Whilst the fate of litigations is prima facie due to the several stages involved in a case proceeding, there has been a considerable focus upon the several mechanisms available under the framework of Alternative Dispute Resolution (hereinafter "ADR"). Pertinently, there has been a constant cloud over the fundamentals involved in the ADR mechanisms. With a fairly acceptable statutory framework prescribed for Arbitration & Conciliation in India, there has been a constant legal vacuum in and around 'Mediation'. The absence of a concrete statutory framework and recognition has muddled the understanding of the fundamental principles of Mediation as a tool of dispute resolution. Thus, the present article briefly addresses the overall ground reality and bust myths that still surround the practice and procedure of Mediation.
Additionally, the Central Government notified the 'Commercial Courts (Pre Institution Mediation and Settlement) Rules, 2018' (hereinafter "PIMS Rules"), mandating pre-institution mediation to be in conformity with the PIMS Rules. Moreover, PIMS Rules have enlarged the scope of Mediation by providing a well-structured procedure including, but not limited to, the role of mediator, representation of parties, the procedure of mediation, confidentiality of mediation, ethics to be followed by mediator and maintenance and publication of mediation data, however, it is pertinent to mention that, the overall process of Mediation encounters distrust of stakeholders due to the misuse of Section 12A of The Act.
As mentioned earlier above, the mandatory reference can be circumvented in view of sub-section (1) of Section 12A, if the plaint is accompanied with an application of "urgent interim relief", to allow the parties to institute a suit before a court of law directly, by-passing the reference to Mediation. Thus, the term viz., 'urgent interim relief' has been qualified as a mere 'interim relief' which subsequently footfalls the complete process of Mediation and the government's intention to the enactment. Hence, the aforesaid lacuna may be summed up in lines of a classic poem - I'm the parliamentary draftsman, I compose the country's laws, and of half the litigation, I'm undoubtedly the cause.
Further, it is worth observing that the mediator neither intervenes with the terms of settlement agreed upon by the parties nor does he guide the parties to reach out to certain settlements. The parties are vested with the sole right to finalize the terms of settlement. Thus, a mediator is a mere facilitator and acts neutrally throughout the process. Therefore, this ensures that the mediator - (i) lacked personal interest in the outcome of the dispute, (ii) was unbiased, and (iii) acted even-handedly in good faith.
In our view, the primary and underlying reason for the legal vacuum surrounding Mediation is due to the lack of an appreciable approach, which undermines the process at the very foot front and has consequently been touted as the poorer cousin of litigation or arbitration. Additionally, there has been a lack of substantive recognition towards Mediation as an effective tool of dispute resolution. Even though a few ground realities and myths have been discussed in the present article, there are several other ancillary reasons as to why Mediation has not been utilized and been appreciated in its entirety. Off lately, there have been a few steps in the right direction to sensitize and promote the concept, however, despite the steps undertaken by several stakeholders across India, Mediation still has not received the pole position. It may have been promoted up the grid, however, there appears to be a lengthy lap ahead. Contemporarily, a perspective that may be worth pondering upon would be the consideration of treating the process of Mediation equivalent and appropriate to litigation and arbitration.
This article is authored by Vivek Joshi & Rohan Gulati, students of Symbiosis Law School, Hyderabad. Views of the author(s) are personal.