Mediation is one of the most discussed mechanism of dispute resolution in our country. But due to the lack of express legislation on this point, it remains just discussed and less applicable. We have some laws that promote mediation of disputes but there is no specific legislation to this point. The success of this mechanism totally depends upon a legislation to this point. We have some basic laws and jurisprudence that we can trace down in this research in order to create awareness of this system, but we must understand that in order to make it successful, mere awareness would not work but an express legislation is the need of the hour.
1. The Statutory Laws:
a. Conciliators appointed under Section 4 the Industrial Disputes Act, 1947 are assigned with the duty to mediate and promote settlement of industrial disputes with detailed prescribed procedures for conciliation proceedings. If used appropriately, it’s a cheap and quick process. However, only a few cases have been resolved and the very intent of having such provision has been frustrated. Unfortunately, large numbers of matters which ought to have been resolved by this provision are still pending in courts and new matters are filed every day.
b. In 2002, an amendment to the Code of Civil Procedure, 1908(CPC) was brought in. Section 89 read with Order X Rule 1A provided for reference of cases pending in the courts to ADR. In addition, Order XXXIIA of the CPC recommends mediation for familial/personal relationships, as the ordinary judicial procedure is not ideally suited to the sensitive area of personal relationships. Though many courts in India now have mediation centres, there is no accurate data available to show that this provision has been utilised successfully.
c. Even Section 442 of the Companies Act, 2013, read with the Companies (Mediation and Conciliation) Rules, 2016, provides for referral of disputes to mediation by the National Company Law Tribunal and Appellate Tribunal.
d. The Micro, Small and Medium Enterprises (MSME) Development Act, 2006mandates conciliation when disputes arise on payments to MSMEs. Section 18 focus and mandates the settlement through Conciliation.
e. More particularly, family and personal laws including the Hindu Marriage Act, 1955and the Special Marriages Act, 1954 [Section 23(2)] require the court in the first instance to attempt mediation between parties.
f. Section 32(g) of the Real Estate (Regulation and Development) Act, 2016 provides for amicable conciliation of disputes between the promoters and allottees through dispute settlement forum, set up by consumer or promoter associations.
g. Section 4 (f ) of The Legal Services Authorities Act, 1987 encourages the settlement of disputes by way of negotiations, arbitration and conciliation.
h. Section 10 of The POSH Act, 2013 [The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013] says that “The Internal Committee may …before initiating an inquiry … and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation: Provided that no monetary settlement ….”
i. The new Consumer Protection Act, 2019,under Section 37-38 and Chapter V, provide for disputes to be first referred to mediation and the procedure to be followed as per Section 74(3) of the Act read with Section 101(2)(zf) and Section 102(2)(p) of the Act. The Central government and the state government, respectively, have been empowered to make rules for providing for the persons in the consumer mediation cell.
j. Part III of Indian Arbitration and Conciliation Act 1996 mandates that settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30 of the Act.
k. In case of the International disputes, India after successfully ratifying and becoming a signatory to the Sinagpore Conventions, equally opens the door for mediating International and Cross Border Disputes
2. Judicial Decisions
a. In K. Srinivas Rao vs A. Deepa (2013) 5 SCC 226
Hon’ble Supreme Court suggests, “if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation.” AND also directs all mediation centres to set up pre-litigation desks/clinics to settle matrimonial disputes at pre- litigation stage.
b. In Vikram Bakshi & Ors. Vs. Sonia Khosla (2014) 15 SCC 80 the Court observed “Via mediation, the parties will become partners in the solution rather than partners in ”
c. In Dayawati vs Yogesh Kumar Gosain (CRL.REF.No.1/2016) Delhi High Court held that “The Delhi mediation and Conciliation Rules, 2004 … applies to mediation arising out of civil as well as criminal matters.”
d. Bijoy Sinha Roy Vs. Bishwanath Das (2018) 13 SCC 224 talks for resolution of disputes through mediation in respect of consumer matters, which has been duly reflected in Consumer Protection Act, 2019.
e. In R. Krishna Murthy Vs. New India Insurance Company 2019 SCC Online SC 315, the Supreme Court impressed upon the Government to consider the feasibility of enacting Indian Mediation Act, of setting up MAMA (Motor Accident Mediation Authority ) by making necessary amendments in the Motor Vehicles Act and in the interregnum, NALSA was directed to set up (within 2 months) Motor Accident Mediation Cell which can function independently under the aegis of NALSA or can be handed over to MCPC (mediation and Conciliation Project Committee).
f. In the landmark case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd [CIVIL APPEAL NO.6000 OF 2010(Arising out of SLP (C) No.760 of 2007)], the Supreme Court observed that that all cases relating to trade, commerce, contracts, consumer disputes and even tortious liability could normally be mediated.
3. Need For Legislation:
In order to make Mediation effective, India needs some specific legislation to this point. Mere jurisprudence and some particular Mediation laws will not prove to be as effective as a specific legislation. We have already moved forward by signing the Singapore Convention on Mediation, now a basic legislation that would mandate Pre-litigation, mandatory mediation of some disputes, proper training and empaneling of mediators would prove effective in resorting to this mechanism of dispute resolution.