BANGALORE UNIVERSITY

UNIVERSITY LAW COLLEGE AND

DEPARTMENT OF STUDIES IN LAW

CLINICAL COURSE PAPER 3

Report on

‘ VISIT TO BANGALORE MEDIATION CENTRE ’

Submitted to
Dr Chandrakanthi L
Assistant Professor
University law College and Department of Studies in Law
Bangalore University, Bangalore- 560056

Submitted by
Mohan Krishna
15LUL09049
X Semester B.A, LLB (5 Years)
University law College and Department of Studies in Law
Bangalore University, Bangalore- 560056

2020
 Contents

1. Acknowledgement
2. Purpose of Visit
3. About Bangalore Mediation Centre
4. Presentation by the Mediator;
 Introduction to Alternative Dispute
Resolution(ADR)
 Types of Alternative Dispute Resolution(ADR)
 Brief concept of Mediation
 Approach of Mediators
 Process of mediation
 Opportunities and Challenges

5. Critical Analysis
 I, Mohan Krishna student of B.A.,LL.B , X Semester, would like to pay my
Sincere gratitude towards our Assistant Professor Dr Chandrakanthi L, for
arranging our visit to Bangalore Mediation Centre, Karnataka for the purpose of
understanding its organization and functioning.
I am also thankful to Mediator,
Joe Joseph to make us understand the Role of Mediation centre and Mediators in a
much practical way.

Mohan Krishna
 Particulars of Visit

Name:
Bangalore Mediation Centre.

Location:

Bangalore Mediation Centre, Nyaya Degula, Siddaiah Road

Bangalore -560 027 Karnataka, INDIA

Team:

The team consisted of 40 members from X semester of B.A.,LL.B,

University Law College, Bangalore University, Bengaluru - 560056.

Date and Day of Visit

Date Time Day

12-02-2020 10:00 AM TO 02:00 PM Wednesday
 Purpose of Visit

The purpose of the visit was to understand the working of the Mediation centre, the
nature of duties of the Mediators. The visit was to help us understand the role of
Mediation centre in dispensing justice in every case, the role of advocates in a case,
the way cases proceed in a Mediation centre, the way Mediators, parties and their
lawyers handle the case. This gave us an opportunity to understand the
complete mechanism of the Mediation Centre

The purpose of the visit as told by our college were:

 To understand the working of the Mediation Centre and Organization of

Mediator’s office.
 The nature of duties of Mediators.
 To help us understand the role of Mediation centre in mediating a case and
closure of the case.
 Steps involved in Mediation.
 Psychological approach towards Mediation.
 Role of Advocates and their parties in Mediation.
 Other Miscellaneous functions of the Mediation centre.

BANGALORE Mediation CENTRE

Bangalore Mediation Centre is an initiative of the High Court of Karnataka. It has

been conceived as a project for giving effect to Section 89 of the Code of Civil
Procedure which provides for Mediation as an Alternative Dispute Resolution
mechanism. The project is implemented with the support of the Advocates
Association, Bangalore. It facilitates court-annexed mediation by trained advocate-
mediators.

The Mediation centre contains about 120 Mediators and these

Mediators are experienced advocates with a minimum standing of 15 years at the Bar
and who have been given special training in the art of mediation by the High Court
with the technical cooperation of the experts from the Institute for the Study and the
Development of Legal Systems (I.S.D.L.S.), San Francisco.

The institution not only provides mediation to parties, It is also having the pride of
training mediators being the second largest Mediation centre in the country next to
New Delhi.

PRESENTATION BY THE MEDIATOR

The team reached the Mediation Centre at 9 in the morning. We were then directed
towards the training hall by the staff present at the mediation centre. Joe Joseph, one
of the leading Mediator at the Bangalore Mediation Centre was allot to carry over the
presentation. Joe Joseph began addressing the team by a sweet welcome The Mediator
then began his presentation with the following concepts;

INTRODUCTION TO ALTERNATIVE DISPUTE RESOLUTION:

Indian judiciary is one of the oldest judicial system, a world-renowned fact but
nowadays it is also well-known fact that Indian judiciary is becoming inefficient to
deal with pending cases, Indian courts are clogged with long unsettled cases. The
scenario is that even after setting up more than a thousand fast track Courts that
already settled millions of cases the problem is far from being solved as pending cases
are still piling up. To deal with such a situation Alternative Dispute Resolution (ADR)
can be helpful mechanism, it resolves conflict in a peaceful manner where the
outcome is accepted by both the parties.

ONE OF THE MOST IMPORTANT FEATURE OF ADR IS IT RESOLVES

DISPUTE IN COST EFFECTIVE MANNER, LESS TIME CONSUMING AND
PRODUCES DESIRED RESULT.
The concept of Alternative Dispute Resolution (ADR) mechanism is capable of
providing a substitute to the conventional methods of resolving disputes. ADR offers
to resolve all type of matters including civil, commercial, industrial and family etc.,
where people are not being able to start any type of negotiation and reach the
settlement. Generally, ADR uses neutral third party who helps the parties to
communicate, discuss the differences and resolve the dispute. It is a method which
enables individuals and group to maintain co-operation, social order and provides
opportunity to reduce hostility.

IMPORTANCE OF ADR IN INDIA:

To deal with the situation of pendency of cases in courts of India, ADR plays a
significant role in India by its diverse techniques. Alternative Dispute Resolution
mechanism provides scientifically developed techniques to Indian judiciary which
helps in reducing the burden on the courts. ADR provides various modes of settlement
including, arbitration, conciliation, mediation, negotiation and lok Adalat. Here,
negotiation means self-counseling between the parties to resolve their dispute but it
doesn’t have any statutory recognition in India.

ADR is also founded on such fundamental rights, article 14 and 21 which deals with
equality before law and right to life and personal liberty respectively. ADR’s motive
is to provide social-economic and political justice and maintain integrity in the society
enshrined in the preamble. ADR also strive to achieve equal justice and free legal aid
provided under article 39-A relating to Directive Principle of State Policy(DPSP).

FEW IMPORTANT PROVISIONS RELATED TO ADR:

Section 89 of the Civil Procedure Code, 1908 provides that opportunity to the people,
if it appears to court there exist elements of settlement outside the court then court
formulate the terms of the possible settlement and refer the same for: Arbitration,
Conciliation, Mediation or Lok Adalat.
The Acts which deals with Alternative Dispute Resolution are Arbitration and
Conciliation Act, 1996 and,
The Legal Services Authority Act, 1987

ADVANTAGES OF ADR:

Less time consuming: people resolve their dispute in short period as compared to
courts
Cost effective method: it saves lot of money if one undergoes in litigation process.
It is free from technicalities of courts, here informal ways are applied in resolving
dispute.
People are free to express themselves without any fear of court of law. They can
reveal the true facts without disclosing it to any court.
Efficient way: there are always chances of restoring relationship back as parties
discuss their issues together on the same platform.
It prevents further conflict and maintains good relationship between the parties.
It preserves the best interest of the parties.

TYPES OF ALTERNATIVE DISPUTE RESOLUTION

ARBITRATION:

The process of arbitration can start only if there exists a valid Arbitration Agreement
between the parties prior to the emergence of the dispute. As per Section 7, such an
agreement must be in writing. The contract, regarding which the dispute exists, must
either contain an arbitration clause or must refer to a separate document signed by the
parties containing the arbitration agreement. The existence of an arbitration agreement
can also be inferred by written correspondence such as letters, telex, or telegrams
which provide a record of the agreement. An exchange of statement of claim and
defence in which existence of an arbitration agreement is alleged by one party and not
denied by other is also considered as valid written arbitration agreement.

Any party to the dispute can start the process of appointing arbitrator and if the other
party does not cooperate, the party can approach the office of Chief Justice for
appointment of an arbitrator. There are only two grounds upon which a party can
challenge the appointment of an arbitrator – reasonable doubt in the impartiality of the
arbitrator and the lack of proper qualification of the arbitrator as required by the
arbitration agreement. A sole arbitrator or panels of arbitrators so appointed constitute
the Arbitration Tribunal.

Except for some interim measures, there is very little scope for judicial intervention in
the arbitration process. The arbitration tribunal has jurisdiction over its own
jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration
tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request,
there is little the party can do accept to approach a court after the tribunal makes an
award. Section 34 provides certain grounds upon which a party can appeal to the
principal civil court of original jurisdiction for setting aside the award.

Once the period for filing an appeal for setting aside an award is over, or if such an
appeal is rejected, the award is binding on the parties and is considered as a decree of
the court.

CONCILIATION:

Conciliation is a less formal form of arbitration. This process does not require an
existence of any prior agreement. Any party can request the other party to appoint a
conciliator. One conciliator is preferred but two or three are also allowed. In case of
multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there
can be no conciliation.
Parties may submit statements to the conciliator describing the general nature of the
dispute and the points at issue. Each party sends a copy of the statement to the other.
The conciliator may request further details, may ask to meet the parties, or
communicate with the parties orally or in writing. Parties may even submit
suggestions for the settlement of the dispute to the conciliator.

When it appears to the conciliator that elements of settlement exist, he may draw up
the terms of settlement and send it to the parties for their acceptance. If both the
parties sign the settlement document, it shall be final and binding on both.

Note that in USA, this process is similar to Mediation. However, in India, Mediation
is different from Conciliation and is a completely informal type of ADR mechanism.

MEDIATION:

Mediation, a form of alternative dispute resolution (ADR) or "appropriate dispute

resolution", aims to assist two (or more) disputants in reaching an agreement. The
parties themselves determine the conditions of any settlements reached— rather than
accepting something imposed by a third party. The disputes may involve (as parties)
states, organizations, communities, individuals or other representatives with a vested
interest in the outcome.

Mediators use appropriate techniques and/or skills to open and/or improve dialogue
between disputants, aiming to help the parties reach an agreement (with concrete
effects) on the disputed matter. Normally, all parties must view the mediator as
impartial.

Disputants may use mediation in a variety of disputes, such as commercial, legal,

diplomatic, workplace, community and family matters.

A third-party representative may contract and mediate between (say) unions and
corporations. When a workers’ union goes on strike, a dispute takes place, and the
corporation hires a third party to intervene in attempt to settle a contract or agreement
between the union and the corporation.

NEGOTIATION:

Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon

courses of action, to bargain for individual or collective advantage, or to craft
outcomes to satisfy various interests. It is the primary method of alternative dispute
resolution.

Negotiation occurs in business, non-profit organizations, government branches, legal

proceedings, among nations and in personal situations such as marriage, divorce,
parenting, and everyday life. The study of the subject is called negotiation theory.
Those who work in negotiation professionally are called negotiators. Professional
negotiators are often specialized, such as union negotiators, leverage buyout
negotiators, peace negotiators, hostage negotiators, or may work under other titles,
such as diplomats, legislators or brokers

LOK ADALAT:

“While Arbitration and Conciliation Act, 1996 is a fairly standard western approach
towards ADR, the Lok Adalat system constituted under National Legal Services
Authority Act, 1987 is a uniquely Indian approach”.

It roughly means "People's court". India has had a long history of resolving disputes
through the mediation of village elders. The system of Lok Adalats is an improvement
on that and is based on Gandhian principles. This is a non-adversarial system, where
by mock courts (called Lok Adalats) are held by the State Authority, District
Authority, Supreme Court Legal Services Committee, High Court Legal Services
Committee, or Taluk Legal Services Committee, periodically for exercising such
jurisdiction as they thinks fit. These are usually presided by retired judge, social
activists, or members of legal profession. It does not have jurisdiction on matters
related to non-compoundable offenses.

There is no court fee and no rigid procedural requirement (i.e. no need to follow
process given by Civil Procedure Code or Evidence Act), which makes the process
very fast. Parties can directly interact with the judge, which is not possible in regular
courts.

Cases that are pending in regular courts can be transferred to a Lok Adalat if both the
parties agree. A case can also be transferred to a Lok Adalat if one party applies to the
court and the court sees some chance of settlement after giving an opportunity of
being heard to the other party.

The focus in Lok Adalats is on compromise. When no compromise is reached, the

matter goes back to the court. However, if a compromise is reached, an award is made
and is binding on the parties. It is enforced as a decree of a civil court. An important
aspect is that the award is final and cannot be appealed, not even under Article 226
because it is a judgement by consent.

All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok
Adalat is deemed to be a Civil Court.

Lok Adalat (people’s courts), established by the government, settles dispute through
conciliation and compromise. The First Lok Adalat was held in Chennai in 1986. Lok
Adalat accepts the cases which could be settled by conciliation and compromise and
pending in the regular courts within their jurisdiction.
The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman,
with two other members, usually a lawyer and a social worker. There is no court fee.
If the case is already filed in the regular court, the fee paid will be refunded if the
dispute is settled at the Lok Adalat. The procedural laws and the Evidence Act are not
strictly followed while assessing the merits of the claim by the Lok Adalat.

Main condition of the Lok Adalat is that both parties in dispute should agree for
settlement. The decision of the Lok Adalat is binding on the parties to the dispute and
its order is capable of execution through legal process. No appeal lies against the
order of the Lok Adalat.

Lok Adalat is very effective in settlement of money claims. Disputes like partition
suits, damages and matrimonial cases can also be easily settled before Lok Adalat as
the scope for compromise through an approach of give and take is high in these cases.

Lok Adalat is a boon to the litigant public, where they can get their disputes settled
fast and free of cost.

MEDIATION

BRIEF CONCEPT OF MEDIATION:

Mediation is an age old process of dispute resolution practiced since Vedic period. It
is a low cost, keeping the matters, especially family matters secret among three
parties, two parties and the mediator. Moreover the solution is not imposed on any
party, it is a solution that both the parties agreed to. It, thus gives an effective solution
in a peaceful manner.
Alternate Dispute Resolution method of resolving the disputes is relatively new trend
in India. The mediation process in India is not a newly invented procedure for dispute
redressal, it is an age old process since Vedic period. It is beneficial for both the sides
- the courts are being a bit less burdened with cases, and the parties are getting their
issue resolved quickly with less hassles and in a smoother way. Thus, there has been
made an important position for mediation in Indian Law.

The difference between taking a matter to litigation and taking it for mediation
process, is that in litigation, there is a blame game and the blames are to be proved,
depending that the Court shall give a solution; and in Indian mediation, the matter
gets resolved through negotiation, where the solution is sought with the consent of the
parties after considering the demands of both the sides.

The alternate dispute resolution India consist of following types of ADR in India -
arbitration, conciliation, negotiation and mediation. Mediation in India is the most
popular method among all the three processes.

Mediation in India is a voluntary process where the disputing people decide to

mutually find a solution to their legal problem by entering into a written contract and
appointing a mediator. The decision-making powers remain with the disputing parties,
with the mediator acting as a buffer to bring them to an understanding. The parties can
hire ADR lawyers to represent them before the mediator and explain the situation in a
professional way. The difference between arbitration and mediation are that
arbitration is a more formal process than mediation. An arbitrator needs to be formally
appointed either beforehand or at the time of need. A mediator can be anyone, of any
designation, can be appointed formally or casually depends on the wish of the parties.
The mediation law in India has been made user friendly and pretty flexible.

Mediation India are divided into two categories which are commonly followed:

1. Court referred Mediation:

The court may refer a pending case for mediation in India under Section 89 of the
Code of Civil Procedure, 1908. This type of mediation is frequently used in
Matrimonial disputes, particularly divorce cases.

2. Private Mediation:
In Private Mediation, qualified personnel works as mediators on a fixed-fee basis.
Anyone from courts, to the general public, to corporates as well as the government
sector, can appoint mediators to resolve their dispute through mediation.

Fundamental Rules Of Mediation Are As Follows:[5]

1. A neutral mediator to conduct the mediation: A mediator should always be
neutral, having no personal or monetary interest in the dispute, or in either party.

2. Self-determination of the parties: Mediation is a process that is based on the self-

determination of disputant parties that is to say that the parties can make free choices
keeping their interest in mind. The mediator is thus responsible to conduct the process
whereas the parties determine the outcome of the settlement.

3. Confidentiality: The very essence of mediation is its confidentiality. The mediator

should take note:
Ø That she and the parties shall maintain confidentiality in all the matters relating to
the mediation proceedings. The confidentiality shall extend to the settlement
agreement, unless there is a necessity for the disclosure in order to implement and
enforce it.
Ø That it is not legally permissible for her, unless otherwise agreed to by the parties,
to act as an arbitrator or witness in any arbitral or judicial proceeding with respect to
the dispute which is the subject matter of mediation proceedings and the parties are
also not allowed to introduce such evidence.
Ø That the only information regarding the behavior of the parties might be reported is:
whether the parties appeared at a scheduled mediation and whether or not they
reached a solution.

4. Fairness of process: The mediation process should be a fair one. The parties

should be treated fairly and not arbitrarily and that their concerns should be addressed
properly.

5. Voluntary process: The mediation process is impossible without the consent of the

parties involved. The parties are bound once they sign the settlement arrived at during
mediation.

APPROACH OF MEDIATORS:

Mediator Joe Joseph explained these concepts through interaction with our team;

Accreditation
Is there a professional body for mediators, and is it necessary to be accredited
to describe oneself as a ‘mediator’? What are the key requirements to gain
accreditation? Is continuing professional development compulsory, and what
requirements are laid down?
There is a professional association of mediators in India called Mediators India.
It is not necessary to be accredited to practise as a mediator in India. However,
accreditation is necessary for empanelment with court and tribunal mediation panels.
With growing awareness of mediation, there will be a preference for certified
accredited mediators.
In India, court-annexed mediation centres conduct two training courses: a basic
training course that is 40 hours in duration and an advanced training course that is 20
hours in duration. Accreditation of mediators takes place after 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 must undertake continuous professional
education or development courses. In the court mediation system, the mediation
centres do arrange for refresher courses and mediators are encouraged to attend the
same.
Liability
What immunities or potential liabilities does a mediator have? Is professional
liability insurance available or required?
The ACA and the CPC spell out the duties of mediators that pertain to disclosure,
avoiding improper conduct, maintaining confidentiality, not imposing settlements, etc.
The PIMS Rules also impose certain ethical duties on mediators.
However, no potential liability is spelt out in the statutes for mediators. In fact, Rule
22 of the Mediation Rules and Rule 23 of the Companies (Mediation) Rules provide
that mediators shall not be liable for anything bona fide done by them or omitted to
be done by them during the mediation process and are immune from civil or criminal
action. In the court mediation system, mediators can be removed from the panel for
misconduct or poor performance.
Professional liability insurance is neither available nor required.
Mediation agreements
Is it required, or customary, for a written mediation agreement to be entered
into by the parties and the mediator? What would be the main terms?
In the court mediation process, there is no obligation to have an agreement between
the parties and the mediator, since the rules under the CPC govern the mediation.
In other mediations, while there is no legal mandate, it is customary to have such
written agreement. This will include provisions regarding confidentiality and the
process to be followed.

Appointment
How are mediators appointed?
In the court system, the Civil Procedure (Mediation) Rules regulate the accreditation,
empanelment of mediators and appointments in individual cases. Such appointments
are usually based on the roster; in exceptional cases mediators may be specified by
name by the referring judge himself or herself or acting on the suggestion of parties.
In the field of private mediation, the practice of including mediation clauses in
contracts is gaining popularity. Such clauses may specify the name of a mediator to
settle disputes or the name of an institution whose assistance may be sought in
appointing a mediator.
Conflicts of interest
Must mediators disclose possible conflicts of interest? What would be
considered a conflict of interest? What are the consequences of failure to
disclose a conflict?
Mediators are obliged to inform the parties about conflicts of interest. This must be
done before the proceedings commence, or, if a conflict arises thereafter, as soon as
the mediator is aware of it. Both the ACA and the Mediation Rules require such
disclosure. As per the Mediation Rules, anything that would give rise to a justifiable
doubt as to the mediator’s independence or impartiality must be disclosed. This
would include, but would not be limited to, the mediator having financial interests in a
corporate party, etc.
If the mediator fails to disclose a conflict of interest, he or she would be liable to face
civil action. In the case of court-referred meditations, a report regarding such conduct
of the mediator may also be submitted the court and the court may consider taking
any action that it deems fit.
Fees
Are mediators’ fees regulated, or are they negotiable? What is the usual range
of fees?
In the court-run mediation scheme, the mediation service is usually free for the
parties. The court, however, pays an honorarium to the mediators.
In the field of private mediation, there is no statutory or legal regulation of the fees of
the mediators. The fee is negotiable, is usually on a time spent basis and varies from
25,000 rupees to 300,000 rupees per day. The parties usually share the mediator’s
fees equally.
In the context of pre-institution mediation under the Commercial Courts Act, a fee
structure is in the process of being devised. If the parties choose the mediator by
themselves, they can negotiate a fee with the mediator. If the state agency’s services
are used for appointment of a mediator, a fee will be fixed for the same.

PROCESS OF MEDIATION:

The mediator will wait until both parties are present and then make
introductions. The physical setting will be controlled so that no party feels
threatened. Most mediators will ask that if children are present, they wait
outside. The mediator will then give an opening statement. This outlines the
role of the participants and demonstrates the mediator’s neutrality. Some
mediators will make comments about what they see as the issue and confirm
the case data if briefs have been pre-submitted. Next, the mediator will define
protocol and set the time frame for the process. There will be a review of the
mediation guidelines and the mediator will briefly recap what it is that he has
heard as the issues.

The opening statement during the introductory remarks will set out the ground
rules for the mediation. These ground rules are what help the mediation move
along smoothly. The mediator will usually ask that if attorneys are present,
they can confer, but the clients should speak for themselves. Parties should
not interrupt each other; the mediator will give each party the opportunity to
fully share their side of the story.

Statement of the Problem by the Parties

After the opening statement, the mediator will give each side the opportunity
to tell their story uninterrupted. Most often, the person who requested the
mediation session will go first. The statement is not necessarily a recital of the
facts, but it is to give the parties an opportunity to frame issues in their own
mind, and to give the mediator more information on the emotional state of
each party. If there are lawyers present who make the initial statement, the
mediator will then ask the client to also make a statement. The rationale
behind the statement of the problem is not a search for the truth; it is just a
way to help solve the problem.

Information Gathering

The mediator will ask the parties open-ended questions to get to the
emotional undercurrents. The mediator may repeat back key ideas to the
parties, and will summarize often. This helps the mediator build rapport
between the parties, especially when a facilitative style is used.

Problem Identification

This might also be part of other segments. The mediator tries to find common
goals between the parties. The mediator will figure out which issues are going
to be able to settle or those that will settle first.

Bargaining and Generating Options / Reaching an Agreement

Methods for developing options may include group processes, discussion

groups or sub groups, developing hypothetical plausible scenarios, or a
mediators proposal where the mediator puts a proposal on the table and the
parties take turns modifying it. However, the most commonly used method is
the caucus.

Once the participants are committed to achieving a negotiated settlement, the

mediator will propose a brainstorming session to explore potential solutions.
This can lead to a final agreement, which diffuses the conflict and provides a
new basis for future relations.

The mediator may decide to hold private sessions with both parties in order to
move the negotiations along. This caucus session will be confidential. The
caucus provides a safe environment in which to brainstorm and surface
underlying fears. The goal of the session is to find some common ground by
exploring lots of options, and to bring about possible solutions for the parties
to think about. Parties can also entertain alternative solutions to their
problems without committing themselves to offer the solutions as
concessions.

OPPURTUNITIES AND CHALLENGES

LACK OF TRAINED MEDIATORS:

The essence of mediation lies in the role of the mediator as a

facilitator. The role of the mediator is to create an environment in which
parties before him are facilitated towards resolving the dispute in a purely
voluntary settlement of agreement. As a facilitator, the mediator has to
understand the underline issues between the parties. In order to do so, the
mediator has to open up communication between the parties and between
the parties and himself.141
Considering the techniques of mediation, imparting formal training
for mediators is a necessary. Now, it is accepted and put into practice by
the various legal systems in the world that training is being imparted to
the persons for becoming mediators to mediate between the parties.

LACK OF TRAINERS:

This point is co-related with the point regarding lack of trained

mediators. The training for mediation is being imparted by the trained
persons who have got Training for Trainers (TOT). The numbers of
persons who are expertise in providing training of mediation are not
enough in number. The MCPC has prepared the training manual and the
period of training is described for 40 hours. As there is lack of adequate
numbers of trainers, it hampers the training programme of mediation and
ultimately creates obstacles in the implementation of the mediation.

LACK OF REFERRALS:

Section 89 of the Code of Civil Procedure provides for reference of

cases to one of the mode of alternative dispute resolution. It is obligatory
on the part of the Judge to refer the case to any one mode of alternative
dispute resolution. However, experiences shows that the Judges are not referring cases
to the techniques of alternative dispute resolution.

LACK OF INFRASTRUCTURE:

Mediation being a process wherein there is need of focused

attention for resolution of disputes. It is being so there is need of a space
required to run the mediation centre. Not only that, but, it also requires
sufficient space for accommodating mediators and the space for separate
as well as joint meetings of the parties. Further, there is need for space for
waiting room, and other infrastructure facilities such as sufficient staff,
computers, facilities for water, toilet facilities. The atmosphere of the
mediation centre needs to be informal and it should be situated within
Court premises or near the Court premises.

LACK OF AWARENESS:

Lack of awareness about mediation amongst the rural people, who

mistook mediation as another form of Lok Adalat least realizing that the
mediation process involved more participation of the litigants and
empowered them to find their own solutions .There is also lack of
awareness amongst judges, advocates and litigants regarding the
effectiveness and usefulness of the process of mediation.

NEED FOR ENHANCEMENT OF STANDARD OF

MEDIATION PRACTICES:

“Let every man judge according to his own standards, by what he

has himself read, not by what others tell him”, said Albert Einstein. These
words are perfectly true for any motivated individual or entity. However,
setting standards is not as easy as said for a concept like “Mediation” and
it is a challenge to review and enhance its standards.
 CRITICAL ANALYSIS

Current scenario of Mediation under statutory provisions

Conciliators appointed under Section 4 the Industrial Disputes Act, 1947 are assigned
with the duty to mediate and promote settlement of industrial disputes with detailed
prescribed procedures for conciliation proceedings. If used appropriately, it’s a cheap
and quick process. However, only a few cases have been resolved and the very intent
of having such provision has been frustrated. Unfortunately, large numbers of matters
which ought to have been resolved by this provision are still pending in courts and
new matters are filed every day.

In 2002, an amendment to the Code of Civil Procedure, 1908 (CPC) was brought in.
Section 89 read with Order X Rule 1A provided for reference of cases pending in the
courts to ADR. In addition, Order XXXIIA of the CPC recommends mediation for
familial/personal relationships, as the ordinary judicial procedure is not ideally suited
to the sensitive area of personal relationships. Though many courts in India now have
mediation centres, there is no accurate data available to show that this provision has
been utilized successfully.

Even Section 442 of the Companies Act, 2013, read with the Companies (Mediation
and Conciliation) Rules, 2016, provides for referral of disputes to mediation by the
National Company Law Tribunal and Appellate Tribunal.

The Micro, Small and Medium Enterprises (MSME) Development Act, 2006
mandates conciliation when disputes arise on payments to MSMEs.
More particularly, family and personal laws including the Hindu Marriage Act, 1955
and the Special Marriages Act, 1954 require the court in the first instance to attempt
mediation between parties.

Section 32(g) of the Real Estate (Regulation and Development) Act, 2016 provides
for amicable conciliation of disputes between the promoters and allottees through
dispute settlement forum, set up by consumer or promoter associations.

Measures for effective implementation and growth of Mediation in India

There is an urgent need for a uniform statue exclusively governing the mediation
process in India. Mediation legislation exists in more than 18 other jurisdictions,
including Singapore, Malaysia, and Ireland (plays regulatory role). The Singapore
International Arbitration Centre (SIAC) and the Singapore International Mediation
Centre (SIMC) have framed SIAC-SIMC Arb-Med-Arb Protocol (AMA Protocol) to
mange disputes in accordance with an “Arb-Med-Arb” clause for commercial
contracts.

In India, parties mainly opt for court annexed-mediation, for which the respective
High Courts have their own set of Rules. Private mediation is less preferred due to
lack of recognition.

As the above provided enactments have been introduced or are being introduced in
our country, what we simultaneously need is a quick evolution of the mediation
mechanism. For this, the mediation process, be it private or court-annexed, would
require practical recognition by the legislature and the judiciary.

The judiciary mostly deals with matters that require adjudication, but there are
situations where mediation techniques would be more appropriate and beneficial to
the parties. Therefore, identification of such matters and situations by parties, lawyers
and judges becomes extremely crucial and important in the promotion of mechanism.
The following steps may be taken:

Grassroots level awareness of public at large (particularly parties, lawyers, judges and
other stakeholders) and easy access to the Mediation.

Legislative framework on Mediation and its practice (many other countries have
already adopted this and India is now signatory to the United Nations Convention on
International Settlement Agreements).

Mediation Centres need good infrastructure and a standard pattern to make parties
comfortable.

Mediation must develop into a full-time profession (efforts by senior lawyers,

members of the judiciary and all state bar councils will be required for promotion of
this mechanism) as it gives lawyers an excellent opportunity to demonstrate their
legal, analytical and professional skills.

Incentives and recognitions to lawyers to educate parties about the inner workings of
the mediation process in order to make such informed choices.

High ethical standards (code of ethics and conduct) to be followed.

Theoretical as well as practical training in mediation to be included in syllabi of law

colleges and introduction to mediation course to be conducted for all practicing
lawyers. Structured mediation training with accreditation for specialising in mediation
should be provided in a cost effective manner all over India. Continued skill
enhancing courses should be conducted from time to time for lawyers and other
professionals who wish to take up mediation as a profession,

Multiple Mediation drives should be conducted by courts on various levels, be it at

the district level or the national level. These drives can prove to be extremely
successful and can help in clearing a large backlog of cases pending before various
courts. During the recently conducted Family Courts Mediation Drive conducted by
the Delhi High Court, out of the 2,884 cases referred to mediation by the Family
Courts, 2,171 cases were successfully disposed of, which resulted in the disposal rate
of 75.27%. This clearly indicates that the judicial system requires heavy promotion of
the process of mediation.

The selection process of mediators and adequate training standards for the mediators
should be developed. There is a need to ensure standardised training programmes for
potential mediators and details about the professional and educational background of
the mediators, including previous mediations conducted, areas covering the issues
involvement in prior mediations, expertise in other discipline(s), if any, etc. need to be
maintained.

For mediation to develop as a significant practise area, mediators shall be required to

be attached with extremely transparent and eminent professional bodies under the
active surveillance of the government and the judiciary.

One of the reasons for the sluggish growth of Mediation is that there are hardly any
national and international mediation centres that are providing affordable and quality
training. Unfortunately, mediators can currently exaggerate their skills and
experiences in ways that cannot be contradicted, as mediations are conducted in
closed rooms and in confidentiality. Thus evaluating the competency of a mediator is
challenging. Therefore, there is an urgent need to create a regulatory framework for
fostering confidence and ensuring that ethical practices are followed in the mediation
process.