Mediation in India: Scope & Challenges

By Amit Sheoran

Introduction

As we all hear about ADR that is known as Alternate dispute resolution. It is working to resolve the issues of people, parties especially for those people who don’t want to go to court to resolve their issues. It works in the same way as the judiciary system works like to hear both parties and resolve their issue and satisfy them. It helps in decreasing the number of cases or issues that arise in day-to-day life. The ADR process includes various methods of resolving the issues; these are arbitration, conciliation, negotiation, and mediation. It is considered that the process of ADR is better than the long process of courts. It will not be wrong to say that ADR is the best tool to resolve the issues within less time as compared to courts. They are just informal, that is why it requires fewer and shorter processes and formalities for the people or parties to do. We can say that the ADR system brings satisfaction between parties and it helps in maintaining better relations and their result is also confidential as well as good for the long term. But out of these four methods of ADR, Mediation is considered best and also most popular in India. 

It is assumed that the process of meditation is not new in India but it is from a very long time approximately from the Vedic period. The process of the ADR system takes less time to resolve the issue, therefore it is less expensive, and the second thing it keeps the matter of parties secret from other people or the public this means that the matter of issue remains between the disputed parties and the mediator.  The main feature of ADR is that the solution of resolved matters is not forced on any party but the solution is consented to by both the parties and satisfies them. So we can say that the ADR gives an effective solution in a tranquil way. Mediation has a very long history of resolving issues under ADR procedure, so we can say that Mediation has a significant role in resolving issues and has its identity in Indian law.

About Mediation

As we all know that mediation is the organ or a part of the ADR system. Mediation has its long history, basically since the Vedic period. Mediation is a process of dispute resolution in which the third helps to resolve the issue or conflict of disputed parties through the methods of specialized communication and negotiation techniques.  The techniques used are facilitated in such a manner that it can satisfy both parties with the decision. The third-party which helps in resolving the issue is selected by the disputed parties by their choice, so it is better to say that the parties have no excuses like that the mediator is favoring the other parties or making partiality. So it will not be wrong to say that Mediation plays a vital role in resolving the conflicts or disputes of people or parties. It is just like the right hand of ADR or alternate methods of the judicial system in resolving the issues.

History of Mediation  

It is considered that the concept of mediation made its identity in the latter half or nearly at the end of the 20^th century but its roots can be traced from the ancient time most likely from the Vedic period.  We can take the example of mediation which shows its history is very long, for example, Gram Panchayats and Nyaya Panchayats, these are well-known examples of mediation, and these are very popular and widely known in the ancient rural area.  Even today we can see that the Panchayati Raj system is still existing in many parts of rural India and people believe in this system in the same way as they believed it in an earlier time. Because it works in the same way as the judicial system works but it is very cheap and takes very little time as compared to courts.

But some people don’t trust in Panchayat system because nowadays panchayats are influenced by powerful people who are residing in that particular area or village, this leads to partiality and tries to favor or favor those parties or people who gave their vote to the leader who is Sarpanch at that particular time.  And these types of people mostly use this system to provide justice based on their wish or demand and this becomes the main part that leads to bias and partiality in the society. This leads to the negative role of panchayat or mediation. Hence we can say that Mediation is having its own identity and work for delivering justice to the people. It will not be wrong to say that Mediation is playing a very important role in resolving disputes or conflicts of the people and help the judicial system lower down the burden of the increased number of cases on a daily basis.

Scope of Mediation in India

Many cases arise on a daily basis and these cases increase the burden on the courts.  And court procedures take too long in delivering justice therefore people used to opt for the ADR system. Because ADR provides fast and satisfactory solutions to the issues of disputes. There are a large number of latest developments that have been made like online facilities for dispute resolution and gram or Nagar Palika nayalayas. And these developments lead to increasing the scope of the ADR system. It is considered and some experts assume that in the upcoming time the scope of mediation would increase because it promises the most prominent situation like a win-win situation. Mediation plays a very important role in understanding the stage of disputes and why they arose and also the way through which the party wants to settle down because the mediator is selected by the choice of parties and the parties know which person as a mediator will be best for resolving our disputes. The irony is that the court itself used to refer to the cases as mediation. But it is different that they take permission from the parties before the case takes place. But the courts indeed have the power to order the parties to join mediation at least to know the process of the working of mediation. So, it will not be wrong to say that the scope of mediation is very high because it provides solutions to conflicts within very little time as compared to courts. And therefore people will surely go for mediation as compared to court because in courts lakhs of cases are still pending. 

Challenges of Mediation

There are various types of challenges that are faced by the mediation process. These challenges are given as below:-

• Lack of codification
• Apprehension towards mediation
• Lack of awareness
• Infrastructural concern and quality control
• Inconsistency between mediation and the existing laws
• Lack of training and support
• Lack of authority over solution

The Legal Framework of Mediation in India

It is considered that there are mainly two principal achievements that help in the mediation procedure these are the ACA and the CPC. As per section 89 of CPC, the rules and the regulations are framed and designed by various high courts and the court adjoined the mediation on the other hand part three of ACA work and tackles the private mediation system. Part second of the Civil Procedure Alternate Dispute Resolution and mediation rules provide a large number of rules which are directly associated with the mediation. And there is another legislation that compromises mediation as in the commercial court’s act of 2015. These commercial courts rule and help to rule the governmental bodies that have been framed under this act in 2018. 

Advantages and Disadvantages of Mediation 

As we know everything has its advantages or disadvantages, in the same way the mediation also has its advantages and disadvantages. Now, we will look into the various advantages and its disadvantages which are given as below:- 

Advantages:- There are various advantages of Mediation some of the advantages are:- 

• Its major benefit is that it maintains secrecy and as we know secrecy plays a very vital role in making the settlement of issues of parties.
• The mediation provides full choice to the parties to choose their mediator. That leads to mutual settlement of the ongoing issue. And as we know voluntary selection of mediators has two main aspects:- It provides free participation and gives opportunities to freely make agreements among the people or parties. The second is that there is no force of influence on people regarding disputes, solutions, or settlement. 
• The procedure of mediation is friendly as well as adaptable.

Disadvantages:-  There are various disadvantages of mediation which are given as below:- 

• One of the major disadvantages is that mediation does not have an established law that can ensure the complexity of its procedure.
• There are some basic guidelines but the issue is that they are not followed in a proper manner.
• Due to the presence of rules, it becomes slightly difficult to make a framework for the entire process that can also keep the legal aspects in mind.

Conclusion

After going through the concept of mediation and its roles and scopes, I would like to conclude that Mediation is like a deliberate procedure where people choose a third party that is known as a mediator to resolve their disputes and the main features of Mediation is that the solution of dispute is not forced on any party, it tries to satisfied the parties and this leads to maintain good and confidential relation among the parties for the long times. It also indicates that we can use the ADR system if we don’t want to follow the court procedure system because it takes too long to deliver justice. Mediation is very cheap and takes very little time as compared to court proceedings. The main thing in the mediation system is that the mediator is duly appointed by the parties according to their choice or their desire. Hence, we can say that mediation is playing a crucial role in providing justice to the people along with satisfaction to both the parties and it helps the judicial system in lowering down the cases or issues which arise on a daily basis.