Fear Of Mandatory Mediation – Is It Real?

A.J. Jawad

1 July 2022 6:25 AM GMT

  • Fear Of Mandatory Mediation – Is It Real?

    Recently I came across an article titled "Will mediation curb litigation or be the cause of it?" written by G. Mohanakrishnan, President of the Madras High Court Advocates Association, and Pascal Sahil R, School of Law, Christ University, carried in the Hindu Business Line dated 02-06-2022[1]. It is argued by the authors that the provisions of the proposed Mediation Act, that mandate...

    Recently I came across an article titled "Will mediation curb litigation or be the cause of it?" written by G. Mohanakrishnan, President of the Madras High Court Advocates Association, and Pascal Sahil R, School of Law, Christ University, carried in the Hindu Business Line dated 02-06-2022[1]. It is argued by the authors that the provisions of the proposed Mediation Act, that mandate two mediation sessions before knocking the doors of the courts, would amount to denial of access to justice for the litigants. Finding fault with Section 6(1) of the Mediation Bill, the authors have essentially raised the following points in their article:

    1. That, since mediation is a concept that is still evolving in India, mandating it would have serious repercussions.
    2. That this mandate is against the "fundamental principles of justice, constitutionally unviable and deprives a party of his/her choice to litigate".
    3. That the choice to litigate can be backed by factors such as disproportionate balance of power, belief in the traditional court system, urgency and so on.
    4. That the notion of coercing/forcing parties into mediation does not per se guarantee a positive outcome.

    Let us deal with each of these points.

    Mediation Is Still An Evolving Concept:

    This assumption is fundamentally wrong. Mediation is essentially a process of dialogue between two disputing parties with a neutral third party mediating this dialogue. Is this a new concept in India? If one looks at the rich culture of conflict resolution in India, the very foundations of this non-violent culture lie in the concept of dialogue. On the contrary, the present legal system is just a two century old concept bequeathed on us by our colonial masters. Of course we did have adjudicatory processes before this, where kings, ministers or village elders would adjudicate upon disputes. But that was not a formalised structure as the present day judicial system is. By adopting mediation, we are only going back to our roots.

    Even the modern idea of mediation is not new. It has been here from the time the Civil Procedure Code was amended and section 89 was notified in 2002. Thereafter, the first court-annexed mediation centre was set up in Madras High Court with other courts following suit. Trained mediators are being referred cases and many of these cases are getting resolved through mediation. Twenty years is too long a time for a concept to "evolve". The drafting of the Mediation Bill itself signifies the maturing of the concept and not to forget that India was one of the first signatories to the Singapore Convention.

    Mandatory Mediation Is Against The Fundamental Principles Of Justice:

    I am compelled to ask the question - Is the decision of the court in a dispute the only form of justice? What if parties negotiate with each other and reach an agreement on how to resolve their conflict? Is that not justice? What makes us believe that only a third person's decision, however wise and learned, is justice and not our own decision reached through discussion?

    Let us look at the idea of justice from the perspective of the court system. The courts are bound by the law. The law places rights and wrongs in different silos and prescribes rules on how those rights and wrongs can be proved and what should be the reward for the one who proves his/her right or the punishment for the one who is proved to be wrong. We have strict rules of procedure, evidence and limitation and only what falls within the narrow confines of these rules qualifies to be called a "right" that can be claimed before the court.

    However human interactions cannot be put in such silos or be defined by fixed paradigms. Every dispute has its foundations in a larger conflict. It is essentially a lis inter partes with so many factors like emotions, biases, prejudices, perceptions operating at different levels and guiding the actions of the protagonists. The law does not take cognition of these factors and, as symbolised by the iconic lady of justice, wears a blindfold and wields the sword. The result is that, justice according to law may not necessarily get translated to real justice. Conflicts keep simmering, dissatisfaction continues followed by disillusionment and anger, perpetuating the disharmony. Therefore to confine the "fundamental principles of justice" to only justice delivered by the courts would be an injustice to the very idea of justice.

    Even assuming that courts alone can deliver justice, has our present legal system always delivered justice? Our judge-population ratio is one of the most dismal in the world. The litigation costs are prohibitively high. The delays in courts have acquired legendary proportions. The higher courts are inaccessible to most people because of distance and costs. And I am not even talking about the scope of human error in rendering judgements. So what "fundamental principles of justice" are we talking about?

    Choice To Litigate, Disproportionate Balance Of Power And Belief In The Traditional Court System:

    The choice to litigate is not a choice at all when litigation is the only option. Often times people prefer to live with injustice rather than knock at the doors of the temples of justice simply because they are too intimidated by the complexity of the process, the prohibitive costs, the inordinate delay and the unpredictable outcome. All that the Mediation Bill is doing is offering an alternative to the litigants, many of whom may not be aware that such an option exists. By attending merely two sessions of mediation, people are not deprived of their right to litigate. The analogy of taking the horse to the water would be appropriate to explain the purpose of section 6(1). The parties, like the horse in the analogy, can either choose to mediate or walk away from it and into the portals of the courts. The authors refer to the mandatory mediation (described as the "opt-out" model) in countries like Italy, but fail to mention that it has been a resounding success there. Most parties who attend the mandatory one session of mediation, choose to continue with it. It does not in any way take away their autonomy - you can always walk out of a mediation if you feel it is skewed against you. Has anyone tried walking out of a litigation?

    Let us not forget that our judiciary has been spearheading the mediation movement in India. But for the initiatives taken by some eminent Chief Justices of High Courts like Justices Markandeya Katju and A.P. Shah and the tireless efforts of Justices S.B. Sinha and Madan Lokur (may be difficult to mention all the names here), mediation would not have reached the present level. The Mediation and Conciliation Project Committee (MCPC) of the Supreme Court is doing exceptional work in spreading mediation even at district and taluk levels. This is because the judiciary understands that adjudication alone does not ensure justice.

    It is ironical that the country that gave us the judicial system has embraced mediation in a big way. Mediation is a happening thing in the UK. Lawyers in the UK are expected to file a statement before the court that they have briefed their clients about the cost and benefits of mediation vis-à-vis the cost and benefits of litigation. Parties who unreasonably refuse to mediate are denied costs. Smaller countries like Singapore are leading the way by establishing institutions and bodies that promote mediation and prescribe standards. Singapore has spearheaded the adoption of the Singapore Convention to make cross-border mediated settlements enforceable. When other cultures can embrace mediation, why not India?

    Is Mandating Two Sessions Of Mediation Coercive?

    In Afcons infrastructure and Ors. v. Cherian Verkay Construction and Ors [2010 (8) SCC 24] the Supreme Court has held that referral to ADR processes under section 89 of the Civil Procedure Code is mandatory. So we already have mandatory mediation for cases pending in the courts. Section 6(1) merely goes one step further and mandates parties to attend two sessions of mediation even before they come to the court. It is then upto the parties to either continue with the mediation or walk out of it. In my experience in court-annexed mediations, there have been several occasions when parties have come for the mediation, having been sent by the court, and told me that they wish to go back to the court. I request them to sit for a few minutes and listen to me. Once I explain the process to them, they would invariably agree to continue with the mediation. I am sure other mediators would probably have had similar experiences. This clearly shows that the hesitation of the parties stems not from a desire to fight the case in court but from an ignorance of the alternatives available. Once they understand that they lose nothing by participating in the mediation, that they can walk out of it any time if they are not happy with the way it is going and that it is completely confidential, they decide to try it out.

    Way Forward:

    Khalil Gibran has said "The greatest trust between man and man is the trust of giving counsel". Ignoring the lack of gender neutrality in this quotation, it has a message for us. People trust us to give them the right advice. They put their fate in our hands hoping and believing that we will guide them to the correct path. No one wants to live with conflict. All people want is an early resolution. They want a solution that they can live with and that can assure them peace of mind. Ours is a noble profession simply because we help people solve their problems. What can be more noble than showing them the right way? And if mediation gets established as a profession, money will follow. Implementing mediation is certainly a win-win option for both lawyers and clients and not a win-lose option where the clients are the losers. There is no gainsaying the fact that mediation is on its way to becoming the mainstream dispute resolution process globally. Technology is a gamechanger and mediation is one process that is amenable to technology. If India fails to join the game, we all stand to lose. It is in our hands now – either we embrace the change or we are left out of the race.

    The author is an Advocate and Mediator, Madras High Court. Views are personal.

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