Malvika Singhal (Delhi Metropolitan Education, Noida)

Introduction

Indians are drawn toward the traditional way of court-based litigation for decades. The Indian legal justice system is already burdened with the pendency of cases. In the last few years, courts are encouraging Alternative Dispute Resolutions (ADR) like arbitration, mediation and conciliation. Corporates and individuals are using arbitration as a method of dispute resolution for commercial disputes. The use and effectiveness of mediation are underrated and unappreciated. Mediation is used concerning limited matters like family conflicts etc. Further, Mediation is different from arbitration. It is based on the principles of cooperation, trust and mutual understanding. The advantages of using mediation as a form of dispute resolution are many folds once discovered. 

Evolution of Mediation in India

Unlike arbitration and conciliation, mediation is part of the Indian legal system for a long time. In India, mediation is popular in villages by the name of the Panchayat system where the head of the village solves disputes among the locals. To encourage mediation on lower levels, Legal Services Authorities Act, 1948 introduced the concept of Lok Adalats. It is a platform to resolve disputes at the pre-litigation stage. Thereafter, in 1988 the Law Commission Report recommended encouraging ADR methods against court-driven litigation. This led to amendments in the Civil Code Procedure, introducing Section 89 which allowed the courts to refer a matter to arbitration, mediation or conciliation. Further, the course of mediation and arbitration has seen fast growth in India and therefore, the amendment was made in Commercial Courts Act, 2015 in 2018 making it mandatory for parties to attempt to mediate their disputes before bringing the matter to the court. 

Benefits of Mediation

1. A third neutral party helps the parties to reach an amicable solution on their own. 
2. It is a private and voluntary process in which both the parties try to resolve their dispute on their own by appointing a mediator and entering into a settlement agreement. This appointment can be formal or informal. 
3. Unlike arbitration, in mediation the decision made by the mediator is not binding and the end resolution depends on both the parties. Mediation only gives a platform for the parties to communicate and reach an amicable solution. 
4. The process of mediation is not like that of conventional courts, complex and rigid. It is the most flexible form of alternative dispute resolution. There is no particular procedure that is to be followed. 
5. It is a party-centric method and can be put to an end at any stage as per the wish of the parties. 
6. Outside parties are not permitted access to the mediation processes since all information and evidence offered during the mediation is kept confidential.
7. The mediator may only utilise the information provided to him or her to assist in reaching a suitable resolution. This prevents anyone’s reputation from being damaged in the process.
8. In mediation neither party loses and both sides interests are protected. Both parties benefit from the scenario.
9. The parties control the eventual result of the mediation and either side has the benefit of discontinuing the mediation without giving any explanation.
10. The cost incurred in the mediation process is nominal as compared to litigation, which is a long drawn exercise.
11. It is not mandatory to appoint legal counsels in mediation thus a huge cost is saved. There are no obligatory procedures like conventional courtrooms hence saving procedural cost fees. 
12. The dispute resolution process is quicker due to the least legal formalities and procedural flexibilities.
13. A mediator has the liberty to consider those issues which are significant to bring parties to the agreement, time-consuming evidence is generally avoided, thereby saving time and resources.
14. Since there is no established format for mediation, therefore, parties can choose from a variety of resolutions. Different mediators have various styles, which are frequently modified to fit the needs of the particular case. 
15. Arbitration or court processes cannot reach the same conclusions as the mediation process.
16. Both sides cooperate to settle their differences, and they are free to develop unique solutions that meet their specific needs.

Conclusion

India is becoming more and more popular for its low-cost, party-focused, and neutral mediation process. A specific law must be passed to formally establish the mediation procedure. By keeping this in view parliament has introduced Mediation Bill, 2021. This bill will deal exclusively with the mediation process and other requirements, formalizing the conflict resolution method. Parties can retain attorneys with specialised training in ADR to represent them and articulate their case to the mediator in order to better understand their rights. Because of all these advantages, mediation will soon become the preferred method of resolving disputes, particularly in business and family matters.

Disclaimer

The views expressed in this post are the personal views and for informational purposes only. The information which is summarized herein does not constitute a professional / legal advice. A detailed and thorough examination of the facts and circumstances of a particular situation are always needed for any legal opinion / advice.