This post has been written by Anjali Krishnan, a 2nd year student, pursing BBALLB from JEMTEC School of Law.
The burgeoning and pendency of litigation in the Civil courts due to several reasons has made it non-viable to dispose of cases within a limited time period efficiently. Indian judiciary for the longest period of time has played a vital role in resolving matters and reaching a practical and nonprejudicial judgments yet India produces the largest of cases which are unheard. The old dictum “judgement delayed is judgement denied” symbolizes the intricacies of litigation as it says if the judgement is delayed notwithstanding reasons for that scenario is a case of denial of judgment henceforth the justice. The ADR is a mechanism where parties sit together and resolve their issues in front of a third person who is the mediator between them and plays a vital role in clarifying the parties w.r.t facts and issues which tends to give decree in favor of compromise in which both parties can get their bit of justice in a peaceful and efficient manner. As Abraham Lincoln observed: “Discourage litigation. Persuade your client to compromise whenever you can. Point out to them the nominal winner is often a real loser- in fees, expenses and waste of time. As a peace maker, the lawyer has a superior opportunity of being a good person”. Mediation is a form of ADR which is practiced in law as a systematic, dynamic and interactive process wherein a mediation is facilitated by a neutral mediator via a negation process where a neutral third party assists the disputing parties in amicably resolving their disputes. Through the use of specialized communication and negotiation techniques, noting that, the third-party mediator lacks authority to decide but only facilitate to create congenial environment to enable the party to resolve their dispute amicably themselves.
HISTORY OF MEDIATION IN INDIA:
‘A process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs’[i]. The process resolute to discourage discourse amongst individuals. Although mediation in judiciary was adopted when the legislature enacted Arbitration and conciliation act 1966 with the purpose to deduce the burden of civil courts by disposing of cases.
The first Indian Arbitration Act was enacted in 1899, which was replaced by the Arbitration Act, 1940 which in turn was replaced by the Arbitration and Conciliation Act 1966 and with the advent of Legal Services Authorities Act 1987, Lok Adalats and Legal Aid Schemes have received statutory recognition and become an integral and important part of the justice delivery system.[ii]
MEDIATION IN DISGUISE:
Law Commission of India and the Justice Malimath Committee recommended as a result, section 89 of the Code of Civil Procedure (Amendment) Act, 1999 was amended as law Commission recommended that the court may require attendance of parties to the suit or proceeding to appear in person with a view to arrive at an amicable settlement of the dispute between them and make an attempt to settle the dispute amicably. Justice Malimath Committee recommended obligatory aspects for the Court to refer to dispute, after issues are framed for settlement either for Arbitration, Conciliation, Mediation or Judicial Settlement through Lok Adalat.
Thus Section 89 has been introduced to promote alternative methods of dispute resolution. The Supreme Court in the case of Salem Advocate Bar Association v. Union of India[iii] held the constitutionality of Section 89 of the Code of Civil Procedure which was amended by the amendment act of 1908. As a result, rules established by the Chairman, Law Commission, Justice M Jagannadha Rao was accepted by the Apex Court in Salem Advocate Bar Association, T.N. v. Union of India[iv] observing that “The intention of the legislature behind enacting section 89 is that. where it appears to the Court that there exists an element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the Section 89 and if the parties do not agree, the court shall refer them to one or other of the said modes.”
LACUNAE IN THE FUNCTIONING OF MEDIATION IN INDIA:
The primitive establishment of mediation centers did not evolve with time as most mediation programs have not received adequate support from the judiciary which primarily hinders their overall performance and success.
Unsettled mediation program as pendency in courts has increased over the years; 86% of cases in the subordinated cases i.e. as of April 2018, cases pending across india is three-crores where the sub-ordinate courts account for over 86% pendency of cases, followed by 13.8% pendency before the 24-High Courts. The remaining 0.2% of cases are pending with the Supreme Court. Between 2006 and 2018, Evaluating the pendency rate there has been an 8.6% rise in the pendency of cases all courts in furtherance classification, pendency before Supreme Court increased by 36%, High Court by 17% and sub-ordinate courts by 7%.
MEDIATION: A TOOL FOR ACCESS TO JUSTICE: AUTHOR’S ANALYSIS
From the very inception of mediation in our judiciary; the establishment has been questioned regarding its working and future prospects. Besides what the mediation and other alternative dispute resolutions offer to the judiciary still for the longest time it was overlooked. In 2016, number of cases disposed have increased approximately from 57,000 to 76,000 in Supreme Court; from 14.4 Lakhs to 16 Lakhs cases in High Courts and from 1.6 crore cases to 1.9 crore cases in sub-ordinate courts compared to 2006. Despite an increase in disposal of cases in most years, the pendency of cases has increased due to the number of new cases outpacing the number of cases disposed of. As, the disposed rate has been maintained in-between 55% to 59% in the supreme court, at 28% in the High Courts and at 40% in the sub-ordinate courts. In the High Courts, 23% of cases have been pending for over ten years. Further, over 29% of all cases have been pending between two and five years. The maximum number of cases in subordinate Courts (47%) have been pending for less than two years (around 1.2 crore cases).
There are multiple understandings of the meaning of “access to justice” that frequently begin with the need for access to legal representation and to legal processes that can resolve disputes[v]. In the landmark case of Afcons Infra Ltd v. M/S Cherian Varkey Constructions[vi] the Supreme Court of India further held that all cases relating to trade, commerce and contracts, consumer disputes and even tortious liability could normally be mediated. Another landmark decision by the Supreme Court was in the case of B.S. Krishnamurthy v. B.S. Nagaraj[vii], wherein it directed the Family Courts to strive to settle matrimonial disputes via mediation and to also introduce parties to mediation centres with consent of the parties, especially in matters concerning maintenance and child custody.
In the case of Hussainara Khatoon v. Home Secretary, State of Bihar[viii] Supreme Court held that “right to a speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of Indian Constitution”. Thus, making mediation a necessary process because of its ability to dispense quick justice. Section 442 of the Companies Act, 2013, read with the Companies (Mediation and Conciliation) Rules, 2016, provides for referral of disputes to mediation by the National Company Law Tribunal and Appellate Tribunal. The 2018 amendment to the Commercial Courts Act 2015 (Section 12A), made it mandatory for parties to exhaust the remedy of pre-institution mediation under the Act before instituting a suit.
As regards international disputes, India is a signatory to the United Nations Convention on Mediation (the Singapore Convention)[ix], which gives mediation settlements the force of law.
ADR has shown its importance and the help it offers to the civil courts. The judicial system as has started to give attention to the ADR specially mediation but that is not enough to settle the chaos of the civil courts due to pendency of cases and/or due to number of judges insufficient as per cases. Even after judges in India has highest disposal of cases yet that has not very much helped the system so the system has to provide sufficient resource and necessary tools to the mediation centers in around the country so that it becomes the tool to access justice as it promises.
[i] Folberg.J and Taylor. A, Mediation: A Compressive Guide to Resolving Conflicts without Litigation ‘, Jossy Bass, SanFransisco 1984, p. 7-8.
[ii] 238th Report of the Law Commission of India (2011).
[iii] (2003) I SCC 49
[iv] (2005) 6 SCC 344.
[v] Deborah L. Rhode, Access to Justice: An Agenda for Legal Education and Research, 62 J. LEGAL EDUC. 531, 532–33 (2013).
[vi] 2010 (8) SCC 24
[vii] S.L.P. Civil) No(s).2896 OF 2010
[viii] 1979 AIR 1369, 1979 SCR (3) 532
[ix] Art. 1, United Nations Convention on Mediation (the Singapore Convention, 2019