Institutionalisation of Mediation: Legal Framework, Benefits & Progress

Table of contents

India’s judicial system faces an overwhelming backlog of cases, with the Supreme Court alone handling over 80,441 pending cases and crores pending in High Courts and lower courts. This backlog delays justice, erodes public trust, hampers social cohesion, and affects economic efficiency. However, this challenge presents an opportunity to institutionalise Alternative Dispute Resolution (ADR) mechanisms, particularly mediation, as an effective solution.

Judicial Backlog in India: A Comprehensive Analysis

Structural Challenges in the Judiciary

Multiple Tiers of Appeals: Cases often pass through several layers of judicial scrutiny, increasing both time and expense.
Severe Judge Shortage: With only 21 judges per million citizens (far below the recommended 50), the system struggles to meet demand.
Procedural Complexities: Frequent adjournments, interim applications, and technical delays contribute to lengthy case pendency.
Inadequate Infrastructure: Outdated technology, insufficient staffing, and poor infrastructure hamper efficient case management.

The Weight of Avoidable Litigation

Civil Matters: Property disputes, breach of contracts, and tenancy conflicts.
Commercial Issues: Disagreements involving business transactions, partnerships, & corporate contracts.
Family Conflicts: Cases concerning divorce, custody battles, and inheritance disputes.
Government-Related Litigations: Cases on land acquisition, taxation disputes, & regulatory challenges.

The Case for Mediation as a Solution

Mediation, a voluntary, non-adversarial process, offers a pragmatic approach to dispute resolution, reducing the strain on the judiciary while ensuring faster and mutually beneficial outcomes.
It is a structured, confidential, and consensual process in which a neutral third party facilitates dialogue between disputing parties to reach an agreement. Its focuses on mutual understanding and compromise rather than a win-loss verdict In the normal course of things.

Benefits of Mediation

Faster Resolution: Cases resolved through mediation take significantly less time than court trials. In run-of-the-mill cases, it doesn’t stretch beyond one session.
Cost-Effective: Mediation is cheaper than prolonged litigation, reducing legal expenses for both individuals, especially from the marginalised sections, and businesses.
Confidentiality: Unlike court proceedings, mediation discussions remain largely private, encouraging open communication.
Win-Win Outcomes: Mediation focuses on mutual satisfaction rather than a one-sided legal victory.
Reduces Court Burden: By diverting a significant number of disputes away from litigation, mediation allows judges to focus on complex cases.
Higher Compliance Rates: Since both parties have a hand in crafting the resolution during mediation, there is often a higher rate of compliance with the agreed-upon terms.

Mediation in India: Legal Framework and Progress

India has made notable progress in promoting mediation, particularly over the last two decades. According to the National Legal Services Authority (NALSA), approximately 1.1 lakh cases were resolved through mediation between April 2022 and June 2023.

Statutory Provisions Supporting Mediation

Industrial Disputes Act, 1947: Assigns conciliators the responsibility to mediate and settle industrial disputes, laying down a detailed procedure for resolution.
Code of Civil Procedure, 1908 (Amended 2002): Allows courts to refer pending civil cases, particularly family and personal matters, for mediation.
Companies Act, 2013: Empowers the National Company Law Tribunal (NCLT) and Appellate Tribunal to refer disputes to mediation.
Micro, Small and Medium Enterprises Development Act, 2006: Mandates mediation and conciliation to resolve disputes involving MSMEs.
Hindu Marriage Act, 1955 & Special Marriage Act, 1954: Requires attempts at mediation before proceeding with legal actions in marital disputes such as divorce and separation.
Real Estate (Regulation and Development) Act, 2016: Provides for amicable settlement of real estate disputes through mediation.
Commercial Courts Act, 2015 (Amendment 2018): Mandates pre-institution mediation before filing commercial suits unless urgent interim relief is required.
Consumer Protection Act, 2019: Dedicates an entire chapter to resolving disputes through mediation before approaching consumer redressal forums.
Mediation Act, 2023: This landmark legislation formally recognizes mediation as a legitimate mode of Alternative Dispute Resolution (ADR), giving legal validity to settlements, whether domestic or involving foreign parties, provided the process is conducted in India.

Challenges in Institutionalising Mediation

Lack of Awareness and Acceptance: Many litigants and lawyers prefer traditional litigation due to a lack of trust in mediation. People perceive court judgments as more authoritative and binding than mediated settlements.
Absence of a Robust Legal Framework: Unlike arbitration, mediation lacked comprehensive legal backing till recently. The absence of a clear enforcement mechanism for mediated settlements discouraged its adoption.
Reluctance of Legal Professionals: Many lawyers view mediation as a threat to their earnings from prolonged litigation (moral hazard). Judges often hesitate to refer cases to mediation, fearing it might undermine their authority.
Lack of Training and Accreditation: India lacks a standardised system for training and certifying professional mediators. The quality and competence of mediators vaies, leading to inconsistent and flawed outcomes.
Inadequate Infrastructure: Mediation centres are available only in major cities and towns, leaving large swathes of rural population underserved. Courts lack proper referral mechanisms to ensure systematic case diversion.

Measures to Institutionalise Mediation in India

More Visibility to the Legal Framework for Mediation: Ensure that the Mediation Act 2023 and the other statutory provisions in the area of Mediation are made more public through Information, Education and Communication (IECs), first-course-of-action, separately conspicuous Mediation Centres inside Court Complexes, etc. Provide clear guidelines for courts to refer cases to mediation systematically.
Expanding Mediation Infrastructure: Establish dedicated mediation centres at district and taluka levels.
Integrate technology-driven online dispute resolution (ODR) platforms for remote mediation. Ensure government support and funding to build mediation-friendly court annexures.
Training and Certifying Mediators: Introduce mandatory mediation training for judges and lawyers. Set up national accreditation standards for professional mediators. Encourage law schools to include mediation as a core subject.
Encouraging Lawyer Participation: Introduce financial incentives for lawyers to encourage mediation instead of prolonged litigation. Recognise mediation experience as a valuable professional skill in the legal profession.
Government and Judiciary Collaboration: Ensure public-private partnerships to promote ADR. Mandate government departments to resolve disputes through mediation before approaching courts. Establish mediation as a preferred mechanism in contract enforcement, consumer disputes, and land-related matters.

Global Best Practices in Mediation

Singapore: The Singapore Convention on Mediation (2019) provides international enforceability of mediated settlements. Singapore’s court-annexed mediation system successfully resolves a significant percentage of cases.
United States: The Alternative Dispute Resolution Act (1998) mandates mediation in federal cases. Mediation is widely used in commercial and family disputes.
United Kingdom: Courts actively encourage mediation, with penalties for unreasonable refusal to mediate. Mediation services are easily accessible for both civil and criminal cases.

Mediation has the potential to transform India’s legal landscape by reducing case backlogs, ensuring faster justice delivery, and fostering amicable dispute resolution. While progress has been made, institutionalising mediation requires a comprehensive legal framework, awareness, training, and infrastructure development.

Reference: The Hindu

PMF IAS Pathfinder for Mains – Question 86

Q. Judicial backlog in India is not merely a challenge but an opportunity to strengthen Alternative Dispute Resolution mechanisms. Discuss how mediation can help resolve this issue and suggest comprehensive measures to institutionalise mediation in India. (15 Marks) (250 Words)

Approach

Introduction: Highlight the scale of India’s judicial backlog with relevant statistics and its impact on the justice delivery system.
Body: Discuss mediation as an effective ADR mechanism, emphasizing its advantages, challenges, and measures. Also, add global best practices for institutionalisation.
Conclusion: Emphasise mediation as a cost-effective, efficient solution to India’s judicial backlog and its potential to foster a cooperative legal culture, backed by a relevant quote or visionary statement.