Changing Landscapes of Mediation

The Indian Judicial System has sought recourse to Mediation for delivering the answers to which litigation has failed to provide. While fulfilling the same, Mediation has gone over a diverse phase, which can be compared to the changes in the landscape with the different parts of the day over the period of time.  In this article, a comparison with the landscapes that the time portrays throughout the different parts of the day has been made with the Journey of Mediation in India. 


Introduction

The Court shall not be the place where a resolution of dispute begins, rather, it should be the place where the disputes end after alternative methods of resolving them have been already exhausted. In the era of limited resources and unlimited human wants, conflicts are inevitable and thus, arises an incessant need for the resolution of these conflicts by a third person, who shall be just, fair and reasonable. However, with over 7.76 Billion population all around the world, and 1.37 Billion population in India itself, the number of disputes and conflicts can be reckoned. According to statistics, India has a ratio of 19 Judges per million people and more than 33 Million cases are pending (Hindu Business Line, para 2). The number may be multiplied and an estimate may be established about the astonishing amount of disputes and pendency of cases around the world. The humongous pile of cases not only has an impact upon delivering justice to the aggrieved but also upon the economy of the country. With the purpose in mind, the Judicial System has turned to Mediation for delivering answers. While fulfilling the same, Mediation has gone over a diverse phase, which can be compared to the changes in the landscape with the different parts of the day over the period of time. 

In this Essay, a similar comparison with the landscapes that the time portrays throughout the different parts of the day has been made with the Journey of Mediation in India. 

The Dawn Of An Era

The dawn symbolizes the beginning of something new. Mediation is the dawn of the Judicial System, the answer to the majority of the solutions, in more than one ways. Whenever a judge faces an issue upon determining a case, he looks back towards history, i.e. the precedents set by the earlier courts for the answer (Powell, Pg. 281). Moreover, most of the statutory laws made around the world are in consideration with the problems faced in the past by the societies and communities. Mediation is one of the best precedents that has ever been set for a solution to the crucial problems the Judicial System faces in India and worldwide. The roots of mediation in India can be traced back to the Mahabharata when the Kauravas and the Pandavas were fighting and Lord Krishna became the mediator. Before the colonial rule in India, businessmen engaged ‘Mahajan’ to resolve their disputes. Mediation was then observed in panchayats which used to address the issues of the villagers. The head of the panchayat, known as the ‘sarpanch’, used to make the disputed parties sit and listen upon their issue at a stretch to arrive at a solution suitable for both the parties. But under the ancient methods, if mediation failed, the same person was authorized to render a binding decision (Xavier, Pg. 273). 

For Mediation to be reinstated back in the Indian Culture, the Indian Judiciary could not have provided a better opportunity, to mark its presence back. With all the things going south, Judiciary had to come up with a solution, which shall compensate for all the limitations of the Court System. Arbitration, Mediation and Conciliation, the types of Alternate Dispute Resolution can be seen as the rays of hope for the Judiciary. Thus, the glimmer rays of sunshine, rose over the horizon, hoping for a positive outlook.

The Break Of the Day

The morning ought to be positive and sunny, to yield a powerful effect on the day. Similarly, Mediation ought to have a lasting first impression, for the process to have an impact on the System. In the black and white letters of the law, the early traces of Mediation in India can be found in the Industrial Disputes Act 1947. However, the absolute seeds were sown in the year 1996, when Arbitration and Conciliation Act was passed, and were further nurtured under Section 89 of the Code of Civil Procedure Amendment in 2002, which was passed by the Central Legislation. The introduction of Arbitration and Conciliation Act in the Indian Statutory Laws provided the gateway for Alternate Dispute Resolution in the State, to help the limitations of the Judicial System. Complimentary to the Amendment, the Government published the Civil Procedure Alternate Dispute Resolution and Mediation Rules, 2003. Later in 2005, Justice R. C. Lahoti, the then Chief Justice of the Supreme Court, set up a Mediation and Conciliation Project Committee for training District Court Judges to make them competent for judicial mediation. For any system to work in India, it is necessary to develop and nurture strong roots, which cannot be demolished by the superior forces of Legislation or by the interference of Judiciary. It can be noted that the Legislation, unlike the Arbitration and Conciliation Act 1996, did not enact special legislation for Mediation. On the other hand, the process of Mediation was chosen to be given due authority and protection under the governing law of all civil matters in the Judiciary, which eventually extended to various other laws such as the Companies Act, 2013 and the Commercial Courts Act 2015, where the Legislation mandated pre-institutional mediation before seeking to resolve the dispute in the Courts.

Top Of The Noon

Noon is the time which symbolizes the peak working capacity of the Sun. In Mediation, the seeds have been sown and well nurtured. However, the task does not end at the spot. Once, Mediation was laid down in the roots of the statutory laws, it was time to see the implementation of these laws by the courts and the effectiveness of the results. A survey was conducted in the Courts of Maharashtra and Karnataka from the year 2011-2015, to check the implementation of Mediation in various Courts, Tribunals and other adjudicating bodies. In the Bengaluru Mediation Center, approximately 31,000 cases were referred to Mediation, out of which more than 16,000 cases were duly settled, with a success rate of 50.56%. Meanwhile, in the Delhi Mediation Center, approximately 13,600 cases were referred to Mediation, out of which more than 7,600 cases were successfully mediated with a success rate of 56.01%. Similarly, at the Allahabad Mediation Center, approximately 11,600 cases were referred to Mediation, out of which more than 2,800 cases were settled, with a success rate of 24.57%.

These numbers do not depict the success of mediation, rather the burden released from the heavy shoulders of the Judiciary. Every case settled through mediation is a win for the Courts.

Even if the success rate has been promising, the number of cases referred to Mediation has scope for improvement. The impact on the burden of the Courts shall only be reduced if and only a higher number of cases are referred to Mediation, to attempt amicable settlement between the parties. 

Afternoon Siesta

While mediation may look like a scrumptious lunch, there are side effects to a good meal. In the same way, the mediation was not an easy sail in the Indian Conditions. A system involves multiple stakeholders, who have their say in the functioning of the system. The key stakeholders in the Judicial System of any nation include the parties, the judges, the clerks and the advocates. For the Mediation’s sail, the judges, the advocates and the litigants are the east wind in the system. An understandable reason behind the same is the advocates have been using the loopholes of the Judicial System to fill up their pockets. Making money from every date extended further by the judge is the bread and butter of the Advocate. If the introduction of Alternate Dispute Resolution is done in the Judicial System, Mediation shall become Always Diminishing Revenue for the Advocates. Also, the Judges believe that Mediation shall eat up their Jobs, if all the cases are sent to mediation, no new cases shall be filed. In the interest of the Litigants, they are the people who are afraid of the changes and have believed in the Court Systems for years, due to the authority and power it holds in the eyes of the law. The reluctance in all of the abovementioned stakeholders has made one step backwards in every two steps forward when the need of the hour is being three steps ahead.

Moreover, there is a visible lack of Adequate Training of Mediators, which has often led to Evaluative Style of Mediation, rather than the Transformative Style. The latter is the key of Mediation, where the Mediators invest mentally in the dispute and try to transform the parties to negotiate their personal interests amongst themselves and settle the dispute, which does not deserve to be heard by a Judge, sitting in the courtroom in the first place. The challenges have reduced the likelihood of the impact Mediation ought to have on the open disputes. However, the afternoon siesta is taken to recharge the body, only for it to work harder, and better for the rest of the day. Even if the slow pace has had an impact, they have in no way stopped the process from going forward, with more challenges to face, and hard work to do. 

The Dusk To Remember

The time of dusk is the change in the Sun and Moon, creating a long-lasting impact on the viewer, with the unique charisma. However, the dusk for the mediation was not very bright. On the 8th of March, 2019, the Hon’ble Supreme Court of India, ordered one of the most politically sensitive cases in the nation to be referred to Mediation, where a panel of three highly educated and experienced people was to mediate between the representatives of the two most dominating religions of the largest democracy in the world, Hindu and Muslim. The case of Babri Masjid-Ram Janmabhoomi is not any ordinary case, nor a simple one. The case, where a place of worship was demolished to build another place of worship, invited communal violence among the two religions and killed thousands (BBC News, Para 5). Much to the expectations of the majority of the critics and population, the settlement was so close, yet so far, and mediation concluded in failure. The reason for the failure of this attempt of out-of-court settlement can be aplenty. However, there are more factors beneath the obvious and prevailing reasons, which can be seen by the common eye. The key dispute of the Babri Masjid-Ram Janmabhoomi was hidden in the shadow of the Social and Political issues, i.e. determination of the right of the party to use the land-based on available facts and evidence. In mediations, the issue of dispute is clear and distinct to the parties beforehand. However, there seemed to be a lack of clarity upon the ground of dispute which was to be mediated upon, thereby making the task more difficult to settle than it was. 

Mediations are conducted in cases where the parties in the dispute take decisions which shall affect them, rather than the whole community or religion. Given the history of the dispute, including the violent riots of the year 1949 and 1992, the settlement of such a dispute was always considered to be risky, by promulgating another violence if the terms of the settlement were not acceptable to either of the religion. Moreover, a temple or a mosque is a place of worship, which hold the highest value in the eyes of a devotee or a worshipper and thus attach certain sentimental and religious values to the place. A settlement between two parties cannot be a solution for playing with the religious sentiments, especially when they are protected as the Fundamental Rights of any citizen of the Nation. 

It can be argued whether the case was fit for mediation or not in the first place, however, the truth cannot be changed, that mediation failed in one of the most disputed cases of the Nation. This may not be seen due to the underlying reasons behind the shadows, but on the lack of infrastructure of the process to settle the dispute.

A Night Of Lessons To Be Learnt

The night symbolizes solace, and there have been times, where doubts have been raised over Mediation. Amidst all the issues and views of the critics and the stakeholders, Mediation is a process took everyone by surprise, when the Hon’ble Supreme Court ordered the parties for Mediation, even after considering all the factors regarding the legal and socio-political dispute and the reluctance in the parties to choose Mediation for the outcome of the case. Even though the result was up to the expectations of the people, it meant more for the process, rather than for the dispute. There can be more positives that can be inferred from the statement rather than the reasons why the mediation failed to solve the conflict, that could not be solved by the courts for more than 70 years. 

For the likes of all the critics against mediation in such a politically sensitive case, the mediation could not be concluded on a positive note. This cannot be concluded as a negative impact on Mediation. On the contrary, it can act as a spark that Mediation required in India, to grow in popularity and solve such disputes, which should never have gone to mediation in the first place. Mediation is a process, where the parties themselves decide the outcome of the settlement, keeping in mind their needs and interests. If the parties cannot reach an amicable settlement, the court is always approachable to determine their rights over the dispute. Like the judiciary, mediation is always an option which is available as to the parties to resolve their conflict, irrespective of the stage of the proceedings (Carver, Para 3)

The failure of Mediation to settle the dispute cannot be seen as a loss for the upcoming potential method of Dispute Resolution. There lies a silver lining for Mediation in the order dated 08th March 2019 by the Hon’ble Supreme Court itself, to have faith and trust in the process, which is still being learnt and adopted by the Judicial Systems around the Nation. On the other hand, this shall be seen as a reference by the lower Courts and Tribunals, to utilize the power granted to them under the various statutory legislation enacted regarding the referral of cases to Mediation or Conciliation and attempt to reduce the burden from the heavy shoulders of the Judiciary.

Conclusion

Over a period of time, mediation has seen all the changing colors of the landscape right from the days of bright sunshine to the moonlight solace. The journey has not been easy, but the future looks bright for Mediation in India hereinafter. All the hard work undertaken by the people, who initiated mediation in the Code of Civil Procedure, to time and again issuing a new development in various statutory laws, nurturing the roots have helped to establish a successful foundation across the Nation. For the growth of Mediation, lessons have been learnt from the United Kingdom and the United States of America, where the implementation of Mediation has improved the situation of the Judiciary and have a success rate of more than 85% (King, Para 2). Moreover, the United States has a record of only 5% of cases going to trial. These statistics show the success of Mediation and the impact it has over the disputes. The need for Mediation has been successfully recognized by the players of the game, and are taking steps in every way to help and shape a bright future. The key about Mediation is that it not only settles the dispute, but also solves the conflict amongst parties, and often at the end of mediation, parties go out walking hand in hand. Every landscape of time has taught a valuable lesson, making the process grow in experience and acceptance.

                        author

Rohan Bangia

Rohan Bangia is a 5th Year student, pursuing B.Com.LL.B (Hons.) from the Institute of Law, Nirma University. He is a GRO Certified Mediator and seek to progress the world of mediation towards a new horizon. His team won the 7th NLIU INADR ILS Mediation Tournament, 2018 and were adjudged as… MORE >

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