree on it. The act also encourages and accepts Online Dispute Resolution as a mode of dissolving disputes through mediation. The act also talks about strict confidentiality in the mediation proceedings, and any information revealed in the mediation cannot be used as a piece of evidence in the court proceedings. The act also treats the mediation agreements as final and binding like a court decree. The mediation agreement must be in written form. The act also states that the mediation needs to take place within the court’s jurisdiction or tribunal unless the parties mutually decide to hold it elsewhere or if they are going for Online Dispute Resolution. The act establishes the Mediation Council of India, which will perform functions like registration of mediators, setting ethical conduct and standards for the mediators, and training and certifying the mediators. The act also talks about disputes which are excluded from the mediation, such as criminal prosecution, serious allegations of fraud, etc.
WHY CONSIDER MEDIATION?
In India, over 40 million cases are still pending. In both litigation and arbitration, the result is always where one party loses and the other party wins, and both these processes involve a third party who imposes a binding decision. In mediation, both parties come together to solve their differences with the help of a mediator, and if they resolve their issues, they can sign a mediation agreement, which will be considered binding. Unlike Litigation where the focus is on the past and establishing blame and liability mediation on the other hand focuses on long-term interests, strengths, and weaknesses of the case and makes them come to a bargained agreement. Mediation is a voluntary process that is suitable when the parties want to preserve their relationship. It is commonly used in family disputes, custody issues, and workplace disagreements. It is a flexible process, and it can be entered anytime the case is pending in the court or even before filing the case. The conflict brings parties to the mediation table, but the goal of mediation isn’t just solving the problem but helping the parties learn new ways to communicate, building confidence in them to manage their future dispute, and seeing conflict as an opportunity for personal and relational growth.
Role of a Mediator: A mediator is a neutral party who helps the disputing parties in communicating and helping them arrive at a decision that satisfies both sides. Unlike the Judge or an arbitrator, the mediator doesn’t have the authority to impose decisions, but instead, he helps the parties in finding a common ground. For a mediation to be effective, the mediator must be trained and certified by a recognized institution. Professionals such as Lawyers, Retired Judges, psychologists, and social workers work in the mediation. For mediation to succeed, neutrality is very important. The mediator should remain impartial and avoid favouring any party. Also, the mediators should encourage effective communication, which includes active listening, reflection, framing discussions, checking perceptions, and utilising non-verbal communication skills. Mediators must know how to handle situations of high emotions, arguments, interruptions, and even tears.
Co-Mediation: A Collaborative Approach: Mediation demands a mediator’s active involvement and close observation of the parties. Managing a session, especially in emotionally intense or legally complex cases, can be overwhelming for a single mediator. The pressure can lead to exhaustion, which will lead to reduced effectiveness and reduced mental resilience. In this case, Co-mediation can be used, which will bring various expertise and a balanced perspective. It will also reduce the burden on individual mediators and ensure more support for the parties involved. Co-mediation also contributes to many different aspects in that it tends to distribute the burden on the individual mediators and thus can support the parties better. Although co-mediation may have the drawbacks of being more difficult to schedule and more expensive, the added expertise, balanced perspectives, and less mediator fatigue far outweigh the burdens.
Legal Aspects and Institutional Support: Mediation has more credibility when the mediators are knowledgeable and experienced in the mediation process. If a settlement is reached, the parties may formalize it by signing a settlement agreement. They may also register the settlement agreement under Section 73 of the Arbitration and Conciliation Act as an arbitral award to make it binding and enforceable. The court has introduced Pre-institution Mediation in commercial disputes, which means that mediation must take place before a case is filed in court, especially in commercial disputes under the Commercial Courts Act of 2015. For commercial disputes under section 2 (1) (c) of the Commercial Courts Act 2015 with a monetary value of three lakhs or more, the parties are required to go for mediation first. Many High Courts in India have opened mediation centres within their campuses and provided personnel, infrastructure, and finances toward their maintenance, some examples being the Delhi High Court Mediation Centre and the Bangalore Mediation Centre.
CHALLENGES AND WAY – FORWARD
Despite its benefits, mediation faces challenges. Lawyers are hesitant to suggest mediation to their clients due to the fear of losing income from court appearances charged by them in normal court proceedings. Also, they are much more familiar with the procedure followed in the court. Often, mediation is seen as a sign of weakness to settle disputes as it includes the compromise factor; therefore, many people prefer litigation. The lower court takes a less active role in promoting mediation. Although mediation has its separate legislation, there is still very little awareness about the mediation process among the public. To overcome the challenges. There should be increased awareness campaigns to educate the public about the benefits of mediation. There should be mandatory training programs for mediators. Strengthening the Mediation Act will help in ensuring that the process is smooth, recognized, and enforceable.
CONCLUSION
Mediation stands as a hope in India’s exhausted judicial system. Mediation offers a resolution that is mutual and structured. It is deeply rooted in India’s culture and History. The Mediation Act of 2023 has laid a strong base for institutionalizing mediation and online Dispute Resolution and encouraged its adoption. Training for the mediators and change in public perception is very necessary for mediation to emerge as a successful method of Dispute Resolution. By adopting mediation, India can move closer to a system where justice is delivered on time, disputes are resolved mutually, and relationships are preserved. Additionally, promoting success stories and showing its effectiveness through statistics and case studies can enhance its trust and adoption.
References:
- The Mediation Act 2023
- Robert A. Goodin, ‘Mediation: An Overview of Alternative Dispute Resolution’ (1999) 4(3) Mediation and the Courts <https://usa.usembassy.de/etexts/gov/ijde1299.pdf> accessed 15 January 2025
- Rohini Dashrath Jagtap, ‘Study of mediation as a leading mechanism for settlement of disputes and its challenges’ (2022) 2(1) Pimpri Law Review
- Anil Xavier, ‘Why Meditation Matters’ (2017) 5 International Journal on Consumer Law and Practice <https://repository.nls.ac.in/ijclp/vol5/iss1/3/> accessed 15 January 2025
- Julie R Neip, ‘Mediation as an Effective Method to Transform Relationships and Resolve Conflict’ (2010) Graduate Research Papers 194 <https://scholarworks.uni.edu/grp/194> accessed 06 January 2025
- Krishnan U and Kesia E. Kuriakose, ‘Mediation in India- challenges, recommendations and relevance in Post Covid Scenario’ (Centre for Business and Commercial Law, 06 October 2020) <https://cbcl.nliu.ac.in/contemporary-issues/mediation-in-india-challenges-recommendations-and-relevance-in-post-covid-scenario/> accessed 06 January 2025
- Soumya Gulati et al., ‘Decoding the Mediation Act, 2023’ (Nishith Desai Associates, 04 September 2023) <https://www.nishithdesai.com/NewsDetails/10748> accessed 06 January 2025