The topic deals with the rise of mediation as a mainstream dispute resolution mechanism. The topic covers the assessment and impact of mediation as a method of resolving disputes in India. ADR (Alternative and dispute resolution) is a method or technique that is used to resolve conflicts outside the traditional court system. The main alternative dispute resolution process is mediation and conciliation.
The long-standing method helps to explore whether their dispute can be resolved by agreement or with the help of third-party mediator or conciliator which aim for mutually agreeable solution without assigning a clear winner or loser. It often provides a speedy resolution to a specific dispute. Instances where conciliation and mediation are successful is likely to reduce overall financial cost of resolving disputes. ADR in India has been a significant success particularly in commercial disputes. National Lok Adalat has settled over 5.5 million cases across the country in a single day.
Evolution Of Adr And Mediation Law In India
Mediation has been an integral aspect of human civilization, there were arbitral bodies known as panchayats and the disputes of the parties were earlier resolved by panchayats, the dispute of matrimonial and contractual nature. The parties would typically rely on the panchayat’s decision to reach on any settlement through panchayat conciliation based on clear legal obligations. During the medieval period, the Mughal administration also encouraged arbitration and integrated the judicial system. The first formal statute relating to the subject of arbitration in India was the Indian Arbitration Act, 1899, applicable only to Presidency towns of Madras, Bombay and Calcutta. In the post-independence era, the arbitration act of 1940 replaced the 1899 Act providing a more comprehensive framework for arbitration in India.
The civil procedure code, 1908 was amended to include provision for ADR, including section 89, which empowered courts to refer disputes to arbitration, conciliation, and mediation. The UNCITRAL model law on International Commercial Arbitration was adopted by the United Nations Commission on International Trade Law (UNCITRAL) on June 21, 1985 as a framework to standardize and harmonize arbitration practice around the world. These reforms aim to make the ADR mechanisms more accessible, efficient, and aligned with global standards.
Arbitration And Conciliation Act, 1996
The government enacted the Arbitration and Conciliation Act, 1996 to modernize the arbitration law in India, align it with international standards, and provide an effective and expeditious dispute resolution framework which would inspire confidence in an alternative of litigation. It’s a comprehensive law in India that governs arbitration and conciliation proceedings. In 1978, the UNCITRAL Secretariat, the Asian African Legal Consultative Committee (AALCC), the International Council for Commercial Arbitration (ICCA) and the International Chamber of Commerce (ICC) met for a consultative meeting, where the participants were of the unanimous view that it would be in the interest of International Commercial Arbitration if UNCITRAL would initiate steps leading to the establishment of uniform standards of arbitral procedure.
The United Nations Commission on International Trade Law (UNCITRAL) plays a pivotal role in the development and harmonization of international arbitration law. The model law of arbitration was adopted on 21st June, 1985 by UNCITRAL and In India the law was adopted in the 1996 Act. The Arbitration and Conciliation Act, 1996 represents a significant step toward making arbitration a preferred method of dispute resolution in India. Through its various amendments, it continues to evolve, aiming to create a robust and efficient arbitration ecosystem that is in line with international best practices.
Different Methods Adr Practice In India
There are five methods of ADR practiced in India
Arbitration
Arbitration is a method of resolving dispute where the parties involved in conflict or dispute agree to submit their conflict to one or more arbitrators, who act as a neutral third party and make a decision on the matter that is usually binding upon the parties. the method is chosen as an alternative to traditional court litigation and is governed by the Arbitration and Conciliation Act, 1996.
Conciliation
Conciliation is a process where a neutral third party (the conciliator) helps the disputing parties to reach a mutually acceptable settlement through a flexible process. If a settlement is reached, it is recorded in a written agreement signed by the parties, which has the same legal status as an arbitral award.
Mediation
Mediation involves a neutral third party (the mediator) who assists the parties in negotiating a settlement. Unlike arbitration, the mediator does not make a decision but helps the parties communicate and explore options. Mediation is encouraged and facilitated by various laws and court rules. The Mediation Bill, 2021 aims to provide a comprehensive legal framework for mediation. If the parties reach an agreement, it is recorded in a settlement agreement, which can be made enforceable by the court.
Lok Adalat
Lok Adalat (People’s Courts) are a form of ADR where disputes are settled by conciliators who are usually retired judges, social activists, or other respected individuals. Governed by the Legal Services Authorities Act, 1987. Decisions of Lok Adalat are binding, final, and cannot be appealed, but parties can initiate fresh litigation if no settlement is reached.
Judicial Settlement
Judicial settlement involves the resolution of disputes by a judge, who acts as a conciliator and facilitates a settlement between the parties. A settlement agreement reached through judicial settlement has the same legal status as a court decree.
Foible In The Mediation Framework
In India mediation as a method of dispute resolution mechanism has grown significantly. Mediation, while being an effective tool for dispute resolution, has several deficiencies within its framework that can impact its efficiency. Mediation agreements are generally not binding unless formalized into a settlement agreement, which can sometimes be challenging to enforce if one party reneges.
Mediation is relatively a new concept in many countries it’s often underutilized as many people are unaware with its benefits and processes. As a result, parties involved in disputes often opt for traditional litigation instead of exploring mediation as a viable option. The success of mediation largely depends on the mediator’s skill, experience, and impartiality. Inadequately trained mediators can lead to ineffective resolution processes. In India, authorities indeed have constantly taken measures to promote mediation as a viable dispute resolution mechanism but the lack of standardization and absence of an overarching legislation will continuously pose hindrance for the growth of mediation in India. In M. R. Krishna Murthi vs The New India Assurance Co. Ltd.
Apex court highlighted the urgent need for enacting a uniform legislation for mediation in India. These limitations can be improved through increased public awareness and enhancing the efficiency of mediation as a dispute resolution mechanism.
Conclusion
The ADR mechanisms in India provide effective alternatives to traditional litigation, offering various methods to resolve disputes amicably and efficiently. Through legislative support and ongoing reforms, India aims to strengthen and promote ADR as a means of delivering timely and fair justice. India has incorporated elements of the opt-out Italian model in its mediation framework, particularly with regard to mandatory pre-litigation mediation for certain types of disputes. This strategy seeks to promote alternative dispute resolution and lessen the load on the courts by encouraging parties to think about mediation before pursuing litigation. The goal of ongoing legislative initiatives, like the Mediation Bill, 2021, is to further institutionalize and strengthen mediation within the Indian legal system.
Author: Kriti Khare, a 4th year student at Career College of Law, Bhopal
