Legal Practice

Challenges and Scope of Mediation in India

Commercial mediation in India emerged in 1996 when the Indian parliament amended the Civil Procedure Code (CPC) and introduced section 89. And, this empowered courts to direct settlement of disputes by mediation amongst other ways. This provision regulates the scope of mediation in India. This is how the legal framework of mediation in India began to emerge. Indian courts, encourage mediation very strongly. Several high courts have set up mediation centers within the premises of the courts. The courts give staff and facilities to the mediation centers. The court also bears the expenses. A large number of lawyers and others have received training to become mediators. And the court also gives an honorarium to the mediators. The procedure is usually free for the parties.

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Challenges and Scope of Mediation in India

Advantages and disadvantages of mediation 

One of the major benefits of mediation is that it ensures secrecy. Secrecy plays an important role in making the parties come to a settlement. Experts consider Mediation to be a voluntary process. That helps to reach a mutual settlement of issues in dispute. Voluntary generally refers to two important aspects. First, one being it is something of free choice. Free participation and freely made agreements between the parties. And the second that there is no force or influence from anywhere regarding the settlement of disputes. This makes the procedure party-friendly and very adaptable.

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Mediation does not have established rules of law to govern its procedure complexity. There are certain guidelines in institutional mediation but they are not strictly enforceable because the work of the mediation is that of a facilitator and not a decider/adjudicator. Since the rules are not present therefore it becomes extremely difficult for framing the entire process of mediation keeping in mind its legal aspect.

There are two principal achievements that tackle mediation in India- the CPC and the ACA. Section 89 of the CPC and the regulations framed by different high courts under that section handle court-adjoined mediation while Part III of the ACA tackles private mediation. There is also Part II of the Civil Procedure Alternate Dispute Resolution and Mediation Rules (the Mediation Rules) which gives for numerous rules associated with mediation.

Another legislation that comprises mediation is the Commercial Courts Act 2015. And, it is compulsory for parties to exhaust the remedy of pre-institution mediation under the Act before instituting a suit. The Commercial Courts Rules the government has framed 2018 (the PIMS Rules) under the Act. Thus, this is the legal framework of mediation in India. 

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Scope of mediation in India

Courts refer to a huge number of cases as mediation. Although they take the permission of parties before referring a case for settlement by mediation. But, the court does have the potential to direct parties to attend the mediation if at least to get to know more about the procedure of mediation.

Judges, leading lawyers, and policymakers speak in a very positive light about mediation. However, mediation is yet to catch on importantly in the private field. With the success of court-adjoined mediation in India, attention is now being focused on private commercial mediation. Pioneer business organizations and industrial leaders are getting involved for the same. Thus, the scope of mediation in India is very high since the conventional court methods take years to resolve a case and there are lakhs of cases pending in Indian courts.

Read Also – Role of Judiciary in promoting ADR in India

Challenges in mediation

The primary mediation style is evaluative. Oppositions seem to have the preference of having an authority figure as the mediator. And are more comfortable being led in the mediation. Instead, the mediator is more hands-off. This is a cultural trait very common in Asia. The parties expect the mediator to provide them his or her perspective of the weakness of their case. And to actively take part in finding answers. Indeed, they would be disappointed if they have the feeling that they did not fully engage the mediator with them in solving the issue. Interests, as well as rights, are taken into consideration. Some mediators have the preference to be facilitative. Transformative mediation is rare.

However, one needs the understanding that most mediators will start off being facilitative. And, encourage the movement to come from the parties. And become evaluative later in the process when the interventionist skills become necessary to break the standstill and come up with solutions.

Remedies in Mediation

There is a formal association of mediators in India called Mediators India.

It is not important to be authorized to practice as a mediator in India. However, authorization is important for empanelment with the court. And tribunal mediation panels. With growing awareness of mediation, there will be an inclination for certified authorized mediators.

In India, court-adjoined mediation centers conduct two training courses. A basic training course is 40 hours in period. And an advanced training course that is 20 hours in time. Authorization of mediators occurs after the completion of the basic training course. 20 hours of mediation (including co-mediation), and completion of the advanced training course.

There is no requirement that mediators have to go through continuous professional education or development courses. But, in the court mediation system, the mediation centers make all the arrangements for refresher courses. And mediators are encouraged to attend the courses arranged by them. This organization can also encourage the scope of mediation in India

We can see how mediation has given hope to the judicial system for the speedy resolution of the laws. In spite of many obstacles, the improved legal framework of mediation in India can enhance the Indian judicial system to a great extent.  

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by Pranav Haldar

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