Growth and philosophy of mediation in India
It was the panchayat system headed by village elders that was the precursor to the present mediation panels that we are familiar with. The deficit of the earlier system was confidentiality that was lost in the venues that were essentially under banyan trees or the temple court yards where villagers joined as if in a jamboree with everyone to revel and make comments as they wished. Another defect was that a party, even if he voluntarily participated had no escape and was precluded from walking away, if at any time, the party had any misgivings about the process or the course that the talks were taking.
The Pound Conference in 1976 identified causes of disaffection for quest for justice and the jurists assembled there saw the need for establishing sound alternatives for the court adversarial system of administration of justice and for its speedier dispensation. The conference at St.Paul, Minnesota derived its inspiration from a paper presented by Roscoe Pound at the same location in 1906. Professor Frank E.A.Sander of Harvard Law School proposed that alternative forms of dispute resolution should be used to reduce reliance on conventional litigation and overcome reluctance to use other dispute resolution options. This led to many changes in the US justice system, including the creation of “multi-door courthouse” to provide more procedural choices to disputants.
The Legal Services Authority Act introduced institutional Lok Adalats that were adjuncts to courts where judges themselves sat in informal settings and took up cases, usually accident claims, petty traffic offences and to a lesser extent in land acquisition cases for determination of compensation payable. In 1990, Ahmadi as Chief Justice of India took interest in mediation as a viable alternative to litigation and at his initiative a team of lawyers and judges went to San Francisco and had first hand experience shadowing mediation sessions practised by eminent retired judges and lawyers and which prominent law firms endorsed. The 1996 law of Arbitration and Conciliation Act recognised conciliation as ADR formulation and gave the status of settlements as awards equivalent to enforceable decrees.
Section 89 came into being in its current form on account of the enforcement of the CPC (Amendment) Act 1999 with effect from 1/7/2002. At the commencement of the Code, a provision for ADR was made. However, the same was repealed by the enactment of the Arbitration Act 10 of 1940 and Sch X. The old provision had reference only to arbitration and its procedure under the II Sch of the Code. It was believed after the enactment of the Arbitration Act, 1940, the law had been consolidated and there was no need for s 89. However, the section was revived with new alternatives and not only restricted to arbitration. A new section 89 came to be incorporated in the Code by S 7 of the CPC Amendment Act, 1999 to resolve disputes without going to trial and pursuant to the recommendations of the Law Commission and Malimath Committee.
In 2005, Markandeya Katju as the Chief Justice of Madras High Court started Court annexed mediation when courts started referring cases brought before them to the mediation centre through the Legal Services Authority to which the Chief Justice was himself the ex-officio president. Lawyers showed interest in developing new skill sets as mediators and Sriram Panchu carried the missionary zeal to train and take it across India. There had been codification of mediation rules in almost every high court and every high court also has trained mediators to run the show in spaces allotted within ADR centres. The Law Commission also began its work to prepare a document on mediation but dropped it midway.
Mediation today is too much reliant on judges’ initiatives since they are brought under mediation and conciliation project committee (MCPC) set up by the Supreme Court with one of her senior
judges as the chairperson. Judges are by their very nature of work judgmental in their ways and they are not suitable for the jobs as mediators even while in service as judges. Lawyers trained in law, social workers and family counsellors trained in psychology and social work could be effective mediators. However, there are serious sustainability issues. A lawyer who stops litigation practice cannot engage in mediation to render gratuitous service. She must be suitably remunerated. Acceptable badges of certification through statutory bodies shall be created for that purpose. The stakeholders in all forms of dispute resolution must be identified and involved in policy making. Unlike in USA that is driven through market forces for recognition and development of mediation practice amongst discerning consumers, India requires a system of accreditation that will lay down minimum educational and training protocols before a person can commence practice as mediator.
We have developed reasonably adequate human resources but beyond their deployment in court annexed mediation centres, where the experience of the people is that the service is offered gratuitously to parties, there is little dignity or incentive involved for prominent attorneys to switch to mediation practice. In litigants’ perspective, the courts deflect them to this ADR process more as apology to their inability to manage the swelling dockets to let them cool their heels in some form of legal engagement. Though the court that sets up mediation centres through State funded Legal Services Authorities may pay pittance of remuneration to mediators, the public do not associate mediators are professionals who deserve to be paid or worthy of being approached for professional services for competitive practice and competency. Companies Act, Consumer Protection Act and Commercial Courts Act are some of the recent enactments that statutorily steer disputants to resort to mediation before arriving at litigative arena. Merely providing statutory recognition will not do. There shall be a stand alone legislation for mediation. India has been a signatory to Singapore Convention and it is expected that a law dealing with both domestic and cross border mediation is enacted. That shall be the single most decisive legislative action that will add fillip to mediation movement in India.