Why State-Funded Mediation Is A Reliable Means To An End
An Alternative Dispute Resolution mechanism that efficiently tackles the problem of pendency through cost-effective mediation is the conflict settlement tool we need.
Recently, the Chief Justice of India, Justice N V Ramana highlighted the need for mediation to be made a mandatory first step in domestic dispute resolution mechanisms. It is imperative we read this in the light of the fact that the pendency of cases have recently crossed the 4.5-crore mark, overwhelming our justice delivery system. This carves out the ever-expanding scope of mediation, as...
Recently, the Chief Justice of India, Justice N V Ramana highlighted the need for mediation to be made a mandatory first step in domestic dispute resolution mechanisms. It is imperative we read this in the light of the fact that the pendency of cases have recently crossed the 4.5-crore mark, overwhelming our justice delivery system. This carves out the ever-expanding scope of mediation, as a cheaper, faster and reliable means of redressal.
There are around 3.72 crore cases pending in India's subordinate courts as of January 2021.According to a written reply by the Union Ministry of Law and Justice in the Parliament, the Supreme Court had 62,054 cases pending before it as of August 2020. This is surprising since we are not the most litigious of countries, unlike Germany or Sweden. Clearly, the problem lies deeply rooted in our judge to population ratio. Essentially, we may not be the most vexatious of nations, we certainly are under-staffed in terms of adjudicators.
A simple, cost-free and efficient answer that shines out in contrast to litigation is mediation. We must also appreciate the fact that a speedy dispute resolution mechanism, by the judicial fora, will only foster a more law-abiding society. This article deals only with one form of mediation initiated by the state government, distinct from what the courts are encouraging, right from the trial court level to the Supreme court level. The focus here is to leverage community effort for solving disputes as opposed to cantankerous and exhausting litigation.
Mediation, in this context, is to be distinguished from court-mandated mediation. Court annexed mediation entails judge referrals to mediation centres like the Delhi Mediation Centre (DMC). Typically, court-mandated mediation falls within the greater judicial oversight, as distinguished from lateral mediation centres like the Delhi Dispute Resolution Society (DDRS). In the context of judge referrals, litigants either voluntarily submit themselves to Alternative Dispute Resolution (ADR) Mechanisms or are mandated by the Court to do so. While mediation is inherently a voluntary process that requires consent and willingness of the parties, Courts can mandatorily refer parties to mediation. The parties may or may not arrive at a mediated settlement and choose to return to the relevant adjudicatory forum. This is in line with Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd wherein Section 89 of the Code of Civil Procedure was interpreted to allow for Court mandated mediations.
Delhi has its own unique way of settling disputes outside of courts which would otherwise take several years in litigation and cause an excessive financial strain on litigants. The Delhi government, in 2009, introduced the Delhi Dispute Resolution Society. The DDRS is a Registered Society constituted under the Department of Law, Justice & Legislative Affairs. It is a fully-funded initiative of the Delhi Government and offers mediation services free of cost to the residents of Delhi. Even if one of the parties is from Delhi, the DDRS is empowered to mediate the matter. Owing to the fact that it operates from a budget that is wholly state-funded, it is pleasantly easy to access. However, even with its centres in 10 diverse corners of the city, and trained mediators, there are some procedural lacunae that dissuade drawing parties to mediation.
One increasingly evident issue, that the DDRS grapples with today, is the growing caseload and strain on these aforementioned 10 mediation centres under the Society. There exists an imperative to increase the number of mediators and support infrastructure within the larger periphery of the DDRS if we are to seriously consider mediation as a means to reduce the backlog of cases. This is corroborated by data published by the DDRS that indicates the pendency of cases has mushroomed over the past few years and grown substantially across its 10 mediation centres between 2009-2018.[2] Another interesting corollary of this data is the increase in the number of non-starter cases. An essential requirement of mediation is the element of confidentiality. Cases that are not successfully mediated are simply designated as "not settled", with no specific reasons recorded. However, non-starter cases are cases wherein parties, for reasons undisclosed, remain in absentia which makes a case to be labelled 'unmediated. Given the fact DDRS is one of the rare instances where the end (reducing the backlog of cases) justify the means, there are a host of factors that will help ease the process. To do so, a mechanism should be set up that allows for litigants to "first past the post" of mediation, prior to moving a civil court for relief.
The law sets an embargo against certain genre of cases to be mediated since these are considered crimes against the society (such as heinous crimes, offences under the Prevention of Children from Sexual Offences Act, Domestic Violence Act, etc.) or certain commercial matters such as those falling under the Insolvency and the Bankruptcy code. Notwithstanding the aforementioned, we are left with a relatively vast repertoire of disputes suitable for mediation. Matrimonial disputes, trade and commerce disputes (unless there is an express statutory bar for mediation), debt recovery matters, consumer disputes (not pending before the Consumer Disputes Forum), tortuous liability claims, family matters, claims arising from a Hindu Undivided Family, partition disputes, neighbourhood disputes, among others, are essentially some of the categories of disputes appropriate for mediation.
While the DDRS does, in practice, take on the aforementioned genre of cases, it may serve better to re-prioritise attention to targeted subject-matter mediation. This means mediators to be specifically trained to tackle a singular and exclusive class of cases. Family law cases have consistently been the most significant chunk of cases that appear before the DDRS. Evidently, the requirements of family law related matters are necessarily different from commercial/consumer disputes. The needs of the parties are also distinct depending on the class of cases being dealt with. For example, in Singapore, the Community Mediation Centre Act, 1997, was enacted to deal with family and neighbourhood disputes that were essentially community-based in nature. Here complex emotional handling was a part of mediation training programmes, given the nature of family disputes and the needs of the parties to such disputes. The DDRS would be able to deal with disputes more effectively if there was a greater subject-matter specialisation among the case-handlers/mediators.
Having outlined the specific type of disputes that a DDRS mediation centre is presented with, if there were to be an entire cadre of mediators with a specialization, it is guaranteed to improve the quality of problem-solving services. Currently, there are some mediators who have a background in law and have completed a prerequisite course on mediation in order to practice. However, with landmark judgments and newer statutes re-defining Indian jurisprudence, the need of the hour is to have mediators who are not just trained in law but are nuanced with the intricacies of the psychological effects of certain disputes.
Perhaps refuelling capacities is another measure worth our time and investment. The means to expedite the process of mediation so as to reduce the rate of non-fit/non-starter cases without making the process involuntary is by way of increasing the number of notices sent by DDRS Centres to the recalcitrant party from 3 to 6. Currently, a person wanting to settle a dispute may submit their application along with requisite identity proofs to the Centre. The Centre, within a fortnight, registers their application, allots a mediator according to the nature of the applicants' dispute and sends a notice of appearance to the other party. Unlike courts that have the power to issue summons and resort to bailable and non-bailable warrants in case of non-appearance by the warring party, a DDRS mediation centre has no such power. To grant such power would render the voluntary aspect of mediation redundant. At the same time, if a dispute can be settled by mediation, saving the parties several years in litigation, there is an imperative need to accord DDRS with an enhanced notice making power.
In the current scenario, after exhausting the limit of sending 3 notices over a period of 15 days, the DDRS centre closes such an application terming such a dispute as a non-fit or a non-starter. As the name suggests such a matter was not fit to be lifted off the ground and started off on the exercise of mediation. Statistics released by DDRS show that although located in the heart of the city, and one of the most popular among them, the mediation centre on Parliament Street received 1209 cases out of which 379 were deemed non-fit.[3]Another easily accessible centre located in Nand Nagri received 2163 cases out of which 843 were non-starters. Assuming that the problematic aspect of serving notice is one of the many reasons behind the 843 disputes being unfit for mediation, such a leak is fixable once the state government increase the number of notices of appearance to be sent to the parties. One need not venture too far off to imagine the scenarios wherein such notice may get lost in the mail, or goes unseen, unregisters by the recipient. Raising the bar to 6 notices will ensure the element of volition stays alive in mediation while the system to draw parties to it operates methodically. It is now increasingly convenient to send notices/'invitation to settle', through electronic modes such as SMS, WhatsApp, e-mail, etc. to settle disputes as opposed to the old practice of sending notices by mail or post.
Lastly, like any other overpopulated city, one of the biggest constraints in Delhi is that of physical space. If we are to truly garner a large number of citizens towards mediation, the obvious requisite of such an enhancement is the requirement of subordinate mediation centres. Justice D.Y. Chandrachud said, "Mediation at one level of perception is a means of avoiding the pitfalls of litigation". The operative idea here is for mediation to operate as a forum sufficiently instrumental to bypass the arrears of the court. The population of Delhi is now estimated at 31,181,376 as per the population estimates and projections from the latest revision of the UN World Urbanization Prospects. Even if a quarter of 1.6 crore people in Delhi someday miraculously decide to resort to mediation, the existing 10 mediation centres with a strength of approximately 90 mediators will be enormously inadequate to cater to the 40 lakh people approaching these centres. Similar to the hierarchy of courts that is followed in India, the 10 existing mediation centres could operate as the parent forum overseeing miniature versions of themselves. Not only will this increase employment for stenographers, assistants and peons, it will also cater to the legal profession which is growing by the minute. Given the fact that DDRS is fully funded by the Delhi government, selected Delhi government schools could serve as the subordinate mediation centres mentioned above. Doing so will promote a sense of community living amongst the parties submitting to a DDRS mediation centre and also ameliorate the difficulty of travelling large distances to appear for each hearing. A community that solves its problems cohesively filters out the rancour and enables a peaceful co-existence.
About The Authors: Aaliya Waziri is a lawyer presently working as a Consultant with UN Women India. She has studied B.A. Philosophy (Hons) at Hindu College, University of Delhi and LL.B. at O.P. Jindal Global University.
Saurabh Shashi Ashok graduated from JGLS with an LLB. Since the writing of this article, he has worked as a Project Officer (Policy and Law) at SAMVAD.