In a big country like India, proper development of la and order and important changes from time to time is very important, of course , changes have been made from time to time in Indian la according to needs, but due to the being a country ith large population, there is a lots of emphasis on la and order, if e talk about pending cases in Indian courts, then according to the official data, its number in the Honourable Supreme Court is more than 70 thousands, hile in High courts, its number is about 60 lakhs, and its number in lo er courts is more than 4 crores.
Therefore, according to the present situation and needs, instead of going to the door of the courts only, e should adopt other resolution process and in our legal system, many such ays have been mentioned, through hich quick resolution of matters can be found, in such a situation, mediation is a better option.
If e look at the history of mediation in India, e find that the practice of mediation as considered to be a much older and much talked about process than other la s. This is the reason that the process of mediation is still in vogue in many villages and rural areas. Even no , people’s faith remains in mediation and many people of such villages and villages resolve their mutual disputes through mediation. The scope of Mediation in such areas is so much that people consider it a better ay than the litigation.
Legislation on Mediation
If e talk about the la on mediation, then so far there is no codified la that is dedicated only to mediation. There are some la s that talk about the process of mediation such as Section 89 of CPC hich provides the provision of ADR (Alternative Dispute Resolution) in hich there are three ays of ADR – Arbitration, Mediation, Conciliation and Lok Adalat. Under hich most civil cases are sent to the parties for ADR before the court frames the issue,
So that both parties can save time and money, if there is no talk bet een the parties through ADR, then the court again hears such cases. Most of the cases have become family disputes such as disputes bet een husband and ife, such as maintenance cases, in all the cases my court gives suggestions to the parties to resolve the case through mediation and it has been seen that such cases are easily resolved through mediation.
And both parties are treated equally during the hearing and then a decision is made that is not disturbing for both parties and is in the interest of both. Apart from family cases, there are other cases hich the court advises both parties before hearing. There have been cases of contractual disputes in hich the t o parties can sit face to face and resolve the issues.
That’s hy most companies or business partners are no delaying adding arbitration agreements hile signing their contracts, hich mentions that if there is any dispute bet een them in the future, they ill not go directly to court for ADR and resolve the arbitrage through the ADR process. Procedural Order 10 of Section 89 PF CPC states that any dispute that can be resolved through ADR.Efforts should be made to resolve them through ADR before going to court,States that that any such cases in hich both the parties can be resolved by sitting in front of it, should be resolved through ADR before taking them to court. Efforts should be made and the court should also be forced to convince the court through ADR instead of putting it in the court proceedings, in any such case in hich there is any such dispute hich can be resolved by sitting both the parties face to face.
Supreme Court on Mediation
The Honourable Supreme Court has emphasized on the promotion of ADR on many occasion and referring the parties to ADR during the hearing of the cases, it has also been considered as an important part of judicial process.
In the case of Salem Bar Association Vs Union Of India, the Honourable Supreme Court directed La Commission of India to set up a committee to draft la on Mediation.
Chief Justice of India DY Chandrachud as also critical of arbitration, stressing that arbitration in India could do better to ards promoting diversity in terms of sources and experience, and emphasized that a “gender diverse arbitrator group” should be completed. ill bring experiential learning in the process.
He said, “If the Indian legal system has to move a ay from the tag of being an Old Boys Club, the venue of arbitration can enhance the mission of providing equal opportunities to men, omen and CJI Chandrachud as speaking at the inaugural session of the “Delhi Arbitration eekend” organized by the Delhi International Arbitration Center (DIAC). The CJI said that during the pandemic, courts as ell as arbitral tribunals under ent a transformation in the justice delivery model based on e-filing of petitions, ritten submissions and introduction of virtua^l hearings.~ ~Encouraging the DIAC to draft and adopt a protocol on virtual hearings, hich is suited to the Indian context, CJI Chandrachud said that every arbitration center in India ould do ell to adopt such a protocol as the parties to arbitration are the largest ould be the beneficiaries.
He said, “Adopting such guidelines ill ensure that there is certainty in virtual hearings. It ill make the process of arbitration more efficient by eliminating protracted disagreements on procedural issues. Ultimately, it ill ensure that e do not inadvertently compromise fairness.”
The CJI also said that technology allo s arbitration to be conducted in a paperless manner, adding that arguments, ritten submissions, correspondence and most of the evidence can be provided in electronic format instead of large paper books.
Giving some suggestions to improve arbitration in India, the CJI said that it should be ensured that the parties hire more la yers Bar appoint as arbitrators and not only retired judges but other promising candidates should also be considered.
He also said that all stakeholders should ork together to ensure that arbitratio^n is done only by those ith large commercial enterprises. Dispute resolution should not be an option for the parties and that small businesses as ell as individuals should be encouraged to include arbitration clauses in their contracts.
Apart from him, During a programme in hich many ell-kno n personalities from the legal ord ere present the Honourable Supreme Court Justice Suryakant said that the scope of arbitration in India is evolving, making it a preferred destination for arbitration and dispute resolution. Justice Suryakant also said that only by establishing a sustainable environment for arbitration, businesses ould be invited and a trust orthy relationship could be built ith foreign businessmen. At a joint summit on arbitration and dispute resolution organized by the ICC, Justice Suryakant said that arbitration encourages foreign businesses to enter the Indian market and promises smooth resolution of disputes. “Conditions in India are improving and the scope of arbitration is developing, making the country a preferred destination for arbitration and dispute resolution,” a release quoted Justice Surya Kant as saying.
Further he said that Institutional Arbitration to be encouraged in India and he suggested that institutional arbitration in India should be encouraged and it ould be more dynamic and specialized ith competent expertise. A Memorandum of Understanding (MoU) as signed bet een India International Arbitration Center (IIAC) and IIM, Rohtak on the occasion.
And in the same event Supreme Court judge Justice PS Narasimha ere also present and he also stated the importance of mediation in dispute resolution, said that the volume of litigation in India is very high and it ill take a long time to clear the existing pendency. And he said that the apex court After taking oath as a judge of HC, he observed that even small cases are pending in the apex court and people are aiting for 20-25 years for disposal of those cases hich have no meaning.
Importance of Mediation
Quick and responsive: This process does not take much time and if there is a good coordination bet een both the parties, then the settlement of the matter becomes even quicker.
Economic friendly: Going ith this process, very little and a fixed financial cooperation is needed on both the sides because in this process both the parties represent themselves.
Harmonious settlement:
In this process, the decision is taken in full harmony of both the parties, in hich there is no pressure on any side, no final decision is taken in this until both the parties are completely satisfied.
Confidential and informal: In this process, the conversation and other issues bet een the t o parties are kept absolutely confidential and no such thing is made public on hich both the parties do not agree, during this process there are mediators apart from both the parties and until No other person can become a part of it until both the parties have given permission.
Control of proceedings in the hands of the parties: In this, the proceedings of the case is done ith the coordination of both the parties, if due to any reason a party cannot be present on any date, then ithout any pressure, both the parties have to determine on hich date they can be present.