Supreme Court Asks Centre To Respond If A Law Is Being Made For Mediation

The Supreme Court on Friday sought Centre's response as to whether it is considering framing of a legislation to govern mediation.

A three judge Bench of CJI Bobde, Justices Bopanna and Justice Ramasubramanian was hearing a a plea by Youth Bar Association of India (YBAI) seeking directions or guidelines to provide for mandatory pre-litigation mediation across the country.

During the hearing today, the Bench stated that it wanted to know Centre's response to the preset plea. The Bench further stated that it has received information that Union is considering drafting some legislation which will give force of a decree to mediation agreement.

Solicitor General Tushar Mehta appeared for the Union.

"Your opinion is most important because we were informed a legislation is being considered for mediation. Can you tell us what is being done as the matter is about that only?", the bench asked Solicitor General Tushar Mehta.

SG Mehta sought time to reply to the Court's query. The Bench granted him time and decided to take up the matter next week

Senior Advocate Datar appeared for an intervenor Bridge Mediation and Consulting Pvt Ltd, a policy think-tank , which assists Government and non-Governmental organisations in policy making, advocacy , research and capacity building. The Bench allowed the intervention.

The present plea has sought formulation of a Standard Operating Procedure (SoP) which would ensure that parties mandatorily engage in mediation proceedings at a pre-litigative stage, with a view to deal with the problem of pendency of cases

The petitioner, while expressing concern over the rate at which cases are piling up in Courts across India, advocated the use of alternate dispute resolution in order to control frivolous and vexatious matters coming up for litigation by affording an opportunity to parties to come together and settle their disputes amicably before any litigation can commence.

The plea stated that arrears are mounting by leaps and bounds and there is no respite in sight, which is particularly because institution of cases is much more than their disposal at all the levels of judicial administration. The fundamental requirement of good judicial administration is speedy justice but quite often, frivolous, vexatious and luxurious litigations come up and add to the mounting arrears. Such type of litigation has to be controlled, rather stopped.

The plea further said that efforts should be made to settle the disputes at the very threshold vide affording opportunity to the concerned parties to settle their disputes amicably. Mediation in general and 'prelitigative' mediation in particular is an alternative mode to settle the dispute amicably, and that too, at pre-litigative stage.

The YBAI has argued that it may be inferred that parties are not entirely keen to pursue the case, yet maximum pendency arises from this category where both sides of the dispute know each other. In this light, it is urged that 'prelitigative mediation' is an effective alternative mode to settle such disputes without allowing them to come till a stage where litigation is necessary.

Pointing out the purpose behind mechanisms of Alternate Dispute Resolution (ADR), governed by the Arbitration and Conciliation Act, 1996 and the Civil Procedure Code, 1908 (CPC), specifically laying emphasis on Section 89 of CPC, the plea urged that "with the introduction of these provisions, a mandatory duty has been cast on the civil courts to endeavour for settlement of disputes by relegating the parties to an ADR process. The object of introduction of Section 89 was to ensure that Courts make an endeavour to facilitate out-of-court settlement through any of the five ADR methods as referred to in Section 89: (a) Arbitration, (b) Conciliation, (c) Judicial settlement, (d) Settlement through Lok Adalat, and (e) Mediation."

YBAI has enunciated that out of the three main methods prescribed for mediation, the pre-litigation method would serve the purpose best. To this end, it argued that it is the most productive as it offers the highest degree of privacy to parties as well as the the greatest opportunity cost, along with other economic benefits.

The plea also submitted that while the Apex Court showed some inclination towards setting up services for pre-litigation in matrimonial cases, there exists no "overarching framework for these services". In this light, an institutionalized pre-litigation mediation model, capable of can supplementing the court-connected model, is prayed for.