SETTLEMENT OF DISPUTES THROUGH MEDIATION AND WHEN PARTIES CAN TURN TO THIS OPTION
As courts get more and more burdened with litigation, the process of obtaining justice becomes more and more time consuming. With over-burdened court systems across the world, there has been a uniform approach adopted by most countries to encourage parties to explore means of alternative dispute resolution to save time, money and resources, while still getting the services of an expert. Mediation has been a popular form of dispute resolution since the beginning of civilised society, and it has not lost its value in modern times either. More and more people, especially those not wanting to simply be bound by a court or arbitral award, but explore other solutions, are turning to seasoned mediators who can help them and the other parties in the dispute find the best possible terms of settlement. This article aims to highlight what mediation is, in which disputes it is ideal, and when a party can opt for it.1. What is mediation? Mediation is an alternative dispute resolution process in which parties, with their consent, approach a neutral mediator (a facilitator of dialogue) who helps them explore possible solutions and reach a consensus. The aim of mediation is to facilitate dialogue between the parties in dispute and give them a chance to resolve their issues and reach a compromise that they can work with in the long run. The Supreme Court has described mediation as a method of non-binding dispute resolution with the assistance of a neutral third party who tries to help the disputing parties to arrive at a negotiated settlement. It is also synonym of the term ‘conciliation’. 2. What are the ways in which parties can go to mediation? Under the Indian legal system, parties can go to mediation in two possible ways: Under Section 89 of the Code of Civil Procedure 1908, the court may refer a case pending before it for mediation if it believes a settlement is possible through those means, and the parties involved agree to going for mediation. Any parties in a dispute, whether government, corporates, businesses, or private individuals, can voluntarily decide to resolve disputed matters between them by engaging the facilities of private mediators. Any dispute which falls within the definition of “Commercial Dispute” under Section 2(1)(c) of the Commercial Courts Act, which are valued Rupees 3 Lakhs or more, shall not be instituted unless the plaintiff mandatorily first exhausts the remedy of Pre-Institution Mediation. 3. What are the different types of disputes suitable for mediation? · • Matrimonial disputes · • Employer-employee disputes · • Business disputes, particularly those related to contracts · • Consumer disputes · • Property disputes · • Child-custody issues These are only some of the most commonly addressed types of disputes in mediation. In fact, in most disputes where parties are very well known or close to each other, mediation is a good option. It is also an excellent option where both parties are willing to make small compromises to achieve a settlement that is beneficial for all involved. 4. At what stage of a dispute can parties go to mediation? In a voluntary/private mediation, parties themselves resolute to approach a trained mediator who will address their issues with one another and help them reach a compromise. Thus, parties can directly approach a mediation facility rather than approaching a court for litigation. It is however clarified that not all matters are appropriate to be directly be taken to mediation. Cases involving bad faith, dealing with a burning question of law that requires a precedent or public vindication are not best suited to mediation, so parties should be clear about the outcome they want before participating in a mediation. In a court-referred mediation, the stage at which the mediation is supposed to start has been deliberated upon by the Courts. The Supreme Court of India, in Afcons Infrastructure Limited v. Cherian Varkey Construction Company Private Limited examined Section 89 of the Code of Civil Procedure and observed as under: Thus, it is evident from the above judgment that Courts cannot exactly follow the procedure laid down in Section 89 due to its impractical aspects. A better guide to the process, which have been adopted by a few High Courts with small modifications eventually too, are the Alternative Dispute Resolution and Mediation Rules, 2003. These Rules specify the following process for courts to refer the dispute to mediaton: Rule 2 therefore states that the Court may, with the consent of parties, where it sees possibility of a settlement while hearing a dispute, draw up the settlement and send the dispute for alternative resolution. Further, under Rule 5(e)(ii), where all the parties opt and agree for mediation, they shall apply to the Court, within fifteen days of the direction under Rule 2 and the Court shall, within fifteen days of the application, refer the matter to mediation. Under the Commercial Courts, Commercial Division, Commercial Appellate Division of High Courts Act, 2015, Commercial Courts (Pre Institution Mediation and Settlement) Rules, 2018 were framed, and require that parties of commercial disputes valued over Rs. 3 lakhs must first go to mediation before they approach Courts. The settlement arrived at under this method shall have the same status and effect as if it is an arbitral award.