“NATIONAL SEMINAR ON CURRENT ISSUES BEFORE THE LEGAL PROFESSION AND THE JUDICIARY”, ORGANIZED BY THE BAR ASSOCIATION OF INDIA AT CALICUT (KERALA) ON SATURDAY, 1ST AUGUST, 2015.

========================================================

“PRACTICAL ROADBLOCKS IN PROMOTING MEDIATION”

RAJIV DUTTA, SENIOR ADVOCATE

Where would you go if you had a legal dispute? Would you go to the courts or prefer recourse to an Alternate Dispute Resolution (ADR) mechanism? Ask any person and the first reaction would be to approach the courts. This merely gives credence to the thought expressed by an eminent scholar; an ounce of mediation is worth a pound of arbitration and a ton of litigation.

In India, it has taken some time to cement the settlement culture in the law. The 129th Law Commission Report, the Malimath Committee Report, the introduction of Section 89 of the CPC, 1908, the introduction of Section 30 into the Arbitration and Conciliation Act, 1996, the Afcons Infrastructure Ltd.[1] case and the 238th Report of the Law Commission are merely of academic importance for the purposes of the present discussion, but important nevertheless, as they were responsible for promoting settlement of dispute outside the court process.

Courts were unable to handle the increasing number of dockets. As the 238th Report of the Law Commission points out, the concept of ‘speedy justice’ had become a casualty, even though each judicial officer/Judge was maintaining a high rate of disposal. Suffice to say that with the introduction of special proceedings under Section 89 of the Civil Procedure Code, 1908 into the judicial mindset, India became one of the few nations where the ADR process gained legislative approval, as the court was empowered to explore settlement of disputes outside the courts.

Therefore, to a limited extent ADR was considered as a panacea to facilitate the court process by sharing the burden of courts. In many cases, earlier, it was observed that ADR processes including mediation were merely treated as a ‘poor cousin of litigation’, and therefore, incapable of facilitating ‘access to justice’.

Mediation, even though court mandated, unlike arbitration and conciliation, is not a proceeding which is readily resorted to even in matters which are imminently capable of settlement. Take the case of arbitrations, wherein apparently mutually acceptable awards are immediately subject to statutory challenge. While dealing with mediation, it should be kept in mind that one is dealing with a skill set that requires equal utilization of tact, deft negotiation, the ability to facilitate dialogue and a general appreciation of what is the parties position. This aspect is not always capable of being undertaken by a person who has only carried on litigation.

Conflict is inevitable, managing the combat is an art that is possessed by few.

I have, for the present discussion culled out the following ten specific reasons which, according to me, are the roadblocks to the success of mediation. Obviously, I have taken into consideration the prevailing global view also.

• Redraft of Section 89 CPC

The first and foremost roadblock that is noticeable is in the drafting of Section 89 of the Code of Civil Procedure itself. As the 238th Report of the Law Commission notices, after the judgment of the Supreme Court in Afcons Infrastructure case, Section 89 is ambiguously worded. There was a general suggestion to recast Section 89 of the CPC. In recasting, the Law Commission of India has suggested certain deviation from the suggestions made by the Supreme Court in Afcons Infrastructure case. The important deviation in my view is that mediation should be separate from proceedings in Lok Adalat and it would not be appropriate to refer the settlement agreement to be forwarded to referring court in passing decree as suggested by the Supreme Court in the Afcons Infrastructure Case. 

• Lack of Specific Statute

Another roadblock that confronts anyone interested in Alternate Dispute Resolution processes is the lack of specific statute which leads to a sense of ambiguity and lack of confidence about Mediation. In Brazil and UAE, for example, due to the absence of any specific statute, there are many questions that are being raised concerning court-connected mediation. (In Brazil, for example, a law for introducing and regulating mediation practise is in the pipeline, but has not seen the light of legislative sanction). These include queries about the degree of independence possessed by a mediator and inherent lack of enthusiasm for referring matters to mediation.

• Court Mandated Mediation is not so successful

Parties who are referred to court mandated mediation are not in a position to determine whether mediators can function independently, even if their mandate is regulated in accordance with a particular statute and whether that Statute would inherently limit their ability to act in an impartial manner. In France, Spain and Morocco, there is very little incentive for parties to refer disputes to mediation, mainly due to a strict statutory regime which is being considered as an obstacle.

• We must not confuse mediation with Lok Adalat

In the Indian context, the role that an ‘arbitrator’, ‘conciliator’ ‘mediator’ and a person sitting in a Lok Adalat Court perform is vastly different and cannot be equated to each other. Each has a distinct role and one cannot apply the principles of one type of ADR to another type. Confusion arises when a person accustomed to one type of ADR process attempts to fulfil his mandate under another ADR.

• Lack of mediation culture

A definite roadblock that arises is a significant lack of mediation culture or an attitude of peaceful settlement. In certain countries such as Italy and other countries within the European Union such as Spain and France a concept known as ‘Mediation Directive’ was introduced through directive no. 2008/52/ec dated 24.05.2008 by the European Parliament to deal with certain aspects of mediation in civil and commercial matters.

• Resistance by the bar

Another issue that is present for the lukewarm reception for ADR processes is due to the persistent resistance by advocates, attorneys and lawyers especially those who are involved in the litigation practice who feel that expansion of ADR practise will cut into their practise and therefore, act as gatekeepers for promoting their practise while diverting the prospects for mediation. Many advocates do not advice their clients to adopt ADR processes due to financial reasons.

• Introduce mediation at the outset

There is a lack of control over the system in that by the time parties approach mediators or undertake ADR process, they have already undertaken couple of litigation rounds and therefore, approach mediation as a second hand option or an option of last resort. Furthermore, advocates project the mediation as a second class process and which does not result in speedy resolution of inter-se disputes. In countries such as India, where litigation is relatively inexpensive proposition, parties do not readily agree to the ADR process.

• Lack of structured mediation market

There is an inherent lack of structured mediation market. This arises due to the fact that there is very little information that is publicly available to potential litigants concerning the benefits of mediation. This also arises due to the fact that anyone and everyone with even an iota of legal knowledge can go around and refer to themselves as ‘mediator’ and conduct mediation proceedings. The mindset/skills that are required to be adopted in mediation/ADR process are completely different from what an ordinary advocate is required to adopt while conducting an ordinary litigation practise.

• Lack of Mediation Institutions

Within many countries, there is a lack of clear mediation institutions. Apart from international institutions such as the ICC, LCIA, SIAC and  HKIAC which have formulated specific rules for mediation, there are not many institutions which provide clear training and follow up workshops for interested persons. There is a clear lack of exclusive and dedicated mediation centres in many countries, which clearly go on to show that ambiguous training is provided to many persons. There are many countries such as France etc. where there are more mediation centres than cases, resulting in such centres working under capacity.

• Need for teaching mediation techniques in Law Schools

Most legal practitioners built their foundation in law schools which focus on preparing students for a litigation oriented practise. Such students, therefore, develop an inherent bias and cannot adequately act as a facilitator or enabler to assist parties to arrive at an agreement. Furthermore, even after the ADR process, the settlement is usually challenged before the civil courts in a fresh round of litigation, thereby completely negating the positive benefits of ADR. As such, mediation practise and traditions have seen a slow development. Furthermore, many legal students do not pay too much attention or interest in ADR processes and the reality of ADR within the domestic jurisprudence. In certain countries, there is still a perceived aura concerning litigation practise. As such, due to the lack of knowledge and desire to practise ADR, the development of mediation is still progressing at an extremely slow pace.

A recent example where mediation was used, albeit in another context was in the recent judgment of the Learned Single Judge of the Madras High Court in the judgment of V. Mohan vs. State [Criminal Appeal No.402 of 2014], wherein the Appellant was accused of offences under Section 376 of the Indian Penal Code. On the basis of a incorrect appreciation of the facts, and on the basis of incorrect application of certain precedents of the Supreme Court, the Learned Judge had referred the matter to the mediation centre attached to the Madras High Court. Even though the intention appeared to be noble, the said matter was recalled and modified due to an observation made by the Supreme Court in State of M.P. vs. Madanlal [Criminal Appeal No. 231 OF 2015], wherein the Supreme Court had referred to the same as a spectacular error and stated that no mediation could be possible in such offences. The fact that mediation is entering the national conscious is evident from the fact that earlier this month, a Mumbai court referred the case relating to a complaint filed by a South African NRI businessman, Iqbal Mir Sharma against firm actor, Saif Ali Khan and two of his friends alleging that they assaulted him in Wasabi Restaurant in Taj Mahal Hotel for mediation after three years of legal wrangling. A hope can only be expressed that going forward, these positive steps towards ADR processes evidenced through the present case continues without pause and cases of such nature quickly resolved. This would only go on to show the positive development of judicial mindset to tackle cases both within and outside our classical definition of ‘court’.

    ********