Mediation is a form of Alternate Dispute Resolution (ADR), where a neutral third party assists disputing parties in resolving the matter . Mediation encourages the parties to communicate and negotiate. Mediation is recognized in India under section 89 of Civil Procedure Code, 1908.
1. Need and Use of Mediation in India
As the global population is rising, so is the number of cases in courts of law. Pendency of cases cannot be dealt with unless there are some radical changes in the common law system. Resolving the disputes, through Courts, though something’s unavoidable does not provide the most satisfactory solution in all cases. Arbitration, Conciliation, Judicial Settlement, including settlement through Lok Adalat and Mediation, are accepted modes of Alternative Dispute Resolution (ADR).
2. Availability of Judges
“Data shows that nearly 48,418 civil and 11,050 criminal cases are pending in the Supreme Court and whereas in High Court’s 31,16,492 civil and 10,37,465 criminal cases are pending”
It is an uncontroversial fact that our country is suffering from the acute problem of population explosion. This in turn has given rise to diverse problems including those of disputes, differences, conflicts. Even our judiciary is suffering from a population problem i.e. docket explosion of pending cases. Reports also indicate that there are over 27 million cases that are still pending in Indian Courts and over Six million have been pending for more than 5years.
In managing these Courts there are only 16000 Courts and insufficient Judges for handling these disputes. The Ministry of Law and Justice has released data on the latest pendency of cases in the Supreme Court and the High Courts. The data shows that nearly 48,418 civil and 11,050 criminal cases are pending in the Supreme Court and whereas in High Court’s 31,16,492 civil and 10,37,465 criminal cases are pending.
Dispute resolution is an indispensable process for making social life peaceful. It tries to resolve and check conflicts, which enable persons and groups to maintain co-operation. Alternative Dispute Resolution is a term used to describe several different modes of resolving legal disputes.
The goal of ADR is enshrined in the Indian constitution’s preamble itself, which enjoin the state to secure to all the citizens of India, Justice- Social, Economic, and Political- liberty, equality, and fraternity.
3. Future Scope of Commercial Mediation in India
The advent of new legislations and broadening the scope of mediation to include commercial matters has given rise to commercial mediation. Commercial mediation can be defined as a mediation that centers around commercial disputes, which includes but is not limited to, commercial disputes as defined in Section 2(c) of The Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts Act, 2015 as well any other disputes of a monetary nature.
Various laws are currently in existence in the Indian jurisprudence in which special emphasis is given to mediation. The first known legislative recognition given to mediation was in the Industrial Disputes Act, 1947. Thereafter, Section 89 of the Code of Civil Procedure, 1908 can be credited with giving legitimacy to ADR mechanisms in India. Recently, the Commercial Courts, Commercial Division, And Commercial Appellate Division Of High Courts (Amendment) Act, 2018 have mandated pre-institution mediation for any commercial disputes, as has been given in the legislation, which is a huge step in terms of furthering the scope for commercial mediation in India.
However, numerous issues and challenges are awaiting the implementation of this landmark step. No legislation has, as of yet, been drafted to regulate the mediation culture in India. Also, no agency has been charged with supervising that the mandatory pre-institution mediation is enforced correctly. Various steps are needed to efficiently implement mandatory pre-institution mediation as well as to strengthen the pre-existing mediation culture in India. It is in this light that the authors wish to argue that even though the importance of mandatory pre- institution mediation cannot be stressed enough yet it will only become a success with the enactment of proper legislation and having the proper infrastructure in place for large-scale mediation.
The need for commercial mediation arises not just from a huge pendency of cases but also from the economic effects which commercial disputes can have on the economy of India. Commercial disputes are almost always monetary which can destabilize the market if they are stretched out for too long. Hence, it becomes even more imperative to fast-track commercial cases through mediation. Furthermore, if the commercial disputes are solved quickly and easily, then India’s Ease of Doing Business Rankings will also improve which can also have a huge impact on the investments which are pouring into India.
Presently, the majority of the High Courts in India have established their Mediation and Conciliation Centres to promote mediation as an alternative to litigation. Bangalore Mediation Centre (BMC) is one of the successful mediation centers of India which has resolved 31,441 disputes from 2011 to 2015 and on average, the mediators at BMC receive more than 1000 disputes annually, the highest among all the mediation centers. Many mediation centers of different High Courts are way behind BMC in promoting mediation and haven’t taken any substantial steps to implement MCPC recommendations. The BMC receives the highest number of cases per mediator as compared to Delhi Mediation Centre and Allahabad Mediation Centre, with an increase each year. In 2015 the BMC had 134 cases per mediator.
Other than court-referred mediation, there are other modes of mediation too such as private mediation, pre-litigation mediation. These types of mediation have also proved to be efficient in resolving disputes. Private Mediation is one of the fastest, cost-effective, and business-friendly methods to solve the commercial dispute.
Reference:
1. Parul Sharma, Data-on-disposal-and-pendency-of-cases-in-supreme-Court-and-highCourts-with-reasons-for-
mounting-pendency-of-cases, ITATONLINE
About the author –
This article has been written by Henika Vanjani, 5th year B.A.LL.B student at Gls Law College, Ahmedabad.
