[This post is authored by Ms. Shreya Sukhtankar, Batch of 2021, ILS Law College, Pune]
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!”
— Joseph Grynbaum
Conflict is inevitable and occurs in all institutions, ranging from individuals, workplaces, families to political entities, organizations, and states. Often, the conflict is capable of being resolved smoothly without the need to resort to lawsuits. All one needs to do is listen emphatically. However, there are times where the dispute reaches a stage wherein the parties are reluctant to understand a perspective other than their own. This is where mediation comes in.
Mediation is a peaceful mode of dispute resolution which involves a neutral third-party known as the mediator who brings the parties to the table and facilitates an amicable resolution of the dispute.
Pre-litigation mediation has gained prominence over the past few years. Herein, parties are directed either by the law or by the court to opt for mediation before resorting to litigation. If the mediation is successful, it saves the parties the long-drawn legal proceedings and if not successful, parties always have the fallback of litigation. It is a win-win situation.
ADVANTAGES OF PRE-LITIGATION MEDIATION
VALIDITY OF MANDATORY MEDIATION – A CONFLICT
The essence of mediation as a dispute resolution mechanism is its voluntary nature. Mediation is a voluntary process for the parties and they can walk away from it at any point in time. Pre-litigation mediation purports to direct parties to mediate the dispute before resorting to traditional judicial forums. This has given rise to a dilemma: Does this concept of “Mandatory Mediation” before litigation defeat the purpose of the inherently voluntary process and damage party autonomy?
To counter this viewpoint, it has been argued that mandatory mediation is not coercion within mediation, it is merely coercion into mediation, an instrument used to bring the parties to the table. Mandatory mediation does not compel the parties to agree to any settlement against their will. It merely introduces the parties to this dispute resolution method, in good faith. The parties are not subjected to any coercion throughout the process and are free to pursue other means to resolve the dispute, thus preserving party autonomy.
In recent times, owing to ever-increasing conflicts, over-burdening of courts, and souring of relationships over lawsuits, mediation is an effective tool that helps in peace-keeping in the long run.
India has recognized mediation as an effective dispute resolution process on various occasions. In fact, India as a state has also been privy to mediations that have had fruitful outcomes; for instance, the Tashkent Agreement. A few domains wherein India has incorporated mediation in its legal regime have been discussed below.
a. Section 89 of the Code of Civil Procedure, 1908
The Code of Civil Procedure, 1908 (“CPC”) is a consolidated document which governs all civil disputes in India. In light of the long-drawn nature of litigation and the ever-increasing number of pending cases, a provision is provided under Section 89 of CPC to resort to alternate dispute resolution mechanisms whenever possible, which explicitly includes mediation. Under this provision, where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate terms of settlement in consonance with the observations of the parties and refer the same for arbitration, conciliation, judicial settlement including settlement through Lok Adalat or mediation. The validity of this provision was also upheld in Salem Advocate Bar Association, Tamil Nadu v. Union of India.
b. Section 9 of the Family Courts Act, 1984
Section 9 of the Family Court Act, 1984 enjoins the family court to make efforts for peaceful dispute settlement. The provision stipulates that in every suit or proceeding, in the first instance, or at any stage, if it appears to the family court that there is a reasonable possibility of a settlement between the parties, it should make an endeavour to assist and persuade the parties in arriving at a settlement, following a procedure that it may deem fit, subject to any rules prescribed by the High Court.
c. Section 442 of the Companies Act, 2013
Section 442 of the Companies Act 2013 provides for referral of company disputes to mediation by the National Company Law Tribunal and Appellate Tribunal read with the Companies (Mediation and Conciliation) Rules, 2016. The aforesaid provision authorizes the Central Government to maintain a panel of experts to be called as “Mediation Panel” for mediation between parties during pendency of any proceedings.
c. Section 12A of the Commercial Courts Act, 2015
Section 12A of the Commercial Courts Act, 2015 states that no suit which does not contemplate urgent interim reliefs shall be instituted under the Act unless the plaintiff exhausts the remedy of pre-institution mediation following the manner and procedure prescribed under the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018.
The Central Government has notified the State Legal Services Authority and the District Legal Services Authority under the Legal Services Authorities Act, 1987 to be the “Authority” for pre-institution mediation under the Act.
The process of mediation is to be completed within three months from the date of application made with a maximum extension of 2 months by the consent of parties. The settlement arrived at under this section shall have the same status and effect as if it is an arbitral award on agreed terms under the Arbitration and Conciliation Act, 1996.
The aforesaid provision has not been put into practice yet owing to lack of functioning mechanism. We can only hope that the issues inhibiting the use of this provision are resolved at the earliest.
Mediation has immense potential to not only reduce the burden of arrears from the court but also fundamentally bring about a change in the focus of the legal system from adjudication to peaceful settlement of disputes. Although mediation has gained wide acceptance in developed as well as developing countries including India, there is need for a robust legislation that comprehensively regulates mediation and promotes peaceful dispute settlement before resorting to lawsuits. This would foster confidence in mediation as a structured dispute resolution mechanism and strengthen the unique pillars of mediation including confidentiality and consent. The time is ripe to make mediation a major instrument in our legal regime, aiding smooth and successful resolution of disputes.
[The views expressed in the article are personal views of the author]
Ms. Shreya Sukhtankar, Batch of 2021, ILS Law College, Pune
The author may be reached at firstname.lastname@example.org
 Kartik Adlakha, Mandatory Mediation in India – A boon or a bane to the legal system in the country?, CIArb (Apr. 30, 2019), https://www.ciarb.org/resources/features/mandatory-mediation-in-india-a-boon-or-a-bane-to-the-legal-system-in-the-country/.
 AIR 2005 SC 3353.
 Dr. Justice Dhananjaya Y. Chandrachud, Mediation – realizing the potential and designing implementation strategies, Law Commission of India, http://lawcommissionofindia.nic.in/adr_conf/chandrachud3.pdf (last visited June 02, 2020, 10:30 AM).