Abstract

Mediation comes under Alternative Dispute Resolution (ADR) and Alternative Dispute Resolution is a process to solve conflicts and matters outside the court. Mediation is a process which is held outside the court where the parties meet and mutually resolve their dispute. Mediation is considered as the best by many people and legal professionals because there are many reasons like it allows a more reasonable time for solving the dispute, it solves out the matter most of the times and there are many more such advantages which we can talk upon but there are some important issues and challenges too in mediation.

In this manuscript, we have discussed about all the issues and challenges which are there in mediation. Mediation is currently in trend too but people don’t know how mediation came into force and how and why Arbitration and Conciliation Act, 1996 came into force. We have also discussed how these issues can be solved and how can we overcome these challenges. We have also discussed about will mediation or rather ADR will replace Litigation.

KEYWORDS: Mediation, ADR, Dispute, Conflicts, Arbitration and Conciliation Act, 1996

Introduction 

The Arbitration and Conciliation Act, 1996 was enacted in the year 1996. The main objective of Arbitration and Conciliation Act, 1996 was liberalization, privatization and globalization (LPG). This act makes “provision for an arbitral procedure fair, efficient and capable of meeting the needs of the specific arbitration.” It lays down procedures for the arbitral tribunal and to remain within the limits of the jurisdiction. The arbitral tribunal should use mediation, conciliation or other mechanism during the arbitral proceedings to encourage the settlement of disputes. Mediation comes under Arbitration and Conciliation Act, 1996. Mediation is basically a process which is use to take place outside courts. People use to meet there and solve conflicts and all the matters. It is considered as the best by many legal professionals and personals.

According to Black Law Dictionary, “mediation means Intervention; interposition; the act of a third person who interferes between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute. In international law and diplomacy, the word denotes the friendly interference of a state in the controversies of others, for the purpose, by its influence and by adjusting their difficulties, of keeping the peace in the family of nations.”[1] We'll the cases which can be solved via mediation are personal injury or divorce or domestic relations or compensation of workers or divorce or workers compensation or etc. Mediation is in trend and is chosen by many people today because of its affordability, confidentiality and many other factors like it is said to give timely resolutions and due to the sessions are private. The cost of mediation is said to be less that the price given and time invested in litigation. This is another reason why people chose mediation over litigation or any other Alternative Dispute Resolution process. Mediation can also be court ordered just because court want the penalties for falling to attend the mediation conference and making a good faith effort to settle.

History of Mediation 

History of mediation or where mediation appears first is difficult to recognize because in every home first mediation is done by parents to reconcile between siblings, in laws parents to reconcile between their son and daughter in law and vice versa, elder parents in the home to reconcile between family and so on. Home is the 1st mediation centre. But if one goes by the data the mediation first appears in Ancient Greece (Panchayat system), then in Roman Civilization. It can be seen in India when there were no courts of law like today, Kings try to negotiate before the war starts with the enemy king. It is not given the legal name “mediation”, but it is followed in India for ages through the Panchayati system.

People are dissatisfied with the administration of justice and court procedure takes a lot of time to deliver justice. Mainstream disappointment with the organization of equity was at a breaking point before the finish of the nineteenth century. This disappointment was communicated in the dismissal of normal law, the acknowledgment of legitimate authenticity, and the end that crafted by the overall set of laws - in what had become according to Americans a collectivist modern culture as opposed to a nonconformist wilderness society - was social designing. Maybe the most powerful articulation of this disappointment was a location given by Roscoe Pound to the American Bar Association in 1896, which managed those topics. Pound, Dean of the Harvard Law School from 1916 to 1936, anticipated a logical investigation of the law which would prompt redemption from the wearing hypothesis of equity. People are dissatisfied with the administration of justice and court procedure takes a lot of time to deliver justice. Mainstream disappointment with the organization of equity was at a breaking point before the finish of the nineteenth century. This disappointment was communicated in the dismissal of normal law, the acknowledgment of legitimate authenticity, and the end that crafted by the overall set of laws - in what had become according to Americans a collectivist modern culture as opposed to a nonconformist wilderness society - was social designing. Maybe the most powerful articulation of this disappointment was a location given by Roscoe Pound to the American Bar Association in 1896, which managed those topics. Pound, Dean of the Harvard Law School from 1916 to 1936, anticipated a logical investigation of the law which would prompt redemption from the wearing hypothesis of equity.

The section of society which endured the most elevated fever because of this disappointment was the mechanical common labourers. Since their appearance associations had been viewed as illicit work syndications by the custom-based law and strikes had been broken by court directives. The general set of laws was seen to be the adversary. Steadily the option to unionize and deal all in all was authoritatively understood, the courts left the strike-breaking business, and intervention turned into the instrument to thwart breakdowns in aggregate haggling and to keep up harmony among capital and work. Most devastating modern strikes were in this manner stayed away from, and those that couldn't be dodged were finished by the intervention. This expansive verifiable improvement is by and large alluded to as America's appropriation of a National Labor Policy[2], whose evident achievement transformed it into the customary way of thinking unchallenged in any quarter until the liquidations of GM and Chrysler.

In India, the main reason is its Judicial system is respectable in the world and people are dissatisfying due to justice delayed and justice delayed is justice denied so because of this. “The Supreme Court of India has begun the cycle of changes in the Indian Judicial System. Hon'ble Justice A.H. Ahmedi[3], the then Chief Justice of India in the year 1966 welcomed the Institute for the Study and Development of Legal Systems (ISDLS), the USA to take an interest in the public evaluation of the build-up in the common courts. Studies were made concerning the reasons for the delay in the common locale in our nation. India's first mediation training session was held in the year 2000 by the Indian Institute for the study and Development of Legal Systems in Ahmedabad. The Institute for the Study and Development of Legal Systems (ISDLS) is a Non-Governmental organization based in San Framcisco, Calfornia and USA.[4]”

The council by the “Code of Civil Procedure (Amendment) Act, 1999[5], altered segment 89 of the CPC with impact from 1.7.2002 whereby intercession was imagined as one of the methods of settlement of questions. The alteration in Section 89 was made on the suggestion of the Law Commission of India[6] and the Justice Malimath[7] Committee. It was suggested by the Law The commission that the court may require the participation of gatherings to the suit or continuing to show up face to face so as to show up at a genial settlement of the debate among them and make an endeavour to settle the question agreeably. Equity Malimath Committee suggested making it compulsory for the Court to allude the question, after issues are outlined, for settlement either by the method of Arbitration, Conciliation, Mediation, or Judicial Settlement through Lok Adalat. It is just when the gatherings neglect to get their questions settled through any of the Alternative Dispute Resolution techniques that the Suit could continue further. In this manner Section 89 has been acquainted with advance elective strategies for question goal.”

Hon'ble Mr Equity R.C. Lahoti, the then Chief Justice, Supreme Court of India comprised a Mediation and Conciliation Project Committee (at that point led by Hon'ble Mr Equity N. Santosh Hegde). A Pilot Project on Mediation was started in Delhi in the period of August 2005. The main clump of Senior Additional District Judges was conferred Mediation Training of 40 hours span. The prepared arbiters began legal intervention from their chambers toward the finish of August 2005. From that point, 24 more Additional District Judges have been prepared as arbiters during the period of September and November 2005.

A perpetual Mediation Centre with all advanced offices was set up at Tis Hazari court complex (Central Hall, Third Floor, Room No. 325) in October 2005 and Mediation Centre at Tis Hazari was introduced by Hon'ble Mr Equity Y.K. Sabharwal, Judge, Supreme Court of India/Chairman, NALSA on 24th October 2005.

The legal intervention was begun at Karkardooma Court Complex in December 2005 and a defendant neighbourly and current Mediation Centre was set up in May 2006. Eleven more Additional District Judges have been prepared as middle people during June 2006. “A Mediation Centre at Karkardooma Court was initiated by Hon'ble Justice Mr Equity S.B. Sinha[8], Judge, Supreme Court of India on fifth May 2006. New Complex of Delhi Mediation Centre, Karkardooma was additionally initiated by Hon'ble Justice Madan B. Lokur[9], Judge, Supreme Court of India/Member, Mediation and Conciliation Project Committee on fourteenth December 2015.”

Thusly four more Mediation Centres were set up at Rohini, Dwarka, Saket and Patiala House Courts Complex. “A Mediation Centre at Rohini Court was initiated by Hon'ble Justice R.V. Raveendran, Judge[10], Supreme Court of India on 12th October 2009. A Mediation Centre at Dwarka Court was introduced by Hon'ble Justice A.P. Shah, the Chief Justice, High Court of Delhi on ninth February 2010. A Mediation Centre at Saket Court was introduced by Hon'ble Justice D. Murgesen[11], the Chief Justice, High Court of Delhi on 30th April 2013. A Mediation Centre at Patiala House Court was introduced by Hon'ble Justice J.S. Khehar[12], Judge, Supreme Court of India and Chairman, Mediation and Conciliation Project Committee, on 22nd May 2015. Mediation comes under the Arbitration and Conciliation Act, 1996.” We’ll, according to this act, there are three kinds of dispute resolution. They are Arbitration, Mediation and Negotiation.

Issues and Challenges Faced in Mediation

Mediation is considered as the best but still it has few issues and challenges. Here are few issues and challenges which we are going to discuss about mediation,

01.  LACK OF TRAINED MEDIATORS

We'll the main role in mediation is the role of mediator. Mediator is considered as the facilitator as he's the person who creates an environment so that the parties can easily ease towards solving the conflict. He himself has to open up communication between the parties. Seeing the techniques of mediation, there's a lack of trained mediators. In a conference held in Delhi, Hon'ble Justice Mr. Siri Jagan[13] said his concerned regarding lack of trained mediators in India. We'll Supreme Court of India conducts training programmes but still there's a lack of trained mediators. The next point of mine is very much related that why there’s a lack of trained mediators.

02.  LACK OF TRAINERS

This point is related with the first point regarding why there's a lack of trained mediators. We'll the training of mediators is taken by the persons who have got Training for Trainers. professional learning process for qualified trainers who will be providing training and assistance for evidence-based program implementation. But the number of people who are expert in providing training aren't enough. The Mediation and Conciliation Project Committee has already prepared a training guideline and the prescribed training time according to them is 40 hours but due to lack of trainers, training programme gets hampered.

03.  ABSENTEEISM OF SUITABLE LEGISLATION

To refer a case for mediation, Section 89 of CPC is used but as far as Lok Adalat’s are concerned, there's no legal provision available in Legal Services Authorities Act, 1987. And same for mediation. As far as mediation is concerned, there isn't any seperate legislation available. Mediation is being carried out only through MCOC which is constituted by the Supreme Court of India. There's a committee appointed by the Supreme Court but for the proper implantation, there isn't any statutory or legislation made.

04.  LACK OF MEDIATION MANAGEMENT

As discussed earlier, In India all the activities related to mediation is controlled and managed by the MCPC of Supreme Court of India. In the High Courts, the mediation activities are controlled by a organizing committee made of all the sitting judges of the High Courts and in District Court, mediation is looked by the district court judges and other judicial officers. Now the problem here arises is these judges and officers do Judicial work first then they look after mediation work. They are not able to devote time properly for mediation works and hence proper management is required.

05.  LACK OF INFRASTRUCTURE

There's a lack of a proper infrastructure in mediation. In mediation centre, there's a need of proper need of sufficient space, there should be a waiting room for the parties, there should be facilities of water, toilets, sufficient staff, computers and others. In a conference held in Delhi, Hon'ble Justice Sunil Ambawan[14] and Dr. Sudhirkumar Jain said about the issue about the lack of adequate space of mediation centre.
  

06.  LACK OF REFERLS

We'll to transfer a case to any Alternative Dispute Resolution, one need to refer section 89 of Code of Civil Procedure. But from the past experiences, it shows that judges are not referring cases to the techniques of ADR. This came from a newsletter of mediation of Gujarat State Legal Services Authority.

07.  LACK OF ADEQUATE FUNDS

There's a need of adequate amount of funds to manage mediation centre and other process of mediation. Like there's a need of funds to manage mediation centre and all the staffs working there. Hon'ble Shri V. Gopala Gowada addressed about this issue in a conference held in Delhi regarding adequate funds for mediation centres.

08.  LACK OF AWARENESS AMONGEST PEOPLE AND PERSONALS

There is a lack of awareness about mediation process among the rural people. Maximum people misunderstood mediation as Lok Adalats. There is also lack of awareness among judges, advocates and litigants regarding the effective use of mediation and how can it be successful.

09.  PROBLEM FACED BY THE PARTIES

In mediation the parties also face problems like especially in divorce cases where husband and wife live separately and few times, and their travel expenses and time management and many things else also they have to look upon like holiday from job, no schedule that day and many things else.

What are the Solutions 

Mediation is considered as the best and if these issues gets solved then it will be a great success. We’ll the solution to all these issues are there should be trained mediators because when they will be skilled, then only they will be beneficial for the parties as well as for solving the issue soon. For trained mediators, we need trainers too and there’s a huge lack of trainers. This can be because there is not much money in being the trainer and everyone wants money over everything. So, government and judiciary have to look upon that. Now comes the infrastructure. In India, the infrastructure of government buildings or judicial buildings are not in good conditions. Mediation buildings comes into that category only. There’s a huge need to improve the mediation building as parties come there to solve their matter and there should be a waiting room and there should be a proper facility of water, toilets, sufficient staff, computers and others things as well. As discussed above, there is no proper statutory made for mediation. Mediation is only controlled by MCPC but still proper implentation isn’t there. There should be a proper statutory made for a proper and successful implentation of Mediation. We’ll for proper management of mediation, there should be separate mediation committee made with different legal professionals. This is because through this, their will be less burden in the hands of Judges and they can work on their judicial part very well. Ministry of Law and Justice has to look upon the issue of funds because there isn’t any budget in mediation and to improve mediation, we need to look upon funds so that we can develop it very well. Well there are problems related to awareness among the people and that is a concern for people. People should be made aware about Mediation and its advantages and why should they choose it. We’ll there are many other problems too like the problems of party and others. For that online mediation can also take place.

Online mediation is also a solution as many people cannot afford to travel and come or many people won’t get holiday from their jobs or if there is some kind of emergency then in that case, online mediation will be helpful. And online mediation will reduce the cost for expenditure too. Online mediation has worked in the lockdown due to COVID 19.

Will Alternative Dispute Resolution replace Litigation?

This topic is in trend as most people choose to solve their conflict with the help of Alternative Dispute Resolution rather than going with litigation. Many people ask whether ADR will replace Litigation or not.

Litigation is one of the oldest practices going in the field of law. It has been ages since litigation is been practiced. Whenever a new person enters into legal field, then firstly he goes to litigation. Infact some legal personal claims that litigation has more money than being a corporate lawyer. One of the Example is Late Advocate Ram Jeth Malani Sir and Alternative Dispute Resolution (ADR) was introduced in near past year. It was introduced in the year 1987. “It was introduced under Legal Services Authorities Act, 1987. It was introduced an alternative method to the official judicial procedures in resolving disputes. It was introduced because it will reduce the burden which is there in the Judiciary.”

We’ll, Alternative Dispute Resolution is not taking place of litigation rather it would make Indian Courts work more efficiently and smoothly. There will be less burden of cases in the court. The accumulation of cases is expanding step by step; nonetheless, the legal executive alone isn't answerable for the equivalent. It must be noticed that the excess is a result of an "insufficient appointed authority populace proportion" and the absence of essential foundation. The legislature needs to assume a supportive of dynamic function toward this path. The specialist is of the view that so as to make Alternative Dispute Resolution Mechanisms more compelling and removing it from a tight and restricted territory of utilization and extending the zone of its activity. Further, the legal counselors need to play a functioning and positive job and they ought to always remember that conflict is an issue, which should be unraveled and not a challenge, which should be won.

Online Dispute Resolution

Online Dispute Resolution or ODR is a process to settle disputes outside courts, combining technology and alternative dispute resolution ("ADR") mechanisms. ODR is a method of dispute resolution where the parties communicate with each other in real-time by using various video-conferencing applications.

Today, the world is in a circumstance of pandemic and the conditions are a long way from being ordinary even soon. The situation is repulsive as social separating and lockdown are the main measures to contain the spread of Covid-19 up until this point. The organization of equity in India has a background marked by being postponed and the COVID 19 has exacerbated things. Despite the fact that the Supreme Court has permitted the web based filling and becoming aware of cases, one can't disregard the way that the legal executive is as of now overburdened and intensely stopped up with huge amounts of cases. Also, Online debate goal is taking Alternative Dispute Resolution in this pandemic circumstance. It has made simple to finish the question which can be illuminated external the court.

In India, ODR stays in its outset stage yet it's simply an issue of your time before ODR is received at an outsized scale in India. The electronic kind of question goal attempts to empower additional opportunities that were beforehand inaccessible like the virtual synchronous presence of the apparent multitude of gatherings without having individual participation at a particular spot and time. With 4.5 million cases forthcoming in high courts, 31 million cases forthcoming in area courts and 350,000 excesses inside the main 5 focal councils, point of fact we are needing increasingly more ODR stages and to return up to the salvage. ODR instrument being straightforward and compelling can possibly return into standard contest goal frameworks and in this way its acknowledgment can't be raised doubt about. inside the not so distant future, ODR won't just capacity a stage for speedy removal of cases yet in addition as a neighbor hood of work for a great many judges.

Conclusion

We’ll mediation plays an important role and is a successful mode of solving dispute or conflicts but there are few problems which are needed to be solved. India need a good number of mediators and their trainers too. They also need good amount of funds to improve the quality of mediation and mediation centres. Along with that encouragement and awareness among people is very much necessary and needed. Mediation will help in solving out long pending cases too. “Creating awareness in the minds of the mediation process and what are its advantages will help expedite the shift from adversarial litigation to methods of alternate dispute resolution. This will also help in reducing the backlog of pending cases in Indian courts and go ahead in a new era.” ODR will also play an important role in this as it will help people who are not able to come on the date of their mediation. But it is true that ADR will not replace litigation as both have different advantages and disadvantages.

REFERENCES

01.  Statutes and Statutory Instruments/Bodies:

▪        Arbitration and Conciliation Act, 1996

▪        American Bar Association

▪        National Labour Policy, India

▪        Code of Civil Procedure (Amendment) Act, 1999

▪        Section 89 of CPC

▪        Law Commission of India

▪        National Legal Service Authority

▪        Mediation and. Conciliation Project Committee, India

▪        Ministry of Law and Justice, India

02.  Websites and Blogs

▪        Mehka Sharma, Mediation in India, MediateIndia, (December 2018), <https://www.mediate.com/articles/mediation-in-india-articile.cfm>

▪        Geetanjali Sethi, India: Mediation : Current Jurisprudence And The Path Ahead, Mondaq, (24 June 2020), <https://www.mondaq.com/india/arbitration-dispute-resolution/957898/mediation-current-jurisprudence-and-the-path-ahead>

▪        Kartik Adlakha, ‘Mandatory Mediation in India - A boon or a bane to the legal system in the country?’, CIArb, (30th April 2020), <https://www.ciarb.org/resources/features/mandatory-mediation-in-india-a-boon-or-a-bane-to-the-legal-system-in-the-country/>

03.  Books and Journals

▪        Marian Roberts, Maria Federica Moscati, 'Family Mediation: Contemporary Issues' (21-05-2020) < https://www.bloomsburyprofessional.com/uk/family-mediation-contemporary-issues-9781526505439/> ISBN: 9781526505439

▪        Dale Bagshaw, 'Mediation in the World Today: Opportunities and Challenges', (2015), Journal of Mediation and Applied Conflict Analysis, 2015, Vol. 2, No. 1, <https://core.ac.uk/download/pdf/297018241.pdf>

▪        Thaker, Gaurang Ashutosh, 'Role of mediation as an effective tool of dispensation of justice', (2014), https://shodhganga.inflibnet.ac.in/bitstream/10603/44117/11/11_chapter%205.pdf

General Comments-

1. Well written article kindly add footnoting/citation

[1] Definition via black law dictionary: https://openjurist.org/law-dictionary/mediation

[2] National Labour Policy: https://labour.gov.in/policies

[3] Hon’ble Justice A.H. Ahmedi: https://nalsa.gov.in/patron-in-chief/hon-ble-mr-justice-a-m-ahmadi

[4] India’s first mediation training session: https://www.latestlaws.com/arbitration/all-about-arbitration-and-conciliation-act-1996-by-abhipsha-mohanty/#:~:text=The%20Arbitration%20and%20Conciliation%20Act,the%20domestic%20arbitration%20in%20India.&text=To%20make%20Arbitration%20more%20effective,centre%20for%20International%20Commercial%20Arbitration.

[5] The Code of Civil Procedure, 1999: https://www.latestlaws.com/bare-acts/central-acts-rules/civil-laws/code-of-civil-procedure-1908/code-civil-procedure-amendment-act1999/

[6] The Law Commission of India: http://lawcommissionofindia.nic.in/

[7] Justice Malimath committee: https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf 

[8] Hon'ble Justice Mr Equity S.B. Sinha: https://main.sci.gov.in/pdf/fullcourtreference/Brochure_SB_Sinha.pdf

[9] Hon'ble Justice Madan B. Lokur: https://nalsa.gov.in/executive-chairman/hon-ble-mr-justice-madan-bhimarao-lokur

[10] Hon'ble Justice R.V. Raveendran, Judge: https://kjablr.kar.nic.in/node/32/photoalbum-kja-static/2-Former%20Supreme%20Court%20Judges/pages/Hon'ble%20Mr%20Justice%20RV%20Raveendran%20Former%20Judge%20Supreme%20Court%20of%20India.html

[11] Hon'ble Justice D. Murgesen: https://www.legallyindia.com/tag/d-murugesan

[12] Hon'ble Justice J.S. Khehar: https://main.sci.gov.in/former-chief-justices

[13] Hon'ble Justice Mr. Siri Jagan: https://timesofindia.indiatimes.com/topic/Justice-S-Siri-Jagan

[14] Hon'ble Justice Sunil Ambawan: https://indiankanoon.org/search/?formInput=sunil%20ambwani%2C%20j.