MEDIATION- A Better Option During and Post COVID -19 Era?

Abstract

The Article talks about whether mediation is a better option to opt during and post pandemic. The process of Mediation is one of the best one should adopt in order to resolve disputes with or without involvement of the court proceedings.  Firstly, it talks about what is mediation and role of mediator.  Secondly, it deals with the various laws governing it and its various advantages and disadvantages. And at last it focuses on whether mediation is a better option during and post Covid-19 era.

Mediation- Meaning & Process

Mediation is an informal conflict resolution process under Alternative Dispute Resolution wherein a neutral third party, mediator is appointed by both the sides. It is a dynamic process in which an impartial third party helps in assisting disputed parties to resolve the conflict through the use of techniques of special communication and negotiation. The disputes which can be resolved could be either a pending dispute in court or a potential one. Cases suitable to be mediated under this are disputes in commercial transactions, personal injury, worker’s compensation, labour community relations, divorce, domestic relations, etc. including those disputes which do not require complex procedural issues.

The process of mediation has been practiced since Vedic period. In order to resolve their legal issue most of the people voluntarily opt for mediation. The process helps the parties to reach at a conclusion agreed upon by the parties. As mediation is a voluntary process at any phase the parties can even withdraw from it even without giving any reason. It generally follows the rules of evidence, examination and cross examination of witness. The parties can put forward their demands and negotiate and re-negotiate.

Without the prior consent of the parties in writing all the statements which were made during the process cannot be revealed during civil proceedings.

Role of Mediator

A mediator can be anyone, of any designation depending upon the wish of parties. A mediator is a facilitator who has skills like – negotiation, human dynamics skills, effective listening, convincing and articulation. He/ She do not have power to render firm decision to the conflict. A mediator helps in exchanging information and tries to settle the dispute between the parties outside the court. He provides for creative solutions after finding out common grounds of dispute. His role is mainly to interpret concerns by relying on the information provided to him by the parties at dispute, then frame issues and define the problems. However, the final decision-making power in a mediation process rest with the parties and decision made by the mediator is not binding on them.

Types of Mediation in India

Court Referred Mediation

In some cases, court refers to the parties to solve dispute through mediation under section 89 of Code of Civil Procedure 1908^. The consent of parties is taken into consideration before referring the case to settle by mediation. Companies Act 2013^[1] includes provisions under section 442 for adjudicating authority to refer the pending matter for mediation to an individual empaneled as mediator. Commercial Courts, Commercial Division & Commercial Appellate Division of High Courts Act 2015 mandate through section 12A that an individual having a dispute which could only be tried under the act must first go through mediation exercise, unless it is appropriate to have recourse to the court for an urgent interim order before resorting to litigation. This type of mediation is mostly used in matrimonial disputes particularly divorce cases.

If the disputes using such mediation reach a settlement it has to be referred back to the court by the mediator along with the report and then court shall pass a decree in terms of the settlement.

In cases involving criminal matters the dispute has to be compoundable i.e. among those offences which are permitted to be settled under Code of Civil Procedure 1908. Heinous offences like murder, sexual assault, rape cannot be referred for mediation as they are non-compoundable.

Private Mediation

In this type of mediation, qualified personnel work as mediator on fixed fee basis. It is when parties undertake mediation independent of court proceedings. There is no law governing this type of mediation in India. Private mediators are appointed by the parties to solve the commercial or family dispute because legislation is not currently required to impose a private mediation the settlement provisions are executed as a contract under section 74 of Arbitration and Conciliation Act,1996^[2] which is binding and has same value as of an arbitral award.

Law Governing Mediation in India

The question always strikes our mind that where mediation is defined. So, it is defined in Alternative Dispute Resolution Rules 2003^[3]. According to Rule 4 –It is the process in which a mediator is appointed by the parties or by the courts to resolve the dispute between them by the application of Mediation Rules 2003 in part II. In the case of Afcons Infrastructure ltd. v. M/S Cherian Vaukey Construction^[4]  the Supreme Court held that ‘mediation’ and ‘conciliation’ are synonyms. However there has been history, how mediation came into our jurisdiction. It was incorporated in the law of India in 1996 after the introduction of section 86 in Civil Procedure Code which enabled mediation as one of the means to settle dispute. This gave rise to commercial mediation.

However, in 1996 the introduction of Arbitration and Conciliation Act gave rise to private mediation in India. Thus, there are two laws that govern mediation in the country CPC and ACA. Section 89 of the CPC deals with court annexed mediation wherein the rules are framed by the high court. Private mediation has been dealt in part III of Arbitration and Conciliation Act. Various rules governing mediation have been given in part II of the Civil Procedure Alternative Dispute Resolution and Mediation Rules.

Praiseworthy Aspects & Shortcomings

Mediation is increasingly becoming a popular route to solve disputes. The most important reason for it prefer ability is the fact that it can be settled without going to the courts. This saves both the parties’ time and money. In many cases because of broken communication between parties the disputes become unfixable in such cases through a third neutral party it offers to rebuild the communication. 

Advantages

• Cost Effective: The cost of settling a dispute through mediation is much lower  than court proceedings wherein an advocate/ solicitor has to be hired . Solving a dispute through trail is an expensive proposition.
• Saves Money: The court proceedings are long; either it is complex or a simple case because of the pendency of disputes. However, mediation is much faster. On an average, resolution of mediation dispute takes around 3 months with fewer sessions / meetings than going to courts. Unlike court hearings which have fixed date and timings mediation sessions can take place even on evenings of weekends according to the convenience of the parties.
• Private and Confidential: There are some issues and disputes which you might not want others to know. Various explanations to this could be because of privacy concerns, reputation, high profile public career, embarrassment. This is also necessary to bear in mind that whatever is agreed between the parties and the mediator in the meeting is kept between themselves. This means that courts cannot be moved either way by the arguments in the event that talks break down allowing both parties their ability to restart their case.
• May help in ending the dispute amicably: One of the key advantages of mediation is that it gives both the parties to solve the dispute in a way which is agreeable to both the sides. Since the decision of the mediation cannot be enforced in any case so if it works it is only because both the parties have come to an agreement. It gives both the sides a chance to discuss the issue.
• Relatively Simple: There is no complex procedural or evidentiary law to obey. Although only a general rule of justice applies and the maximum punishment that a party may move for foul play is to walk away from mediation and take his chances in court. 

Disadvantages

• No Guarantee: It is the key disadvantage of mediation. In cases where the other side is persuasive that they are right, people do not agree to mutually benefitting terms. In such circumstances the case has to be taken up to the court. 
• You might want public to know: In certain cases, if you are accused for something publicly you will prefer to go to court and would prefer public vindication instead of mediation. 
• Requires Cooperation: Mediation is dependent on both sides coming to the table and working towards the solution. So mediation cannot work for you if one side fails to cooperate.  Similarly, tempers may have flair and mediation cannot guarantee that the interactions will stay polite. The role of the mediator is to minimise the likelihood of this occurring, but there are variables which they cannot monitor, t. What the two sides tell each other after a mediation session. In cases like those involving downward abuse where I’ve party might overpower the other party and makes the party feel intimidated a successful resolution cannot be reached. 
• Lacks Procedural and Constitutional Protections and Guarantees: Lack of formality in mediation being a benefit can also be a detriment. Mediation between parties with different rates of sophistication, control and with differing amounts of available resources may result in inequitable resolution as the less well positioned party is overwhelmed and unprotected. 
• Cannot Set Legal Precedent: Many cases of  social causes like discrimination cases are bought with the intensity not only of securing satisfaction for the named complaint but also with a hope of setting a new legal precedent that will have wider social impact. Such cases are only “successful” if a high court (apex court) makes a favourable judgement on the issue. Mediation is therefore not beneficial to such cases.

Mediation during and Post Pandemic- A better option

The spread of novel corona virus and imposition of lockdown has led to a number of implications for settlement of commercial conflicts (mainly) and other disputes and administration of justice. The first reason for opting mediation is that during this time courts proceedings are adjourned to uncertain dates and also the disputed parties are not willing to attend the court proceedings in the present situation. The question which is struck in our mind is “What will happen once the situation gets normal?”

The courts will be burdened with cases which may lead to delay of justice delivery. An increase in pressure in courts will also be seen as a number of cases (old and new ones both) are piling up due to continuously delayed trails and hearings. Some possible steps should be taken to ease the pressure.

Also the parties have undergone failure because of their inability to fulfil their contractual commitments resulting from the lockdown with complex legal problems.  The best move to tackle these problems is to allow the parties to participate or reengage as a condition of bringing or continuing litigation in the form of ADR most preferably MEDIATION.

Mediation is known to be the most successful method of the conflict resolution. Taking into consideration the various advantages mediation process has, it needs to be evolved and also to minimise the backlog of cases both during and post COVID-19. Moreover, the process of mediation will get an edge post lockdown, if we aware people regarding it. Because there are many people in the country who still are not aware of this process. The Courts should also encourage this process which will help it and also the people.

But this might have been resisted by judiciary keeping forward the key points of mediation being a voluntary and informal process and any sort of coercion would be self-defeating. It should be kept in mind that in general the administration of justice and rights of legal parties are better served by speedy, cost effective dispute resolution. That is where mediation has to be brought.

In post COVID-19 period referrals should be made to solve disputes through mediation in order to reduce the pressure on courts. One of the main benefits of mediation is convenience, so in the period succeeding the pandemic people will become busy in their life routine and it would not be possible for them to engage into disputes. They will not preferably go for court trials. Also, it will save the time and cost of the parties. The parties can mutually decide among themselves the place and time which suits them. So mediation will be a better option to opt for both at the present and post Covid-19.

Also, the behaviour of mediation meetings has to be changed necessarily. A shift from traditional face to face mediation which is not feasible at present situation to a virtual mediator has to be taken into consideration. Applications like WebEx meetings and zoom meetings have therefore become popular online mediation tools because of its ability to recreate the environment which mediator being the host. This will surely provide flexibility and cost of travel can be saved. Both online and offline mode can be adopted as per the convenience. 

Conclusion

Mediation is not an age-old process and has been in practice in recent times only. Traditional proceedings in the form of court hearings and arbitration are vintage methods spanning since hundreds of years and generations of judges and lawyers. However, mediation as an idea needs to be expanded rapidly to gain importance especially during and post pandemic as regular court proceedings are not taking place.

When we meander in the dark to figure out what new standard will consist of, we may discover that a large part of conflict resolution has been changed and that this pandemic crisis is the precursor to bring changes in the traditional methods and we will witness adoption of new and more convenient methods of dispute resolution.

• ^[1] The Companies Act 2013, Act No. 18 of 2013  (India) .
• ^[2] Part X (d) (2) section 89 Civil Procedure Code, 1908 (India) .
• ^[3] Afcons Infrastructure ltd. v M/S Cherian Vaukey Construction and Ors. 2010 (8) SCC 24 (India) .

 This article is authored by Ishika Jain, student at Institute of Law, Nirma University and Janavi Chhabra, student at Guru Gobind Singh, Indraprastha University.