Background  

On the 1st of August 2023, the Rajya Sabha passed the much-awaited Mediation Bill of 2021. The impugned piece of legislation aims to promote and fortify the institution of mediation in India. What’s intriguing is that its composition and features have not remained uniform since its initial conception. In its initial draft, the bill contained a now amended provision of mandatory pre-litigation mediation. Post the recommendations laid down in a report prepared by the Parliamentary Standing Committee on Personnel, Public Grievances, Law, the same was altered into a voluntary requirement. This article will highlight the desirability of a compulsory provision over one that is voluntary, especially in the context of the deteriorating efficacy of India’s dispute resolution mechanisms. The potential of mediation to revitalise the delivery of justice in the Indian landscape should not be discounted, and as will be outlined, any attempt to promote mediation in the country has to be robust and absolute. With this in mind, undoubtedly, the modifications made would be detrimental to the objectives of the bill. 

The Present Scenario and Mediation’s Potential  

It becomes highly significant to now characterize the country’s prevailing legal landscape and system of justice delivery. The overwhelming number of cases choking the judicial system has been a consistent point of concern amongst the legal experts in the country. While commenting on this dismal state of affairs, retired Supreme Court judge Kurian Joseph^[1] remarked that in his experience, 50% of the cases slogging through the court systems could very easily be resolved via mediation. The former advocate general of Goa also mirrored this sentiment while further observing that a majority of family disputes that end up wired in judicial blockades start off as simple misunderstandings that get blown out of proportion upon being taken to court and thereafter spend long years stuck in judicial machinery.  

In this aspect, the idea of the usage of mediation as a strainer to weed out cases that may be resolved quickly and prevent their needless entry into our judicial framework holds a lot of merit. The efficacy of mediation in this regard is undisputed. Even in India, where the institution of mediation has not been developed to its peak, we have witnessed reasonable amounts of success relating to the outcomes of mediation. It is of note, that from the period of 2015-2023^[2], out of the 44651 appropriate disputes referred for mediation Dwarka Courts Delhi, 43975 were successfully disposed of. Moreover, out of the disputes that were disposed of, 30550 had reached a successful and amicable settlement. A pattern that has been mirrored through other district courts around Delhi.

Faltering Application of Mediation 

Under the scheme of section 89 of the CPC, civil courts have been empowered to refer cases to mediation. In the landmark case of Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co^[3], the court affirmed the necessity of civil courts referring, as a matter of rule, all cases suitable for mediation to the same. In fact, the judicial outlook towards mediation in India has always been very positive and encouraging. This existing concept of referral, however, hasn’t been extremely successful and the ground-level impact of the Afcons judgement remains highly questionable^[4]. This has been attributed to a lack of awareness or adequate training to acquaint judges deeply acclimatized to a formal adjudication process to the benefits of mediation. 

In addition to the patchy results of judge-driven referrals to mediation, the most significant problem persisting in India regarding voluntary mediation has been the unfavourable public perception of the same. The view of mediation as a legitimate and effective means of recourse for a dispute has eluded general consensus in the country. A few factors have been attributed to this. Firstly, a perception of ‘weakness’ that mediation supposedly imposes on the party suggesting mediation. Given the admittedly combative structure of justice delivery in our country, availing the option of mediation which is decidedly more amicable is seen as a sign of relenting in light of an apparent uncertainty in one’s success if the case were to go to trial. This is coupled with the idea of mediation settlements providing a less potent and formidable form of justice as compared to what is provided through litigation. 

Therefore, as we have been able to establish, despite the efficacy of mediation being well established and in spite of continued judicial support towards the institution, mediation in its present structure is not being utilized to its fullest potential. With this partly in mind, the mediation bill of 2021 was drafted, including a provision mandating that parties attempt mediation before approaching the courts. 

The Misjudged Retreat from Mandatory Back to Voluntary  

A Parliamentary committee was constituted to put forth recommendations for the bill and to suggest potential changes. Based on the report generated by the committee^[5], the bill was passed in the Rajya Sabha with some very major alterations. The most significant of which being the shift from a mandatory to a voluntary provision of pre-litigation mediation. The rationale behind this retreat put forth the argument that mediation at its core is a process that propounds the quality of being voluntary and that mandating participation in the same would essentially amount to stripping mediation of its most characteristic precept. Furthermore, the concern was raised that the mandatory provision may lead to further delays in the delivery of justice and inhibit the access of such parties to the judicial system. 

The above-illustrated concerns are all myopic and misguided and a holistic consideration of mediation’s potential and characteristics has not been taken in this instance. Herein it is contended that the committee’s concerns regarding mediation losing its voluntary nature is misguided and overblown. All that was being mandated under the pre-amended bill was that parties attempt mediation. Furthermore, a provision for opting out of these sessions after sufficient attempts was also included. Ostensibly, parties opting under this mandatory mediation still had every right to walk out of these sessions with or without a settlement of their liking. Mediation’s primary precept of promoting solutions on mutual consensus was still being protected. 

The additional concern that the judicial system may end up bearing witness to more delays is an insufficient reason to have amended the original draft as well. Two reasons for this , it is contended that an initial  mandatory screening of cases would ultimately lead to better results pertaining to justice delivery. To draw an illustration if 50% of the cases get disposed of instantaneously (approximately an average figure relating to case disposal via mediation in India^[6]) the parties involved would be getting instantaneous relief and furthermore the cases that do make into court will be dealing with a system that is decidedly less clogged.

Secondly, if the argument that a potential delay would happen were to hold any merit, it is our belief that the model followed by Italy in its implementation of mandatory mediation provision would help mitigate this concern. In Italy, a ‘sunset clause’ had been inserted to review the efficacy and results of the law in different sectors where it was administered. If a similar clause were to be inserted in India’s mediation bill, we would prevent any detrimental effects (no matter how unlikely) to the justice delivery system in India post-mandatory mediation in India. This would enable us to measure if the mandatory provision has led to tangible changes in different sectors of disputes and to measure whether or not the imposition of the same in that particular sector was appropriate and should be subject to modification.

International Successes 

Mandatory mediation is not a novel concept in its nascent stages, it has seen implementation and subsequent success across the globe. Turkey and Canada are two countries providing us a great illustration of justice supplemented by mediation, where in the event that a lawsuit is filed without the mediation requirement having been satisfied, the action will be procedurally dismissed for lack of a litigation requirement.

In Turkey, the rule relating to this has been made widely applicable to several specific areas of law, including Commercial disputes, Labour disputes, Consumer disputes and Civil disputes that include disputes arising out of the lease connection, disputes resulting from property Ownership, disputes resulting from the right of neighbor, disputes relating to the division of movables and immovables and the eradication of joint ownership. A year into the implementation of the rule, the Turkish Ministry of Justice reported data^[7] that around 67% of cases that went for mediation reached a settlement. In turn, public reception to the concept of mediation has turned very positive.

The lawmakers in Canada have a different approach to mandatory pre-litigation mediation; it was introduced as an experimental model, ‘The Ontario Mandatory Mediation Program’, applicable in Toronto, Ottawa, and Windsor. Lawsuits filed under Rule 24.1 of Rules  Of Civil Procedure in certain cases like that of estate disputes, when someone is mentally incapable of making decisions relating to their property and trusts. Well into its application, a study was conducted on the effectiveness of the program in Ontario, which resulted in the Hann Report^[8]. The report highlighted a significant reduction in time taken to dispose of a case, a high proportion of cases being completely settled before litigation and a reduction in cost for litigants.

Conclusion

It is evident that the Mediation Bill of 2021’s amendment of mandatory to voluntary mediation marks a missed opportunity to properly utilise mediation as an effective instrument for speedily settling disputes. For India’s justice delivery system to be revitalised and to guarantee access to justice, it is crucial to revisit and reevaluate the benefits of mandatory mediation and reconsider its insertion back into the mediation. In a country with extremely traditional views on justice delivery a mere voluntary application of mediation would do little to effectuate any tangible improvement. Needless to say, the benefits of mediation may only be realized once the process actually gets utilised and as has been proven a mandatory provision may be the best way to ensure the same. Despite their good intentions, the bill’s modifications may ultimately make it more difficult to accomplish both their specific goals and the larger objective of enhancing the effectiveness of India’s legal system

References: 

[1] 50% cases can be solved by mediation: Retd SC judge, Times of India (Aug. 13, 2023), https://timesofindia.indiatimes.com/city/goa/50-cases-can-be-solved-by-mediation-retd-sc-judge/articleshow/97627914.cms?from=mdr.

[2] Delhi Courts, https://delhicourts.nic.in/dmc/statistical.htm (Last visited Aug. 6, 2023).

[3]Afcons infrastructure and Ors. v. Cherian Verkay Construction and Ors, 2010 (8) SCC 24.

[4] Strengthening Mediation in India, Vidhi Legal Policy, (Jan.29, 2020, 10:20PM), https://vidhilegalpolicy.in/wpcontent/uploads/2019/05/26122016_StrengtheningMediationinIndia_FinalReport.pdf.

[5]  PRS India, https://prsindia.org/files/bills_acts/bills_parliament/2021/SC%20Report_Mediation%20bill.pdf (Last visited Aug. 6, 2023).

[6] Delhi Courts, https://delhicourts.nic.in/dmc/statistical.htm (Last visited Aug. 6, 2023).

[7]Turkish Mandatory Mediation Expands Into Commercial Disputes, Kluwer Mediation Blog ( Jan. 30, 2019, 10:45 PM), https://mediationblog.kluwerarbitration.com/2019/01/30/turkish-mandatory-mediation-expands-into-commercial-disputes/.

[8] Expanding Mandatory Mediation in Ontario, Ontario Bar Association (Aug. 14, 2023), https://www.oba.org/CMSPages/GetFile.aspx?guid=4f756ca7-2962-417b-aec6-18e1ae760d12.