Mediation and Access to Justice- Status in India

mediation and access to justice -status in India
Mediation and Access to Justice -Status in India  

 Mediation and Access to Justice - Status in India

Author: Shreya Pandey 

Mediation and access to justice - Status in India

"Money is fine-but data is power" - James Graham During the inaugural event of the national conference on "Mediation and Information Technology" on April 9, 2022, the Hon'ble President of India states that in Mediation everyone is a winner while emphasizing that "Mediation is not a threat to the lawyer's profession". While Chief Justice of India, N.V Ramana states that "Courts must take an active effort to make mediation mandatory". 
In the 21st century, mediation is a key to easy and quick access to justice, a word which has been high stress in our Indian Preamble.

 Define Mediation 

Mediation is a process of settling a dispute where disputed parties voluntarily participate to come to a common point. The act of mediation provides a platform where a mediator facilitates the dispute resolution process but ultimately it remains with the parties, to the mediation, to reach a settlement. According to the Black Law Dictionary mediation is "a process of non-binding dispute resolution where a neutral third party tries to help the disputing parties reach a unanimously agreeable solution." 

When it came

During Pre-Independent India, Panchas (five-elders) used to act as a neutral third party. Their act was no less than a mediator between the disputed parties.

However, mediation gained attention in a codified sense with the enactment of the Legal Services Authority Act in 1987 which gave legal or statutory status to the Lok Adalat's. Act gave the status of a civil court to the Lok Adalat's. 

With the enactment of the Arbitration and Conciliation Act, 1996, the vagueness and confusion relating to conciliation and mediation were removed. Section 30 of the Arbitration and Conciliation Act states that the arbitral tribunal had the power to use mediation during the time of arbitral proceedings for the purpose of encouraging the settlement. 

Section 89 of the Code of Civil Procedure [inserted by CPC(Amendment) Act of 1999] states that the court has the power to refer the dispute for alternative dispute resolution. 

With Salem Advocates Bar Association v. Union of India (2005), Supreme Court while referring to Reports of Malimath committee and 129th Law Commission made it compulsory for courts to refer to Alternate Dispute forums. It is a landmark judgment for the development of Mediation in India. 

How mediation is helpful for speedy access to justice in India 

Ministry of Law and Justice confirmed that as of March 28, 2022, approx. 4,09,85,490 cases are pending in Indian District and Subordinate Courts, 58,90,726 cases are pending in High Courts in India, and 70,154 cases are pending in Apex Court (Supreme Court). 

The right to a speedy trial and justice is a Fundamental Right under Article 21 of the Indian Constitution (Hussainara Khatoon v. Home Secretary, State of Bihar, 1979)

No one should suffer due to delay in justice as "Justice delay is justice denied". Therefore, mediation plays an important part in providing justice quickly due to its ability to dispose of cases in a speedy manner. 

Section 442 of the Companies Act, 2013 r/w Companies (Mediation and Conciliation) Rules, 2016 states the reference of the dispute to Mediation by the National Company Law Tribunal and Appellate Tribunal. 

Under Section 12A of the Commercial Courts Act, 2015, it is mandatory for the parties to get a remedy of mediation before filing a suit. This is an effective procedure to reduce the burden on the courts. 

Besides this, India is also a signatory to the United Nations Convention on Mediation (the Singapore Convention), for speedy trial of cases at the international level.

How we can access mediation 

Mediation is a process usually opted voluntarily by parties to the dispute where a mediator is appointed by the parties by entering into a contract. The mediator helps the parties to reach a general consensus. It remains totally with the parties to accept the decision or to reject it.

Court also has the power to refer the parties to mediation under Section 30 of the Arbitration and Conciliation Act, 1996, and Section 89 of the Code of Civil Procedure, 1908. 

Case laws in which mediation is implemented and got justice with mediation process

Supreme Court of India in Salem Bar Association v. Union of India (2005) directed to appoint a committee to frame model rules which will explain the procedure for mediation. 

In compliance with the judgment, the Law Commission of India, 2003, drafted the consultation paper on Alternative Dispute Redressal and Mediation Rules. It was later adopted by various High Courts of India to draft their separate Mediation Rules. 

In M R Krishna Murthi v. New India Assurance Co Ltd (2020) Supreme Court asked the government to think about the possibility of enacting the Mediation Act for India. 

Note: A separate mediation Act will make the process uniform. 

In B.S. Krishnamurthy v. B.S. Nagaraj (2010) Supreme Court instructed the Family Courts to settle matrimonial disputes through the process of mediation and it also directed the courts to introduce parties, with prior consent, to mediation. 

In the landmark case of Afcons Infra Ltd v. M/S Cherian Varkey Constructions (2010), the Supreme Court held that cases relating to trade, commerce, consumer disputes, contracts and tortious liability can be send for mediation. 

Percentage of justice through mediation

There are approx. 39,000 mediation centers across India. Mediation is considered an effective mechanism for justice. It is a highly recommended process for family disputes especially maintenance and custody of a child. Research shows that approx. 10-15% of marital disputes were resolved through mediation. Knowing its importance in the coming time, mediation is gaining high recognition as an Alternate Dispute Resolution.