CIVIL PROCEDURE CODE RESEARCH PAPER (SYN

ROLE OF MEDIATOR IN CIVIL LITIGATION

Submitted by: -
LAKSHYA KAUSHISH

Enrollment No: - L19BALB025

Submitted to: -
PROF. SAURABH SOOD
 INTRODUCTION

Interpersonal conflicts arising out of an inability to resolve the difference in opinion or

interest between two or more parties, which can only be resolved with an unbiased perspective.
Such Parties either resolve such conflicts on their own or seek legal aid to settle the situation.

MEDIATION

So, Civil matters, which are non-criminal in nature generally include the matters related
to money, rent, partition, matrimonial, labour, injunction, declaration, dispute between landlord
and tenant, cheque bounce cases, motor accident or any type of personal injury, tend to go for the
Mediation process to ensure that parties involved in civil lawsuit reach to an agreement with the
help of a Mediator appointed by either the parties or Court.

ROLE OF MEDIATOR

Mediation is one of the recognized forms of Alternative Dispute Resolution (ADR) in

India strengthening Arbitration, Conciliation, Mediation and Judicial Settlement with the help of
Section 89 of the Code of Civil Procedure, 1908 and following the procedure mentioned under
Order X Rule 1-A, 1-B and 1-C as well as provisions of Mediation Rules 2006 in Part II to
identify issues, reduce misunderstandings, clarify the priorities, look for areas of compromise
and create options for parties to solve the dispute solely as per their decision through the
Mediator. Model rules were asked to be formed by Supreme Court of India in the judgement of
the case Salem Bar Association v. Union of India specifying Rules of mediation under Section
89(2)(d) of the CPC as well as the procedures and methods for ADR.

Mediation in Civil Proceedings

The Court must refer the parties to mediation at the appropriate point in civil proceedings. The
effectiveness of any alternative dispute resolution process is contingent upon the selection of
acceptable cases and their referral to an appropriate stage. The referral courts' authority to send
parties to one or more of the Alternative Dispute Resolution mechanisms is drawn from the Code

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of Civil Procedure. Section 89 is the substantive and enabling law authorising the Court to make
such a referral, whereas Order X rules 1-A, 1-B, and 1-C are procedural requirements.

When mediation is incorporated into proceedings after the completion of the pleadings and
before to the structuring of the issues, it produces better results. The reference is required on the
Court's account following the admission or refusal of papers. The formulation of questions that
are believed to be the start of a trial, so limiting the scope of an amicable resolution between the
parties.
The Court, however, has the option to refer the parties to mediation at any moment he thinks
appropriate. The researcher discovers in this study that the most beneficial time for mediation in
civil proceedings may be traced back to the stages of civil cases as defined by the 1908 Code of
Civil Procedure. The paper's scope is defined by the theme of ADR Mechanisms and the
Judiciary's role. The study article is descriptive in character and incorporates several judicial
trends through the use of numerous case laws.

Alternative Dispute Resolution:-

Alternative Dispute Resolution (ADR) is a process for resolving disputes outside of court.
Certain disagreements can be addressed more effectively by negotiation than through a court
judgement. The growth of ADR has also been linked to actual concerns about court system
delays. The parties designated for ADR resolve their differences amicably using the different
techniques indicated. This concept is far more advantageous than seeking redress through the
courts.

Mediation:-
Mediation is a well-known kind of alternative dispute resolution. Settlement by Mediation refers
to the process by which a mediator appointed by the parties or the Court, as the case may be,
mediates the dispute between the parties to the suit through the application of the Mediation
Rules, 2006, Part II, and in particular, by facilitating discussion between parties directly or
through the Mediator, by assisting parties in identifying issues, reducing misunderstandings, and
clarifying priorities, etc.

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Ø Aiding Provision:-
A) Sec 89 of Code of Civil Procedure:-
(1) If the court considers that there are aspects of a settlement that the parties may accept, the
court must draught the terms of the settlement and send them to the parties for discussion. The
court may reformulate the parameters of a potential settlement in light of the parties' remarks and
submit it to
(a) arbitration;
(b) conciliation;
(c) judicial settlement, including settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute has been referred to arbitration or conciliation according to paragraph (a),
the provisions of the Arbitration and Conciliation Act, 1996 apply as if the arbitration or
conciliation proceedings had been referred to those provisions for settlement. The court shall
refer the matter to a suitable institution or person, which institution or person shall be deemed to
be a Lok Adalat, in accordance with the provisions of sub-section (1) of section 20 of the Legal
Services Authority Act, 1987, and all other provisions of that Act shall apply to the dispute
referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the matter to a suitable
institution or person, which institution or person shall be deemed to be a Lok Adalat

Order X

Rule 1A:-
1A. Court's direction to select one option of alternative dispute settlement. After recording
admissions and denials, the Court shall advise the parties to the matter to choose one of the two
modes of out-of-court settlement indicated in section 89(1). The court shall schedule the date of
appearance before such forum or authority as the parties may choose.
Rule 1B:-
1B. Appearance before the conciliatory forum or authority.- When a suit is submitted to the
conciliatory forum or authority pursuant to rule 1A, the parties shall appear before such forum or
authority for the purpose of resolving the suit.
Rule 1C:-

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1C. Appearance before the Court as a result of the failure of conciliation efforts.- When a suit is
referred under rule 1A and the presiding officer of the conciliation forum or authority determines
that proceeding with the matter further would not be in the interests of justice, the matter is
referred back to the court and the parties are directed to appear before the court on the date fixed
by the court.
Overview of Section 89:-
Although the Court is not required to conduct arbitration, Section 89 of the Code of Civil
Procedure allows the Court to refer the dispute to arbitration, conciliation, or other forms of
dispute resolution while the case is still pending if the Court determines that the dispute can be
resolved through arbitration or conciliation. However, depending on the terms of the parties'
agreement, the Government of India or any party may impose on the Civil Court the
responsibility or obligation to arbitrate their dispute.
It doesn't matter whether one of the arbitrators is a government official. To solve the dispute, the
Section 89 obligations should be fulfilled, and every attempt should be made to find an
appropriate solution. Section 89(1) of the Code of Civil Procedure requires the court to refer the
case to arbitration, conciliation, judicial resolution, including settlement through Lok Adalats, or
mediation if there appear to be components of settlement.
.Ø Appropriate Cases:-
The parties should be referred to any of the ADR modalities at this time, particularly mediation.
The Hon'ble Supreme Court determined the appropriate time for a dispute to be submitted to
mediation in the Afcons case. This was decided in civil cases. It was decided that when the
pleadings were done, the appropriate step in civil cases would be after the pleadings were
concluded. If the court fails to evaluate and send the matter to the ADR procedure for whatever
reason, nothing stops it from using Section 89 after formulating issues. The court, on the other
hand, will be wary of submitting the matter to ADR once the evidence has begun, for fear that it
may be used to prolong the trial.
Stages of the Civil Suit:-
Table A
No Stage Order Reference
Before Institution - Stage I :- Role of Advocates
1. Institution of suit (Order IV) Stage II

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2. Issue and Service of Summons (Order V)
3. Plaint Written Statement = Pleadings (Order VII Order VIII= Order VI)
Stage III:-
Appropriate Stage.

4. Appearance of Parties and consequence of Non-Appearance of Parties. (Order IX)

5. Examination of parties by the Court. (Order X)
6. Discovery and Inspection. (Order XI)
7. Admission. (Order XII)
8. Production Impounding and Return of Document. (Order XIII)
9. Settlement of Issues. (Order XIV)
10. Disposal of the Suit at the First Hearing (Order XV) Stage IV
11. Summoning and Attendance of witnesses. (Order XVI)
12. Hearing of the suit and Examination of Witnesses. (Order XVIII)
13. Judgment and Decree (Order XX)
14. Execution of Decree (Order XXI)

Stages of and Effect of Reference:-

Neither Section 89 nor the case of Afcons Infrastructure Ltd. Vs. Cherian Varkey Construction
Co. (P) Ltd ((2010) 8 SCC 24) place a comprehensive constraint on the stage at which the ADR
mechanism must be used.
1. Reference before completion of pleadings.
Because the case is not specifically before the Court, the function of the parties' attorneys arises,
as they can mediate between the parties at their offices. The parties will be able to reach an
acceptable settlement with all the benefits of the ADR process thanks to the mediation by the
Advocates.
2. Reference between completion of pleadings and before framing of issues
(Most appropriate stage):
At this point, the parties should be sent to any of the ADR modalities, especially mediation. In
the Afcons case, the Hon'ble Supreme Court defined the acceptable moment at which a
disagreement should be sent to mediation. In civil cases, this was decided. After the pleadings

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had been finished, it was agreed that the appropriate step in civil actions would be after the
pleadings had been completed. Nothing prevents the court from employing Section 89 after
framing problems if it failed to consider and refer the case to the ADR procedure for whatever
reason. The court, on the other hand, will be reticent to submit the case to ADR once the
evidence has began, fearing that it may be utilised to prolong the trial.
3. Reference after framing of issues.
Even after framing concerns, nothing stops the court from using Section 89. The edict looks to
have reached its last stage of completion. Even in a post-decree situation, settlement through
mediation, at least on certain issues, is not prohibited. Section 89 C.P.C. allows the court to use
an Alternate Dispute Resolution method at any time, and it does not preclude mediation after the
decree has been issued, or even during the execution stage.
The passage of time, the long wait for a decree and the dispute to be finally adjudicated,
declared, and the parties' respective rights crystallised, may prompt parties to reach a more
meaningful and pragmatic resolution of the dispute, taking into account realities, which may
even help to heal the wounds, if any, caused during the litigation process. As a result, the
mediation doors shall remain open until the decree is finally satisfied or becomes non-
executable, subject to the aforementioned conditions.

BIBLIOGRAPHY

1. www.indiankanoon.org
2. Sutlej Agriculture Pvt. Ltd. & Ors vs Yes Bank Ltd on 24 October, 2011 (Para 3)
3. Dayawati vs Yogesh Kumar Gosain on 13 January, 2016 (Para No 15)
4. Afcons Infrastructure Limited and another V Cherian Varkey Constructions Company
Private Limited, (2010) 8 SCC 24, (Para No. 27 and 28)
5. Revision vs Swami Prakasananda and Others, held by Kerala High Court.on 12
November, 2013

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