The Court Annexed Mediation Mechanism: An Overlooked Avenue for Justice
I. INTRODUCTION: A CRITICAL OVERVIEW OF COURT AND ITS MEDIATION IN INDIA
A. EVOLUTION OF COURT AND ITS MEDIATION
Mediation, as a means of resolution of disputes, has been growing significantly over the past few decades. It is considered to be the most appropriate method amidst the ‘Alternative Dispute Resolution’ mechanisms as it is cost-effective, flexible, amicable and addresses the conflict in the most cordial of manners. Mediation is a process in which a third non-partisan party seeks to stimulate a voluntary and an unconstrained agreement between the parties in conflict by using negotiation skills and communication techniques.
In the year 1996, the then Hon’ble Chief Justice of India Mr. A.H. Ahmedi called for the Institute for the Study and Development of Legal Systems (ISDLS), USA to take part in a national assessment of the backlog in the civil courts in India. Various studies were conducted thereafter to probe and look into the causes of delay in disposal of cases under civil jurisdiction in India.
Based on the studies and suggestions to promote the alternative dispute resolution mechanisms, in the year 1999, the Parliament, on the recommendations of the Law Commission of India and the Justice Malimath Committee, amended Section 89 of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1999, which came into effect from 2002. The amended Section 89 provides for reference of disputes to various modes like, Arbitration, Conciliation, Judicial Settlement, Lok Adalat and Mediation. Though there were certain anomalies in the drafting of amended Section 89 but the same were set right later by the Hon’ble Supreme Court in Afcons Infrastructure Ltd and another Vs. Cherian Varkey Construction Co. Pvt Ltd[1].
In April 2005, the Mediation and Conciliation Project Committee (MCPC) was constituted by the then Chief Justice of India. The Committee initiated a pilot project in Tis Hazari District Courts which led to the setting up of various mediation Centre(s) in all the district courts in Delhi.
In April 2005, the first court annexed mediation Centre was set up at Madras High Court in Chennai followed by Samadhan in Delhi High Court, established in 2006. Today court annexed mediation Centre(s) have been established in Supreme Court and in almost all the High Courts across the country. Not only this, various training programs are being conducted for induction of new mediators apart from holding various refresher programs for already trained mediators.
Samadhan is a unique blend of the Bar and the Bench. The administration of the Centre is managed and looked after by lawyers under the supervision of an Overseeing Committee. With the Chief Justice of Delhi High Court, Justice D.N. Patel as its patron, the present Committee is headed by Justice Hima Kohli having Justice Vipin Sanghi and Justice Sanjeev Sachdeva as its members. Another unique factor of Samadhan is Pre-Litigation Mediation where mostly parties’ approach Samadhan themselves or through their counsel for resolution of their disputes by trained mediators through the process of mediation, even before they have approached the court. The advantage of court annexed mediation is that the disputing parties, their lawyers and judges all collectively participate in the process of mediation. The judge, who refers the matter for mediation, is the first messenger of mediation. In court annexed mediation, the process of mediation begins with the referral judge and ends with the same judge as the settlement of the parties culminates into final order passed by the referral judge. The same sets of lawyers who represent the parties in court retain their briefs for their clients for looking after their interests in the process of mediation. The lawyers who are perceived as litigating lawyers use their advocacy skills for negotiating for their clients and helping them to resolve their disputes making by think out of the box and find creative solutions to their problems. The protective environment of the parties due to availability of the assistance of the lawyers does not change and side by side they enjoy their participative role in finding solution to their own problem. Since the law mandates mediation, the referral judge encourages mediation; the disputants enjoy getting more from the limited resources by resolving their disputes in the manner that benefits both. In this way the court remains the central institute for the dispensation of justice.
Established in 2006, today Samadhan has completed over a decade and has got state-of-the-art infrastructure. The nature of cases handled successfully by Samadhan include business contracts, transaction disputes; real estate and construction disputes; consumer disputes; employment and service disputes; industrial disputes; banking and insurance cases; Intellectual property rights disputes including trade mark, copyright and patents; company and commercial disputes including winding up petitions; disputes under Section 138 of the Negotiable Instruments Act, family and matrimonial disputes; disputes of child rights and child custody and many more disputes of diversified nature. In addition to handling cases on references by Hon’ble Delhi High Court, Samadhan continues to handle cases referred by the Hon’ble Supreme Court of India as well.
B. STATUTORY PROVISIONS DEALING WITH COURT REFERRED MEDIATION
Section 89[2] of the Code of Civil Procedure laid down the foundation for the Court-Referred Mediation process in India. As per Section 89[3], where it appears to the court that there exist elements of settlement, the court shall refer the matter for Arbitration; Conciliation; Judicial Settlement including settlement through Lok Adalat or Mediation. The stage at which the court should explore whether the matter should be referred to ADR processes is after the pleadings are complete and before framing of issues, when the matter is taken up for preliminary hearing for examination of parties under Order 10 of the Code. However, if for any reason, the court had missed the opportunity to consider and refer the matter to section 89 before framing of issues, and then nothing stops the court from resorting to section 89 even after framing of issues”. In family disputes or matrimonial cases, the relationship becomes “hostile on account of the various allegations in the petition against the spouse, siblings. So, is the case in commercial disputes involving business partners or co-workers. The hostility further gets aggravated by the counter-allegations made by the respondent/defendant in their written statement. Therefore, wherever relationship is involved, ideal stage for mediation is immediately after service on the opponent more particularly before filing of response to the petition.
Further, Section 442 of the Companies Act, 2013[4] which is to be read with Companies (Mediation and Conciliation) Rules, 2016[5] provides the Central Government to maintain a panel called the Mediation Panel consisting of experts fulfilling such requirements or qualifications as are prescribed for the process of mediation. Under Section 442, parties may voluntarily apply to the National Company Law Tribunal or the Appellate Tribunal to refer their matter to the mediation panel or the said authorities themselves may refer the matter pending before them to the mediation panel. Companies Mediation and Conciliation Rules 2016 provide for the appointment of the mediators, conciliators,
For maintenance of a panel and for procedure for disposal of such matters, The Insolvency and Bankruptcy Code 2016[6] provides for the dynamic role of the “Insolvency professional” for the resolution of disputes relating to the companies undergoing insolvency and bankruptcy proceedings. Under the Real Estate (Regulation and Development) Act, 2016[7] popularly referred to as RERA, the function of the Authority (Real Estate Regulatory Authority) is to facilitate amicable conciliation of disputes between promoters and allottees.
The Commercial Courts Act, 2015[8]as amended by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act 2018 provides for mandatory pre-institution mediation in matters relating to commercial disputes where no urgent interim relief has been prayed. The Act provides for extension of limitation period by five months and also declares the settlement agreement to be an Award under the Act itself. The Consumer Protection Act 2019[9] also provides for court annexed mediation centres at the Central, State and District Levels.
II. ANALYSIS OF THE SUCCESS OF THE COURT MEDIATION MECHANISM
A. COURT MEDIATION IN VARIOUS STATES
Every High Court of a state has formulated a set of rules and regulations for Mediation and Conciliation process. Taking into consideration the data available on the websites of various High Courts, cases have been classified in three categories- cases settled, cases not settled; cases not fit for mediation. Data from a few of the websites of various High Courts has been analyzed below:
In the Bangalore Mediation Centre[10], 56,759cases have been referred for Mediation Since 1st January, 2007 till 1st January, 2017, out of which 44,385 cases have been mediated. Rest was not deemed to be fit for mediation on various grounds and thereby was referred back to the referral court. Out of the cases mediated, 35,570 cases were settled which constitutes 65% of the total referred cases.
Further, as per the available data, in the state of Gujarat, [11]4951 cases have been settled out of the total number of 30,198 cases referred for mediation till 31st December, 2019. The success rate in the state of Gujarat is a matter of major concern.
Now if we take into consideration the mediation Centre(s) established in Delhi[12] at the District Court level, it can be seen that a total of 258,267 cases have been referred for Mediation from 22nd August, 2005 till 31st July, 2020 out of which 102,279 cases have been resolved successfully.
At Delhi High Court Mediation and Conciliation Centre, Samadhan, out of the 28669 cases referred for mediation by various courts including the Hon’ble Supreme Court, a total number of 16430 cases have been resolved.
III. COMPARATIVE STUDY OF STEPS TAKEN BY VARIOUS MEDIATION CENTRES GIVEN THE GLOBAL PANDEMIC
The pandemic Covid-19 across the globe has significantly changed the environment and process for resolution of disputes as the focus is on urgent matters. In India amidst this global pandemic, Delhi High Court became the first court to initiate online mediation. The ‘On-Line Mediation Project’ initiated with the proactive and constructive approach of dispensation of justice, Hon’ble the Chief Justice of Delhi High Court, Shri D.N Patel, as its patron, aims to steer mediation to reach everybody’s home through technology. The Online Mediation Project of Samadhan is an efficient and resilient project which takes care of the confidentiality of mediation process up to the maximum by providing a system which has made possible for disputants to air emotions. The technology available to the mediators has made possible holding of both, private and joint, sessions. It has provided a secured ‘meeting room’ for sessions where both the parties can meet along with the mediator as well as a separate meeting of the mediator with either party can be held. Since June 2020, more than 90 applications have been received where parties have approached the Centre directly at pre litigation stage for resolution of their disputes through the process of mediation. Further, Singapore International Mediation Centre launched the SIMC COVID-19 Protocol, which provides a swift and inexpensive route to resolve commercial disputes during COVID-19. The protocol is designed to complement legislation on COVID-19.
Australian Disputes Centre (ADC)[13] is an independent not-for-profit organization dedicated to advancing the interests of the commercial entities, communities and individuals through timely cost-effective dispute resolution mechanism. In the wake of Covid-19 it has made available an Online Dispute Resolution (ODR) portal known as “ADC Virtual” which provides for virtual meeting rooms even for caucus session. ADC Virtual provides the parties with the opportunity to mediate via video-conferencing. While maintaining the confidentiality, it allows the parties to communicate through written, audio and video messages and even share documents with each other. It’s an “all-in-one” platform with ample number of features to facilitate the smooth conduct of the mediation process virtually.
Lastly, even the Department of Justice, of the Hong Kong Special Administrative Region has launched the COVID-19 Online Dispute Resolution (ODR) Scheme for resolution of conflicts that involve Micro Small and Medium Enterprises (MSMEs) as they are most significantly affected by the pandemic. As per the scheme a three-fold cost-effective and time-bound process has been adopted i.e. negotiation, mediation and if both these fail, then arbitration. The scheme is in accordance with the “Mediate First” policy that is being promoted under their “Mediate First” Pledge Programs.
IV. KEY ROLE OF COURT ANNEXED MEDIATION IN THE GROWTH OF MEDIATION PROCESS ACROSS THE GLOBE
Court Annexed mediation Centre(s) have played a major role in the development of mediation. Disputants have faith in the Court process and when they are forwarded to another wing of the court system, their faith in the system multiplies. The referral judge himself explains the process of mediation where a third neutral party, a trained mediator, helps the disputing parties to resolve their disputes who empowers them to express their emotions and encourages to look at their long term interests than their positions before court so as to find out tailor made solutions to their problem by thinking out of the box and helps them to value their relationship, be it personal, commercial or otherwise. Because of the unique features of the mediation, court annexed mediation Centre(s) are flooded with people and mediators have their hands full. Court annexed mediation has also laid the foundation for private mediation and has created professionalism in the practice of mediation. It has helped in generating and building trust and confidence among the people to opt for mediation for resolving their disputes harmoniously.
V. RECOURCES FOR EFFECTIVE IMPLEMENTATION AND GROWTH OF COURT MEDIATION
- To formulate a uniform set of rules and regulations and a specific statute for the purpose of regulating and governing the process of mediation so as to ensure the effective functioning of the mediation practice.
- To organize awareness programs, training sessions, and skills building courses at all levels, be it colleges, universities or organizations for all the stakeholders.
- To create infrastructure and required facilities in the Mediation Centre(s) for a comfortable functioning of the practice of Mediation.
- To have Professional Code of Conduct and Ethical Standards so as attach credibility to the process of mediation.
- To have sensitization programs for judicial Officers so as to ensure effective referral in appropriate cases.
- To have sensitization programs for lawyers and parties for their effective participation in the process of mediation.
- To ensure coordination amongst the Mediators of various courts annexed Mediation Centre(s) for a uniform practice of mediation by the empanelled mediators.
- To encourage settlement of disputes through the process of mediation and ensure its acceptance by courts, even if with few modifications, if required.
VI. CONCLUSION
Court referred mediation can serve as a significant instrument in dispensation of justice in appropriate cases and can in the process substantially decrease the backlog of cases pending in various courts. In court annexed mediation the court remains the parental institution for resolution of disputes and the settlement originated through mediation in such cases derives more authenticity. The mediation, in such cases, is perceived as complimentary and not competitive with the court system and mediators are included as integral part of the justice delivery system. And that is exactly the reason what this time of a global pandemic, mediation, more particularly court referred mediation has proved to be successful in resolving disputes between the parties and efforts have been made by various mediation Centre(s) established not only in India but all around the world to conduct the process of mediation virtually.
[1]2010 (8) SCC 24.
[2]Code of Civil Procedure, 1908, Section 89.
[3]Ibid.
[4]Companies Act, 2013, Section 442.
[5] Companies (Mediation and Conciliation) Rules, 2016.
[6]The Insolvency and Bankruptcy Code, 2016.
[7]The Real Estate (Regulation and Development) Act, 2016.
[8]Commercial Courts Act, 2015, Section 12A.
[9]The Consumer Protection Act 2019.
[10]General Statistical Report Mediation Centre, Bangalore,
[11] Statement Showing the Details of the Matters to All Adr/Mediation Centers in the State ending 31/12/2019 Since its establishment, https://gujarathighcourt.nic.in/hccms/sites/default/files/Mediation_Statistic_upto_2019_16771.pdf.
[12] General Statistical Report, Delhi. DMC Statistical Report, https://delhicourts.nic.in/dmc/statistical.htm.
[13] ADC Virtual Australian Disputes Centre, https://www.disputescentre.com.au/adc-virtual/.
