MEDIATION – NEED OF THE HOUR
Hon’ble Shri Justice S.B. Sinha
The purpose of mediation is to provide a forum for consensual dispute resolution
by the parties. Mediation is conducted with the help of a neutral third person i.e. the
mediator. Mediator facilitates communication and negotiation between the parties to
arrive : a win-win situation by adopting amicable solution of their pending disputes.
Mediation is informal and voluntary. It involves the equal participation of the parties.
The Parliament to provide speedy justice outside the courts system to the litigants has
incorporated Section 89 in the CPC with Mediation as one of the tool for dispute
Recently every body is talking about that India is facing an unprecedented
‘litigation explosion’ as about 10 crore Indians are awaiting justice in this country.
It is said that about 3 crore cases are pending in different courts at different levels
and in each case atleast 3 persons / litigants are involved. The mediation is required
to be tailored to the needs of potential litigants as to quality and responsive justice
within time and with no cost.
It is said that Mediation has originated in the United States in the later half of
process. Different countries have adopted different mode of mediation for example
in Canada the mediation is practiced in the form of “settlement conference” without
observing the confidentiality and is done by the judicial officers. In India, since
long vast diversity of dispute resolution processes are in use having an element of
direct participating, prompt resolution but such processes were lacking standard
and systematic approach to the dispute resolution.
It is desirable to deliberate upon the various issues connected with effective
implementation of mediation throughout the country so that mediation can be
accepted as an effective tool of dispute resolution. We have to consider the various
aspects of mediation particularly in Indian context. The concept of mediation which
is prevailing in the American Legal System may not be relevant for Indian context
th Century and in many States, it has been made as mandatory stage of the courtText of speech delivered by Hon’ble Mr. Justice S.B. Sinha, Judge, Supreme Court of India in the
Judicial Officer’s Conference and inaugural function of Mediation Centre at High Court, Bombay on
th July, 2008.entirely as the culture, social and economic problems of the Indians are entirely
different with that of the U.S.A. It is necessary to give an Indian touch to the
concept of Mediation and as such to make it indianised and an element of Indianness
be infused in mediation.
i) Mediation and its Governance
It is necessary to deliberate upon different aspects relating to good governance
of Mediation. If we want to develop a good governance of mediation, we have
to incorporate various characteristics such as Participation, Rule of Law,
Transparency, Responsiveness, Consensus Orientation, Equity and Inclusiveness,
Effectiveness and Efficiency, Accountability. A mediator always honours the right
of self determination of the parties as the mediator never imposes any solution or
terms of settlement on the parties. Both the parties get an equal opportunity to
participate and facilitate the negotiations. A mediator always act with impartiality.
In mediation, procedural rules are not followed. The parties are at liberty to follow
any procedure convenient to them for settlement of disputes. The fairness is
maintained throughout the Mediation and the parties and their attorneys are directly
and actively involved in the mediation. Mediation provides responsive and timely
justice as the outcome is within the control of the parties. If the above attributes of
good governance are followed, then it will ensure minimum corruption or no
corruption, view of the minority can be taken into account and more important the
vulnerable sections of the society such as Scheduled Caste / Scheduled Tribe or
persons living below the poverty line or living in backward areas can be heard in
the decision making process.
ii) Mediation and Judicial Reforms
Mediation is an innovative way of dispute resolution and directly connected
with the judicial reforms. The Judicial Officers by appropriate judicial education
should be trained in different aspects of the mediation and also to become a good
Referral Judge. If the judicial officers are trained in Mediation then they can develop
various attributes such as communication with the parties, active listening, handling
of sensitive dispute and writing of good judgment. Judicial Officer will be able to
select the cases which are fit for mediation and the cases which are not fit for
mediation. The cases which are not fit for mediation can be disposed of by framing
of the preliminary issues, rejection of plaint and a judicial officer will be able to fix
the schedule of the trial of the cases. A judicial officer will be also able to identify
the core issues between the parties and to ascertain the causes of dispute. It will
also develop the case management. A judicial officer will also be able to develop
his quality as a responsible judge and will be more responsive to the category of
cases which required urgent attention of judicial officer.
iii) Mediation and Spirituality
Mediation cannot be separated from spirituality. It is necessary for a good
mediator to practice spirituality. The spirituality develops the concept of justice in
the judicial personality and is crucial for the dispute / conflict resolution. The practice
of spirituality brings peace and harmony in the society as the dispute resolution
will bring the peace in the society. By practicing spirituality mediator will become
good active listener, good mediator and healer to the dispute of litigants. Spirituality
shall develop, belief, faith and trust in the mediator. It is a tool for stress management.
It will develop the impartiality in a mediator. A mediator shall be able to mediate
between the intellect and emotion of the parties.
iv) Institutionalization of Mediation
At present, there is no statutory enactment like Arbitration and Conciliation
Act, 1996 and Legal Services Authority Act, 1987 to institutionalize the various
aspects of mediation such as Qualification of a mediator, duration of training and
its curriculum, ethics and enforcement of settlement arrived through Mediation
etc. There is a need to institutionalize the mediation. It is necessary to give training
to mediators, co-ordinators and referral judges, training for trainers, specialized
training, refresher courses, training on legal aspects and training on ethical aspects.
It is also necessary to define the training curriculum which should not be less than
40 hours training with 10 actual mediation. The training curriculum should include
the various aspects such as concept and stages of mediation, communication,
negotiation, bargaining and how to break impasse besides psychology, ethics to be
observed by a mediator. It is also necessary to identify the persons who can be
trained as mediator. There is a need to make study about the case and population
ratio so as the viability of mediation can be worked out in India.
Any programme for mediation can not be effectively implemented unless
and until there is adequate awareness among the consumer of justice. In all the
four regional conferences, the participants were of the view that there should be
appropriate generation of awareness about mediation through various awareness
programmes with help of brochures, pamphlets in local language, hoarding material,
documentary film etc. The State Legal Services Authorities and the District Legal
Services Authorities have to play an important role in generation of awareness
among the litigants about the benefits of mediation.
vi) Role of High Courts
The time has come when the different High Courts have to play an active role
in implementation of mediation. The Parliament has already incorporated section
89 CPC and its constitutional validity has been upheld by the supreme Court of
India in Salem Advocate Bar Association case. The High Courts have to establish
the mediation centre at the High Court Level as well as the District Courts Levels.
There should be sufficient number of trained mediators who can handle the cases
effectively. The basic infrastructure should also be provided for each mediation
centre with appropriate conducive atmosphere. Efficiency and Efficacy of mediation
be also assessed through appropriate impact analysis under the aegis of High Court.
The standard of conduct for mediators performs three major functions which
are i) to serve as a guide for mediators ii) to inform the mediating parties iii) and to
promote public confidence in mediation as a process for resolving disputes. The
ethics for the mediator which are likely to be framed should be based on various
attributes of mediation such as Self-determination, Impartiality, Conflict of Interest,
Quality of process, Confidentiality, Competence, Right of third parties who are not
present in the mediation etc. A mediator should observe ethical principles strictly
and with due diligence and should not indulge in any activity or conduct which
may be considered as a conduct unbecoming of a mediator. A mediator must
maintain the fairness and lawfulness of the mediation process. A mediator should
not assure the result to the parties. A mediator is not supposed to establish any
contact directly or indirectly or otherewise with the parties after the conclusion of
viii) Feedback on the resolution passed in the Zonal Conferences
Mediation and Conciliation Project Committee has organized different Regional
Conferences at Bangalore, Indore, Ranchi and Chandigarh. In all the regional
conferences, various aspects of mediation were deliberated and discussed. There
was a consensus that there should be a minimum 40 hours basic training to the
proposed mediators alongwith 10 actual mediation and regular training to the referral
judges. It was also deliberated that mediation centres be established at all District
Courts and the High Courts in a gradual manner with required infrastructure. It
was also deliberated that initially the mediation be started with judicial officers and
gradually it may be passed on the lawyers in a faced manner. In the conferences
various aspects such as curriculum, awareness, training for trainers besides other
issues were discussed.
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