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Module 2

An Introduction to Mediation
Mediation is a form of Alternative Dispute Resolution (ADR) which emphasises on out of court
settlements. It is an effective and expeditious dispute resolution framework unlike the court
proceedings as it conveniently discuss the problems between disputants and focus on an
amicable solution without any excessive complexities which one experiences in court
proceedings. It resolves disputes amongst the disputants which is moderated by an appointed
authority who is called the mediator. The mediator finds an amicable solution to the conflict
with the purpose of avoiding any court proceedings.

This module will deal with the various aspects of mediation in the Indian context.

1. MEDIATION

As Abraham Lincoln observed: “Discourage litigation. Persuade your client to compromise

whenever you can. Point out to them the nominal winner is often a real loser- in fees, expenses
and waste of time”. Mediation is a form of ADR which is practiced in law as a systematic,
dynamic and interactive process wherein a third party assigned by relevant parties hears the
issues and finds an amicable way to resolve their problem through the use of specialized
communication and negotiation techniques.

Mediation in current legal-ambit is a non-binding procedure. Therein, a mediator is appointed

by respective parties but in case of dissent, court appoints a one for further procedure.

1.1. DEVELOPMENT OF MEDIATION IN INDIA

Mediation possess similarity with an age old Indian system of resolving conflicts called
Panchayat System wherein parties in disputes bring their problems to a mediator or a person
whom they appoint by themselves and contemplate over their issues with a probable conclusion
that can possibly settle the matter with both the parties satisfied.

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It was already a difficult task for the Indian Judiciary to cope up with the increase of cases
which resulted into pendency of cases. The need for ADR was realized in the judiciary and so
came ADR as a dispute resolution mechanism which inherited to lessen the burden of judiciary
by fastening the process of disposal of cases.

Although, it is only recently that the use and importance of mediation was recognised.

Mediation has become a tool in the recent system with the establishment of National Legal
Service Authority and State Legal Service Authority around the country with mediation
centres around the states which has substantially increased the numbers of disposable cases
without any court visits. The option SLSA is convenient for people due to less expenses and
efficient resolutions.

Although mediation in judiciary was adopted when the Supreme Court of India started the
process of reforming the Indian judicial system in 1966 for which the then Chief Justice of
India Mr. Justice A.H. Ahmedi invited the Institute for the Study and Development of Legal
Systems (ISDLS), USA to participate in a national assessment of the backlog in the civil courts.
Studies were made in this respect to find that the prime drawbacks in our judiciary is due to
pendency of cases and delayed hearing. As at that time there was a proliferation and pendency
of cases in the Indian judiciary the legislature enacted Arbitration and conciliation act 1966
with the purpose to deduce the burden of civil courts by disposing of cases.

The history of mediation can date back to ancient history embedded in our vedic times with the
earliest treatise is the Bhradarnayaka Upnishad, in which various types of arbitral bodies were
referred to. These arbitral bodies, known as Panchayats, dealt with variety of disputes, such as
disputes of contractual, matrimonial and even of a criminal nature 1. Mediation was originally
governed by the provisions contained in different enactments, including those in the Code of
Civil Procedure. The first Indian Arbitration Act was enacted in 1899, which was replaced by
the Arbitration Act, 1940 which in turn was replaced by the Arbitartion and Conciliation Act
1966. The mediation of informal nature was being adopted at the village level to resolve petty
disputes from times immemorial.

1 Sumit Kumar, Historical Growth of Arbitration Laws in India, 2 CS Journals, Jan-June 2017, 118, 122 (2017).

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With the advent of Legal Services Authorities Act 1987, Lok Adalats and Legal Aid Schemes
have received statutory recognition and become an integral and important part of the justice
delivery system.2

2. LACUNAE IN THE MEDIATION PROCEEDINGS IN INDIA

The primitive establishment of mediation centres did not evolve with time as most mediation
programmes have not received adequate support from the judiciary which primarily hinders
their overall performance and success. From the abovementioned data and figures, it is well
established that the absence of a conducive environment for mediation is partly attributable to
the lack of judicial understanding and training, especially in the subordinate judiciary.
Subsequently, non-starters due to parties not turning up or not wanting to explore mediation
have increased from 695 to 1208 in BMC whereas from 286 to 652 in DMC3 because no
mediation took place or there has been an existence of lack of interest or cooperation from the
concerned parties.

3. MEDIATION: A TOOL TO ACCESS TO JUSTICE

From the very inception of mediation in our judiciary; the establishment has been questioned
regarding its working and future prospects. Besides what the mediation and other alternative
dispute resolutions offer to the judiciary, it was overlooked for a long time. Yet mediation
proved a tool of justice with its overachievement irrespective of the minimum attendance given
to the same as in 2016, number of cases disposed have increased approximately from 57,000
to 76,000 in Supreme Court; from 14.4 Lakhs to 16 Lakhs cases in High Courts and from 1.6
crore cases to 1.9 crore cases in sub-ordinate courts compared to 2006. Thus, changing the
redundancy of court culture in India.

There are multiple understandings of the meaning of “access to justice” that frequently begin
with the need for access to legal representation and to legal processes that can resolve disputes4.

2238th Report of the Law Commission of India (2011).

3 VIDHI Centre of Legal Policy, A Report on Court-Connected Mediations, STRENGTHENING MEDIATION IN
INDIA p. 22 (Dec. 28 11:11 PM)

4 Deborah L. Rhode, Access to Justice: An Agenda for Legal Education and Research, 62 J. LEGAL EDUC. 531, 532–33
(2013).

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According to the United Nations Development Programme (UNDP)5,access to justice is more
than the ability to obtain legal representation and have access to the courts. It refers to the
ability to seek and obtain a remedy to a grievance through an institution, be it formal or
informal. In the landmark case of Afcons Infra Ltd v. M/S Cherian Varkey Constructions6
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. Another landmark
decision by the Supreme Court was in the case of B.S. Krishnamurthy v. B.S. Nagaraj7,
wherein it directed the Family Courts to strive to settle matrimonial disputes via mediation and
to also introduce parties to mediation centres with consent of the parties, especially in matters
concerning maintenance and child custody.

In the case of Hussainara Khatoon v. Home Secretary, State of Bihar 8 Supreme Court held that
“right to a speedy trial is a fundamental right implicit in the guarantee of life and personal
liberty enshrined in Article 21 of Indian Constitution”. Thus, making mediation a necessary
process because of its ability to dispense quick justice.

Section 442 of the Companies Act, 2013, read with the Companies (Mediation and
Conciliation) Rules, 2016, provides for referral of disputes to mediation by the National
Company Law Tribunal and Appellate Tribunal. The 2018 amendment to the Commercial
Courts Act 2015 (Section 12A), made it mandatory for parties to exhaust the remedy of pre-
institution mediation under the Act before instituting a suit. The Commercial Courts (Pre-
Institution Mediation and Settlement) Rules 2018 (the PIMS Rules) have been framed by the
government. Settlements arrived at in this process are enforceable by law.

In the matter of Mr Krishna Murthi v. New India Assurance Co. Ltd9., the Supreme Court,
asked the government to consider the feasibility of enacting an Indian Mediation Act to take
care of various aspects of mediation in general.

5 United Nations Development Programme, Programming for Justice Access for all: A practitioner’s guide to human rights-based
approach to access to justice (2005).
6 2010 (8) SCC 24
7 S.L.P. Civil) No(s).2896 OF 2010
8 1979 AIR 1369, 1979 SCR (3) 532
9 2019 SCC OnLine SC 315

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4. CONCLUSION

Mediation is the lost child of judiciary who even after possessing surmount of talent and
capabilities is ignored for some reason. As this type of ADR has shown its importance and the
help it offers to the civil courts. The judicial system as has started to give attention to the ADR
specially mediation but that is not enough to settle the chaos of the civil courts. There is a need
for judiciary to provide sufficient resource and necessary tools to the mediation centres in
around the country so that it becomes the tool to access justice as it promises.

As Marten, C.J., observed in Chandasappa Gurushantappa v. Baslinagayya Gokurnya

Hiremath10: - ADR is indeed of a paramount importance w.r.t ordinary Indian life. And I would
go further to state that it prevails in all ranks of life to a much greater extent than in England.
To refer a dispute with a local jurisdiction to a panch’ which is one of the naturally embedded
way of deciding natural ways of deciding numerous disputes in India.

Therefore, we strongly believe that mediation if given proper attention as well as resources is
a tool for access to justice.

10 29 Bom. L.R. p.1254

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