Pre-litigation Mediation as a mandate to reduce the bulk of Judiciary in India: A study.

1.1 INTRODUCTION

 The pendency of the cases is increasing day by day, this is the major problem faced by the judiciary system of India. In accordance with the data obtained from the National Judicial Data Grid, the total pending cases (civil and criminal) across all over the courts in the country as of April 2023 are 4,26,60,787 out of total civil cases 1,08,67,255 and the total criminal cases 3,17,93,532[1]. There are major two ways to deal with this problem of judiciary. First is to fasten the adjudication process and secondly the outside court settlement that is Alternative Dispute Resolution, is the tool that helps to reduce the burden from the shoulder of judiciary. This is the matter where dispute settlement will be done without going to court / without litigation on the subject matter.

The developing country like India, most of the people live in the poverty, there are who are not able to have the daily basic bread for the day and when their rights got violated. These people does not have enough funds to fight for their rights long battle in the court of law or to afford lawyer for themselves because of such inconvenience either they suffer or they feel the court system is inconvenience. This kind of inconvenience is not only faced by India but it is faced by other countries as well. Which is why the ADR (Alternative Dispute Resolution), is being explored. In the year 1879, the dispute resolution process was recognized.  The modification to insert Section 89 of the CPC of 1908 was passed by the parliament in 1999. The parliament passed this amendment with the concept of speedy redress and incorporated mediation as well, and the amendment went into effect on July 1, 2002.

1.2 The current legislation on the Mediation and governing it.

 

• Mediation is an alternative dispute resolution procedure in which a neutral party which is called as third party supports conflicting parties in reaching an agreement. As a neutral party, the mediator promotes a process in which the parties attempt to reach some type of common ground. The mediator must maintain value neutrality, functioning just as a conduit for the parties need.
• According to Rule 4 of the CPC, ADR and Mediation Rules, 2003 (‘Model Rules, 2003’), the third party which is called as mediator, will assist both the parties. The mediator first will identify the issues between the parties and then mediator will negotiate the terms in front of both parties accordance to the parties.
• Currently, the mediation can be conducted in 3 ways: 1 way, they put in the contract dispute resolution clause through this way the clause has been discussed prior before any dispute occur between the parties or they can do either by the ad hoc mediation method
• Secondly, once the suit has been instituted in the court, court may refer the matter under Section 89 of CPC or the other legislation i.e. Section 37 of the Consumer Protection Act 2019.
• Pre-litigation mediation, essential by Section 12A of the Commercial Courts Act.

The Mediation Bill, 2021, was written in response to the request for a separate mediation law, with the goal of sanctifying the process, providing a common platform for its operation, and removing inconsistencies between existing laws. The mediation settlement agreement, according to the bill, will have the legal character of a court decision or decree and will be obligatory.

In M/s. Patil Automation Private Limited v Rakheja Engineers Private Limited[2], the apex court has considered the meaning of Sec 12A of the Commercial Courts Act, 2015 (the Act), which requires that before filling case in court, the parties should go through the mediation process first. The Apex Court has declared in Patil’s that Section 12A of the Act is required. As a result, it ruled that bringing a commercial disagreement suit without first attempting mediation is prohibited under section 12A and should be rejected.

1.3 Mediation under Section 89 of the Civil Procedure Code of 1908

 

Incorporating, ADR into civil proceedings, Section 89 of the CPC, 1908 clearly represented a significant introduction of ADR. This provision empowers civil courts to first go through the mediation approach.

• In the case of Salem Advocate Bar Association v. Union of India[3], The SC has constituted a committee in instant case to assist better application of Sec 89 of CPC by ensuring speedier administration of justice. This Committee has created the Model Guidelines 2003, which have served as a model for the High Courts in drafting their own guidelines for the mediation.

• Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co. (P) Ltd. and Ors[4], While considering Sec. 89 of the CPC, the SC has clearly stated that, given in the current of Rule 1A of Order 10 of CPC, the civil court should without fail send matters to the ADR procedure, except where the matters has been excluded in specific situations. If some matter which cannot go through with the ADR procedure, in such situation court should record the matter briefly

 

• Srinivas Rao v. D.A. Deepa [5] , the apex court has clearly state that, when the criminal court is dealing with divorce case, in first instance it should be referred to mediation. In such situation where the complaint was brought under Sec. 498-A of IPC. The SC also mandated that all the divorces cases should be first go through with the mediation process and SC also mandated that there should be proper desk and pre-litigation clinics should be established.

 

They have not used the discretion afforded to them to significantly reduce the court’s burden. Other institutional obstacles, such as a lack of training, have delayed the appropriation of mediation, despite the judiciary’s explicitly mandated the support of mediation in India.

1.4 Mandatory Pre-litigation under the  Commercial Court, 2015

 

The Commercial Mediation Act is one illustration of an attempt to make mediation is vital in the Indian society. In 2018, the Courts Act of 2015 was changed to provide the pre-institution mediation services and settlement. Section 12A of this Act requires disputing parties to first go through the mediation procedure before filing a lawsuit. The Act only allows for an exemption if the court is needed to offer immediate relief. The settlement agreement between the parties shall have the similar legal force as an determination of judgement as stated in Section 30[6], Despite the fact, the rule has been passed but still there is no available data is readily available on its application

1.5 The benefits of mediation of Section 12-A:

• Commercially sophisticated, business-oriented parties are motivated by a mutual desire to generate money. Such parties’ primary concern is that their business shouldn’t be harmed as a result of legal processes. Furthermore, the parties are desire to spend a little time, money, and energy as possible on legal actions. As a result, they are excellent candidates for mediation, a far less expensive and speedier alternative conflict resolution strategy. Effective mediation, rather than simply resulting in adjudication, settles differences. Furthermore, because mediation is a voluntary practise motivated by party autonomy, it contributes to the elimination of animosity in commercial relationships. In contrast to a trial, the skilled mediator assists the parties in expediting their discussions and creating a conducive climate in which the parties are free to express their opinions and concerns related to the issue.
• Mediation act as assistance for the parties in emerging from their argument with a mutually beneficial solution achieved with both sides’ consent, resulting in a win situation. Mediation prevents a fight and assists the parties in reaching an agreement.
• Unlike a court-driven approach, which breeds greater hostility and conflict between the parties, harmonious resolution with the current difficulties allows the parties to collaborate in the future.
• Unlike a court-driven strategy, which promotes more hatred and conflict between the parties, peaceful resolution of on-going issues permits the parties to collaborate in the future.

1.6 The existing system governing mediation has a gap.

 

• Despite the fact that mediation is less expensive, saves time, and is faster, the law is not being used to its full potential. Under the landmark decision of Afcons Infrastructure Ltd[7], the Supreme Court expressly said that they had combined the meanings of judicial settlement and mediation under Sec 89 of the CPC. The law commission proposed in its 238 report that Sec 89 be replaced with a revised provision that is consistent with the ruling.
• To begin, the lack of statistics on Sec 89 of CPC has referred for the National Judicial statistics Grid or inclusion in their assessment report suggests that judges are not incentivized to refer cases to ADR proceedings. Furthermore, referral judges are supposed to be objective in judging the likelihood of settlement between parties, but this neutrality may be compromised because judges may be more attuned to the adjudicatory processes.
• The main reason mediation has not properly used as predicted in India is a lack of legal translucency. The viability of its results. Section 89[8] states nothing about how the mediation decision will be practically enforced. It was necessary for the SC to explain in Afcons Infrastructure that where the reference is to a, even if it is judged to be a Lok Adalat referral, the mediation solution will be governed by Section 21 and must be brought before the court for recording the settlement and disposal. As a result, in court-referred mediation situations, a settlement reached by the parties is not immediately enforceable.
• As a result, when the courts assign a case to mediation, parties agreement is not promptly enforceable. It is vague how a pre-litigation or ad hoc mediation settlement would be take place.

If one of the parties refused to enter into an agreement, the ordinary contract law will apply to such circumstances would merely cause delay and the purpose of hiring mediation. Lawyers are cautious to propose mediation to their clients because of the ambiguity about enforcement.

• Furthermore, despite the fact that the Commercial Courts Act revisions of 2015 held a lot of promise, they have not lived up to their full potential. Various issues have arisen as a result of the limited implementation of this Act, such as the nomination of mediators through legal aid cells, a lack of experience in mediators to handle commercial disputes, and concerns expressed concerning the report that the mediator is supposed to write if settlements cannot be reached.
• Despite of the efforts to improve awareness of mediation and incorporate the ADR in the law school curricula, still the general public is not much aware about the mediation. The major challenge is that in the first instance parties does not take ADR into consideration.
• As a result, filling these loopholes in the existing framework governing mediation can assist to expand the usage and efficacy of mediation as a method of dispute resolution.

1.7 E-mediation or Online mediation with the emergence technology & the development

The era of technology and advancement is here to stay, no matter how we look at it. Technology has now changed everything from schools to jobs, and mostly for the better. Today, the internet has become a vital business resource, and it is apparent that many businesses rely on online technologies. As most organisations are changing to digital settings, it would not be incorrect to say that now is a good moment for mediators to do the same. To summarize, online mediation, or ‘e-mediation,’ could substantially assist mediators in meeting the changing needs of clients in today’s increasingly digital workplace.

When communications are utilised instead of video conferencing, customers have more time to think and prepare, which makes them feel more at ease and allows for more productive conversations. E-mediation technologies can help to speed up the conflict resolution process in a variety of ways. In addition, we can employ document-sharing applications to make submitting papers easier and faster.

Many businesses have now adopted a work-from-home policy. This has resulted in the majority of work being completed online. Despite this, disagreements continue to exist. An e-Mediation is a confidential mediation that takes place online. It is the procedure that litigants employ to expedite the resolution of e-discovery issues in a cost-effective manner. Parties can meet through e-mediation not only through video conferencing but also through emails or other messaging tools.

Emergence of E-Mediation

With the emergence of the Novel Coronavirus Pandemic compelling the whole judicial and administrative systems to move to an online mode of operation, a vast path for e-mediation has been prepared. This effectively means that mediation proceedings will transition from a physical format in which the parties must appear in person before the mediator to an online format using video conferencing systems.

1.8 Challenges of Mediation

E-mediation, like any other reform, has drawbacks. We are not new to internet fraud and cybercrime. There is always the possibility of such mishaps. Another issue that puts e-mediation on the back foot is connectivity. Social media is an example of how easy it is to say something incendiary when we are not in direct contact with the person on the receiving end. To summarize, it is sometimes simpler to be more empathic when we meet in person. It allows us to connect with the person and understand their situations from a different perspective.

It allows us to connect with the person and understand their situations from a different perspective. If a client becomes frustrated or insulted, they can simply click to end the meeting. The convenience of e-mediation may thus be a potential disadvantage in this scenario. This leads to even greater irritation and a waste of time.

When both parties are not in the same area, the mediator may find it more challenging to keep both sides actively interested. We now know that e-mediation, like any other technologically dependent firm, is susceptible to technological failure. Any disruption in either party’s internet connection can impede or halt the process.

Apart from taking up time, these disruptions can irritate clients and harm the mediation process.

1.9 Recommendations for an Improved legislation in INDIA

India can also pass legislation to punish parties who refuse to attend the mandatory mediation sessions for unreasonable reasons or to allow the cases that have not gone through mediation proceedings should be rejected on procedural grounds. This would encourage parties to pursue mediation sessions diligently. A 3 week time limit on mediation sessions could help Indians who are anxious that mediation will squander their time.

Although India has a variety of mediation provisions, contradictions among them impede mediation’s overall success. Unified legislation will undoubtedly add to the legal validity and overall success of mediation in India. In addition, Indian courts must actively encourage and support the use of mediation. Recognizing the issue of inconsistent legislation, the Indian Supreme Court formed a committee to create mediation legislation (“an Indian Mediation Act”) for submission to the government, which is a very promising approach. Through this aim, the Court has established its support for the mediation, which will motivate the lower courts to follow suit the procedure.

Despite a little movement in how courts and judges consider mediation process in India, Indian lawyers do not aggressively promote its use, even they possess the mediation training through workshops. To encourage them, India may make it essential for them to advise clients about mediation or risk losing their right to represent the parties. The inclusion of mediation as a necessary subject and it should be taught in law schools by the BCI  is a good attempt to address such an issue because it would not only educate but also help future attorneys to use mediation as a dispute resolution.

The Mediation Bill is a significant step towards establishing a clear structure for India’s mediation system. The Bill seeks to address many areas of mediation’s fundamental procedure and principles, including confidentiality, self-determination, and voluntariness. It offers a regulatory framework for the practise of mediation, as well as a system for the domestic and international acceptance and enforcement of mediated agreements.

Conclusion

Mediation is a kind of Alternative Dispute Resolution process that seeks to solve issues outside of the courtroom. Therefore, it should be noted that mediation does not work always. No matter how skilled and professional a mediator is, they may be unable to come up with a reasonable solution if the parties to the disagreement are not willing to discover it.

Understanding, the issue is always the first and foremost step in resolving it; nevertheless, a mediator or even a judge must be efficient of identifying the core cause of the dispute; only then can they arrive at a possible solution out of the dispute. It is a more sort of practical and preferred form of dispute resolution process since it has less procedural barriers than other methods of dispute resolution.

Traditional manner can be substituted by the E-mediation because it is speedy and cost effective but at the same time it should be regulated and there is a need for the regulatory governing body.

Rather of being represented by an advocate, the parties have the opportunity to  their contentions and versions of events directly and fully. Thus, a mediator should possess the aforementioned attributes, which will ensure that the parties open up to the mediator and find a sound and amicable solution.

Technology has the potential to be a double-edged sword. It has the potential to open up new opportunities, but it also has certain negatives. However, the truth is that we cannot avoid it. Mediators should not be wary of technology, but rather use it to their advantage. It can make conflict resolution more successful and versatile. In this increasingly digitised world, e-mediation will assist us in addressing workplace challenges. The internet has irrevocably altered how humans conduct business, and we must embrace it & because technology is here to stay, it is a good idea to adapt and develop something even better with it. It can be adapted to make something even greater and should adapt and build something even greater.

[1]The pending cases and on-going cases are available at: https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard

[2] M/s. Patil Automation Private Limited v Rakheja Engineers Private Limited (2022 LiveLaw (SC) 678)

[3] Salem Advocate Bar Association v. Union of India (AIR 2005 (SC) 3353)

[4] Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co. (P) Ltd. and Ors (MANU/SC/0525/2010)

[5]K. Srinivas Rao v. D.A. Deepa ((2013) 5 SCC 226)

[6] Arbitration and Conciliation Act, 1996 (Section 30 of  1996).

[7] Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co. (P) Ltd. and Ors (MANU/SC/0525/2010).

[8] Legal Services Authorities Act, 1987(Section 89 of 1987).

“PRIME LEGAL is a full-service law firm that has won a National Award and has mre than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by: Mahima Saini