DISPUTE RESOLUTION SYSTEM IN INDIA: IN SPECIAL

REFERENCE TO MEDIATION

RITURAJ

RGNUL, PATIALA
INTRODUCTION

Section 89 of code of civil procedure, 1908 gave impetus to Indian legal system to use
different modes of dispute resolution. There are different modes like, Arbitration, mediation,
conciliation, negotiations. All modes are different and have different quality. ADR is a means
to settle dispute with the help of third party and this has gained momentum over the last few
years among both legal luminaries and general public. In todays era, method of settling
dispute outside the court are often praised and even courts often require the parties to pursue
these methods of solving disputes before filing case in courts. These methods settle dispute
without indulging in the court process and saves the time and money.

ONE ASPECT OF ADR: MEDIATION

Mediation is the ‘something else’ which is different from litigation, arbitration, and
conciliation as a structured dispute resolution process for resolving conflicts. Mediation may
be also known as a negotiation carried out by the third party. It is a collaborative manner of
resolving disputes where the parties make the ultimate decision on the terms at which they
settle their disputes. It is a completely voluntary process, which means that the parties can opt
out of the process anytime they feel it is not working for them. Mediation is confidential
method of solving dispute anything that the parties may have discussed with the mediator or
the other side or any documents exchanged or any proposals made during mediation will
remain confidential even after the process has concluded and neither party is permitted to use
any information gathered in mediation in any judicial or quasi-judicial forum.

ROLE OF MEDIATOR

It is the mediator who facilitates the negotiations and communication between the parties
while uncovering their underlying interests and identifies overlapping interests that can result
in a zone of possible agreement. In mediation, the mediator can never make a decision on the
substance of the dispute rather he merely acts a facilitator to the dispute. His role is to bridge
the communication gap, or to provide a different perspective of the dispute, or to bring new
ideas and put a new face on the dispute in an attempt to bring the parties closer to an
amicable settlement. It is important for a mediator to remain, and be perceived as being,
neutral in the process.

BENEFITS OF MEDIATION

There are several benefits of mediation and one of these is that the dispute resolution process
is still within the control of disputants and that the type of solution that can be achieved is
entirely within the parties control to craft and execute. Mediation encourages and facilitates
an exchange of information in a non-adversarial setting. It helps to provide new information
to parties which could assist in the resolution of their differences. It helps parties to
understand each other's views and difficulties. It gives parties an opportunity to ensure that
their concerns are understood by their counterparts in the dispute. It helps to promote a
productive level of emotional expression. It deals with differences in perceptions and
interests between disputants. It helps parties to realistically assess their alternatives to
settlement. Mediation assists in the discovery of those interests that parties are reluctant to
disclose to each other which may, in the grasp of a good ethical mediator, assist in the
resolution of the dispute.

Mediation is one of those traditional means of settling disputes which was neglected by the
adoption of common law system but now a days this process is being revived as legal
representatives serve a mediatory function by using the law as a common and objective basis
on which disputes are solved.

LEGALITY OF ADR

Despite the staggering pendency of cases in the country, use of mediation was give impetus
only by amendment in CPC in 2002 which introduced section 89, which permits the court to
refer a dispute to ADR forum when it deemed that elements of settlement existed. This was a
landmark step in settling dispute out of the court by saving time and money.

In case of Salem Advocate Bar Assn. v. Union of India 1, the Supreme Court held that
Section 89 was constitutionally valid and established a committee to, inter alia, draft rules on
mediation and create a report on effective case management to reduce the burden on courts.

1
(2003) 1 SCC 49 : 2002 Supp (3) SCR 353
In 2005, the then CJI, Justice R.C. Lahoti, gave further impetus to mediation in India by
ordering the establishment of the Mediation and Conciliation Project Committee. The
purpose of the MCPC was to establish court-annexed pilot mediation centres in several states,
and ensure that the mediation rules to be adopted in various court-annexed mediation centres
were uniform, that training imparted to mediators were consistent, and that mediation was
implemented at a national level.

PROVISION OF MEDIATION IN OTHER ACTS

In recent years, mediation has been given further impetus by the inclusion of a provision in
the Companies Act, 2013, which makes it mandatory for the central government to maintain a
mediation and conciliation panel, comprising experts for mediating commercial disputes
between the parties2. Similarly, the Consumer Protection Bill (Consumer Bill), 2015 provides
for mediating disputes at the first instance of admission of a complaint before any consumer
disputes redressal agency3. Chapter V of the Consumer Bill envisages the establishment of
consumer mediation cells at the national, state, and district levels, to whom the consumer
disputes redressal agencies shall refer their cases 4. The Real Estate (Regulation and
Development) (RERA) Act, 2016 also encourages amicable conciliation of disputes between
promoters and allottees through dispute settlement forums established by consumer or
promoter forums5.

CONCLUSION

The mediation movement has gone full circle, from traditional methods of community
dispute resolution to the present day revival of more formalised mediation. Mediation has
become an integral and essential part of legal practice, particularly for lawyers involved in
litigation. Even for lawyers involved in corporate work, or other specialities, it should be
recognised that mediation is fast gaining preference as a quicker, cheaper, and more private
means of settling disputes. To keep apace with these developments, the legal professional of
today must be well versed in the techniques and processes of mediation, the better to serve
his clients and the profession. It is hoped that this article has provided some basic information
on mediation and the mediation process.

2
Section 442, Companies Act, 2013
3
Clause 34, Consumer Protection Bill, 2015
4
Clause 63, Consumer Protection Bill, 2015
5
Section 32(g), RERA, 2016