MEDIATION – NEED OF THE HOUR

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

resolution.

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

20

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

5

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.

v) Awareness

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.

vii) Ethics

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

mediation proceedings.

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.

v v v

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