India, the largest democracy in the world, boasts of a unique Constitution. That Constitution promises justice, social, economic and political, to all its citizens. For delivering that promise, an efficient justice delivery system is a sine qua non. It is common knowledge that judiciary is the last resort of the common man who crave for justice. Today our justice delivery system is going through a very difficult phase, if not a crisis. It no longer enjoys the absolute faith the people had in it, a few decades ago. A survey conducted by an agency, in 2005, as a prelude to introducing Mediation as a dispute resolution method in India is an indicator in that direction. The survey was conducted among the people inthe four southern states of Kerala, Tamilnadu, Karnataka and Andhra Pradesh. The Survey revealed that only 8% of the disputes among the people in the Society, fit to be resolved through the Courts, matures into a litigation in a court. More than 50% of the people, who have suffered legal injury, silently suffers the injustice meted out to them, primarily because of the expenses, time and energy wasted in the course of litigation, as also the uncertainty of the results in litigation. The remaining, some try to get their disputes resolved getting politicians involved in the same. A few approach the police. Others approach goondas and quotation teams. One can visualise the quality of the justice obtained through these methods. If this trend continues, without doubt, we are bound to face anarchy in our country in the very near future.
The reasons for this alarming situation are several. But it cannot be denied that one of the main reasons is the inability of the Courts to dispose of cases filed before it, within a reasonable time. The oft repeated complaint for delay is that, advocates ask for adjournment of cases which is readily granted by the courts. The judges/judicial officers sit in courts throughout the working hours prescribed, often beyond also. Even if some of the cases are adjourned, the courts will have to hear other cases during court hours. Therefore, in the place of the adjourned cases, other cases are heard and disposed of. That would show that adjournment of cases does not actually result in increase in overall pendency of cases. In fact the judges, judicial officers and advocates in Kerala are very hard working and they strive their best to dispose of more and more cases to the best of their ability. Most of them work for 12 to 16 hours a day. The truth is that with the present infrastructure, it is physically impossible for the courts to dispose of the large number of cases being filed in courts every year. In fact the number of cases filed in courts in Kerala exceeds the number of cases disposed of, by about 20,000 every year. It is uncharitable to blame the hardworking judicial officers and advocates for the same. The disposal rate of cases in courts is much more in India than any other country and the disposal rate in Kerala is one of the best in India.
Then where does the fault lie? The Population-Judicial officer ratio in India is only 12 per million, whereas the same is much higher even in developing countries and in developed countries it is even as high as 150 or more. The proposals for new courts and sanction of new posts in judiciary are met with stubborn resistance from the government on the ground of lack of fundsand are kept pending for decades. At the same time, the % of plan outlay for courts is less than 0.04, much less than what the courts bring into the state coffers by way of court fees, fines in criminal cases etc. The priority given by the Government for development of infrastructure in courts is the least. The Supreme Court had to step in to direct the State Governments to establish new courts and to increase the number of judicial officers, the efforts in implementing which, even, is progressing at a snail’s pace. This statistics belie the unjust allegation raised against courts and advocates for the increase in the pendency of cases in courts.
But at the same time there is no point in continuing the blame game endlessly.If we have to regain the faith of the common man in our justice delivery system, we have to adopt alternative dispute resolution methods for disposal of cases, since the courts alone cannot deal with the inflow of cases with the infrastructure they have.
Our Civil Procedure Code originally contained one alternative dispute resolution method in Section 89, in the form of arbitration. In 1940, when the Arbitration Act, 1940 came into force, Section 89, as it existed then, was deleted from the statute book. Taking stock of the situation as explained above, the Parliament also found it necessary to introduce new alternative dispute resolution methods for disposal of cases. The deliberations in this regard fructified in Act 46 of 1999 by the re-introduction of Section 89 in the C.P.C. which was brought into force with effect from 1-7-2002, in a novel form, prescribing five alternative dispute resolution methods and making it mandatory for courts to try one of those methods for settlement of disputes, before a case can go to trial. Section 89 envisages five types of alternative dispute resolution methods, which are, arbitration, conciliation, judicial settlement, lokadalat and mediation.
Arbitration was statutorily recognised as an alternative method of dispute resolution by the Arbitration Act, 1940. But the same, with almost all trappings of a judicial proceeding, have not been effective in reducing the pendency of cases in courts. Conciliation, despite the Arbitration and Conciliation Act, 1996, replacing the Arbitration Act, 1940, has not gained popularity among the litigant public. Since the Judicial Officers hardly get any time to spare, after their hectic court schedule and the work after court hours also, to try judicial settlements, that method has also not taken off in our country. Settlements and disposals through LokAdalats, which have the backing of the Legal Services Authority Act, have gained popularity to some extent, but success of the same in reducing the arrears is limited.
It is in this context, mediation assumes importance as an alternative dispute resolution method. The nomenclature ‘mediation’ does not actually convey the import of the concept of mediation. The word gives the impression that the same is a process in which a third party arrives at a settlement of the dispute through negotiation with both parties.But mediation does not work that way at all. It is a structured process, where the parties to a dispute, after talking between/among themselves with the help of a neutral trained mediator, who may also talk separately with the mediator in caucus, albeit with the consent of the parties, themselves voluntarily, without any compulsion from either the mediator, court or anybody else, arrive at a mutually accepted settlement. If possible, which settlement, if not illegal, is made into a decree by the court. The difference between mediation and other forms of dispute resolution can be demonstrated by a simple but, interesting story, which is used by master trainers in the training of mediators. The story goes like this:
In a household with a mother and two daughters, a dispute arises between the daughters,for possession of an orange in the fridge on a day of a fiercely enforced hartal by one or more political party/parties, which is very frequent and the bane of Kerala these days. No shop is open and no fresh oranges can be purchased from the market. One of the daughters picks up the orange from the fridge and the other daughter also stakes a claim for the very same orange. The dispute rages, both steadfastly sticking to their claim, forcing the mother to intervene. Mother can approach the dispute as a judge or a mediator or as a lokadalat. If she is acting as judge, she has to go strictly in accordance with the law applicable. The law may be that the elder has precedence in claim, or that the person who took the orange from the fridge has the first claim, or that both have equal claim etc. and the mother has to give a decision in accordance with the law, in which case either one or both would be unhappy. If the mother acts as a LokAdalat, she may prevail upon the sisters to divide the orange in equal proportion, in which case most probably both may be unhappy. If the mother approaches the dispute as a mediator, she encourages bot sisters to talk between themselves and would try to understand their needs as regards the orange is concerned. The elder sister’s case in the story is that she boasted to her friends that she is good cook, who can make great soufflés and she has promised her friends with a treat that day, with one made of the flesh from an orange for which she needs the flesh of the orange. The younger sister’s case is that she has marks of pimples on her face because of which her friends at the college are teasing her and she wants the skin of the orange to make a face pack. In the process the sisters resolve their dispute themselves, each agreeing to take the flesh and skin respectively required for their respective needs. The process of mediation encourages the sisters to make a need based assessment of their respective cases, for which there is no opportunity in other forms of dispute resolution, as a result of which, the mother is able to generate options for an amicable solution to the dispute, acceptable to both sisters.
Presently what is in vogue in India is court annexed mediation which means that the mediation process can be initiated only in a case pending before a court. As per Section 89 of the CPC, in every case before a Civil Court, the Court is statutorily obliged to try one of the five methods of alternative dispute resolution methods prescribed therein, before the case can be taken up for trial. A case can be referred for mediation at any stage of the proceedings after the appearance of the parties, with or without the consent of the parties. The parties are referred to the concerned mediation centre, where a nodal officer appointed for the purpose would assign the case to a trained mediator attached to the mediation centre. The parties meet the mediator in a private, benign and confidential atmosphere, designated for the purpose by the mediation centre. The mediator would first make an opening statement familiarising the parties with the process of mediation and proclaiming his neutrality. If, for any good reason, any of the parties has any reservation about the neutrality of the mediator, the party can request for another mediator and the nodal officer is obliged to grant the request.In the mediation, the parties themselves state their respective case first, in a joint session and later in private sessions with the mediator, separately with each party, of course with the consent of the parties. During the discussion options for possible terms of settlement are generated, either by the parties themselves or subtly by the mediator, which, if accepted by the parties, are reduced into writing with the help of the advocates of the parties, signed by the parties and forwarded to the court through the mediation centre. The court would then examine the settlement and if the terms are legally enforceable under the law of the land, pass a decree in accordance with the terms of the settlement.
The advantages of a dispute resolution by mediation are many; in fact the same cannot possibly have any disadvantage.
In dispute resolution through court, or arbitration or even lokadalat, even after the case is over, the parties continue their antagonistic stand among them, whereas in mediation the parties part as friends, their original relations are restored and peace prevails among the parties. The process of mediation is completely voluntary at all stages. Only if all the parties to the dispute voluntarily agree to the terms of settlement, they need settle the dispute. Neither the mediator nor the Court or anybody else can require the parties to come to a settlement or to agree to any term of settlement. If at any stage of the proceedings, any of the parties does not want to continue to take part in the mediation process, they can withdraw from the mediation at any time before the court pronounces the decree. The mediator acts only as a catalyst or facilitator. He cannot even suggest that the dispute be settled on any terms. He can only generate options for settlement, that too subtly, without the parties feeling that it was he who generated the options for settlement. The parties themselves by discussion among themselves and with the help of the mediator, finds out ways to settle the dispute.
The entire mediation process is confidential. Whatever statement is made in the mediation process, even if the same is against the person making the same, cannot be used in evidence or even referred to in the court, in the trial which ensues, if the mediation fails. The mediator is statutorily prohibited from being summoned as a witness in the case between the parties, to depose regarding what transpired during the mediation process. The mediator shall not disclose any matter revealed during mediation to third parties.
The parties are also prohibited from introducing anything that happened during mediation as evidence in the case during trial. Therefore even if the mediation does not culminate in a settlement acceptable to the parties, they do not lose anything by trying mediation to settle their disputes.The participation in the mediation process will not in any way affect their case in court adversely, of the mediation ultimately fails. Consequently, unlike in other proceedings, the parties can vent their feelings and express all their sentiments in respect of the subject matter.In court, the parties can only act through their advocates, whereas in mediation the parties can directly communicate with the opposite parties.
Often, a dispute remains unresolved because the parties do not communicate between themselves, especially in matrimonial matters. Further, once the parties give vent to their feelings in a neutral atmosphere, the differences between them may disappear completely. In mediation, the parties can settle even disputes which are not part of the pleadings in the suit.
The entire mediation process is controlled by the parties themselves and the mediator’s role is limited to ensuring that the mediation is conducted in an orderly manner, without the parties transgressing limits of good conduct.
The object of any justice delivery system is to bring peace and harmony in society. In a dispute resolution through court, the party who loses will continue his animosity towards the party who wins, and the party who wins will be motivated by arrogance towards the vanquished, thus perpetuating the ill feelings between the two, which will be shared by the friends and relatives of the respective parties. Therefore in that process, the ultimate object of peace and harmony in society intended through the system sadly fails. On the other hand if a dispute is settled through mediation, everybody involved finds peace and harmony among themselveswhich will be reflected in the society in which they are part, as well. Therefore mediation is the most sublime method of dispute resolution, which is the greatest advantage of the mediation process.
The Mediation and Conciliation Project Committee(MCPC) appointed by Chief Justice of the Supreme Court of India, consisting of three Judges of the Supreme Court, a Chief Justice of a High Court and a senior advocate, has taken up the task of implementing mediation as a dispute resolution method in India. In each State the respective High Court has established Mediation Centres as per the directions of the MCPC. The mediation process in Kerala is controlled by the Kerala State Mediation and Conciliation Centre (KSMCC) established by the Honourable High Court of Kerala.
Presently, only court annexed mediation is in vogue in India.Only cases referred by the Court can be mediated at present. There is no provision for the parties to have pre-litigation mediation as in the case of lokadalats. In many countries, there is provision for pre-litigation mediation and in some countries cases would be taken up for trial only if mediation is tried first for resolving the dispute. The KSMCC has initiated steps to start pre-litigation mediation also with the help of the Kerala State Legal Services Authority. If the same comes into being, the parties to a dispute can try mediation even without approaching courts for resolution of their disputes.
In foreign countries mediation is being tried as a dispute resolution method decades ago. In California, where also, the problem of pendency of cases was very acute (though not so acute as in India), mediation came into being in 1976. In America mediation has attained the status of an institution and is so successful that only less than 10% cases go to trial and the rest is settled through mediation. In Kerala the success rate is only about 30% to 40% presently. Indications are that the same will steadily rising and in the near future we also may attain a success rate to at least 70% to 80%.
But mediation may not be suitable in all kinds of cases. Therefore the courts should decide which of the cases is suitable for a particular alternative dispute resolution method envisaged in the C.P.C.Although mediation can be tried in all kinds of civil cases, mediation is more suitable in matrimonial cases, property disputes, commercial disputes, partnership disputes etc., where personal relationships between the warring parties are involved. Motor accident claim cases are more suited for lokadalath, since no personal relationship between the parties is involved in those cases. Although Section 89 strictly applies only to proceedings under the C.P.C., the same can be tried in criminal cases under Section 138 of the Negotiable Instruments Act, cases under Section 498A of the Indian Penal Code, domestic violence cases and other criminal cases compoundable under the Code of Criminal Procedure Code also.
Many of the ills plaguing the mediation programme in Kerala can be overcome if mediation is governed by a comprehensive legislation like the Legal Services Authorities Act. The MCPC is taking up the matter with the Government of India and if the same materialises as early as possible, the concept of mediation has a better chance of success in India.
There is an unfounded fear about the mediation process among advocates. Many think that mediation would eat into their work. But experience shows that mediation can result only in more work for advocates. Even for attempting mediation, the parties should fist approach advocates and the advocates are not deprived of their fees because the dispute is settled through mediation. The advocates are also spared the mental tension in a contested case. Secondly, if the common man gets the confidence that his dispute can be resolved through mediation, more and more of the 50%, who silently suffer the injustice meted to them, would come forward to try the new concept, resulting in more work for the advocates. If an advocate gets redress of the his client’s grievance through mediation, his reputation would grow among the public through word of mouth and more and more people would approach him with their case. The legal profession itself would get more acceptability and honour among the litigant public. One of the master trainers, who trains mediators in India and had initially led a delegation to the Chief Justice of the Karnataka High Court against mediation has now become the staunchest supporter of the mediation process and he sets apart considerable time for propagating mediation, that too taking only nominal remuneration. He has told this author that after he started encouraging mediation, his income has not doubled, but trebled. Therefore it is in the interest of the advocates themselves to promote mediation as an alternative dispute resolution method.
As stated in the beginning, what is at stake now is the faith of the people in the justice delivery system. If we are to regain the faith of the people in judiciary which is decreasing day by day, the institution of Mediation should gain wide acceptance in India and the concept of mediation should succeed as an alternative dispute resolution method. Towards that goal, courts, judicial officers including judges, advocates, advocate clerks, mediators and litigants should make earnest efforts, failing which anarchy would be the result, which our democratic country should avoid at all costs.
All said and done, what better and more exalted form dispute resolutioncan there be, where the parties themselves find a solution to their disputes? Therefore mediation should be practiced as the best from of dispute resolution and not merely as an arrears reduction method.The author is confident that if properly implemented, the Mediation Centres would run parallel to court centres rendering justice to the people equally as courts.
(Retired Justice Siri Jagan, the author is a former judge of the High Court of Kerala, who was a member of the KSMCC from its inception in 2008 and the President of the Board of Governors of the KSMCC during the last one year of his tenure as a judge)