Mediation is a dispute-resolving mechanism that has been prevalent in India for ages. Villages during ancient and medieval periods used to have panchayats where panchs/Mahajan or elderly and respected persons of the village performed the role of mediator by making the disputing parties, willing to have a settlement, come together and resolve their issues amicably.[i] With the advent of British rule, mediation came to be recognized as an Alternate Dispute Resolution (ADR) Mechanism. It gained a legal distinction, unique from other ADR methods, with the introduction of Lok Adalats in India. Chief Justice N V Ramana has drawn an analogy between the process of mediation as it is today and efforts made by Lord Krishna in Mahabharata to resolve the dispute between Pandava and Kaurava.
Earlier, mediation was primarily used by businessmen. In post-independence times, due to lack of awareness, it is informally practiced to settle familial disputes. Judiciary is making efforts to popularize it for the settlement of commercial disputes, partly owing to the rising caseload in the courts and partly owing to its cost-efficient and effective nature to reach an amicable settlement. Mediation allows the disputing parties to possess direct control over the procedure and outcome according to their needs and interests. Unlike adjudication where parties have to wait for the dates from the court and comply with the orders of the adjudicator, mediation saves time and money for the parties, and the decision-making power also vests with them. As a result, the rate of success of mediation settlements is also high. Owing to its advantages, the legislature and judiciary have made provisions for the court-referred mediation process. To cater to the interests of consumers in India, mediation is being popularized by offering its services within the judicial commissions.[ii]
Mediation and Conciliation Project Committee of the Supreme Court of India defines ‘Mediation’ as “a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in settling.”[iii] Of the two types of Mediation, in Court-referred Mediation, also known as post-litigation mediation, a case has already been filed in a court which is referred for mediation if the judge deems fit and with the consent of the disputing parties.[iv] The Consumer Protection Act 2019 has made provisions for a 3-tier quasi-judicial setup, envisaging a mediation cell attached to every consumer forum at all levels.
This is a remarkable approach to utilize mediation for mitigating the grievances of the consumers amicably without giving rise to any feud with the opposite party. In certain cases, the courts find elements of settlement within the matter and so the adjudicator suggests the opposite parties have an out-of-court settlement. However, the parties could not develop mutual trust, especially the consumer, who also feels that the other party has the means to dominate the matter. Consequently, they chose the court to decide for them. Now, when the court suggests referring the matter to the mediation cell within the commission itself, both parties believe in the process. Also, no party can have a dominating position owing to the presence of an impaneled mediator. Commission does not force mediation on the parties. They can proceed with it with their consent.[v] The commission also does not bar the parties to resolve the matter through mediation themselves. The parties with their consent can apply for mediation.[vi]
The process is free from any bias. The mediator at the commencement of the proceedings has to declare his/her neutrality by disclosing his her personal, professional, or financial interests. He/she takes them into confidence and creates a conducive environment. In a joint session, the mediator hears the perspectives of all the parties, trying to understand the issues and possibilities for settlement. In a separate session, the mediator helps the parties to disclose confidential information in private to him/her and encourages them to find sustainable solutions. In the closing stage, the mediator creates a settlement agreement reached by the two parties, takes their and /or her signatures, and sends it to the referral body. If the mediator exercises bias or did not disclose all relevant information about himself/herself, he shall stand disqualified after getting an opportunity to be heard. The confidential information disclosed to the mediator is not disclosed to other parties or even the commission.[vii] If parties cannot arrive at a settlement, they can continue with the adjudication process.
The process is entirely consumer-friendly. Once a settlement is reached, the amount paid to the court is refunded to the parties. The fees to be paid to the mediator will be significantly less than the costs incurred during court proceedings. With parties participating actively, the chances of compliance increase. Settlement reached leaves no scope for further disputes. The consumer feels satisfied and contended. Hence, the motto of consumer protection is successfully achieved. The inclusion of mediation in the Consumer Protection Act has provided an impetus to the non-adversarial method. It should be promoted widely to gain the confidence of the consumers and help them cure their grievances peacefully.
Author’s Name: Katyayni Singh (Damodaram Sanjivayya National Law University, Visakhapatnam)
[i] Mekhla Chakraborty, Development Of Mediation In India: A Brief History Via Mediation Centre (Apr. 25, 2020),https://viamediationcentre.org/readnews/ODc=/DEVELOPMENT-OF-MEDIATION-IN-INDIA-ABRIEFHISTORY#:~:text=The%20use%20of%20mediation%2C%20as,Mahajans%20were%20appointed%20as%20mediators.
[ii] Ashok R Patil, Consumer Handbook On Mediation (FAQ) Ministry of Consumer Affairs (2021), https://consumeraffairs.nic.in/sites/default/files/fileuploads/latestnews/ConsumerHandbook_Mediation.pdf.
[iii] Mediation and Conciliation Project Committee Supreme Court of India, https://main.sci.gov.in/pdf/mediation/Brochure%20-%20MCPC.pdf.
[iv] Code of Civil Procedure, 1908, § 89.
[v] Consumer Protection Act, 2019, §§ 37, 49, 59.
[vi] Id. at § 37(2).
[vii] Consumer Protection (Mediation) Regulations, 2020, § 13.