India is a common law nation with an adversarial justice system. The judiciary’s function has grown and evolved in recent years, becoming more complex. The judiciary’s expanding role has led to significant costs and unjustified delays in providing justice to those who seek it. The problem persists despite the recent increase in the number of courts because of the parallel rise in the number of cases.

Arbitration is one way to settle conflicts in order to address the issue of an increase in the number of cases. The value of Article 21, which stands for the right to life and includes the right to a speedy trial, is demonstrated by alternative dispute settlement. One can resolve their disagreement effectively and quickly by using arbitration methods.

Effectiveness of mediation proceedings

There is a significant accumulation of cases in the courts as a result of the rising costs of civil litigation and the unreasonable delays in the execution of rulings. In many circumstances, mediation has succeeded and been effective as an alternate treatment. Nowadays, mediation is the most popular form of ADR, particularly among international organisations. Less spending and looser, informal rules are some of the causes. Any issue is frequently resolved by mediation as a first step, and if that doesn’t work, the parties agree that they will refer the matter to arbitration. Nowadays, the majority of commercial agreements initially submit the disagreement to mediation, and if such efforts are unsuccessful, the subject is then sent to arbitration.

The numerous advantages of mediation, which are beneficial in cases involving divorce disputes, real estate, and labor bargaining etc to settle the case outside court are discussed below:

1. Cost- effective: Mediation takes much less time compared to litigation. Therefore, the fee charged by mediator may be same as that of the attorney but the lower amount of time spent in proceedings means one has to pay lesser than as compared to litigation proceedings.
2. Confidentiality: The mediation proceedings are strictly confidential in nature, unlike the courts where public can visit anytime and be a spectator to someone else’s tragedy. Justice Markanday Katju in the case of Moti Ram Tr.Lrs.& Anr. vs. Ashok Kumar & Anr. [2010] 14 (ADDL.) SCR  809, held that, “mediation proceedings are totally confidential proceedings. When the mediator is required to send the report of successful proceedings to the court, he doesn’t require sending what transpired during the proceedings. In case the mediation was unsuccessful, he only needs to send the report stating ‘Mediation has been ‘”

The judgment enforces the faith in mediation proceedings in the absence of a statutory provision guaranteeing the same. The only exceptions to this rule usually involves child abuse or actual or threatened.

3. Control: Mediation is an enabling provision which enables the parties to exercise some control over the resolution. In litigation, judges or jury exercise the ultimate control. This helps in arriving at a mutually agreeable solution between parties.
4. Compliance: Mediation proceedings are carried out to obtain consensus amongst parties regarding a solution that may be either proposed by the mediator or by either of the parties. Therefore, the result of mediation is generally complied with by the parties. According to the Arbitration & Conciliation Act, 1996, the mediated agreement is fully enforceable in a court of law. This also reduces expenses as there is the elimination of the need to employ a lawyer for enforcement of the decree.
5. Mutuality: There is a mutual agreement between parties to work towards reaching a solution that is acceptable to both. They are ready to make some adjustments towards their interests and claims. This preserves the relationship between parties.
6. Support: Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process.

Mediation and Conciliation

These are often used interchangeably, but their procedure is same. The difference between conciliation and mediation as given by International Labor Organization which is adopted by the Advisory, Conciliation and Arbitration Service reads as follows:- “Mediation may be regarded as a half way house between conciliation and arbitration. The role of the conciliator is to assist the parties to reach their own negotiated settlement and he may make suggestions as appropriate.  The mediator proceeds by way of conciliation but, in addition, is prepared and expected to make his own formal proposals or recommendations which may be accepted.”

Generally, a subject matter of mediation includes suits for injunction, specific performance, suit for recovery, labour management disputes; motor accident claims cases and matrimonial disputes.

The judiciary is currently inclining more towards mediation as the most viable option for dispute settlement. For instance, on August 22, 2010, the Supreme Court passed an interim order on a suit filed by Assam in 1988 against Nagaland on a border dispute that they should attempt to resolve this dispute through mediation. It is the first time a border dispute in the country has been referred to mediation. This has led to validating mediation as a form of grievance redressal. Also in criminal law, cases which are a subject matter on account of dowry and cruelty under section 406/498-A IPC and under section 138 of Negotiable Instruments Act are suitable for mediation.

Judge Markanday Katju said this “In our opinion, lawyers should encourage their clients to consider mediation as a means of settling disputes, particularly where relationships, such as those in family or business, are at stake. In the alternative, the lawsuit drags on for years and years, frequently bankrupting both sides. Hence, both the attorneys and the parties to the dispute should heed Mahatma Gandhi’s counsel and attempt arbitration or mediation. Section 89 of the Code of Civil Procedure likewise serves this purpose. Brothers were involved in the case’s conflict, and they were instructed to go before the Bangalore Mediation Center to resolve it. Aviral Bhatla v. Bhavana Bhatla, 2009 SCC (3) 448, is a recent case in which the Supreme Court upheld the settlement of the through the Delhi mediation center, appreciating the effective manner in which the mediation centre of the Delhi High Court helped the parties to arrive at a settlement.

Matrimonial mediation

Many lawsuits concerning marriage issues are emerging as a result of the changing situation. The quantity of petitions regarding these disputes causes a backlog in the courtroom. A legal framework for private party disputes is provided by alternative dispute resolution. Our courts are disproportionately burdened with matrimonial disputes. In India, marriage is seen as a sacrament rather than a legal agreement. Mediation only serves as a mediator to assist the parties in reaching a resolution to their conflict.

In this situation, parties get along because of the friendly atmosphere (as opposed to courts, which are generally not very welcoming). Also, there are no challenging procedures to follow. Mediation can be a very effective means of resolving disputes when a divorce is caused by cruelty, insanity, certain contagious or dangerous diseases, etc. Such problems can be communicated and confessed in such situations swiftly and effectively because their admissions won’t be disseminated outside of the room. It is a private and confidential procedure, unlike public courts. The best divorce platform is mediation when parties are unable to reach an amicable settlement.

When we are referring a matrimonial dispute to mediation, it is different from the normal commercial and property matter disputes. The presence of factors like sentiments, emotions, social factors, responsibilities, personal duties, the mindset of the parties regarding the marriage and life in general etc makes the matrimonial disputes distinct and different from others.

In contrast to mediation, marriage mediation places a strong emphasis on emotional and illogical elements. The factors must be weighed in addition to the technical issues. The mediator’s responsibility is to take the emotional component into account as well. In contrast to litigation, the mediator serving as this process’s facilitator is interested in the satisfaction of the parties. Sentiment plays a significant role here, not logic. The mediator’s job is to negotiate a peaceful resolution that benefits neither party’s interests. His role is to set the parties up to reach a resolution, not to support his analysis of the parties. Mediator also has to act as a counselor and a conciliator to help the parties go beyond their personal vendetta against each other. The goal of meditation is to achieve lasting peace. The purpose of matrimonial mediation is to reach a consensus between parties towards a solution that is proposed by the mediator or by either of the parties themselves. The mediator is not a judge or an arbitrator here.

As we know that mediation is a voluntary process, parties can simultaneously resort to litigation of civil or criminal nature. Why is the option more preferred by people?

(1) it promotes the interest of the entire family including those of the children

(2) it reduces economic and  emotional cost associated with the resolution of the family disputes.

A party cannot be ordered to appear in front of a professional mediator who is not affiliated with the court. Here, the mediator must request the parties’ cooperation, which is a crucial prerequisite. The mediation process may also be ended voluntarily by the parties. The mediator’s impartiality and neutrality are crucial to the process. Every attempt at reconciliation must be made before granting a definitive decree of divorce, given the nature of marriages in the Indian setting.

The basic difference among the police, the judge and the mediator is that, the police is trained to frame or prove a charge, a judge is to focus his attention on right or wrong doing but a mediator/ counselor is to focus on restoration of equilibrium and remain non-judgmental all through. The mediator remains on guard against his temptation to belittle or give lift to one or other party.

In the case of Jagraj Vs Bir Pal Kaur,2007 2 SCC 564 it was held by the Supreme Court that the intention of the parliament behind enacting section 23 of HMA was to preserve the sanctity of marriage. Therefore, every step towards the reconciliation of parties has to be carried out by the courts.

In a Madras High Court judgment, it was held’ that under the Quran the marriage status is to be maintained as far as possible, and there should be conciliation before divorce, and, therefore, the Quran discourages divorce, and it permits only after pre-divorce conference.’The attempt of reconciliation should be made with the help of two mediators, even if a reasonable cause exist, there should be an attempt to arrive at a settlement by the mediators.  In a judgment by Madhya Pradesh High Court, the ruling in the above case was made a base to find out the validity of divorce held without conciliation proceedings.

Procedure of mediation

Unlike the arbitration and conciliation act which deals with arbitration procedure and technicalities, no statute of the same nature exists for mediation. There are two ways for initiation of mediation proceedings:

1. Parties refer to mediation voluntarily i.e. private mediation
2. Court refers the parties to mediation under Section 89 of Civil Procedure Code

In the case of M/S. Afcons Infra. Ltd. & Anr vs M/S Cherian Varkey Construction 2010 (8) SCC 24., the Supreme Court has said that while referring to Section 89 by the Court, the court has the discretion to opt for any of the five methods. However, the practical application of the rule says that ‘after the pleadings are complete and after seeking admission/denials wherever required, and before framing issues, the court will have recourse to section 89 of the Code.’ Court will consider the nature of the dispute and refer the parties to five options available and according to the preferences of the parties refer the party to mode.

‘ In case where the questions are complicated or cases which may require several rounds of negotiations, the court may refer the matter to mediation. Though the process under Section 89 appears to be lengthy and complicated, in practice the process is simple: know the dispute; exclude `unfit’ cases; ascertain consent for arbitration or conciliation; if there is no consent, select Lok Adalat for simple cases and mediation for all other cases, reserving reference to a Judge assisted settlement only in exceptional or special cases. ‘

Under Hindu Marriage Act, Section 23 and Special Marriage Act, reconciliation proceedings are mandatory for parties. Section 23 (2) HMA states that before proceeding to grant any relief under it, there shall be a duty of the court in the first instance, in every case to make every endeavor to bring about reconciliation between parties where relief is sought on most of the fault grounds for divorce specified in Section 13. Here the court may refer the party to mediation to for counseling. If the attempt at reconcilement fails then, parties may arrive at a peaceful settlement. The nature of Hindu marriage is that of a sacrament and not a contract. Therefore, every attempt of reconciliation has to be made to avoid divorces that are carried out in haste.

The functional stages involved in mediation are listed below

1. Introduction and Opening statement
2. joint session
3. separate session
4. closing

The mediator gives an introduction at the beginning of the mediation process, outlining the issues, the process, the norms of mediation, etc. Each party makes a statement following the introduction. The parties are given a chance to express their opinions. At this point, the mediator may ask questions to help both parties understand each other more clearly and to dispel any remaining misconceptions. The mediator meets separately with each party to discuss difficulties, make suggestions for solutions, and generally try to bring about peace between the parties. Throughout this time, the mediator moves back and forth between the parties, resolving issues and conveying details, suggestions, and areas of agreement.

1.        Probing of facts;
2.       Identifying the real cause of dispute;

iii.      Exploration of possibilities of reconciliation or divorce;

1.      Bring the parties to an agreed solution; and
2.       Shaping the solution in the legal formats.

Since there is no statute regulating mediation process, the mediation centers have come up with their own rules regarding qualification of mediators. IIAM Accredited Mediators are trained and accredited under the International Mediation Institute (IMI – The Hague) norms. They are bound by the Code of Conduct and Ethical Standards prescribed by IMI. According to their website, IIAM is the only institution in India approved by the IMI to certify mediators at global standards.

As per Rule 3 of the Mediation and Conciliation Rules, 2004 the High Court and the District & Sessions Judge can prepare panels for appointment of mediator. The qualifications of the mediators / conciliators given in Rule 4 are :-

(a) (i)Retired Judges of the Supreme Court of India;

  (ii)Retired Judges of the High Courts;

  (iii)Retired District & Sessions Judges or retired officers of Delhi Higher Judicial Service;

  (iv)District & Sessions Judges or Officer of Higher Judicial Service.

(b) Legal practitioners with at least ten years standing at the Bar at the level of Supreme Court or the High Court or the District Courts.

(c) Experts or other professionals with at least fifteen years standing.

(d) Persons who are themselves experts in mediation / conciliation.

The Hon’ble Supreme Court of India has in the landmark decision Salem Advocate Bar Association, Tamil Nadu v. Union of India AIR 2003 SC 189. directed that all courts shall direct parties to alternative dispute resolution methods like arbitration, conciliation, judicial settlement or mediation. The draft “Civil Procedure Alternative Dispute Resolution and Mediation Rules 2003” was also considered by the Supreme Court, for enactment by respective High Courts. Direction was issued to all High Courts, Central Government and State Governments for expeditious follow-up action. The draft rules contained the provision that court is referring the matter to mediation is not disqualified from trying the suit later if no settlement is arrived at between the parties. There are provisions in draft rules for appointment of mediator and fees of mediator. But the same is yet to be adopted by the courts.

Conclusion

Mediation as a method to resolve disputes is gaining importance in the current scenario. It has been used effectively to resolve disputes particularly related to divorce. In the absence of a law regulating the same, there is a wide scope of misuse. There already exist some provisions for conduct of arbitration, conciliation and Lok Adalat in different statutes, there is a need for a framework mediation. The step has been taken by the Supreme Court in a few cases discussed above. The Model Rules drafted by the Law Commission need to be brought into force as soon as possible to streamline the whole process of mediation.