Background
According to a study on several mediation programs across the globe, India is found to have garnered a high rate of settlement for cases referred to mediation, which has contributed to an overall increase in the efficiency of mediation. The program has slowly evolved since the 2000s due to a series of training and awareness sessions, and the consequent commencement of mediation centres which have thereby contributed to its increased understanding and accessibility. The aspects of party autonomy, fees, pace, efficiency, and successful enforcement of mutually-reached settlements in contrast to litigation’s vexatious shortcomings are increasingly making mediation a preferable mode for both parties and practitioners today.
Mediation is not only proving to be an instrument for resolving private conflicts but also inter/intra-country conflicts. For instance, the 52-year-long internal armed conflict between the FARC rebels and the Colombian state had ultimately ended into a peace agreement which was reached post-mediation and conciliation conducted by an Indian global humanitarian leader Sri Sri Ravi Shankar. The 500-year-old Ayodhya dispute in India had also witnessed several rounds of mediation in the quest of resolving the matter amicably. However, due to the absence of a binding factor and related enforceability issues, the parties didn’t choose to settle through mediation. While several other factors like infrastructure, awareness about mediation vis-à-vis litigation, absence of a specific legislation in India etc., do pose a concern in the long run, it is vital to conduct a standalone assessment of mediation’s efficacy in India in order to discover and forestall any potential inefficacies.
Quantitative and Qualitative Assessment
To understand the success rate of mediation, I have made an attempt at reviewing some of the Centre’s data available on the cases referred and mediated.
Since the inception of mediation centres in Gujarat (beginning 2008 onwards), 3305 out of 17,451 cases have been settled until March 2017 which amounts to a 19% rate of settlement. Approximately 11,000 cases could not be settled, while the rest could not be started or remained pending at the time of computation. Further, in the Mediation & Conciliation Centre annexed to the Punjab & Haryana High Court's report, a settlement rate of 21% was achieved as out of 12,080 cases referred for mediation, 10,863 cases were finally disposed whereby only 2346 could be settled (as inferred from the consolidated data till March 2017). For Tamil Nadu, 38,592 cases were referred to mediation out of which 6359 could be settled until the end of 2015, viz. 16% settlement rate. Kerala’s statistics also show that 3269 cases were settled out of 9796 cases in 2020 itself. Kerala and West Bengal have achieved a settlement rate of 24.8% and 17.1%. In comparison to these states, other prominent mediation centres have recorded comparatively higher settlement rates.
Between 2007-2020, a total of 77,839 cases have been referred for mediation to the Bangalore Mediation Centre (BMC). Due to reasons like non-appearance of parties or refusal to participate or case being unfit for mediation amongst others, approximately 61,927 cases were mediated out of which 40,854 have been settled, which denotes a 66% rate of successful settlement. Even during the first phase of COVID-19 pandemic i.e., June-December 2020, BMC used the mode of online mediation to settle 1,133 out of 1,608 mediated cases. Only 297 cases remain pending. This 70% rate of settlement indicates the implicit potential of successful settlement through online mediation. Further, as inferred from the data provided by the six courts of Delhi (Tis Hazari, Karkardooma, Rohini, Dwarka, Saket, Patiala House) between 2005-2021, settlement rates range around 60%, 76%, 59%, 69%, 60%, 55% respectively. Moreover, a disposal rate of 75.27% was achieved under a Family Courts Mediation Drive initiated by Delhi High Court. This shows that higher rates of settlement can be achieved through judicial participation in the promotion of mediation. Similar success rates are observed in countries like Singapore and Hong Kong which are more advanced in mediation as they also garner 70% and 61% settlement rates respectively.
Due to a variance in the sets and years of data provided by different states and centres, nothing can be concluded universally with regards to the performance of mediation program in India as a whole. However, it is reasonable to conclude that mediation is recording better efficiencies in comparison to litigation. While a litigant invests 13 years, it takes 145 minutes per case on an average at the Bangalore Mediation Centre where the settlement rates are also relatively high. Though there is a scope of improvement in the referral and settlement rates, the cost and time savings are still notable. From a cross-jurisdictional perspective, several EU countries have also recorded a decrease in the days and money invested for mediation in contrast to litigation. For instance, Italy’s settlement period and costs were reduced from 1185 days and 15885 euros in litigation to 66 days and 3078 euros in mediation. Similar reductions have been observed in UK, France and Luxembourg too.
Normative Understandings & Perspectives
Several academic scholars and the legal fraternity seem to be favoring the idea of pre-litigation mediation as a solution for resolving courts’ backlog burden and saving parties’ time, and the same was also endorsed by the Supreme Court in the 2013 case of K. Srinivas Rao v D. A. Deepa. However, it is believed that mostly parties value mediation only when they have exhausted years litigating or when they reach the stage of a SLP/transfer petition. Even according to BMC’s data for the period of 2014 to December 2020, only 79 out of 770 referred cases were settled through pre-litigation mediation when 683 could not be settled and 8 remain pending. Here, it becomes vital to cultivate parties and advocates’ confidence in mediation. For instance, advocates in Italy are penalized if they have not informed their clients in writing about mediation as an alternative before the start of litigation.
Thus, mediation shouldn’t be merely construed as a mechanism for reducing the explosion of cases at the judiciary but also be recognized for its intrinsic worth as Justice D.Y. Chandrachud puts it. Some assert that confidence/recognition can be fostered by creating a national regulatory framework and institutionalizing mediation as not only will this provide legal sanctity to the mechanism but also contribute to the codification of ethical practices, process & mediator’s standards, and creation of national and international centres for quality training and practice purposes. This would also bring in uniformity on rules for court-annexed mediation that vary between different High Courts but it shouldn’t discount the important precepts of procedural flexibility and parties’ active participation. What has made judiciary to be the most preferred dispute resolution mechanism till now, is its legal regulatory framework. Codification of laws has contributed to the creation of certainty, neutrality and reliability in the mind of the litigants and even in the realm of arbitration & conciliation. In order to make mediation a preferred mechanism, it should be evolved not only as an alternative to litigation whereby its purpose is to reduce cases’ arrears, but also be discerned as a valuable mode for mutual settlement without obliterating the system’s commitment to public interest & rule of law. Here, it is vital to study the efforts put in by the Singaporean government, legislators, and judiciary in successfully assisting the Primary Dispute Resolution Centres. On a side note, it is also imperative to take note of the nomenclature used i.e., court mediation centres are referred as “primary” centres for resolving disputes.
While some argue that to reduce delay or inefficiency in settlements, mediation should be mandated and costs should be imposed on parties for non-attendance in certain cases (as done in the UK), it needs to be explored if this would affect the core principle of voluntariness on the basis of which mediation is founded. We need to envision alternate ways of enhancing efficacy of mediation programme in India. Some of them could be incentivizing lawyers for referring parties to mediation (which would allay their resistance to developing mediation as an alternative to litigation); augmenting infrastructural capacities through creation of more physical and virtual mediation centres; providing quality training and lucrative pay to mediators; promoting mediation as a primary dispute resolution mechanism through legal fraternity’s cooperation and through initiatives like mediation drives as conducted by courts.
Even when seen from a commercial perspective, it is desirable to make mediation as a primary mode of dispute resolution in order to simplify business and preserve business relationships in spite of the conflict. Further, since India is merely a signatory to the Singapore Convention of Mediation, it is contended that with the ratification of this Convention, mediation could become a reliable mechanism to reach a binding settlement which could be enforced in the State parties’ territories where relief is sought. Such an adoption would help resolve cross border commercial disputes expeditiously which couldn’t be achieved effectively under s.89 of the Civil Procedure Code.
Conclusion
By virtue of its characterization, mediation has massive potential in becoming the most expeditious and economic mechanism of settling disputes privately. It is imperative to engage in such deliberations and more conversations with relevant stakeholders as that will help promote a bottoms-up approach when making policies for mediation. One of the most essential outlooks currently is to envision mediation for its intrinsic worth i.e. as an instrument for empowering parties to reach a resolution that they want, rather than the ordinary construction of it being the judiciary’s backlog reliever.
