Landscape Of Mediation

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Abraham Lincoln said Discourage litigation. Persuade your neighbors to compromise whenever you can point out to them how the nominal winner is often a real loser, in fees, expenses, and waste of time.

Origin of Mediation:

In INDIA mediation was made familiar by giving official recognition in 1996 and by amendment of Civil Procedure Code (CPC) in 1999.mediation has evolved in latter half of the 20th century.

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Ahmadi formed a national study team in 1996 with United States to examine case management and dispute resolution. In the study legislative changes were suggested which authorized the use of mediation. In 2002 new provision was inacted providing for case management and the mandatory reference of cases to alternative dispute resolution, including mediation. Mediation is not new for INDIA its root can be traced way back from Ancient Indian legal system known as Gram Panchayat and Nyaya Panchayat.

Status of Mediation in India:

Indian lawyers are conservative, they are reluctant to expose their clients the uncertainty of risk from ADR process the lawyers in India are deprived by the knowledge of arbitration conciliation and mediation. They are depriving themselves by the income that can be generated through it.

In the case of Hussainara Khatoon v. Home Secretary, state of Bihar Supreme Court held that Right to a speedy trial is a Fundamental Right under Article 21 under Indian Constitution. This judgment by the bench of P.N. BHAGWATI promotes mediation.

Also in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India the Supreme Court held that reference of arbitration conciliation and mediation are mandatory for court matters.

There are two principal enactments that deal with mediation in India- the CPC and the ACA. Section 89 of the CPC and the rules framed by various high courts under that section deal with court-annexed mediation while Part III of the ACA deals with private mediation. Part II of the Civil Procedure Alternate Dispute Resolution and Mediation Rules (the Mediation Rules) also provides for various rules relating to mediation.

Other legislation that covers mediation is the Commercial Courts Act 2015, whereby it is mandatory for parties to exhaust the remedy of pre-institution mediation under the Act before instituting a suit.

In the year 2011 supreme court of India declared that mediation proceedings are confidential in nature and only an executed settlement agreement or alternatively a statement that the mediation proceedings were unsuccessful, should be provided to the court by the mediator Held in the case of, Moti Ram (D) Tr. LRs and Anr. Vs Ashok Kumar and Anr .

The mediation has its roots in the Arbitration and Conciliation Act, 1996, which was enacted to enforce the foreign arbitral awards and to encourage the domestic arbitration. The said Act also defines the law relating to conciliation and matters connected therewith. In fact the United

Commission on International Trade (UNCITRAL) has adopted the UNITRAL Model Law on International Commercial Arbitration in 1985. and the General Assembly of United Nations has recommended that all countries give due consideration to the said model law and rules make significant contribution to the establishment of a unified legal framework for the fair and efficient settlement of disputed arising in International Commercial relation.

According to DMC (Delhi Mediation Center) as of December 2012, DMC has settled 70,000 cases with an average rate of seventy percent.

Procedure of Mediation or Conciliation

The civil and compoundable offenses of criminal cases may refer to the mediation centers. The cases shall be assigned to the mediators as per their expertise where the step by step mediation between the parties shall be conducted. The failure to reach a settlement in the mediation reference shall not preclude the courts to again refer the case to the mediation centers The mediator is not bound by the rules of Indian Evidence Act, 1872 or by the code of Civil

Procedure, 1908 but has to maintain the principle of natural justice, fairness and justice The confidentiality is most important ingredient of the process of mediation. The principle of confidentiality was adopted in the mediation process so that in case if the process fails then the negotiations may not affect the suit in the litigation before the judge. Usually the mediator has to pass the information to the other party so that the other party may give proper explanation but if the party directs the mediator to keep it confidential then the mediator cannot convey it to the other side. The information gathered by the mediator during the course of mediation or after the perusal of any documents shall be kept secret by him. The other developments during mediation like proposals, admissions or reasons not to accept the proposals are also required keep confidential by the mediator. The rules also banned the audio or video recording of the mediation process only the summoned or essential persons like concerned parties, their attorneys can attend the sessions. These measures ensure the privacy rights of the parties. There shall be no communication between the mediator and the court to maintain the confidentiality but this rule is subject to just exceptions like about the non appearance of the party, about the consent of parties, about the assessment of the mediator regarding the unsuitability of the case referred to mediation for settlement and these communications are required to be in black and white and the copy of which is provided to the parties.

It can be studied from the literatures available that the Industrial Dispute Act,1947 was the first Act having provisions related to ADR. The conciliator was under statutory obligation to solve the dispute amicably by mediating between the parties Section 4. Conciliation Officers:- The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks fit, to be Conciliation Officers, charged with the duty of mediating in and promoting the settlement of industrial disputes. A Conciliation Officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period.

Many Legislative defects occurred from the end of Indian Government:

SECTION 89 OF THE CODE OF CIVIL PROCEDURE

As the Supreme Court in Afcons Infrastructure Ltd. vs. Cherian Varkey Construction Co. Pvt. Ltd. pointed out, in Para 9 at page 31 (Supreme Court Cases):

In Afcons Infrastructure Ltd v M/s Cherian Varkey Construction, the Supreme Court clarified that the words mediation and conciliation are used synonymously. In this commentary, the words mediation and mediator are used; they should be taken also to mean conciliation and conciliator.

Status of Mediation in USA and Israel:

USA

In USA ADR originated from English common Law, it is hypothesized that ADR first existed in New York City during Dutch and British colonial period whereupon pilgrim colonists preferred to use their own mediation process to deal with community conflicts instead of the courts. American lawyers in the first place during the growth of mediation in the US over the last twenty (20) years, by their early acceptance and use of mediation, lawyers became not only the best trained and most qualified mediators (incorporating their mediator work into their law practices), but the lawyers who did not become mediators became the gatekeepers for mediation, selecting over 80% of the cases that are mediated and choosing the mediators for such cases. Americans lawyers have adopted mediation as primary tool for settling disputes while Indian lawyers and judges are still examining mediation, discussing the efficacy of mediation in settling the disputes and still pondering on types of cases which should be dealt by the mediation They also helped in building Mediation Centers in Australia and various other continents. According to the statistics provided by the Department of Justice, in 2017, over $15 million was saved from litigation or discovery expenses, 14,000 days of attorney and staff time saved, and almost 2,000 months of litigation avoided.

Israel

In 1992 ADR was introduced in judiciary by Israel, following the amendment of the Courts Act of 1984. two commissions were appointed in the late 1990s: the Or Commission and the Gadot Commission. The Or Commission was appointed to analyze the court systems structure, and the Gadot Commission was appointed to delineate the qualification of court-appointed mediators and their training program. Current Israeli law enables anyone to be a mediator. The Rubinstein Commission (discussed below) set the qualifications for mediators participating in the mandatory mediation program.

Key factors that contributed to the growth and development of the ADR programs in India, Israel, and California include:

  • Starting with a pilot program and slowly expanding to high￾demand areas based on the performance of the pilots;
  • Educating the public about ADR and providing financial in￾centives, such as free mediation for low-income parties or waiving court costs if ADR is selected;
  • Hiring ADR professionals to staff programs. The expertiseof the program director and her ability to network with a wide range of people (judges, attorneys, disputants) were critically important to securing the support needed for all as￾pects of the programs;
  • Engaging the stakeholders—including judges, local bar and community mediation center members, and other commu￾nity partners—in the development and implementation of the respective programs;
  • Keeping consistent players, such as insurance corporations,banks, and government entities, apprised of the reforms, and attaining their feedback;
  • Ensuring quality control in the selection of and training ofmediators; and
  • Performing ongoing analysis of success through annual re￾ports, surveys, and feedback from stakeholders. 

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