This article on ‘Mediation in India: All That You Need to Know’ was written by an intern at Legal Upanishad.
Mediation has garnered considerable attention in India as an Alternative Dispute Resolution (ADR) method. It is a voluntary and non-binding process wherein a neutral third party, referred to as the mediator, assists in facilitating communication between the conflicting parties to achieve a resolution that is mutually agreeable. Mediation offers a cost-effective, time-efficient, and confidential way to resolve disputes, making it an attractive option for parties seeking an amicable settlement. In this article, we will explore the history, legal framework, and recent mediation developments in India.
The concept of mediation in India is not new; it has its roots in ancient practices such as Panchayats (traditional village councils) and the principles of Nyaya (justice) propagated in ancient Indian scriptures. In modern times, mediation as a formalized process gained recognition in India during the 1990s, influenced by the global trend toward ADR mechanisms. The introduction of the Civil Procedure Code (Amendment) Act, 1999, brought mediation into the legal landscape as Section 89, which allowed for the reference of disputes to ADR, including mediation, by the courts.
LEGAL FRAMEWORK FOR MEDIATION IN INDIA
The enactment of the Commercial Courts, Commercial Division, and Commercial Appellate Division of High Courts Act, 2015 was a significant step towards institutionalizing mediation in India. It mandated pre-institution mediation for specified categories of commercial disputes, promoting the use of mediation as a primary means of dispute resolution for commercial matters.
Additionally, the Legal Services Authorities Act, 1987 and the Legal Services Authorities (Amendment) Act, 2002 recognized and encouraged the establishment of Lok Adalats (people’s courts) as a form of mediation, where parties can amicably settle their disputes with the assistance of judicial officers.
Furthermore, the Arbitration and Conciliation Act, 1996, which governs arbitration and conciliation proceedings in India, was amended in 2015 to include provisions for court-referred mediation. This amendment allowed courts to refer parties to mediation even if an arbitration agreement exists between them.
The Mediation Act 2023 is a new law that was passed this year. The purpose of the Act is to establish a body for the registration of mediators, to support and encourage mediation as a method of conflict resolution (commercial or otherwise), and to enforce mediated settlement agreements. Additionally, the Act seeks to promote online mediation as a legitimate and affordable option as well as to support community mediation.
THE ROLE OF MEDIATION CENTERS
To promote and facilitate mediation, various institutions and organizations have set up specialized mediation centers across the country. These centers provide a structured and neutral environment for mediation, ensuring the confidentiality and impartiality of the process. Some prominent mediation centers include the Indian Institute of Arbitration & Mediation (IIAM), the Indian Institute of Corporate Affairs (IICA), and the Centre for Advanced Mediation Practice (CAMP).
These centers play a crucial role in training and certifying mediators, maintaining rosters of qualified mediators, and conducting mediations in accordance with established guidelines and ethical standards.
ADVANTAGES OF MEDIATION
Mediation presents numerous advantages compared to traditional litigation, rendering it an appealing choice for parties seeking resolution without the costs and time associated with court proceedings. Some of the primary benefits of mediation include:
- Cost-effectiveness: Mediation is generally more cost-effective than litigation as it eliminates the need for extensive legal representation and court fees.
- Time-efficient: Mediation often leads to quicker resolutions, as parties are not bound by court schedules and can arrange mediation sessions at their convenience.
- Confidentiality: Mediation proceedings are confidential, protecting the privacy of the parties involved and the sensitive information shared during the process.
- Control and Flexibility: Mediation grants parties greater control over the outcome, as they actively engage in formulating the resolution. The process is flexible and can be customized to accommodate the specific needs of the parties involved.
- Preservation of Relationships: Mediation encourages open communication and cooperation, facilitating the preservation of relationships between parties, especially in cases involving business disputes or family matters.
- High Success Rate: Mediation has a relatively high success rate, with a significant number of disputes being resolved amicably through this process.
RECENT DEVELOPMENTS AND CHALLENGES
In recent years, the Indian judiciary and legal community have demonstrated a growing recognition of mediation as a vital tool for alleviating the burden on courts and facilitating prompt resolution of disputes. The Supreme Court of India has been proactive in endorsing mediation, encouraging parties to explore this option before resorting to litigation.
However, despite the growing popularity of mediation, several challenges persist. Awareness and understanding of mediation as an effective means of dispute resolution remain relatively low among the general public. Parties may still prefer traditional litigation due to a lack of knowledge about the benefits of mediation or misconceptions about its efficacy.
Furthermore, ensuring the quality and training of mediators is of utmost importance to preserve the integrity and effectiveness of the mediation process. There is a need for standardized mediator certification and continuous professional development programmes to enhance the skills of mediators and ensure their competence.
Mediation has come a long way in India, evolving from traditional practices to a formalized process recognized by law. Its growth has been fostered by changes in legislation and the establishment of specialized mediation centers across the country. The advantages it offers in terms of cost-effectiveness, time efficiency, and preserving relationships make it a valuable alternative to traditional litigation.
While there are challenges to overcome, the increasing acceptance and endorsement of mediation by the Indian legal system and the judiciary bode well for its future. With continued efforts to raise awareness, improve mediator training, and streamline the mediation process, India can further harness the potential of mediation as a powerful tool for resolving disputes and promoting justice in society.
- Aditya Mehta, Pritvish Shetty, Saloni Jain & Agneya Gopinath, “Analysis: Mediation in India”, Cyril Amarchand Mangaldas, 31 October 2022, available at: https://corporate.cyrilamarchandblogs.com/2022/10/analysis-mediation-in-india/
- “Mediation In India”, Legal Service India, available at: https://www.legalserviceindia.com/legal/article-2762-mediation-in-india.html
- “Statement of Objects and Reasons of the Mediation Bill 2021”, Department of Legal Affairs, available at: https://legalaffairs.gov.in/sites/default/files/mediation-bill-2021.pdf