This Article was written by Jigyasa Krishna, A student of BBA LLB (Hons.), 2022-27, at Symbiosis Law School, Pune, India. This paper delves into the whys and hows of “Mandatory Mediation” and its position in the world vs in India. It assesses the challenges and the potential benefits it presents.
Abstract
Mandatory Mediation is a practice that has been in use in countries across the globe for quite some time now. With reference to the position of India, we may say that it is one of the most rapidly advancing arenas in its Judiciary System. Mediation is an Alternative Dispute Resolution technique. Alternative Dispute Resolution refers to “out of court” settlement mechanisms.
This includes techniques of Arbitration, Mediation, Negotiation, and Conciliation. When we talk about Mediation specifically, it is when two parties involved in a dispute approach a neutral third party who facilitates the negotiation between them and helps them arrive at a middle ground that is a suitable solution to both of them.
Introduction
Mandatory Mediation is when parties are bound to approach a mediator to sort out their differences by the laws of a particular country or state before they approach the court for trial. Countries like Italy, Turkey, Certain States in the USA, France and Spain to name a few.
After the COVID-19 pandemic, the approach to Alternative Dispute Resolution, especially as Online Dispute Resolution, has spiked. With more than 4 Crore Cases pending as of 2024 in India, the necessity for adopting ADR has been brought to light. In recent years, mandatory mediation has gained momentum for various reasons. Not only for cases involving Family Matters, Civil Cases, and Commercial Cases, but for Cases involving Criminal matters as well, as tackled using mediation.
The Indian judiciary and legislature have recognized the need for introducing mediation as a core component of dispute resolution. Following this, the Indian Mediation Act was implemented in the year 2023. This Act is also complemented by previously existing laws like The Civil Procedure (Amendment) Act, 2002, The Commercial Courts Act of 2015, The Arbitration and Conciliation Act of 1996, etc.,
Mediation has been institutionalized in various contexts. However, the question arises: Can mandatory mediation be the ultimate solution to the mounting pressure on India’s judiciary? This paper addresses this question by analysing the pros and cons of mandatory mediation and its ability to revolutionise India’s legal landscape.
Mediation: Evolution in India, Scope of Mandatory Mediation:
Mediation, one of the most widely used tools of Alternative Dispute Resolution, has ancient roots in India. Since time immemorial, community-based dispute resolution processes were common in India, where elders or neutral third parties helped resolve conflicts. However, the formal process to institutionalise the practice began only in the early 20th century.
The enactment of The Indian Arbitration and Conciliation Act in 1996 was the first official act that explicitly spoke about the processes of Alternative Dispute Resolution, paving the way for it in India and encouraging certain mechanisms of ADR to be used to resolve disputes outside of the courtrooms.
The increasing focus on reducing the number of judicial delays prompted a deeper integration of medication into the formal judicial system. In fact, in 2005, the Supreme Court of India recommended the establishment of mediation centres, and the “Mediation and Conciliation Project Committee (MCPC)” was subsequently formed. Thus, mediation centres were established across the country. However, mediation still has a long way to go in India.
Mandatory Mediation refers to the requirements that parties involved in a dispute must attempt to resolve the issue through mediation before they are allowed to proceed with formal litigation in court. This is to ensure that the parties exhaust all possibilities of amicable settlement before burdening the judicial system with their case. It may be deemed to be an attempt to promote mediation as an initial stage before trial.
This helps to reduce the volume of the cases pending before the courts, expediate resolution, and facilitate more satisfying outcomes for all involved parties. The push for mandatory mediation in India gained traction with the advent of the Commercial Courts (Amendment) Act in 2018, which requires mediation for all commercial disputes before litigation can commence. In 2020, the Supreme Court endorsed mandatory mediation in family disputes, setting a hopeful precedent for future expansion of this practice.
Why Must Mediation Be Mandated in India?
One of the biggest benefits of compulsory mediation is the possible reduction in the huge backlogs of India’s courts. With millions of pending cases, compulsory mediation is an effective method of diverting disputes away from the conventional route of litigation and towards a quicker procedure.
By solving issues away from the courts, the justice system can dedicate its time to more complicated cases, enhancing the efficiency of the overall justice system. Secondly, mediation is quicker than litigation. Indian court cases take several years to settle, while mediation usually settles disputes within a couple of months, saving effort and time for both parties. Quick dispute settlement prevents businesses, particularly small and medium ones, from being crippled by lengthy litigation.
Besides, in contrast to court hearings, which are public, mediation is an exclusive process to maintain confidentiality. Control remains with the parties since they work in collaboration with a mediator to reach a mutually acceptable resolution. This element may be a strong selling point to companies and individuals who prefer settling issues without making them public knowledge.
We can also say that mediation serves to maintain relationships between parties in conflict, which is important in cases of family conflicts, business disputes, and labour disputes. Because mediation promotes a cooperative environment, it promotes friendly settlements, as opposed to litigation, which may create hostility and widen differences between parties.
Another crucial aspect is that mediation provides flexible and innovative solutions that are not achievable in the formal structure of court proceedings. Parties can develop tailor-made, creative solutions that are acceptable to them and satisfy them, thus rendering the process more fulfilling for all parties.
Above all, litigation is a costly process, especially in terms of court costs, attorney fees, and procedural fees. Mediation, in contrast, is very affordable and doesn’t call for much legal representation. For business people and individuals, compulsory mediation provides an economically viable pathway to resolving conflicts and makes justice more accessible to everyone.
Challenges of Implementing Mandatory Mediation in India:
One of the major hurdles to the adoption of compulsory mediation in India is the opposition from legal professionals. Lawyers and litigants perceive mediation as a threat to their survival, as they fear its potential to diminish their contribution towards the resolution of disputes.
Some legal professionals contend that mediation could compromise the prestige of the judiciary, which makes them reluctant to accept this alternative fully. This unwillingness on the part of the legal community presents a major obstacle in the widespread embrace of mediation.
Another issue of serious concern is unawareness and confidence in the process of mediation. Although mediation is well recognized in India, its benefits are yet to reach most people.
Many people are sceptical about mediation being fair and effective, thus preferring conventional litigation. Traditional beliefs rooted in society that equate justice with judicial trials also impede this confidence, making it difficult for mediation to become an accepted method of resolving disputes. Another major hindrance is the scarcity of quality mediators.
Good mediation needs professionals who possess excellent interpersonal, negotiation, and conflict management skills. India today doesn’t have enough well-trained mediators because training programs and certifications are limited. Unless there exists a strong mechanism for the development of competent mediators, mandatory mediation might not yield its expected outcomes.
Another pertinent issue with mandatory mediation is enforcement of mediation contracts. Though mediation generally leads to peaceful settlements, maintaining the legal enforceability of the same is always a problem. When one of the parties declines to adhere to the conditions of a mediated settlement, the absence of precise legal provisions for enforcement may undermine the credibility of the process.
Fortifying the legal framework to ensure mediated agreements is important for the credibility and dependability of mediation. Finally, compulsory mediation poses the threat of exacerbating disparities within the judicial system. Affluent parties and business organizations can afford to hire expert mediators and legal professionals, thus gaining an upper hand in the bargaining process. Their poorer counterparts, however, might not be able to tackle the procedure efficiently, with the result that unjust outcomes may arise. This disparity needs to be addressed so that mediation is a level-playing field dispute resolution process for everyone.
The Way Forward:
In order to guarantee the success of compulsory mediation in India, certain measures have to be implemented.
The initial and most important step is the training and certification of the mediators. Having national standards for training mediators will ensure the quality and efficiency of the mediation process. Government agencies, courts, and professional associations should actively work on developing formal training programs and certification procedures.
This will generate a pool of well-trained mediators who can effectively and impartially resolve disputes. Public awareness campaigns are also critical to raise people’s awareness and confidence in mediation. Most people are not familiar with its benefits, with some viewing litigation as the sole means of pursuing justice. Public awareness campaigns need to emphasize how mediation saves time, is cost-saving, and results in friendly settlements, thus convincing more people to adopt this mode of alternative dispute resolution.
Additionally, institutional backing by the judiciary has to be imparted to assimilate mediation perfectly into the judicial system. This involves consolidating existing mediation centers, setting up new ones, and ensuring consistency in the level of quality for mediation services in the country. Judicial approval of mediation can also assist in moving public and legal professionals’ opinion towards acknowledging its worth.
Lastly, a more robust legal framework must be in place to underpin the enforceability of mediation agreements. Lacking specific legal provisions that make mediated settlements binding and enforceable in courts, parties might not have faith in the process. Enhancing legislative support for mediation will improve its credibility and foster increased participation. Through the adoption of these measures, India can create a strong and trustworthy mechanism for compulsory internet-based mediation, with the end result of decreasing judicial backlog, enhancing access to justice, and promoting a culture of alternative dispute resolution beyond courtrooms.
Conclusion:
Mandatory mediation can potentially revolutionize India’s legal system by providing a speedy, cost-effective, and timely solution as a substitute for conventional litigation. With millions of cases awaiting hearing, incorporating mediation as a mandatory process prior to litigation can dramatically ease the burden on the courts, enabling the judiciary to deal with more complicated and pressing issues.
Through encouraging discussion and collaboration, mediation promotes a culture of conflict resolution that is not only quicker but also more conciliatory, saving relationships and decreasing hostility among parties. The benefits of compulsory mediation go beyond simple judicial efficiency.
It makes access to justice democratic by making dispute resolution accessible and affordable to both individuals and companies. In contrast to litigation, which is often too costly and time-consuming, mediation is a more flexible and less confrontational method that allows parties to reach mutually advantageous settlements. This is especially important in commercial, family, and labour conflicts, where maintaining relationships and guaranteeing long-term cooperation is of the highest significance.
Though it is a boon of many advantages, mandatory mediation has its own obstacles in being brought into effect in India. Obstacles in terms of resistance by legal professionals, insufficient widespread recognition, and insufficiently trained mediators are too major to overcome. Legal practitioners see mediation as a threat to their profession in many cases, and the layman remains too skeptical about trusting the process based on a lack of familiarity with its benefits. In addition, a lack of an effective framework to enforce mediation agreements may deter parties from fully embracing this form of dispute resolution. But these challenges are not impossible to overcome.
A sound legal framework guaranteeing the enforceability of mediation agreements, coupled with countrywide awareness campaigns and systematic training programs for mediators, can provide a solid basis for the success of mandatory mediation. Institutional backing from the judiciary, legal institutions, and government departments will also play a key role in propelling this shift.
As India pushes on to develop and adopt mechanisms for alternative dispute resolution, compulsory mediation could potentially be a game-changer for access to justice.
By releasing pressure from the courts while, at the same time, inducing a culture of solution and conciliation, mandatory mediation could well turn out not only to be an effective substitute but a transformative step towards an enhanced, better-working, more just legal system. If this is enforced properly, it can redefine the way legal conflicts are addressed in India, making the justice system more accessible, speedy, and fair for everyone in the country.
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