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.
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’. [See Afcons Infrastructure Limited v. Cherian Varkey Construction Company Private Limited, 2010 (8) SCC 24].
It is thus a voluntary process in which parties agree to decide a dispute with the help of a mediator.
Under the Indian legal system, parties can go to mediation in two possible ways:
Court-referred Mediation: 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.
Voluntary/Private 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.
Pre-Institution Mediation in Commercial Matters: 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.
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.
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 [2010 (8) SCC 24],examined Section 89 of the Code of Civil Procedure and observed as under:
“9. If section 89 is to be read and required to be implemented in its literal sense, it will be a Trial Judge's nightmare. It puts the cart before the horse and lays down an impractical, if not impossible, procedure in sub-section (1). It has mixed up the definitions in sub-section (2). In spite of these defects, the object behind section 89 is laudable and sound... ...15. If sub-section (1) of Section 89 is to be literally followed, every Trial Judge before framing issues, is required to ascertain whether there exists any elements of settlement which may be acceptable to the parties, formulate the terms of settlement, give them to parties for observations and then reformulate the terms of a possible settlement before referring it to arbitration, conciliation, judicial settlement, Lok Adalat or mediation. There is nothing that is left to be done by the alternative dispute resolution forum. If all these have to be done by the trial court before referring the parties to alternative dispute resolution processes, the court itself may as well proceed to record the settlement as nothing more is required to be done, as a Judge cannot do these unless he acts as a conciliator or mediator and holds detailed discussions and negotiations running into hours.”
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: Procedure for directing parties to opt for alternative modes of settlement:
(a) The Court shall, after recording admissions and denials at the first hearing of the suit under Rule 1 of Order X, and where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, formulate the terms and settlement and give them to the parties for their observations under sub-section (1) of Section 89, to be furnished to the Court within fifteen days of the first hearing.
(b) At the next hearing, which shall be not later than fifteen days of the first hearing, the Court shall reformulate the terms of a possible settlement and direct the parties to opt for one of the modes of settlement of disputes outside the Court as specified in clauses (a) to (d) of sub-section (1) of Section 89 read with Rule 1A of Order X, in the manner stated hereunder, Provided that the Court, in the exercise of such power, shall not refer any dispute to arbitration or to settlement through Lok Adalat or judicial settlement, under the Legal Services Authority Act, 1987, as envisaged under clauses (a) and (c) of sub-section (1) of sec. 89, without the written consent of all the parties to the suit.”
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.
Therefore, while in a private dispute, parties may turn to mediation at any stage as they please, a court may refer a matter for mediation if it feels a possible settlement is possible, and all the parties to the dispute agree to the mediation.
PRE-INSTITUTION MEDIATION IN COMMERCIAL MATTERS
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.
By Shiv Mangal Sharma
Advocate Supreme Court