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The Chief Justice of India NV Ramana on Saturday, addressed at the India-Singapore Mediation Summit, titled - MEDIATION FOR EVERYONE: REALIZING MEDIATION’S POTENTIAL IN INDIA via video conference meet. The Chief Justice of Singapore, Sundaresh Menon was also present and later addressed too.

“Conflicts are unavoidable in any society for a variety of reasons political, economic, social, cultural and religious. And with conflicts, there is also the need to develop mechanisms for conflict resolution,” said the CJI

He stated that, India, and numerous Asian countries, have a long and rich tradition of collaborative and amicable settlement of disputes and pointed out how Mahabharata provided an early example of attempt at mediation.

“At mediation as a conflict resolution tool, where Lord Krishna attempted to mediate the dispute between the Pandavas and Kauravas. It may be worthwhile to recall that the failure of mediation led to disastrous consequences.”

Mediation, as a concept, is deeply embedded into the Indian ethos. Long before the arrival of the British adversarial system in India, various forms of mediation were being practiced as a method of dispute resolution, he added.

Referring to Indian Judicial System, CJI said, “it is unique not only because of a written Constitution, but also because of the immense faith reposed by the people in the system. People are confident that they will get relief and justice from the judiciary. It gives them the strength to pursue a dispute. They know that when things go wrong, the judiciary will stand by them. The Indian Supreme Court is the guardian of the largest democracy.”

The Constitution gives wide ranging powers and jurisdiction to do complete justice between the parties to bring to life the motto of the Indian Supreme Court, “Yato Dharma Sthato Jaya”, that is, “Where there is Dharma, there is Victory”.

Having said that, he pointed out a few contributing factors that have revived the Alternate Dispute Resolution (ADR) mechanisms in India -

• The first one relates to judicial delays. The often-quoted statistic that “pendency” in Indian Courts has reached 45 million cases, which is perceived as the inability of the Indian judiciary to cope with the case load.
• The second factor which contributed to the growth of ADR, relates to the increased access to justice in India. It can safely be stated that the legal aid programme in India is one of the largest and most robust. The National Legal Services authority encourages the settlement of disputes through ADR. One such mechanism is the Lok Adalat (literally, People’s Court).
• After India opened its economy, the Parliament enacted the Arbitration and Conciliation Act, 1996 to bring the Indian arbitration regime in line with the UNCITRAL Model Law. This was probably the most important legal reform, which has received immense attention by the Indian legal and business community.

The CJI further stated the difference between the ‘Mediation’ and ‘Conciliation’ and suggested that both are interchangeable expressions in many jurisdictions.

“However, in India, the Conciliator has wider powers than a Mediator. The Conciliator can make a proposal for settlement and can formulate the terms of the settlement. The mediator, on the other hand, only acts as a facilitator for the parties to come to a settlement,” he added.

On the development of Court Annexed Mediation in India, the CJI mentioned, the absence of any guidelines or rules for the operation of mediation was being sorely felt and was one of the reasons that mediation was not taken up. In a constitutional challenge to Section 89 CPC, the Supreme Court of India appointed a Committee to draft Mediation Rules, which were subsequently approved. All the High Courts were directed to frame the rules.

“Court annexed mediation, along with the mandate to refer matters to ADR mechanisms under Section 89 CPC can be considered an Indian adaptation of the “Multi-Door Court House” proposed by the Harvard Professor, Frank Sander. The model suggested by Professor Sander, included a Centre that would contain numerous dispute resolution mechanisms under one roof.”

On Singapore Convention on Mediation, the CJI stated,

“A development in 2019, which bears special mention relates to the Singapore Convention on Mediation. This is intended to create a framework for cross-border enforcement of international settlement agreements marked a huge step forward. The Convention is important for creating trust and faith with respect to international commercial settlement agreements. India was one of the first signatories of the Singapore Convention in 2019.”

Despite the encouraging figures, certain barriers persist with respect to the adoption of mediation in India. Before ensuring the success of Mediation in the country, it is necessary to address issues of legitimacy, credibility, and acceptability of mediation, said CJI.

He mentioned areas in modern mediation practice that must be highlighted and deserved discussions –

• The first relates to the role of a Mediator in the dispute resolution process.
• The second issue relates to the extent of ‘neutrality’ and ‘aloofness’ a mediator must possess during the process.

He clarified that he flagged these concerns not to discourage mediation, but to make it a more robust process.

“My object is to initiate a debate and discussion in regard to the nature and limits of the role of a Mediator, so that it can be clearly and carefully calibrated. Rather, the mediator must be equipped to understand the situation of the parties before him, and to choose the appropriate approach. This can only be made possible with carefully designed, in-depth and continuous training of Mediators.”

 

He also pointed out that there is a need for ethical standards and unimpeachable integrity and neutrality of mediators.

“As I mentioned earlier, a more active involvement of the mediator in the process of mediation could open the doors to parties attempting to influence them. This necessitates the creation of an environment which prevents any such attempts being made by an unscrupulous party. It requires that mediators be of good character and moral standing. For this, it is necessary, that Rules and Regulations governing Mediators are updated and implemented to ensure transparency and neutrality.”

He concluded with the words of Abraham Lincoln:

“Discourage litigation. Persuade your neighbour to compromise whenever you can. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”