MEDIATION IS AN EFFECTIVE MODE OF DISPUTES RESOLUTION: AN INDIAN PERSPECTIVE

INTRODUCTION

In recent years, communities all over the world have become increasingly aware of their legal and human rights, and they routinely file lawsuits in court to seek restitution when those rights are violated. The disputes in human life are natural, normal, inevitable and always present in nature. By involving a third party, such as a mediator, these problems can be reduced, avoided, or settled amicably. As traditional legal techniques are viewed as expensive, complicated, and slow, which takes time to resolve matrimonial issues, the gratifying creative solution is feasible through mediation if handled appropriately. In this blog, I talk about the overall concept and meaning of mediation in matrimonial disputes, in general, to understand mediation as an alternate dispute resolution technique and explore reasons regarding why mediation will prove to be the right pathway for litigants in India to resolve disputes amicably and inexpensively.

MEANING OF MEDIATION

Mediation is an autonomous and discretion method. The term “mediation” generally refers to any instance within which a third party helps others to succeed in their agreement. Furthermore, mediation includes a structure, timetable, and dynamics that “regular” negotiating does not. The process is private and secret, and it might be governed by law. The use of this approach is often completely elective. The mediator serves as a third party who is impartial and who just helps the parties involved resolve. Nowadays, mediation is becoming a more calm and widely accepted means of resolving disputes.[i]

MEDIATION AND ALTERNATIVE DISPUTES RESOLUTION TECHNIQUES

Alternative Dispute Resolution mechanism has been part of our cultural heritage as in any other country. The system had served the purpose of administering justice in this nation for many generations and had done so successfully. But when colonial rule and the British legal system took hold, the aforementioned mechanism progressively faded into the background. Given the new circumstances, it is now necessary to reconsider the necessity of reviving the ADR process to get beyond the inherent difficulty of dealing with the massive backlog of cases.

Dispute Resolution Techniques (The four doors)

Some disputes cannot be adjudicated and can only be settled outside of court if all issues cannot be settled outside of court and must therefore be decided by a judge. Disputes of this nature frequently include injunctions that are not subject to judicial supervision. Speedy resolution of disputes leads to harmony in personal relationships as well as in societal relationships. Thus, ADR rather than litigation is the future of the legal system. When conflict arises, there are four doors open to litigants viz[ii].

  1. Negotiation
  2. Mediation/Conciliation
  3. Arbitration
  4. Litigation

Eminent jurist, Nani Palkhivala has reflected on the irony of the judicial system, in this fashion: “If the longevity of litigation is made an item in Olympics, no doubt the Gold will come to India”. Our judicial system has been embroiled in fierce criticism for its tremendous backlog, the rigidity of procedure, exorbitant costs and interminable delays in the adjudication of disputes[iii].

LEGAL RECOGNITION AND JUDICIAL PRONOUNCEMENT

JUDICIAL RECOGNITION

In some nations where ADR has been effective to the point where more than 90% of cases are resolved outside of court, it is a requirement that the parties to the suit identify the type of ADR they would want to use while the case is pending. The Arbitration and Conciliation Act of 1996’s requirements will no longer apply if the parties agree to arbitrate their disagreement, but returning to judicial settlement, mediation, or conciliation to resolve the issue would not automatically remove the matter from the court’s jurisdiction. This simply means that efforts must be made to facilitate an amicable resolution between the litigants.

In the Afcon Infrastructure case.[iv]

The scope, Applicability, and procedure to be followed, Anomalies in Sectio-89 of Cpc regarding words ‘Judicial Settlement’ and ‘Mediation’ were discussed. It was held that the words ‘Mediation’ in Clause (d) and ‘Judicial Settlement’ in Clause (c) are erroneously mentioned. Sense is made only when they are interchanged. Section-89(1), the requirement that the court should formulate the terms of settlement is a great hindrance to the court in implementing Sectio-89. Supreme Court, therefore, diluted this anomaly in the Salem Bar II case by equaling ‘terms of settlement’ to a ‘summary of dispute’. Meaning thereby that the court is only required to formulate a summary of the dispute not the terms of the settlement.

Section-89– what is the meaning of the reference to ADR- is a mandatory phrase “where it appears to the court that there exists an element of settlement”. Court held that hearing before having recourse to ADR is mandatory but actual reference is not mandatory.

The judiciary has shown no reluctance in adopting mediation to settle matrimonial disputes, even in criminal cases.

In Case Mohd. Mushtaq Ahmad v. State SC 2015[v], The Supreme Court had clarified that the wife had filed for divorce and an FIR under Section 498 against the husband at the same time. After arguments between the couple developed after the birth of a daughter child, an IPC was established. Under Section 89 CPC, the Karnataka High Court ordered the parties to mediate their dispute. The wife decided to drop the FIR after the dispute was amicably resolved through mediation. According to the court’s ruling, “The court may cancel the criminal proceedings or the FIR or complaint in appropriate instances to fulfil the goals of justice.”

In Case- K. Srinivas Rao v. D.A. Deepa SC 2013[vi], The Court ruled that although crimes covered by Section 498-A of the IPC are not penalised by more than one offence, the criminal court should instruct the parties to consider mediation if they are willing and if it appears to the parties that there are components of a settlement.

Mediation In India

In India, structural mediation has only recently gained traction thanks to legislative and judicial initiatives. Because India’s panchayat system had previously been in place. In 1996, the Parliament passed Section 89 of the Code of Civil Procedure, which allows judges to send ongoing cases to several forms of alternative dispute resolution, including mediation. The Penal Code, 1860 (IPC) Section 498-A addresses dowry-related issues. This is a non-compoundable offence under Section 320 of the Code of Criminal Procedure (CrPC), for negotiation. These offences are so grave that even courts cannot make them less terrible. However, courts in India have frequently recommended mediation as a means of settling marriage disputes, regardless of the nature of the offence[vii].

CONCLUSION

Thus, it can be fairly concluded that the legal recourse of mediation provides us with much more tenable and just results through mediation. The Industrial Dispute Act of 1947 was the first piece of legislation in India to formally recognize mediation. Arbitration is a method of resolving disputes that were acknowledged as early as 1879 and included in the Civil Procedure Code of 1908. In 1999, the Indian parliament passed the CPC Amendment Act of 1999 inserting Section 89 in the Code of Civil Procedure 1980 allowing for the referral of court cases that are still pending to ADR, which includes mediation. A new version of the law went into effect on July 1st, 2002. The third party’s job was to try to mediate a settlement between the parties to the dispute. This suggestion for a compromise would be more focused on restoring social harmony than it would be on ensuring individual justice. A neutral third party supports parties in amicably resolving disagreements by using communication and negotiating techniques throughout the mediation, which is a voluntary, adaptable, non-adjudicatory, party-centred, and structured negotiation process.

SUGGESTIONS

Establishing a state-run parallel authority for Mediation in Matrimonial disputes

To provide solutions through mediation, a national network needs to be envisioned. To execute mediation programs and schemes for the general public, an apex authority must be established at the state and federal levels, and it must also distribute cash and grants to state mediation authorities and NGOs.

A State Mediation Authority should be established in each state to carry out the directives and policies of the Central Authority. The State Mediation Authority should be led by the Chief Justice of the State High Court, the State’s Attorney General, or another distinguished jurist. Then, to implement Mediation programs and schemes in the district, District Mediation Authority must be established in each district.

Mediation to be Made Mandatory in Matrimonial disputes

Radical measures must be done to successfully introduce mediation to the average person and still reduce the backlog of marital cases stacked in court back offices. The legislature must enact regulations that discourage the filing of lawsuits when out-of-court settlements may be reached without much difficulty.

FROM LASTLY IT CAN CONCLUDE that mediation in matrimonial disputes not only saves precious time but also leads to a happy life without wasting time and the daily tension of the case. The Mediation not only solves the Marriage cases but also the Domestic Violence as well as the Dowry Cases whose FIR can be quashed by filing a Quashing application under Section 482 of CrPc which leads to the ending up of the legal proceedings.

Author’s Name: Samanta Rao (Guru Gobind Singh Indraprastha University, Delhi)

References:

[i] Avatar Singh, Law of Arbitration and Conciliation, 96, (6th ed. Eastern Book Co. 2002).

[ii] Brown and Marriot, ADR Principles and Practice, 2nd ed. 1999

[iii] Marc Galanter and Jayanth K. Krishnan, “Bread for the Poor: Access to Justice and the Rights of the Needy in India”, Hastings Law Journal, Vol. 55, 789 (2004)

[iv]  Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd SCC OnLine 8 SCC 24

[v] Mohd. Mushtaq Ahmad v. State 3 AIR Kant 363

[vi] K. Srinivas Rao v. D.A. Deepa 2013 (III) AD 458 (SC)

[vii]Murlidhar,Special Address to the International Conference on ADR, Conciliation, Mediation and Case Management, Law Commission of India, (2000a)