This presentation deals with how mediation has impacted the indian legal framework and what lays ahead in it.

1. Impact of
mediation in India
A SMALL JOURNEY THROUGH
THE PAST OF MEDIATION IN
INDIA AND THE WAY AHEAD.
BY: AVICHAL MISHRA
ROLL NUMBER: 02417703518
SUBJECT: ALTERNATE
DISPUTE RESOLUTION
SUBMITTED TO: DR.
DEEPALI VASHISHT

2. Introduction
 Disputes are basic to the human nature. No human society
can live without disputes being occurring between various
parties. Every person who lives in a society has some rights
and duties to perform. There is nothing wrong in having a
dispute but what is important, how the parties handle that
dispute.
 For a long time now, Indians have been reliant on court-
driven litigation and, more recently on arbitration for
resolving commercial disputes. Indian legal system is a slow
moving machine that has been over burdened by a growing
number of cases. This problem can be solved by

3. What is mediation?
 Mediation has been defined by different people by different ways.
 Cambridge Dictionary: the process of talking to two separate people or groups
involved in a disagreement to try to help them to agree or find a solution to their
problems.
 Black Law Dictionary: A method of non- binding dispute resolution involving a neutral
third party who tries to help the disputing parties to reach a mutually agreeable
solution.
 When we think about mediation, we always look at it as an alternative dispute
resolution (ADR) mechanism for ‘resolution of dispute’ or something closely connected
with the ‘legal system’ or ‘administration of justice’. The analysis of the process of
mediation shows it is a way of solving conflicts in a consensual mode by addressing
the underlying emotions that gave rise to the conflict and sustained it.

4. Legal Definition of Mediation in India
 Rule 4 of the Civil Procedure- Alternate Dispute Resolution Rules, 2003 defined
mediation as:
 Settlement by ‘Mediation’ means the process by which a mediator appointed by parties
or by the Court, as the case may be, mediates the dispute between the parties to the
suit by the application of the provisions of the Mediation Rules, 2003 in Part II, and in
particular, by facilitating discussion between parties directly or by communicating with
each other through the mediator, by assisting parties in identifying issues, reducing
misunderstandings, clarifying priorities, exploring areas of compromise, generating
options in an attempt to solve the dispute and emphasising that it is the parties own
responsibility for making decisions which affect them.

5. History of Mediation
 Mediation was popular even before it found a place in the books of law. Ancient
Greek civilization had village elders resolving fights between the locals.
 In India, instances of mediation can be found in the village panchayat system,
wherein, the village elders or ‘Panchs’ resort to mechanisms like mediation to
amicably resolve family and land related disputes between the locals.
 Mediation was always present in India. Since the times of the epic mythology of
Mahabharata, traces can be found of efforts being made for mediation. In
Mahabharat, Hindu deity Krishna was the mediator between the feud of Pandavas
and Kauravas.
 Moving on the in the history of India before independence, there has been various
instances of mediation being used. The Britishers often acted as mediators
initially in their regime between different kings of India.

6. Evolution of Mediation in India
 First time when the Indian legislatures made laws relating to Mediation was in
1987. Indian parliament passed the Legal Services Authorities Act, 1987. This led
to introduction of the lok-Adalat system in India. Though both the system are not
identically or similar. But both are platform to resolve disputes in the pre-litigation
stage by way of amicable settlement.
 The next major event was the Malimath Committee of 1988. This was the 129th
Law Commission Report on Urban Litigation and Mediation as Alternative to
Adjudication and the Arrears Committee Report.
 This committee said that there was a need of considering the backlog of cases
lying before the Indian courts, parties be encouraged to refer their disputes to
alternate dispute resolution mechanisms.

7. Evolution of Mediation in India -Continued
 These recommendations eventually paved the way for the Code of Civil Procedure
(Amendment) Act, 1999. This amendment of the act inserted a section 89 of the
Code of Civil Procedure. According to the newly introduced section 89, the Courts
have been given the power to refer the disputes to 4 different ways. One of them
is Mediation.
 The Court will endeavor in disputes to formulate the terms of settlement between
the parties and will also effect a compromise as per the prescribed procedure.
 Section 89 along-with rules 1A, 1B and 1C of Order X of First schedule have been
implemented by Section 7 and Section 20 of the CPC Amendment Act and cover
the ambit of law related to Alternate Dispute resolution. The clauses under Order
X are specified to ensure proper exercise of jurisdiction by the court. Sub-Section
(1) refers to the different mediums for alternate resolution and subsection (2)
refers to various Acts in relation to the mentioned alternate resolutions.

8. Evolution of Mediation in India -Continued
 On April 9, 2005, the Tamil Nadu Mediation and Conciliation Centre, the first court annexed
mediation center was inaugurated. Thereafter, in August 2005, the ex-Chief Justice of India, Justice
R.C. Lahoti, constituted a Mediation and Conciliation Project Committee for imparting mediation
training for Judges.
 Realizing the potential of mediation for speedy and cost-effective dispute resolution, an
amendment to the Commercial Courts Act, 2015, was made in 2018, introducing Section 12-A,
which mandatorily requires the parties to attempt to mediate their disputes before initiating
judicial proceedings. Recently, the Supreme Court in January 2020, set up a panel, headed by Mr.
Niranjan Bhat, to recommend and draft legislation, codifying mediation practice in India.
 These attempts made by the legislature and judiciary to bring mediation in the mainstream have
been futile as the true potential of mediation still remains underutilized.

9. Supreme Court and Mediation
 How the Supreme Court of any country views any method of dispute resolution is a
major trend setter. If the Supreme Court views something as beneficial and promotes
it, then there are chances that the whole of the nation will adopt it. Major events in the
history of Mediation in India which happened due to supreme court are:
 In the year 201,in Moti Ram (D) Tr. LRs and Anr. Vs Ashok Kumar and Anr the
Supreme Court of India declared that mediation proceedings were confidential in
nature, and only an executed settlement agreement or alternatively a statement that
the mediation proceedings were unsuccessful, should be provided to the court by the
mediator.
 In the landmark case of Afcons Infra Ltd v. M/S Cherian Varkey Constructions
(2010)the Supreme Court of India further held that all cases relating to trade,
commerce and contracts, consumer disputes and even tortious liability could normally
be mediated.

10.  B.S. Krishnamurthy v. B.S. Nagaraj is another landmark case. It was in this case
that the Supreme Court held that the Family Courts should strive to settle
matrimonial disputes via mediation and to also introduce parties to mediation
centres with consent of the parties, especially in matters concerning
child custody, and the lot.
 One of the most famous recent cases where mediation was resorted to was the
one (even though conciliation was rejected despite mediation) between Reliance
bigwigs Mukesh and Anil Dhirubhai Ambani over the takeover of South African
Telecom Major MTN.

11. Current legislations talking about
Mediation
 There are various legislations that talk about mediation in India. Some of them are:
 Section 4 of the Industrial Disputes Act, 1947
 Section 89 read with Order X Rule 1A of the Code of Civil Procedure, 1908
 Order XXXIIA of CPC
 Legal Services Authority Act, 1987 read with Section 89 of CPC
 Section 442 of the Companies Act, 2013 read with the Companies (Mediation and
Conciliation) Rules, 2016
 Section 18 of the Micro, Small and Medium Enterprises (MSME) Development Act,
2006
 Section 14 (2) of the Hindu Marriage Act, 1955 and Section 29(2) of Special Marriage
Act, 1954
 Section 32 (g) of the Real Estate (Regulation and Development) Act, 2016
 Section 12A of the Commercial Courts Act, 2015
 Mediation and Conciliation Rules, 2004

12. What is stopping the growth of Mediation
in India
 System is not effectively promoting the idea of mediation among the legal aspirants. The number
of mediators around the country has not increased at a good rate. For many high courts, there has
been a decrease in the number of the mediators.
 Whether the case will see mediator depends on 2 parties. The parties to the suit and the judges. It
has been a constant practice among the judges that they don’t send the cases to further
considerations.
 Standalone legislation for mediation: Last major legislation that happened regarding promoting
mediation was the 1999 amendment implementation in 2002. There is a huge need and demand
overarching mediation legislation that consistently governs all types of mediation in the country.
 Stagnant law school syllabus: even though we have started talking about mediation in law schools
now, but that was not the case a few years back. It is a positive change that should have happened
before. The ministry of law of India also thought same and started working on the same, few years
back.

13.  . Global Pound Conference of 2017, which was held in Chandigarh said that familiarity with the dispute
resolution process was identified as the biggest influencer when lawyers make recommendations to parties
about procedural options for resolving commercial disputes.
 Low quality of mediators: Mediation is an experience-driven process. The perceived success or failure of it,
irrespective of reaching a settlement, is determined by the manner in which it is conducted. For that very
reason, it becomes important that mediators are carefully nurtured so that they are potential leaders, brand
ambassadors, and earnest service providers.
 There is huge need of appreciating the job. Mindset should be changed about mediation as a career option
and dispute resolution tactic.

14. How to move forward?
 With the change in time, there should be a different way to approach mediation.
 First of all, budget allocation on mediation awareness should be increased by the government.
 Uniform statute for resolving disputes through mediation is the need of the hour. Such a statute should
make it mandatory for the parties to resort to mediation first before addressing their disputes before
courts by way of litigation or arbitration before an Arbitral Tribunal
 Private mediation should be promoted by the government. Private mediation will:
 (a) allow access to mediation on a pre-litigation basis,
 (b) allow parties to have a choice as to their mediator, resulting in improved quality of mediators,
 (c) allow the development of mediation as a profession
 (d) provide a better incentive for commercial clients to try mediation.

15.  High ethical standards (code of ethics and conduct) to be followed.
 The selection process of mediators and adequate training standards for the mediators should be
developed.
 Mediation must develop into a full-time profession (efforts by senior lawyers, members of the
judiciary and all state bar councils will be required for promotion of this mechanism) as it gives
lawyers an excellent opportunity to demonstrate their legal, analytical and professional skills.
 Certain suggestions from the Malimath committee need to implemented. These are:
 Establishing the Nagar Nyayalaya with a professional Judge and to lay Judges in the same
manner as the Gram Nyayalaya and having comparable powers, authority, jurisdiction and
procedure.
 Setting up a Neighbourhood Justice Centres involving people in the vicinity of the premises in
the resolution of dispute

16. Mediation and Covid
 The outbreak of the COVID-19 pandemic has resulted in the introduction of various
restrictions and changes in law by the legislature, thereby disrupting the functioning of
business. Due to the lockdown initiated on account of the COVID-19 outbreak, the
Indian economy is experiencing a steady downfall.
 This will lead to increase in the desire of a legal framework which is less costly and easy
to be followed. Mediation could act as the answer to these problems. It would be really
beneficial if mediation is chosen over other arts for such desperate times.
 While the courts are grappling with the existing backlog of cases, the restrictions in its
functioning due to the lockdown and the fresh set of disputes arising due to the
current scenario, we feel there might be a shift in the manner in which commercial
disputes are or will be resolved, with increased reliance on mediation.

17. Conclusion
 Lack of public awareness about non-adversarial modes of dispute resolution is the key
reason people are inclined to the adversarial process by default. The Arbitration and
Conciliation Act, 1996 was a game changes for arbitration. A similar law may act as the
game changer for mediation in India.
 India has a lot of cases pending. It would be useful if the court decides to use
mediation at place of regular litigation. This would reduce their burden and also ensure
faster resolution of conflicts.
 In the light of the jurisprudence as it stands today, mediation is considered as one of
the Alternate Dispute Resolution modes. The need of the hour is to resort to mediation
not as an Alternate Dispute Resolution mode but as a Primary or First mode of Dispute
Resolution. Encouraging mediation may well be the way forward for ensuring speedy
delivery of justice. 'Indian Mediation Act' as suggested by the Hon'ble Supreme Court
of India is indeed a promising proposal for India.