CIArb Features

Mandatory Mediation in India - A boon or a bane to the legal system in the country?

30 Apr 2019

Mandatory Mediation in India - A boon or a bane to the legal system in the country? To be fully equipped to answer this question, we first need to understand what exactly meditation is. Mediation is a process of dispute resolution in which one or more impartial third parties is engaged to resolve a conflict or dispute with the consent of the parties and this person assists them in negotiating a consensual and informed agreement.

Why is mandatory mediation required?

A common citizen gets trapped in years-long litigation process, which usually erodes the very purpose of our justice system. Considering the delay in court proceedings, Abraham Lincoln said “Discourage litigation. Persuade your neighbours to compromise whenever you can point out to them how the nominal winner is often a real loser, in fees, expenses, and waste of time.”

In developing countries like India, where most people opt for litigation to resolve disputes, there is excessive over-burdening of courts and a large number of pending cases on the docket, which has ultimately led to dissatisfaction among people regarding the judicial system and its ability to provide justice, often making true the popular belief, “Justice delayed is justice denied”.

In the case of Hussainara Khatoon v. Home Secretary, State of Bihar Supreme Court held that “right to a speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of Indian Constitution”. Thus making mediation a necessary process because of its ability to dispense quick justice.

Benefits of mandatory mediation:

Quick: As the amount of time required for the mediation is significantly less than that needed for trial or arbitration, mediation can occur relatively early in the dispute, also helps mediator concentrate just on relevant issues and ignore the others.

Cost Efficient: Because mediation generally requires little to less preparation, is less formal and complex than trial or arbitration, can occur at an early stage of the dispute, it is always less expensive compared to a trial.

Can protect relationships: Order 32A of the Code of Civil Procedure recommends mediation for familial/personal relationships the reason being ordinary judicial procedure is not ideally suited to the sensitive area of personal relationships. Therefore for the protection of relationships, mandatory mediation before a court trial can really help as court trials usually declare one person a winner and another a loser, which leads to grudges that stay for long.

Supreme Court’s view on Mandatory Mediation

Hon’ble Supreme Court of India has pronounced a landmark decision “Salem Advocate Bar Association, Tamil Nadu v. Union of India” where it was held that reference to mediation, conciliation and arbitration are mandatory for court matters. This will really help in the acceptance of mandatory mediation as a solution to existing problems in our legal system.

Arguments against Mandatory Mediation

It is said that referring cases without consent may infringe upon the freedom of parties to choose the method of settlement of disputes and would be against party autonomy.

However, it is argued that mandatory mediation is coercion into the process of mediation but not coercion within mediation. Mediation is just a process that parties are introduced to, for their own benefit further coercion can be to use the process but there is no coercion to settle, parties can very well go and file a suit if this option doesn’t work out.

There is very much criticism against mandatory mediation from lawyers, they think compulsory mediation is inconsistent with the consensual nature of the process, however, lawyers’ disagreement might be due to the apprehension of reduction of inflow of cases to them, but here the parties are not compelled for a settlement which is against their consent. Once they are into the process they will understand the effectiveness of the process and participate in mediation.

Mediation is a good resolution tool because it an easier method of dispute resolution and is able to minimize time invested, cost, and resources. Even, if it is unsuccessful, the parties can always go to the courts and get their dispute resolved. In short, mandatory mediation is a valuable weapon against delay, cost, and injustice and acts as a boon for the society at large.

Author: Kartik Adlakha CIArb Student Member