(This article is written by Astitva Kumar, a research associate at ICMCR.)
Introduction
In 1996, the Indian parliament modified the Civil Procedure Code (CPC) and inserted section 89, which permitted courts to order the settlement of disputes through mediation, among other methods.[1] In several jurisdictions, mediation is a fundamental aspect of the dispute resolution structure. Indeed, research shows that mediation has played an important role in strengthening civil justice administration and refining dispute settlement.[2] Data also reveal that mediation has made a significant contribution to the justice system’s economic benefit and refinement process.[3]
Numerous countries have discussed whether or not to establish comprehensive mediation legislation, and the dispute still exists. Meanwhile, some jurisdictions have governed mediation as an implementation mechanism through practise directives to judges and lawyers, or in certain circumstances, legislation mandating mediation in civil matters prior to proceeding with any form of adjudication.
Evolution of Mediation through the years
In India, there is a significant tradition of mediation, ranging from family elders settling household matters to communal disagreements being resolved through Gram Panchayats. Private mediation is governed by Part III of the Arbitration and Conciliation Act. The Supreme Court stated that the terms “mediation” and “conciliation” are interchangeable in the case Afcon Infrastructure Ltd v. M/s Cherian Varkey Construction[4].
On February 22, 2013, the Supreme Court issued another landmark decision in the case of B.S. Krishnamurthy v. B.S. Nagaraj[5], in which it directed Family Courts to strive to resolve matrimonial disputes through mediation and to also introduce parties to mediation centres with their consent, particularly in matters concerning maintenance, child custody, and the like.
Although mediation has grown in popularity over the years, many people are still unaware of it. The case of Dr. M. Ismail Frauqui and Ors. v. Union of India[6], on the other hand, was a watershed moment in the mediation process, since the Chief Justice of India himself intervened to conduct a session of mediation between the parties.
Mediator Rules in India
Parties to a suit or other procedures may agree on a single mediator/conciliator or a group of mediators/conciliators for mediation/conciliation between them, according to Rule 2 of The Mediation and Conciliation Rules, 2004.[7] According to Clause (c) of Rule 2 of The Mediation and Conciliation Rules, 2004, the mediator(s) or conciliator(s) appointed by the parties do not have to come from the panel of mediators/conciliators made reference to in Rule 3, nor do they have to meet the qualifications referred to in Rule 4, but they must not be a person who is disqualified under Rule 5.
Under Rule 3 of the Mediation and Conciliation Rules, 2004, the parties may either designate their own mediators/conciliators or choose from a panel of mediators/conciliators prepared by the High Court or the Session/District Courts. As a result, the parties are given the authority to choose the mediator/conciliator. The consent of the people whose names are on the panel must also be acquired, according to Clause (c) of Rule 3.[8]
Persons who may be appointed as mediators by the High Court, Session/District Courts under Rule 3 of the Mediation and Conciliation Regulations, 2004 must meet the criteria outlined in Rule 4 of the 2004 rules.[9] The individuals who can be enrolled are
| Retired Judge of the Supreme Court of India |
| Retired Judge of High Court |
| Retired District and Session Judge |
| Retired Officers of Delhi Higher Judicial Services |
| District and Sessions Judge |
| Officers of Delhi Higher Judicial Services |
| Legal practitioner with at least 10 years standing at the bar at the level of the Supreme Court, High Court and District Court |
| Expert or other professionals with at least fifteen years standing |
| Persons who are themselves expert in the mediation |
These are the prerequisites for being appointed as a mediator or conciliator. Parties can, however, use their discretion to nominate a mediator/conciliator who meets the above criteria. There are some disqualifications of a mediator set out in Rule 5 of The Mediation and Conciliation Rules, 2004.[10] The following individuals are ineligible to be appointed as a mediator/conciliator:
| Person adjudicated as insolvent |
| Against whom criminal charges involving moral turpitude are framed by a criminal court and are pending |
| Persons convicted by a criminal court for any offense involving moral turpitude |
| Any person against whom disciplinary proceedings have been initiated which are pending or have resulted in a punishment |
| Any person who is connected or interested in the subject matters of the dispute |
| Any legal practitioner who is appearing for any of the parties in the suit |
Further, mediation may fail. The sole obligation that the parties have is to act in good faith with the goal of resolving the disagreement[11]. This does not imply that they must accept responsibility for a cooperative outcome. Parties have the opportunity to leave if it doesn’t work out and is not bound by the settlement imposed by the mediator.
Moreover, a combined reading of Rules 16, 17, and 27[12] denotes that A mediator is supposed to assist the parties in identifying concerns, eliminating misconceptions, clarifying priorities, finding areas of compromise, and creating ideas in order to resolve the dispute(s), while emphasizing that it is the parties duty to make decisions without imposing any type of settlement. The mediator should also clarify his or her position as a facilitator to the parties, emphasizing that no settlement can be enforced and that no guarantee can be provided that the mediation will result in a settlement.
Contemporary issues
There are various concerns with regard to mediators and conciliators in India. The first and foremost one is the lack of legal recognition of the mediator settlement. India, unlike the United Kingdom[13] or Singapore[14], is not a mediation-friendly country. The Supreme Court of India, in Krishna Murthy v. New India Assurance Co. Ltd.[15], highlighted the need for a separate law in India to regulate mediation. India also signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Mediation Convention”) on August 1, 2019. Even after numerous developments through precedents and laws, the legal recognition of mediator’s settlements still fails to exist. The legal recognition is also important because The National Judicial Data Grid states that the number of pending cases in India on 27th January 2022 is 40946457 out of which 77.34% criminal cases and 77.1% civil cases are more than a year old.[16] Therefore, the need to settle matters outside the court is of utmost necessity.
Secondly, the Singapore Arbitration Act does not distinguish between mediation and conciliation processes. The introduction of the Mediation Act in 2017, which significantly enhanced the framework for the enforcement of privately mediated mediator’s settlements completed in Singapore, is what sets Singapore’s domestic mediation regime unique on the contrary in India, private mediation suffers from a lack of legislative authority, even when settlement agreements are recognized as arbitral judgments. Before they may implement their agreement as awards, the parties must overcome the setting aside of awards under Section 34 of the Act.
Thirdly, a huge disadvantage of a mediator/conciliator’s settlement is that if the mediation fails then the court case will begin from the very beginning and any information exchanged during the mediation process are not admissible in court, hence, the case will begin from the very beginning.
Another important concern is the lack of awareness. Due to a lack of public understanding of alternative dispute resolution (ADR) approaches, the citizens of India do not use mediations and conciliations. However, they tend to focus more on adversarial methods. Mediation and Conciliation’s informality allow the parties to be more engaged than they would be in a court-mandated process with a plethora of rules and procedures meant to keep the parties apart. As a result, because the mediator works directly with the parties, he or she may direct the parties’ attention to their needs rather than their stated views. However, citizens are not aware of mediation and conciliation processes that tend to lower the demand for ADR methods in India.
Further, an important concern is that there is no structured mediation or conciliation training in India. Systematic mediation and conciliation curriculum with accreditation for specialization in mediation and conciliation should be made available throughout India at a reasonable cost. For lawyers and other professionals who want to pursue mediation and conciliation as a career, ongoing skill enhancement courses should be held on a regular basis. Not only that, A method for selecting mediators as well as sufficient training criteria for mediators and conciliators should be created. There is a need for standardized training programs for possible mediators and conciliators, as well as information on the mediators and conciliator’s professional and educational backgrounds, such as past mediations and conciliations performed, subjects covered in earlier mediations and conciliations, and competence in other disciplines should be included.
Another concern is that in nearly all legal systems, judges follow the precedents set by prior judgments on the subject and depend on them. However, the power of such rulings varies among legal systems. Most countries, including India, learn about the laws via the decisions of higher courts. During a mediation/conciliation process, even though a decision or a settlement is reached through the help of a mediator or a conciliator, it cannot be used as a precedent as the authority to share notes of a mediation session is not permissible as the whole process is confidential.
Furthermore, On December 20, 2021, the Rajya Sabha introduced the Mediation Bill, 2021[17]. The bill aims to promote mediation and ensure that settlement agreements reached via mediation are enforced. The following are some of the bill’s primary features: Under Parts, I and III of the Bill measures to recognize both domestic and international mediation have been included. As a result, Bill’s Sections 28 and 50 regard a mediated settlement agreement as final and enforceable between the parties and the person claiming under it, both domestically and internationally. The provisions of the Code of Civil Procedure, 1908, can be used to enforce a mediated settlement agreement under this Bill, specifically by filing an execution petition. The law is well-written, but it still has to solve several important concerns. Like the Arbitration and Conciliation Act of 1996, it uses the term “public policy.” Even after several judgments in the 1996 legislation, however, public policy has remained unclear. As a result, even the bill’s definition of “public policy” may be vague.Also, the Bill fails to acknowledge the levels of confidentiality in mediation, which are explicitly noted in all international mediation guidelines as well as the Civil Procedure Mediation Rules.
The solution to these issues lies in creating a proper legislation framework in India and promoting and making the citizens aware of both the mediation and conciliation process.
Conclusion
Mediation is constantly being promoted in India as both administrative and judicial bodies have taken several measures to promote Alternative Dispute Resolution Methods, especially Mediation and Conciliation.
First, the Supreme Court created the Mediation and Conciliation Project Committee (MCPC) in April 2005 to monitor the efficient implementation of mediation and conciliation. The MCPC’s goal was to increase court-administered mediation and assist it to develop into “another successful form of conflict settlement,” rather than an “alternative resolution mechanism.”
Second, Sections 37-38 and Chapter V of the Consumer Protection Act of 2019 mandate that conflicts be initially submitted to mediation, with the procedure to be conducted in accordance with Section 74(3) of the Act, read with Section 101(2)(zf) and Section 102(2)(p) of the Act.
Third, constituting a panel to finalize a draft bill to grant legal validity to conflicts resolved through mediation, which would subsequently be forwarded to the government as a recommendation by the Supreme Court.
Last, the signing of the United Nations Convention on International Settlement Agreements (UNISA) aims to harmonize the legal framework for the ability to invoke settlement agreements along with their enforcement. This convention was signed on the 7th of August, 2019 by India.
Most of the above measures have already been implemented. However, there is a need to pass the existing draft bill that consolidates all the mediation and conciliation provisions and add some new provisions as well. The provisions highlighted in the case of MR Krishna Murthi v. New India Assurance Co. Ltd should be implemented too.[18]
[1] Section 89, Code of Civil Procedure, 1908
[2] Hazel Genn, ‘What Is Civil Justice For? Reform, ADR, and Access to Justice’, Yale Journal of Law & Humanities, Volume 24, Issue 1, 397-398; Nadja Alexander, ‘Mediation in the Modern Millennium’, Speech at the University of Queensland, Brisbane XVIth Congress of The International Academy of Comparative Law, 2002
[3] Michael McIlwrath, Director and Former Chair of the Board of the International Mediation Institute, ‘Can Mediation Evolve into a Global Profession?’,
[4] 2005 (6) SCC 344
[5] (2011) 15 SCC 464
[6] AIR 1995 SC 605
[7] Rule 2, The Mediation and Conciliation Rules, 2004.
[8] Rule 3, The Mediation and Conciliation Rules, 2004.
[9] Rule 4, The Mediation and Conciliation Rules, 2004.
[10] Rule 5, The Mediation and Conciliation Rules, 2004.
[11] Rule 19,The Mediation and Conciliation Rules, 2004.
[12] Rules 16, 17 and 27, The Mediation and Conciliation Rules, 2004
[13] Lambert, D., & Finlayson, N. (2019, September 9). Mediation in United Kingdom. Lexology. https://www.lexology.com/library/detail.aspx?g=02ee5416-79ba-484b-bd62-eb26318d330b.
[14] Account, S. U. (2019, January 3). Ch. 03 Mediation. www.singaporelawwatch.sg. https://www.singaporelawwatch.sg/About-Singapore-Law/Overview/ch-03-mediation.
[15] Krishna Murthy v. New India Assurance Co. Ltd 2019 SCC OnLine SC 315
[16] NJDG – National Judicial Data Grid. https://njdg.ecourts.gov.in/njdgnew/index.php.
[17] The Mediation Bill, 2021
[18] 2019 SCC OnLine SC 315