Introduction

Public disputes are a part and parcel of any democracy. By definition, public disputes are disputes where the outcome affects a large number of people and hence, apart from the nominated parties, the general public has a vested interest in the outcome. These disputes usually revolve around issues which are environmental, economic or social in nature. Resolution of these disputes is often a time consuming, arduous and litigious affair. Public disputes are different from private mediation since the latter is conducted between two or more parties where the stakes may be higher but fewer people are impacted by its outcome.^[1] Further, in private disputes, the impact of conflict is felt by either an individual or a very specific group of people or organisation, instead of the general populace. 

In Part I, we aim to analyse the status quo of the legal framework governing mediation in India and understand the role played by different mediation centres. This is followed by a historical analysis of the interaction between public disputes and mediation. In Part II, we will highlight the prevalent anti-mediation sentiments in the Indian legal sphere. This is followed by understanding and critically analysing the interaction of the Indian Supreme Court with mediation. The overarching goal here is to establish a case for mediation as a favourable substitute to litigation for the resolution of public disputes in India. 

Legal Status of Mediation in India

Mediation in India is currently regulated under Section 89 of the Civil Procedure Code, 1908 (hereinafter, “CPC”) and the Arbitration and Conciliation Act, 1996 (hereinafter, “Act”). The Commercial Courts Act, 2015 was amended in 2018 to make mediation a mandatory action before the institution of a commercial dispute. The Companies Act, 2013, also provides for mediation. Further, India is a party to the Singapore Mediation Convention since 2019 that enforces the international commercial mediation agreements in India. More recently, in January 2020, the Supreme Court formed a committee, headed by Mr. Niranjan Bhatt, in charge of formulating a Mediation Act. 

In order to promote mediation as an alternate method of dispute resolution, several mediation centres have also been set up in India. These mediation centres are responsible for appointing mediators for parties who have been sent for mediation by court order. They also provide venues for private sessions. Many of these centres also have help desks/clinics to help with pre-litigation mediation.^[2] The first mediation centre was set up in the Madras High Court in 2005 and was soon followed by the setting up of multiple mediation centres across the country. Further, in 2005, a Mediation and Conciliation Project Committee was set up by the Chief Justice of India (hereinafter, “CJI”) to encourage resolution of disputes in accordance with Section 89 of the CPC. As of 2015, there are 839 mediation centres in India with about 6480 trained mediators.^[3]

The codification of mediation is yet to materialise and until the same, the process will not become binding, thereby raising pertinent questions regarding its legitimacy. Presently, the existing jurisprudence on mediation is riddled with inconsistencies. For example, Section 89 of the CPC shows that there is a difference between mediation and conciliation hence, creating ambiguities by providing for conciliation [Section 89(1)(d)] and mediation [Section 89(1)(b)] separately. However, Afcons Infra Ltd v Cherian Varkey Construction Ltd^[4] laid down that mediation and conciliation are one and the same. Further, Section 12A of the Commercial Courts Act, 2015 makes mediation compulsory before any case is heard before a court except for those cases wherein an interim relief is necessary. Therefore, having a uniform law on mediation would effectively address these gaps and concerns. 

Historical Analysis 

For centuries, meditation has been practiced in India. For example, to solve public disputes at the community level, the Panchas or a panchayat^[5] would be formed to act as the third neutral party. If the mediation failed for the first time, the pancha would deliver a decision binding on both parties. These proceedings were oral and no record was made but despite the lack of legal authority, mediation was used regularly and was accepted by the parties.^[6] Soon after, a formal Alternative Dispute Resolution (hereinafter, “ADR”) system was set up in colonial India. After the implementation of the British system, arbitration was a more accepted ‘legalized’ ADR method. Mediation came to be understood differently from what was practiced by our ancestors.^[7] 

Another key method of raising public disputes has been through public interest litigations (hereinafter, “PILs”). According to Justice Bhagwati, PILs are meant to combat issues of “state repression, governmental lawlessness, administrative deviance, and exploitation of disadvantaged groups and denial to them of their rights and entitlements."^[8] In 1970s, the development of PIL jurisprudence was slow due to two key factors. First, there was a dearth of lawyers due to lack of educational opportunities; and second, legal literacy amongst the general public was negligible. This was further crippled by the fact that access to legal counsel was an expensive right that the majority of population couldn’t afford. However, in 1978, the Supreme Court received a letter from a prison inmate, who was serving a death sentence in Tihar Central Jail, highlighting the tortures that were inflicted upon another inmate by the guards. The court took cognizance of the same and held that prisoners are entitled to rights and liberties despite their crimes.^[9] This was a turning point in the PIL jurisprudence in India as it popularized public interest litigation cases from across the country. Hence, even with criticisms surrounding the possibility of judicial despotism, PILs are crucial to the effective functioning of a democracy since they have allowed the judiciary to help in social, economic and political matters.

The backlog of cases in courts increases significantly every year. Between 2019 and 2020, the backlog increased by 18.2%. As these cases rise, there are new methods being implemented to help reduce this backlog and make the justice system more efficient. The implementation of Section 89 of the CPC and setting up of mediation centres are some of these methods. With the growth of mediation, many of the public interest issues can be solved without the risk of overreaching and the cost of litigation. The representation and resolution processes are more time and cost efficient as well as solution oriented. With the help of mediation, there is a greater possibility to put across one’s sentiment and reach a solution which is beneficial to both parties.

Views expressed above are solely of the author.
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^[1] Robert Zeinemann, 'The Characterization of Public Sector Mediation', Environs: Envtl. L. Pol'y J., 2000.

^[2] K. Srinivasa Rao v D.A Deepa, (2013) 5 SCC 226, Supreme Court of India, 22nd February 2012 at ¶ 33

^[3] Mediation and Conciliation Project Committee, ‘Mediation Brochure’, 2020 at 6, available at https://main.sci.gov.in/pdf/mediation/Brochure%20-%20MCPC.pdf 

^[4] Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. (P) Ltd, (2010) 8 SCC 24, Supreme Court of India, 22nd July 2010

^[5] Anil Xavier, ‘Mediation: Its Origin and Growth in India’, Hamline Journal of Public Law and Policy, Vol 27, available at https://www.arbitrationindia.com/pdf/mediation_india.pdf 

^[6] Id., at 1

^[7]Id., 

^[8] Zachary Holladay, Public Interest Litigation in India as a Paradigm for Developing Nations, Indiana Journal of Global Legal Studies, Vol.19 (2012), available at https://doi.org/10.2979/indjglolegstu.19.2.555

^[9] Sunil Batra v Delhi Administration and Ors, 1980 SCR (2) 557, Supreme Court of India, 20th December 1979, available at https://indiankanoon.org/doc/778810/