INTRODUCTION

The Indian legal system has proved to be a source of maintaining economic stability in our country by rendering justice to people at large and has thereby become the backbone of democracy in India.[2] Despite the establishment of courts in our country since a long time today, the number of cases that have opted for informal dispute resolution, before the legal system in India came into existence is huge. Many of these informal modes can be resonated with the contemporary “Mediation”. It can be referred to as a mode of resolving disputes by not knocking at the doors of the courts. It is resolved by a neutral third party wherein adequate tools are used to redress an issue through a mediator in order to bring the indifferences of the parties to an end. The decisions of the mediator can’t be forcibly imposed on the parties, i.e., he is not per se a decision maker.[3] In order to ensure that weaker parties are able to enforce their legal and contractual rights and don’t get affected adversely by the authoritative judicial determination, wherein the coercive power of the State compels unwilling litigants to come to the negotiating table.[4]

For the first time the concept of mediation received legislative recognition in India through the Industrial Disputes Act, 1947. The conciliators appointed under Section 4 of the Act are “charged with the duty of mediating in and promoting the settlement of Industrial disputes.” Under the Act detailed procedures were prescribed for conciliation proceedings. Another statute to be introduced to the Indian legal system to mediation was the Arbitration and Conciliation Act, 1996. The Indian Parliament in 1999 passed the CPC Amendment Act of 1999 inserting Sec.89 in the Code of Civil Procedure 1908, wherein it provided for reference of cases pending in the Courts to Alternate Dispute Resolution which included mediation.[5]

FORMULATING A MODEL LEGISLATIVE FRAMEWORK FOR MEDIATION IN INDIA

Mediation is voluntary process to opt for the right to decide is retained with parties for themselves whether to settle a dispute and the terms of settlement of the dispute. The decision to settle and the terms of settlement always rests with the parties whether the court has referred the case for mediation or if it is required under a contract or a statute. An essential element of the mediation process is the right of self-determination. It is an agreement for the redressal of the conflict created by the parties which is thus generally accepted by them.  The control of the process of mediation rests with the parties. It is a very flexible process wherein any party can leave the process at any time without giving any explanation for the same.[6]

ROLE OF COURTS IN MEDIATION.

The concept of ‘judicial mediation’ was introduced through Sec 89 CPC, 1908. In cases where the court finds that few disputes that can be resolved through an amicable mode, it promotes to opt for modes likes Mediation, Conciliation and Arbitration. The Indian judicial system is known to be over burdened with a lot of work and thus leads to delay in justice. The key to success in most of the court referred mediation cases rests with the judges. The choice of cases which are to be referred for mediation plays a significant role. Such referred cases are highly suitable as they are backed by the judges also wherein the judge, counsel and the litigants, all become actors of the justice delivery system.[7]

The role of the courts was focused with more emphasis recently in 2011 when the Supreme Court declared that mediation proceedings are confidential in nature and only an alternative statement stating that the proceeding couldn’t be successful is required to be submitted to the court by the mediator[8]. Further emphasis on the practice of Mediation was laid after the Chief Justice of India himself acted as a mediator in the famous case of “demolition of the Babri Masjid” to ensure amicable resolution between both the parties.[9] In B.S. Krishnamurthy v. B.S. Nagaraj[10], it was directed to the Family Courts to opt for mediation to settle matrimonial disputes and especially in matters concerning maintenance, child custody, to also introduce parties to mediation centres with consent of the parties. Though it is the discretion of the courts to refer the parties for mediations, it is seen that parties who opt for pre-litigation mediations have more chances of resolving their issues better. The prime reason behind it is parties who voluntarily opt for mediation are in the mindset to make compromises and adjustments in order to make their relation work. The willingness of the parties has a major role to play.

Through all this it can be concluded that courts are also favoring mediation for the long run. It is realized that in order to provide prompt justice or cases where it is understood that few cases are required to be dealt with sensitivity, the need to approach Mediation centres is a must.  

THE ROLE OF THE MEDIATOR

As it has been already mentioned, the mediator is a neutral third party facilitating the two parties at dispute to reach an amicable solution. The mediator remains impartial, independent, detached and objective throughout the process of mediation.[11] The mediator navigates the two parties through the process of dispute resolution. The mediator should not be mistaken as an adjudicator. He is a facilitator and evaluator. He plays the role of a facilitator when he explains the process of mediation to the parties, identifies the hindrances between the parties and aims to remove them, manages the erratic and hypertensive behaviour of the parties, motivates the parties to agree on a settlement etc. He plays the role of an evaluator when he impartially directs both the parties to evaluate the claims and the defences put before each of them by means of reality testing. When it comes to resolution of disputes with regard to matrimonial disputes the mediator has a very important and significant role to play. He has to overcome the dispute, not only, by means of reason but also preventing the sentiments and emotions from being crushed. The mediator has to approach the dispute in the following manner:

1. Developing an understanding of the problem by probing the facts of the particular case
2. Developing an understanding of the interest, claims, emotions, stakes involved of the parties.
3. Creation of options as to whether reconciliation or divorce and evaluation of the same.
4. Bringing the parties to a mutually acceptable solution in an amicable manner.

The role of mediators dealing with marriage counseling is considered to be more difficult than the mediators resolving commercial or contractual disputes. The former requires an ample amount of patience because when the parties come to mediation, they themselves are unclear as to what is the main cause of their problem. Only when the mediator actively and patiently listens to the parties, both jointly and individually, the real root of the problem comes in the picture. The primary aim of the mediator should be reconciliation of the parties to the institution of Marriage. In case after thorough understanding and deliberations, reconciliation does not seem as a feasible option, the mediator has to also explore the option separation or divorce. Further, divorce has various repercussions such as maintenance of the wife, custody of children, visitation rights by either of the parents etc which needs to be further explained to the parties. The mediator also has to explain the parties as to other legal options that are open to them. In cases of separation, the terms of separation also needs to be worked out without keeping any ambiguity.[12]

NEED FOR MEDIATION IN DIVORCE CASES

With the rise in the number of cases regarding matrimonial conflicts, there is an urgent need to shift from the already burdened court system to the Mediation negotiations. The sensitivity attached with such genre of disputes requires to be treated on a personal and urgent basis, in order to ensure that the institution of marriage is safeguarded to maintain the essence of its sacrament. Sometimes there are acts which take place not because of a malice intention but due to the heat of the moment that a person behaves in a manner in which he generally wouldn’t.  Such conflicts need to be facilitated through a Mediator in order to protect the relationship. Similar opinions have been shared in the case, Gaurav Nagpal vs Sumedha Nagpal[13], the Supreme Court observed: ‘It is a very disturbing phenomenon that large numbers of cases are flooding the courts relating to divorce or judicial separation. The provisions relating to divorce in HMA categorize situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Efforts should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings. People rushing to courts for breaking up of marriages should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving of marriage and not breaking it. As noted above it is more important in cases where the children bear the brunt of dissolution of marriage.’

OTHER MODES OF DISPUTE REDRESSAL

Legal remedy can be acquired through some other modes other than regular judicial proceedings as well. They are:

1. Mediation as a form of Alternative Dispute Resolution– It helps the parties in reaching an agreement. The parties to the agreement decide for themselves the content instead of anyone else doing it for them. This ensures a personally accustomed agreement for the parties as per the nature of their dispute. The dispute is resolved with the aid of the impartial mediator who aims to resolve the differences.
2. Marriage Counseling: It is also an alternative way that is resorted to by many. The counselor by asking questions helps the parties to reach a conclusion as to what do they ultimately want. The counselor aids in resolving the dispute and tries to bring both the parties to the same page by ruling out their differences. The purpose is to protect the noble institution of marriage from meeting the ends of a fatal death.
3. Pre-Marital Counseling: It is a special session for couples who are planning to undergo a long term commitment like marriage in the near future. Such sessions are necessary to evade the possibilities of conflicts that may arise due to the change in their positions post marriage. It helps to make the parties aware about certain issues that they might not be comfortable with later and thereby prevent the harm caused later.

Benefits of Mediation in Matrimonial Disputes:

Mediation is generally referred over litigation because of its flexible and cost effective nature. The various benefits to undertake Matrimonial Dispute Mediations are:

1. Confidentiality: The problems which arise in a Matrimonial dispute are usually very personal and confidential. Confidentiality fosters a true trust essential to mediation.[14] It maybe matters related to violence, money, conjugal life etc which is difficult for any person to say it out loud in an open court in front of the public. It may be difficult for parties to answer questions of the counsels with regard to such personal matters in the open. Moreover, if there is a child involved, he or she, should not have to go through the ordeal of choosing any parent over the other in such pressurizing circumstances. Thus maintenance of Confidentiality is must in Matrimonial Disputes.
2. Control:Mediation is an enabling provision which enables the parties to exercise some control over the resolution. In litigation, judges or jury exercise the ultimate control. This helps in arriving at a mutually agreeable solution between parties which cannot be done away with.
3. Compliance: Mediation proceedings are carried out to obtain consensus amongst parties regarding a solution that may be either proposed by the mediator or by either of the parties. Therefore, the result of mediation is generally complied with by the parties. According to the Arbitration & Conciliation Act, 1996, the mediated agreement is fully enforceable in a court of law. This also reduces expenses as there is the elimination of the need to employ a lawyer for enforcement of the decree.
4. Mutuality:There is a mutual agreement between parties to work towards reaching   a solution that is acceptable to both. They are ready to make some adjustments towards their interests and claims. This preserves the relationship between parties.

EXISTING BARRIERS IN MEDIATION

1. Lack of planning and preparation: A case needs to be properly studied and evaluated by the mediator in order to provide the parties with the best possible solutions. Due analysis of the concerns of the parties needs to be undertaken and also an understanding needs to be developed regarding the fragile emotions of the parties concerned. Therefore, a proper design proposal needs to be adopted by the Mediator before he begins the proceedings, else the entire process would end in vain.
2. Untrustworthiness: Mediation can work only when both the parties are willing to reconcile their mutual differences and agree to make some adjustments and compromises. If emotions contrary to the ones mentioned are affixed in the minds of the parties, the fruits of mediation can’t reap well. In such instances, the mediator should make attempts to neutralize the minds of the parties so that they are willing to open the closed windows of their agitated minds.
3. Prejudicial Approach: There is a set of opinions a person develops about another after a set of actions undertaken by the other. These opinions are accepted and become a basis of conflicts for the other party. In similar situations, if the parties have pre conceived notions about the other they should be advocated in such a manner that they are willing to look at thing from the perspective of the other. This would help smoothen the process and also help them in undertaking a fresh initiative despite of all odds.

STRENGTHNING MEDIATION IN INDIA

 A clear understanding of the fact that needs to be done is that Mediation is not the last path that a party would opt to walk on in case of any dispute in order to get justice. It rather is a medium that offers the parties an opportunity to rethink from a different perspective. In events of non malicious acts, parties should prefer turning towards Mediation to reach at a ‘mid way’. In India, Mediation is still not an entirely ripened fruit of which a lot of people have been benefited from. Effort needs to be taken to strengthen Mediation from a legislative point of view. There is still no specific legislation dealing only with Mediation unlike, the Arbitration and Conciliation Act, 1996 and the Legal Service Authority Act, 1987. A legislation to provide legality to the provisions dealing with the pre-litigation mediation and the role, appointment and other interests of the parties is a significant measure that needs to be undertaken by the legislation in order to bring Mediation under the focus of the masses at large.

CONCLUSION

Through the course of this paper, it has been highlighted that the need to implement legislation on Mediation is a need of the hour. The importance of the formal court system is not narrowed but the need to shift the excessive burden from the shoulders of the judiciary is indeed a change to look out for. The pit holes of flaws that exist in the Indian legal system needs to be covered with a tool that can sympathize with the weaker sections who suffer from the adversarial and compassionate proceedings of the court on account of poverty, busy schedules to attend the court proceedings, lack of confidentiality and the like. Mediation can prove to be an effective tool in this regard. In accordance with the socio- economic condition of India, there needs to be an innovative and consistent approach to the Mediation negotiations, so that the masses can in true sense benefit from it. Major emphasis has been laid on the role of the Mediator who shall act as a facilitator to resolve the differences between the parties. The unbiased approach of the mediator is of huge importance to amicably complete the mediation negotiations and if defaults are found in this regard, steps shall be taken to instill the faith of the parties to a fair and just mode of dispute redressal. Awareness needs to be created in the society in context of urging people to choose Mediation negotiations over Court proceedings in fragile matters like family and matrimony. The role of the judges, lawyers, government, legal institutions and the legislation is indispensable. Together, there can be an effective implementation of the Mediation negotiations.

[2] Rashika Narain & Abhinav Sankaranarayanan, ‘Formulating a Model Legislative Framework for Mediation in India’ (2018)  11 NUJS L. Rev. 1

[3] LexQuest, ‘Mediation in India: Practical Indepth’ LexQuest (2014) <https://lexquest.in/mediation-india-practical-indepth/#_ftn1> accessed September 10, 2018

[4] Alan Uzelac, ‘Goals of Civil Justice and Civil Procedure in the Contemporary Judicial Systems’ (2013) Jus Gentium, <http://www.alanuzelac.from.hr/pubs/A48_2014_Goals_Springer_intro.pdf> Accesses on September 02,2018

[5] Mediation and Conciliation Project Committee, ‘Mediation Training Manual In India’, Supreme Court, <https://www.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf> last accessed on September 5, 2018

[6] ibid

[7] Thaker, Gaurang Ashutosh, ‘Role of mediation as an effective tool of dispensation of justice’, 2015 Shodhganga, <http://shodhganga.inflibnet.ac.in/handle/10603/44117> Last accessed September 7, 2018

[8] Moti Ram (D) Tr. LRs and Anr. Vs Ashok Kumar and Anr , Civic Appeal No. 1095 of 2008

[9] Dr M. Ismail Frauqui And Ors. vs Union Of India (Uoi) And Ors AIR 1995 SC 605

[10] S.L.P. Civil) No(s).2896 OF 2010

[11] Mediation Training Manual, supra note 1

[12] Supra note 5

[13] AIR 2009 SC 557

[14] The Harvard Law Review Association, Protecting Confidentiality in Mediation (1984) Harward Law Review <https://www.jstor.org/stable/1340844> Last accessed September 8, 2018

Note: This article has been published in Legal Desire International Journal of Law, 19th Edition (ISSN:2347-3525)