The growth of Mediation in India
Updated: Jan 19
Courts in India are currently facing an estimate of 5.8 million pending cases, with the annual average disposal rate being a meagre 1.8 million cases. Justice is proving to not be accessible to the people of our country and thus in recent years, the Courts have started pushing fickle, trivial and mingy cases down the path of Mediation. With the sudden rise in Court administered Mediation there is still some lack in the basic knowledge of what this process is and its history, not just relating to human society but also in regard to the Indian people.
The Supreme Court while hearing the case of Salem Advocate Bar vs. Union of India in 2005, made some amendments to the Code of Civil Procedure, 1908. One amendment was Section 89 which laid down an elaborate foundation to help provide quick and inexpensive justice to the people of the country – a process known as “alternative dispute resolution (ADR)”.
The theory of mediation has been a part of human society and various justice systems around the world for eons - from ancient Egyptian laws to the modern Panchayat system, mediation has existed and still exists in various forms. However, the dispute resolution of the past was both unorganized and extremely informal. Still, contemporary mediation methods have been adopted from these historical procedures. Now, we wish to adopt and systemize this form of diplomacy, smoothly integrate it as a key part of the judicial process and popularize it among justice-seekers. The techniques that have been incorporated into the modern approach have taken inspiration from many ancient sources that are spread across different countries, cultures and communities. For example, the Mediation Training Manual of India released by the Supreme Court takes influence from post-Vedic methodologies, Native American procedures, Chinese government-sponsored mediation learnings, and many more sources.
Post-independence India was ready to incorporate the pre-existing Arbitration Act of 1940 into her Civil Procedure Code, but it was repealed. The government enacted the Legal Services Authorities Act, 1987 in an attempt to grow the number of out-of-court dispute settlements and to govern the cases and procedures of dispute settlement. After this, they enacted the Arbitration and Conciliation Act in 1996, which implicitly detailed the process for conciliation and dispute proceedings. The latter Act was all-comprehensive, and thoroughly laid out the different steps in the resolution process and in the appointment of the conciliators, and the role of suitable institutions in assisting parties to appoint a conciliator. In 1999, however, the Indian Parliament finally passed an amendment to the Civil Procedure Code and added Section 89, after evaluating the immense backlog of cases pending in the Indian Courts. Wherever possible, judges were advised to guide pending cases towards alternative dispute resolution. This Amendment, however, was only brought into force in July 2002.
In 2002, the then Chief Justice of India, Hon’ble Mr. Justice B.N. Kirpal inaugurated the First Legal Mediation Centre in India the - Ahmedabad Mediation Centre. The importance and need for mediation were emphasized in the minds of judges all over the country by Hon’ble Justice Kirpal through a meeting that he held with the Chief Justices of all the High Courts. In 2005, Chief Justice of India, Hon’ble Mr. Justice R.C. Lahoti, a firm propagator for mediation, who helped grow the practice in India to a significant scale, constituted the Mediation and Conciliation Project Committee (MCPC) through an order. The MCPC debuted a pilot project for judicial mediation in the Tis Hazari Courts. The MCPC administers policies and regulates mediation. The project was a grand success and it initiated further development of mediation centers in the country. The Committee also conducts various awareness and training programs and they are trying to institutionalize the mediation training process through the National Mediation Programme.
Mandatory Mediations and Court Annexed Mediations are now legal sanctions and have become a part of the justice system of the country. The process not only involves the parties to the case and their mediators, but is also under the supervision of the presiding judge and is observed and attended by the lawyers of both the parties who continue to represent their clients. Thus, this process of Court Annexed Mediation is different from that of Court Referred Mediations which is more involved in terms of the individual parties of the case. Courts wish to gain public approval and trust in the process of mediation to enable more people to pursue this avenue to settle their matters, instead of filing a case in the courts and adding more onto the stockpile of matters that the courts are unable to hear and adjudicate.
The biggest concern for the judiciary and the legislative has been about the people of India feeling a sense of abandonment because of the inefficient, slow and tedious process one has to go through to get justice in their country. Litigation is tiresome for the parties to a case, both of whom have to go through piles of arbitrary paperwork and a great number of seemingly unnecessary hearings that span months or even years. This also holds true for cases that are pretty black and white, that don’t have too much detail, and that should very apparently take up much less time than what citizens are currently going through. Many Indians have become acutely disheartened and have lost faith in the judiciary and the legislative, leading to immense negativity and ill-feeling in Indian society. To tackle this issue, Courts are opting for Court Annexed Mediation instead of Court Referred Mediation because through the former process, the people involved in the matter will experience the feeling of the Court’s interest in their matter. The parties of the case will feel like the Courts really do take an interest in the matters of a normal citizen and do indeed care for them. Also, the knowledge that the Court is working alongside the Mediation Board to help the parties reach a settlement will lead to more satisfactory negotiations and outcomes. Therefore, it is of utmost importance that the Courts be the central institution for this system, because they can also provide continuity to the process.
Conflict has always existed in human society, and it will continue to exist until the end of time. We must grow, learn and incorporate methods of dealing with these conflicts productively and satisfactorily. Mediation is a field that will continue to grow with every new observation and every new client and case. The fluidity and ease of this practice are what will help keep the process of conflict management amongst humans, humane.