ABOUT MEDIATION
Mediation is not new to India. It is a concept deeply rooted in the country's ancient traditions and system of justice. Kings and Queens of the past are known to have used mediation to resolve conflicts, and it is being practiced at the grassroots, by traditional village Panchayats for over a hundred years.
The tradition of community-level mediation in India started in pre-Mughal era, continued through it, and was given legal sanction by the British in the early 1900s, with the establishment of the Panchayati Raj system. This system continues even today, albeit with different rules and responsibilities.
Formal, legally endorsed Mediation is a relatively new practice in India. It was introduced into the law and justice system little over a decade ago. Today, Mediation is a fast growing form of alternate dispute resolution.
And thanks to the support of the Government, promotion by the Judiciary, and efforts of independent Mediators and institutional Mediation service providers across the country, it provides a lot of hope for millions of people seeking speedy resolution of their conflicts, all across the country.
Mediation is also mentioned in the ancient Manusmriti, Arthasastra, and the Dharmashastras.
So, what exactly is Mediation?
Typically today, when people have a serious disagreement over personal or financial matters, or organisations have a dispute over commercial or contractual matters, they turn to litigation and Courts of Justice to help them win their arguments. In commercial or business cases, organisations also turn to Arbitrators in order to score a win over the other parties.
In both litigation and arbitration, the result is someone wins, and someone loses.
Thankfully, litigation and arbitration aren't the only ways available to us, to resolve conflict and settle issues. Mediation is a time-tested form of conflict resolution, that has recently made its way back into public consciousness, and also into our law and justice systems.
In Mediation, there are no losers, only winners. Because Mediation aims to provide win-win solutions for all those involved in a conflict - personal, or commercial.
Mediation is a method of alternate dispute resolution, that helps conflicting parties set aside anger and acrimony, and bring common interest to the table. A Mediator helps conflicting parties communicate constructively, and work toward finding a mutually beneficial solution to their problems.
Mediation can done during litigation, amid arbitration, and even instead of going to Court. The process is fast, simple, and humane. It skips the long waiting list of Court dates, eliminates the mental stress of litigation, and greatly reduces the time and cost of conflict resolution in India today.
Mediation not only helps resolve conflicts, it helps conflicting parties mend broken bridges, and build stronger relationships.
And where Mediation doesn't work, it is usually an indicator of disputants being more interested in scoring points over the other, and less interested in finding solutions. Which in itself is a learning for those involved, and provides a heads-up for future course of action.
Any way you look at it, when done right, Mediation is a win-win for all!
Mediation in India Today
While Mediation first found mention in the Indian Code of Civil Procedure, 1908, it only received legal binding status through amendments to its Section 89, in the CPC (Amendment) Act, 1999.
The CPC (Amendment) Act, 1999, specifically included Mediation initiated by Courts, as an alternate method of dispute resolution, for conflicts that are of commercial, matrimonial, or contractual nature, between families, individuals, and/or businesses.
Other Acts and Amendments to strengthen the role of Mediation include the Civil Procedure ADR and Mediation Rules 2003 of the Madras High Court; the Delhi Mediation and Conciliation Rules, 2004; and the Bombay High Court ADR Rules, 2006.
Today, almost all the High Courts of India and many District Courts have a Mediation Centre linked to them. These Centres handle some direct cases, but are mostly occupied by Mediation referred to them by their respective Courts. Mediation in these Centres are done by retired judges, bureaucrats, and practicing lawyers.
The Supreme Court of India also has laid down guidelines for Mediation, and has also documented training and best practices for Mediators.
Recent amendments in the Law, including in Companies Act 2013 and the Commercial Courts Act 2015, refer to compulsory pre-litigation mediation, and also state that resolutions and agreements arrived at after Court-ordered Mediation is concluded, can be passed as an Order or Decree by the relevant Courts.
At present, Court Annexed Mediation is enormously successful, especially in matters such as matrimonial cases and small commercial disputes.
Special Note:
While Mediation is gaining importance and stature among the public and within the Law, we at Mediation Mantras, along with other Mediators and Mediation institutions across India, are pushing for special laws to develop professional standards and procedures among Mediators, and to promote better quality and practice of Mediation in India.
Mediation should not be clubbed under Arbitration or Conciliation, as both of them involve judgement, or direction, that forces conflicting parties to agree to win-lose solutions, whereas the spirit of Mediation involves conflicting parties arriving at win-win solutions among themselves.
The time is now, for India to pass a specific Mediation Act that will enable Mediation to fulfil its true purpose, and help bring justice to more and more people every day.