The necessity of Mediation amid Pandemics

The sluggish arrangement of Justice Delivery in India has proved to be inadequate with superfluous deferrals and over the top costs making access to Justice for common people troublesome[1]. This process has made a gigantic build-up of pending cases. For eg.  according to the National Judicial Data Grid, there are more than  88 lakh cases pending before the High Courts and the subordinate courts, with right around 5 % being 10 years or increasingly old[2]. An average litigant spends 10 years in court and it takes about 1,228 days for an issue to be settled in the High Courts[3], with this pace it will take around 466 years to clear the overabundance of pending cases in the Delhi High Court[4].

Also, if we look at the current situation of Nationwide lockdown due to COVID-19 Pandemic and in order to clear such giant buildup of cases, there is an urgent need for a structure that can function simultaneously to solve the disputes and hence will save the court’s valuable time. Mediation can be used as such an instrument as it is a quick process of dispute resolution; for example, according to Bangalore Mediation Centre, the average time taken for pre-suit mediation is 150 minutes[5]. Therefore, there is a need to build up an efficacious structure for Mediation through fitting enactment[6] to get things back on track.

The COVID-19 Pandemic has affected the business transactions globally, and there is a possibility of friction among the people with regard to the performance of the contracts and other related transactions unless the parties act reasonably. We must look into the fact that Pandemics are not a regular thing but is an occasional occurring, but the relationship between the parties is a long-standing partnership. Therefore, in order to save these partnerships from the impact of litigation which might be detrimental for such relations, there is a requirement of Mediation to be looked as an alternative.

In the process of mediation, there is no winner or loser but an agreement or solution is reached upon with respect to a certain dispute and hence this will save the business relations. Therefore, Mediation must be looked as a preferred ADR tool as it is the least time-consuming process as compared to Arbitration and other dispute resolution methods. Further, this tool of dispute resolution will help India in improving its rank in the Ease of doing business which could result in attracting more FDI to India resulting in boosting the economy when things get back on track. For commercial disputes, mediation has been acknowledged for doing a significant job and in any event encourages the organization of coordination among the parties.[7]

In India, the concept of mediation traces its origin back to the conventional Panchayati system. However, mediation was given authoritative acknowledgement with the Industrial Disputes Act, 1947[8], which provided for a Conciliation Officer and a Board of Conciliators being named by the Government for solving labour disputes. Another milestone in the field of Mediation in India came in 1999 with the alteration to the Code of Civil Procedure, 1908 which incorporated mediation as a mode of settlement.[9] Judicial intervention was also made with (Salem I)[10] and ( Salem II )[11], and Supreme Court in Afcons’s case[12] expressed the need to give legal acknowledgement to mediated settlements at standard with a court order or an arbitral award. However, there are various other statues that give legitimacy to the agreement reached upon by mediation like Companies Act, 2013 and the Arbitration and Conciliation Act, 1996 etc.

Even after various provisions thereon, the reality remains that examples of parties falling back on mediation is dreary[13]. Further, before we plan on to make preferred ADR tool in the post-COVID-19 times, there must be a positive system to spread awareness and urge individuals to take recourse to mediation. Legal professionals must do the job of guiding the litigants to arrive at a settlement in a participative and successful way. Both the Bench and the Bar Councils of High Courts, till the uniform Guidelines come up, must do a proactive job in laying a reasonable system for the guideline of the mediation procedure; for example, rules regarding fee to be charged by mediators, terms of settlements’ and so on.

Further, there is a requirement for a solid authoritative structure on the lines of the Uniform Mediation Act in the USA. This would guarantee consistency in the mediation procedure, which would get rid of the requirement for confining diverse Mediation Rules by various High Courts[14]. Also, the sanctioning of a well-characterized authoritative structure would likewise have the benefit of drawing in foreign ventures as they favor ADR systems for settling commercial disputes[15]. There is also a requirement of an institution for the certification of mediators, or an examination on the lines of Judicial Services Examination. This is important to ensure that the mediators are profoundly talented experts. There is a dire need of uniform guidelines on mediation practice in the nation, to be clung to by every licensed mediator who has experienced preparing programs and has been accredited by government associated mediation establishments[16].

Furthermore, it is worth mentioning here that in times like this when we have to adopt and embrace technology, mediation can be made more tech-friendly than as compared to Litigation as mediation requires less paperwork, it has no rigid code of Procedure like CrPc, CPC etc. Also, it is a party-driven process, so the presence of an attorney or a legal professional to help the client is not so much required. Further, if required, proceedings of Conciliation or Mediation can be carried out in compliance with section 61-73 of Arbitration & Conciliation Act 1996, and the settlement can be given the effectiveness of an arbitral award by the Section 74 of the said act. These will help in reducing the large pile-up of cases. Therefore, in order to make the Dispute resolution process smooth, in hard times like this Mediation should be adopted as a preferred tool.

[1] Sukanya Holdings Pvt. Ltd v Jayesh H. Pandya, (2003) 5 S.C.C. 531(India).

[2] National Judicial Data Grid, available at https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard (accessed on 24 May 2020).

[3] Harish Narasappa, “The long, expansive road to justice”, India Today (27 April 2016) available at https://www.indiatoday.in/magazine/cover-story/story/20160509-judicial-system-judiciary-cji-law-cases-the-long-expensive-road-to-justice-828810-2016-04-27.

[4] Chief Justice AP Shah “It would take Delhi HC 466 years to clear backlog: CJ”, The Indian Express, (13 February 2009), available at  http://indianexpress.com/article/india/india-others/it-would-take-delhi-hc466-yrs-to-clear-backlog-cj/ (accessed on 23 May 2020).

[5]bangalore Mediation Centre, General Statistical Report (2007-2017), available at https://nyayadegula.kar.nic.in/statistics.html  (accessed on 24 May 2020).

[6] Mayur Suresh & Siddharth Narrain, “The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India” (first Published 2014, Orient Blackswan Pvt. Ltd.) 17, 20

[7] Justice M.M. Kumar, “Relevance of Mediation to Justice Delivery in India”, available at https://highcourtchd.gov.in/sub_pages/top_menu/about/events_files/NCMediationNewDelhi.pdf

[8] Industrial Disputes Act, 1947. s.4.

[9] Law Commission, of India, Report on Amendment of Section 89 of the Code of Civil Procedure, 1908 and Allied Provisions Report No. 238,2011), available at http://lawcommissionofindia.nic.in/reports/report238.pdf (accessed on  25 May 2020).

[10] (2003) 1 SCC 49 : 2002 Supp (3) SCR 353

[11] (2005) 6 SCC 344

[12] (2010) 8 SCC 24

[13] Alok Prasanna Kumar, Ameen Jauhar, Kritika Vohra, and Ishana Tripathi. “Strengthening Mediation in India: Interim Report on Court Annexed Mediations.”  (Vidhi Centre for Legal Policy, 29 July 2016)
available at  https://vidhilegalpolicy.in/2016/07/29/2016-7-25-strengthening-mediation-in-india-an-interim-report-on-court-annexed-mediations/ (accessed on 29 May 2020)

[14] Douglas A. Henderson, ‘Mediation Success: An Empirical Analysis’, Ohio State Journal On Dispute Resolution (1996) 105, 113

[15]R.K.Dewan,Mediation,(Mondaq,14 September,2018),available at http://www.mondaq.com/india/x/735460/Arbitration+Dispute+Resolution/Mediation(accessed on 25 July 2019 )

[16] Nadia Alexander, ‘Mediation and the Art of Regulation’, (2008). 8 Queensland U. Tech. L. & Just. J.


ABOUT THE AUTHOR

Arpit Parakh

PicsArt_05-16-09.21.35

Arpit Parakh is a third-year law student of Hidayatullah National Law University, Raipur, with a deep interest in Constitutional, ADR and General Corporate Law. He can be reached at parakharpit2108@gmail.com.

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