MANDATORY MEDIATION: IT'S BENEFITS AND NEED- (Blog)

                                    "A good settlement is better than a good lawsuit."

                                                                                                             -Abraham Lincoln

INTRODUCTION

Mediation is the confidential process through which parties in dispute try to resolve their dispute amicably with the help of a third neutral party i.e. to be known as a mediator. The mediator does not act as a judge or an arbitrator, therefore, the mediator is not a decision-maker. The role of the mediator is rather to facilitate the parties in reaching their own decision on a settlement of the dispute.

Mediators can assist parties in two main ways while reaching their own decision, which are the only two types or models of mediation practiced throughout the world. The first model is facilitative mediation in this the mediator facilitates the parties to communicate in an efficient manner he helps parties to understand each other's concerns, perspectives, and interests concerning the dispute. The second model is evaluative mediation, in which the mediator observes the parties to mediation and provides an evaluation of the dispute which is non-binding and parties are free to accept or reject the same. It's in the hands of parties to decide whether to go for Facilitative mediation or go with evaluative mediation. The WIPO Arbitration and Mediation Centre ("the Centre") then assists the parties in choosing mediation in identifying an appropriate mediator for the model that they wish to adopt.

AT WHICH STAGE OF A DISPUTE MEDIATION SHOULD BE USED

Mediation can be used at any stage of a dispute i.e. parties can shift to mediation at any time during litigation or arbitration where the parties wish to leave the litigation or arbitration to explore the possibility of settlement. Thus, it must be chosen as the first step towards dispute resolution after any negotiations conducted by the parties solely have failed. 

The common use of mediation is more related to dispute prevention than dispute resolution. Parties may take the assistance of a mediator in process of negotiations for an agreement where the negotiations have reached a halt, but where the parties consider it to be clear in their economic interests to agree (for example, negotiations on the royalty rate to apply on the renewal of a license).

Earlier on 3^rd May, 2018 the government had notified the Commercial Courts Act, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018 ('the Ordinance') which has resulted in the Amendment Act i.e. The Commercial Courts Act, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Bill, 2018 ('Amendment Act') was passed by the parliament on 10 August 2018.  Amongst the other amendments suggested to the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 ('Act'), the Amendment Act provides that there should be mandatory mediation pre-litigation for the institution of a Commercial Suit.

Section12A of the Ordinance prescribes mandatory mediation before a party can approach a commercial court with a Suit. section12A as an exception to the rule of mandatory mediation prelitigation establishes a bar on the filing of such Commercial Suits, where urgent interim relief is not sought.

NEEDS AND BENEFITS OF MANDATORY MEDIATION PRELITIGATION

In a landmark decision Hon'ble Supreme Court of India "Salem Advocate Bar Association, Tamil Nadu v. Union of India” stated hat conciliation, mediation, and arbitration processes must be given preference and must be mandatory for court matters. This will in fact help in the acceptance of mandatory mediation as a solution to problems prevailing in our legal system.

As the trend of the year-long process of litigation is being witnessed in our country for many decades it usually erodes the very purpose of our justice system. In many developing countries like India, most people opt for the litigation process which eventually leads to overburdening of courts and hence, leads to a large number of pending cases on the records. And it often proves the popular belief, "JUSTICE DELAYED IS JUSTICE DENIED".

During litigation, it is seen many times that parties file court cases usually due to animosity or ego problem i.e. parties are not actually concerned with the decision but all they want another party to suffer during the proceedings this not only wastes the time of court but also mocks the adjudication system.

Mediation being cost-efficient, quick, also this is the only process of dispute resolution that can protect relationships as order 32A of CPC also provides that family disputes better be resolved through mediation as this process ends in a win-win situation where no party loses and there are actually fewer chances of long-lasting grudges and animosity between the parties that's actually the need of society.

CONCLUSION

Mandatory mediation will not only help in lessening the overcrowding and pending cases but will also help in making the litigation process easier, as during mediation many fraud cases will get disclosed also the genuine parties to the dispute will actually get clear with the facts in dispute and will concentrate in resolving them during initial stage rather than keeping them to make other parties suffer. In the end would say that mandatory mediation is a valuable weapon against delay, cost, and injustice and acts as a boon for the society at large.

- Kanika Mahajan

Rayat Bahra University.