Mediation: A Tool for Access to Justice

Mediation is a voluntary process of dispute resolution whereby an independent third party assists
the parties to the dispute to reach a settlement. It is considered a more positive form of
conciliation in which the third party recommends solutions which both sides are free to accept or
reject. The separate act has been made for mediation. In the judgment of the Supreme Court of
India in Salem Bar Association vs. Union of India, the Supreme Court has requested this
committee to prepare draft model rules for Alternative Disputes Resolution (ADR) and also draft
rules for mediation under section 89(2) (d) of the Code of Civil Procedure, 1908. Pursuant to the
said judgment, we have prepared the following set of draft rules. They are in two parts – the first
part consisting of the procedure to be followed by the parties and the Court in the matter of
choosing the particular method of ADR. The second part consists of draft rules of mediation
under section 89(2)(d) of the Code of Civil Procedure, 1908 also Part 2 of the Act deals with the
mediation process in general. It sets out the key characteristics of a mediation process which
include:

• voluntariness

• confidentiality

• the right of the parties to legal advice

• The right of the parties to cease the mediation process at any time.

The major role of mediation is to provide the alternative to solve the dispute, where it is
appropriate parties involved in the civil matters are encouraged to solve their dispute by
the agreement, the major role of courts to make parties agree to the solution.

Mediation through the Years

However, was rectified to a certain extent by the introduction of Section 89 of the Code
of Civil Procedure, 1908 (introduced first in Section 30 of the Arbitration and Conciliation
Act, 1996), which was concerned with exploration of the different methods of dispute
resolution. The Arbitration and Conciliation Act, 1996 was the first statute to introduce
the Indian legal system to mediation. The notion of “judicial mediation” was first
introduced by this section”. Relying on this, the court, where satisfied with the
circumstances party can solve their dispute through mediation, arbitration and other
form of dispute resolution

In the recent judgment of 2011 given by Supreme Court of India declare that arbitration
proceedings were confidential in nature. Through this judgment the popularity of
meditation will increase in the country the Supreme Court of India further held that all
cases relating to trade, commerce and contracts, consumer disputes and even tortious
liability could normally be mediated. In another landmark case of B.S. Krishnamurthy vs
B.S. Nagaraj it directed the family law courts to settle the matrimonial dispute through
mediation, with the consent of the parties especially in the matters where it is concern
with child custody , maintenance.

Following this, various Supreme Court decisions in the recent past appear to point out
that the Courts are gradually developing a favourable attitude towards mediation.
Despite of mediation being very famous in other countries, India is lacking behind due to
lack of awareness regarding mediation and benefits also judges of the country have
been quick to identify the usage of mediation in country to avoid the delays yet, lawyers
of the country is not able to respond it quickly.

Also 129th report of law commission identifies the certain steps for speedy disposal of
cases in India:-

• Establishing the Nagar Nyayalaya with a professional Judge and two lay Judges
in the same manner as the Gram Nyayalaya and having comparable powers,
authority, jurisdiction and procedure. However, the Nagar Nyayalaya will resort to
mediation first and then initiate proceedings (only if mediation fails);

• Having cases heard in Rent Courts by a Bench of Judges, minimum two in

number, with no appeal but only a revision on questions of law to the district
court;

• Setting up a Neighbourhood Justice Centres involving people in the vicinity of the

premises in the resolution of dispute; and

• Conciliation court system, presently working in Himachal Pradesh.

• APPROACH OF AND STAGES OF MEDIATOR

Mediator is the person who act as a neutral third party and facilitate discussion between
the disputed parties. As mediator is the neutral party he encourages settlement of
dispute between the disputed party also manages the interaction between the parties
and encourage them to solve their dispute. The mediator does not deliver the judgment
Mediator is to enable the parties to arrive at voluntary and mutual agreement. In order to
be formally trained as a mediator in India, an individual must undergo a 40-hours’ training
programme and conduct 20 mediation sessions under the Mediation and Conciliation Project
Committee (MCPC). Since the early 2000s, 52 judicial mediation training programmes have
been facilitated in various parts of the country. About 869 members of the judiciary have
undergone the 40 hours of training

The problems which arises in resolution of the dispute through litigation are well known
These are broadly (i) delay (ii) expenses (iii) Rigidity of procedure (iv) a reduction in
participatory role of parties.

Mediation is the process which is structured but not very rigid, the mediator conduct the
proceeding in informal manner. On the very first stage mediator is appointed who act unbiasedly
to make the parties solve their issue Mediator employ structured communication between the
parties they put up their problem and solution in front of mediator and then the mediator reach
the solution based on their agreed upon terms also any party can withdraw at any time without
stating any reason. It is purely a private matter only parties mediator are involved as all the
arguments made during the proceeding cannot be disclosed without the prior consent of the
parties. The method is popularly used in the matrimonial cases, child custody, divorce cases court
even refer it as easy and quicker process to get a resolution. There is difference between taking
the matter to litigation and taking it to mediation process in litigation there is the blame game
and one party need to prove the blame depending upon that court give the solution and in Indian
mediation the matter get solved through negotiation and amicable settlement.
LAWS RELATED TO MEDIATION IN THE COUNTRY

• Industrial dispute act 1947,

• Section 89 of code of civil procedure ,1908

• Legal Services Authorities Act 1987, which provides for setting up Lok Adalats;

• Section 442 of the Companies Act 2013, which provides for referral of company disputes
 to mediation by the National Company Law Tribunal and Appellate Tribunal read with
the Companies (Mediation and Conciliation) Rules, 2016 (notified on 09 thSeptember,
2016); and

• Section 442 of the Companies Act 2013, which provides for referral of company disputes
to mediation by the National Company Law Tribunal and Appellate Tribunal read with
the Companies (Mediation and Conciliation) Rules, 2016 (notified on 09 thSeptember,
2016); and

• Section 12A of the Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts Act, 2015,

• Section 12A of the Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts Act, 2015, which provides for mandatory pre-institution
mediation in those cases where no urgent interim relief (such as an injunction) is being
sought by the parties to the dispute.

• Section 32(g) of the Real Estate (Regulation and Development) Act, 2016, which
provides for amicable conciliation of disputes between the promoters and allottees
through dispute settlement forum set up by consumer or promoter associations.

These are the laws which are related to mediation in the country. Also, with an increasing usage
of mediation in the country these laws should also be develop

MEDIATION: A WAY FORWARD

The importance of mediation and ADR has gain much importance and significance in the recent
times The Souvenir gives the statistical number of mediation activities carried on various states as on
12thMarch, 2012, showing the highest success rate of mediation is 73.41% in Delhi and lowest being in
the state of Goa. In order to take mediation ahead use it as its best possible manner it is imperative to
spread its awareness amongst public. Everyone should explore the mediation in their own way like law
student should explore mediation at university level it will save many relationship also it will reduce the
burden upon the courts, encouraging mediation as the mode for appropriate dispute resolution is the well
way forward for speedy deliver of justice. Mediation is the convenient and easy way to get justice as
judiciary is the time consuming process party can easily settle their dispute through mediation. “The need
for justice grows out of the conflict of human interests. That is to say, if there were no conflict of interests
among mankind we should never have invented the word justice, nor conceived the idea for which it
stands”. Mediation as an important tool in improving access to justice for ordinary citizens as there are
many problems identified in operation of civil justice system includes high cost, time consuming,
fragmentation and adversarial nature of litigation access to justice is not only about accessing institution
to enforce right but also to provide everyday justice. Giving an opportunity to people to speak what
happened and to confront who is responsible for their hurt is providing justice and to administer a legal
system that is just and fair.